Crim PR Flashcards

Question

When are pre-trial matters considered?

Answer 1

* Pre-trial matters will be considered either (i) at a first hearing; (ii) at a hearing on a date after the first hearing and before the trial date (for example a PTPH); or (iii) on the day of trial itself, before the trial starts: * * Magistrates’ court- in simple cases, many if not all pre-trial matters can be resolved at the first hearing. * Crown Court- there will be at least one hearing, the PTPH, to deal with pre-trial matters. In complex cases, the Crown Court may hold a preliminary hearing soon after the first hearing to ensure the PTPH is effective.

Answer 2

(i) 'plea’; and (ii) either 'sentence' or 'trial preparation’: * At plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment. * At the end of the trial preparation stage, the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial.

Answer 3

* 'Pre-trial matters' are all those matters that can be resolved pre-trial, as the name would suggest. The term covers a wide range of issues including, for example, selecting a trial date, applying for a witness summons or resolving legal arguments.

Answer 4

* Where a trial takes place in the magistrates' court the parties will be expected to deal with case management issues at the first hearing. There is a magistrates' court case management form that the court will expect parties to complete before the first hearing commences. * At the first hearing the court will give directions for: · service of documents between the parties (should any be needed) · either resolve there and then any matters of law (rarely) or set out a timetable as to when they will be resolved either at a pre-trial hearing or on the morning of trial. * The court will also set a trial date. * If the magistrates' court holds a pre-trial hearing to for example, decide the admissibility of a piece of evidence, that ruling is binding on the magistrates' court that hears the trial (whether composed of the same lay justices/District Judge, or not, unless one party applies for the ruling to be discharged or varied).

Answer 5

* Where the magistrates' court sends the case for trial to the Crown Court: * It must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days of the sending. * The magistrates’ court will complete a ’sending sheet’- a notice specifying the offences for which the defendant is being sent and the Crown Court where the defendant will be tried. This notice should be sent to the defendant and the Crown Court. There is no prescribed form for such a notice. * Evidence must be served within: · 50 days (if the defendant is in custody); or * Accelerated because you must have your trial within 6 months if you are in custody · 70 days (if the defendant is on bail) * of the date on which the defendant has been sent for trial in the Crown Court. * Evidence is uploaded on to the Crown Court Digital Case System: i.e. copies of the documents containing the evidence on which a charge is based. * Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence.

Answer 6

* The PTPH is the main, and often only, pre-trial Crown Court hearing. For those cases sent to the Crown Court where a preliminary hearing is not required, the first hearing in the Crown Court will be the PTPH. The purpose of the PTPH is to enable the defendant to enter their plea and, if the defendant is pleading not guilty, to enable the judge to give further case management directions for the CPS and the defendant’s solicitor to comply with prior to trial. Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take place within 20 business days after sending.

Answer 7

* If the judge has determined that the defendant is unfit to plead (a judge can make that determination after hearing medical evidence), then no plea is taken. * The court will have to hold a trial with a jury to determine whether the defendant committed the act (i.e. the actus reus of the offence, but not mens rea) and so the 'trial preparation’ stage of the hearing will need to take place. * Please note that a defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to: · an absolute discharge · supervision order; or · a hospital order.

Answer 8

* If the defence want to make an application to dismiss the charges, they must do so before a plea is taken. * At the plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment. * If the defendant pleads guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the case moves to sentence. * If the defendant pleads not guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the court proceeds to the 'trial preparation' of the hearing. * Where a defendant enters at least one guilty plea and at least one not guilty plea on an indictment consisting of two or more counts: the prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if there is to be a trial the 'trial preparation’ stage needs to take place.

Answer 9

* Standardised directions will apply for dealing with matters such as: · Special measures. Directions will apply for any special measures (such as live link and screens) sought by witnesses. · Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses. · Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application. · Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial. · Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear. · Defence statement. The defence must serve a defence statement at stage 2 which sets out the defence case. · Disclosure. If there are issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal with this. · Defendant's interview. A timetable will apply for the prosecution and defence to agree an edited interview record for use at trial. · Hearsay. Directions will apply on the service of applications to rely on hearsay evidence. · Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will be made (e.g. at or before trial) and on the service of any documents in support, such as skeleton arguments. * At the end of the hearing the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial (although this may only become apparent at some later stage). Where a party fails to comply with any directions, they may be required to come to court and explain their failure to do so. The expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.

Answer 10

· The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA) · Live TV link (where the witness sits in a room away from the courtroom) (s.24) · Giving evidence in private (public gallery cleared) (s.25) · Removing wigs and gowns by barristers and judges (s.26) · Video recording of evidence in chief (s.27) · Pre-recording cross-examination and re-examination (s.28 – partially in force) · Questioning of a witness through an intermediary (s.29) · Aids to communication (s.30) · Witness Anonymity Orders (Coroners and Justice Act 2009 Part 3 Chapter 2) · Automatic anonymity of complainants in sex cases (Sexual Offences (Amendment) Act 1992) · Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences (YJCEA ss.34 to 38) · Restricting the reporting of witnesses' identity (YJCEA s.46)

Answer 11

· All witnesses aged under 18 at the time of trial (or video recording) are automatically eligible (s.16 YJCEA). · Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible where the court considers that due to any such matter the quality of their evidence is likely to be diminished (s.16 YJCEA). · Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this (s.17 YJCEA). · All adult complainants of sexual offences (s.17 YJCEA). · All adult complainants in certain offences under the Modern Slavery Act 2015(including forced labour and human trafficking). · All witnesses in a case involving a 'relevant offence', namely serious offences, including offences of homicide or involving firearms or knives (s.17 and Sch 1A YJCEA).

Answer 12

* A defendant who has pleaded not guilty can, at any time before the jury return their verdict, ask through their Counsel that the 'indictment be put again' (or charge sheet in the magistrates' court). The clerk will read the indictment and the defendant can plead guilty. This usually happens before trial but from time to time a defendant might decide midway through a trial that they want to end the process by pleading guilty. It is rare, but it can and does (occasionally) happen. Usually though, defendants change their minds on the day of trial either for tactical reasons or because they were hoping that prosecution witnesses would not attend to give evidence, but realise they now have. Strictly speaking, you need the leave of the judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient. If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.

Answer 13

* Defendants who plead guilty can, at any time before they are sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was unequivocal the discretion to allow it to be changed still exists. * Where a defendant has been represented properly a court would invariably reject the application to vacate their guilty plea and allow them to enter a fresh not guilty plea. * Represented properly means: · proper advice has been given to the defendant; · no undue pressure has been exerted on the defendant; and · the defendant’s plea was clearly unequivocal. * An application of this nature will frequently feature a defendant waiving privilege (considered in another element) to establish matters such as the nature of the advice they acted upon. * In practice, then, although it is always a matter for the court, the two most common scenarios in which the rarely exercised discretion will properly be applied are where either: · The defence can show that the prosecution has no evidence of an essential ingredient of the offence; or · The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team. * Both of those scenarios are likely to result in criticism of Counsel who appeared when the defendant pleaded guilty and perhaps the solicitor too. It is therefore usual practice that Counsel or both Counsel and the solicitor withdraw from the case and the defendant seeks fresh representation. Where that happens, defendants may want to give evidence of their conference with Counsel or seek that Counsel explain how and why they advised the defendant to plead guilty. Both require the defendant to waive legal privilege.

Answer 14

relied upon at trial

Answer 15

not relied upon at trial

Answer 16

is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor's request. In Crown Court cases the disclosure officer prepares an MG6C which individually lists the items of unused material. In magistrates' court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

Answer 17

varies depending on whether proceedings are commenced, whether the defendant is convicted, what sentence the defendant received or whether an appeal against conviction is in progress.

Answer 18

where there is in existence prosecution material which might help the defence then it should be disclosed

Answer 19

· The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing

Answer 20

* Disclosure of unused material by the prosecution arises in the magistrates' court only when a defendant pleads not guilty and the case is adjourned for summary trial and in the Crown Court when a defendant is sent for trial.

Answer 21

o The general scheme of disclosure falls into four stages:  the investigation stage- the duty to record and retain material during the investigation;  the initial duty of disclosure on the prosecution;  defence disclosure; and  the continuing duty on the prosecution to keep disclosure under review.

Answer 22

* The duty to retain and record relevant material o Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained. o Every investigation will have: · an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material; · an investigator- namely any police officer conducting the investigation; and · a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor's request. o In routine cases all these functions may be carried out by the same person, although in complex cases the roles will be individually assigned. · The investigator- must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be 'fair and objective’. · Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor. o All material which may be relevant to a criminal investigation must be retained. This includes, in particular: · crime reports · records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender · witness statements (and drafts if they differ from the final version) · exhibits · interview records · experts' reports and communications between the police and experts for the purposes of criminal proceedings · records of first descriptions of suspects and any material casting doubt on the reliability of a witness. o In addition, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession. o The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence. o Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case. o Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction. o In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material. * Provision of unused material to prosecutor o The Disclosure Code of Practice sets out a procedure for the Prosecutor to be notified by the disclosure officer of every item of Unused Material. · In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material. · In magistrates' court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate. o In cases involving sensitive material (ie material the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.  Sensitive material exampled – MI5 nuclear codes o Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.  This will include ensuring that all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure can be made in accordance with the test set out on the next page.  It is worth noting that the disclosure officer should exercise judgement and be directed by the prosecutor as to what is likely to be the most relevant and important material for disclosure.

Answer 23

 ‘s 3(1) The prosecutor must: * disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might **reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused**, or * give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’  The duty of disclosure relates to 'prosecution material' – this is defined in s.3(2)as material: * '(a) which is in the prosecutor's possession, and came into his possession in connection with the case for the prosecution against the accused, or * which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’ o The A-G's Guidelines add further detail to the disclosure test, namely that in deciding whether or not material should be disclosed under s.3 CPIA, prosecutors should consider, amongst other things:  the use that might be made of the material in cross-examination;  its capacity to support submissions that could lead to:  the exclusion of evidence;  (ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;  (iii) a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the ECHR.  its capacity to suggest an explanation or partial explanation of the accused's actions;  the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant's mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody). o As such, when considering if unused material must be disclosed, prosecutors must take into account all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case.

Answer 24

sufficient information to allow the defendant and the court at this first hearing to take an informed view:  on plea;  on venue for trial (for either-way offences);  for the purposes of case management;  for the purposes of sentencing (including committal for sentence for either-way offences).

Answer 25

· in the magistrates' court only when a defendant pleads not guilty and the case is adjourned for summary trial; and · in the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant (s.1 CPIA).

Answer 26

at the first hearing in the magistrates' court, where a defendant pleads not guilty and the case is adjourned for summary trial: · if there is any further prosecution evidence still to be served the court will give a date by which this must be done. · if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed. * In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.

Answer 27

o If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged. At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done. o Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, this does not bring to an end the prosecution's duty in this regard because the prosecution is under a continuing duty to review disclosure throughout the criminal proceedings.  REMEMBER IT LASTS THROUGHOUT THE WHOLE CRIM PROCEEDINGS o Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates' court) to provide a defence statement which sets out the accused's defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.

Answer 28

written statement which sets out the nature of the accused's defence with reasonable clarity * A defendant must serve a defence statement in the Crown Court but not in a magistrates’ court.

Answer 29

· The jury may draw such adverse inferences as appear proper · The prosecution or co-defendant may comment on such a failure

Answer 30

· The defendant will not be able to make an application for specific disclosure · The prosecution will not have the opportunity to review disclosure in light of the issues

Answer 31

in the Crown Court and magistrates’ court, the defendant must disclose to the court and the prosecutor a notice indicating if D intends to call any witnesses at trial (other than D) and if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.

Answer 32

* A defendant must do so within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in the Crown Court; or * A defendant must do so within 10 business days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so) in a magistrates’ court.

Answer 33

a defence statement must contain:  '6A Contents of defence statement  For the purposes of this Part a defence statement is a written statement— * setting out the nature of the accused's defence, including any particular defences on which he intends to rely, * indicating the matters of fact on which he takes issue with the prosecution, * setting out, in the case of each such matter, why he takes issue with the prosecution, and * setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and * indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose. o A defence statement that discloses an alibi must give particulars of it, including:  the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;  any information in the accused's possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.'

Answer 34

* Crown Court o A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court (CrimPR r.15.4(2)) within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so). o This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days. * Magistrates’ court o In the magistrates' court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates' court provide that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates' court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.

Answer 35

o the nature of the accused's defence (alibi); o those matters of fact on which D takes issue with the prosecution (that D attacked the complainant Stephen Holmes/correctness of the identification); o why D takes issue (because D was not present); o any points of law D wishes to take including authority in support (breach of Code D on Identification/s.78 PACE); o particulars of alibi witness (D’s mother's name, address and date of birth).

Answer 36

o A number of consequences may follow, where a defendant in the Crown Court:  fails to serve a defence statement  fails to do so within the required time limits  serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)  relies on a defence at trial which is different to that contained in the defence statement  fails to give notice of defence witnesses. o Under s.11 CPIA the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference. o In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required. o Section 6E(2) CPIA provides that a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn. o Similarly, the A-G's Guidelines state that 'Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’ (para 33). o Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference. o However, if the choice is made to serve a defence statement in the magistrates' court, an adverse inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of time or for putting forward a different defence at trial to that contained in the defence statement. o In the magistrates' court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA. o If a defence statement is not served in the magistrates' court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA. o Moreover, failure to serve a defence statement in either the magistrates' court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.

Answer 37

it lasts until the defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.

Answer 38

defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed, as long as a defence statement has been served and the prosecution have either provided further disclosure or notice of no further disclosure.

Answer 39

can lead to abuse of process applications, quashed convictions, wasted costs orders, refusal to extend custody time limits, exclusion of evidence.

Answer 40

if there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material.

Answer 41

the prosecution must make this application if it does not wish to disclose material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.

Answer 42

o Under s.8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed. o This is commonly known as a 'section 8 application' or an 'application for specific disclosure'. o To make an application for specific disclosure, the defendant must have served a defence statement (in the magistrates' court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made (s.7A(5) CPIA).  Note that failure to serve a defence statement (even in the magistrates' court where there is no statutory obligation to do so) will mean that an application for specific disclosure cannot be made. o As such the defence statement must set out the issues clearly as a prerequisite to applying under s.8 for specific disclosure. The procedure is governed by CrimPR r.15.5 – the defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:  that the prosecutor has the material; and  that it is material that should be disclosed under the CPIA. o The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application. o It is worth noting that applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.

Answer 43

· The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court. · It could result in a conviction being quashed on appeal due to being unsafe. · It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits. · It could also potentially result in the exclusion of evidence in the case due to unfairness. o Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.

Answer 44

person being arrested and brought before the magistrates' court. In the alternative, the magistrates' court issues a written charge and requisition to secure their attendance. * They are asked to enter a plea:  If they plead guilty, the court moves to sentence.  If they plead not guilty, there is a trial and the court comes to a verdict.  If the verdict is guilty, the defendant must be sentenced.  If they are not guilty, the defendant is acquitted of the charge and is free to go. * A person who is sentenced following either a guilty plea or verdict may appeal. * If the defendant pleads guilty the court will proceed to sentence. Sentence will often be passed immediately but can be adjourned for further information. The * If the defendant pleads not guilty then the court will set a trial date and do any necessary case management to ensure that the trial is effective on that date. This includes completing the case progression form 'Preparation for Effective Trial form' ('PET’):  the defendant’s and legal representative’s contact details;  names, numbers, types of witness and which party requires their attendance at court;  the estimated length of trial;  identification of trial issues;  advance warning whether any applications are to be made (e.g. special  measures, bad character and hearsay);  whether any prosecution statements can be read;  whether any special arrangements need to be made  (e.g. interpreter, wheelchair access, hearing loop system) for anyone attending the trial, and that the defendant advocate has advised D of credit for early guilty plea and  that trial will go ahead in D’s absence if D fails to attend on the trial date. * Setting out what the issue(s) at trial will be and which witnesses are required to give live evidence allows the court to actively manage the case, by ensuring that only those witnesses whom the defence want to challenge on their evidence come to court. * The court should set a timetable for the trial and an estimate of how long the trial will take. Magistrates' courts are encouraged to scrutinise with the utmost vigour any time estimate in excess of a day for a summary trial. * Most courts have standard directions about how the parties should prepare the case. These standard directions must be complied with unless the magistrates direct otherwise. * Directions (standard or otherwise) usually concern issues pertaining to bad character evidence, hearsay evidence, special measures to protect witnesses when they are giving evidence, disclosure, expert evidence, editing transcripts of interviews and serving certificates of readiness for trial. The magistrates’ court also has a case progression officer to monitor directions made by the court. In addition, both CPS and defence advocates must indicate a nominated person in their respective offices who will be responsible for complying with the directions.

Answer 45

o Defendants in criminal proceedings can either fund their defence privately or make an application to the Legal Aid Agency for public funding. o The availability of public funding has decreased sharply over the last decade and litigants in person are more common now than they once were. o An application for funding must be made on the prescribed form which asks for a number of personal details, including a detailed breakdown of income and expenses. Evidence is almost always required to substantiate the financial information that a defendant states on the form. A designated official at the magistrates' court considers applications. The official uses a two-stage test based on whether it is in the interests of justice and considering the defendant's means. Both parts must be satisfied for public funding to be granted. Section 17 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets out the criteria that comprise the 'interests of justice'. Factors such as the likelihood of a defendant losing their liberty or being unable to understand proceedings must be taken into account. The means test requires a defendant's means to be below a prescribed amount which varies from time to time. o Defendants are not able to make an oral application directly to a judge or lay magistrates save for particular circumstances:  a An application can be made to the lay magistrates where legal aid has been refused by the designated official.  An application can be to a Crown Court judge where a person is charged with contempt of court, where a person is in breach of a court order and there is no time to instruct a solicitor or where a defendant is brought to court on a warrant for their arrest. * These three circumstances share the characteristics that they arise with some urgency and it allows the court to appoint counsel to represent an individual immediately

Answer 46

 a)Summary only offences;  b)'Either-way' offences (also known as 'indictable' offences, in other words, capable of being tried on indictment); and  c) 'Indictable only' offences.

Answer 47

o CCS 1.4 states that, 'You must not mislead or attempt to mislead your client, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client). o If your client insists on a course of action which would or could lead to you misleading the court then you would have to stop acting for him. o CCS 2.1 You do not misuse or tamper with evidence or attempt to. o CCS 2.2 You do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence. o CCS 1.4 You must not call a witness whose evidence you know is untrue. o CCS 2.7 you must draw to the court's attention relevant cases and statutory provisions or procedural irregularities of which you are aware and which are likely to have material effect on the outcome of proceedings

Answer 48

 D entering a not guilty plea is NOT in itself misleading the court. The defendant is perfectly within their rights to sit back and wait for the prosecution to do just that. It may well be that the prosecution is unable to prove a vital element of the offence with which the defendant is charged. Provided the defendant does nothing to actually maintain their innocence your position as their solicitor is not in jeopardy.  You are not misleading the court as you are not allowing them to put forward false evidence. If, however, you conducted the case in any way as to suggest they had not committed the crime then you would be misleading the court; for example, by suggesting to a prosecution witness that they were mistaken in their identification of the defendant (when clearly they were not…)

Answer 49

o All suspects are entitled to free legal advice at the police station regardless of their means.

Answer 50

o Entitled to legal aid (free legal advice) if they plead guilty at first appearance and it is an imprisonable offence o Once your client has been charged you need to arrange funding for their court appearance. o If they are not paying privately then the cost of their defence may be covered by public funding through the Legal Aid Agency. o In order to obtain a ‘representation order’ a defendant must pass two tests:  the means test; and  the merits test (the ‘interests of justice’ test)

Answer 51

o Some defendants are ‘passported’ meaning they automatically pass the means test and do not have to complete the Financial Statement for Legal Aid in Criminal Proceedings (CRM 15) form:  defendants under 18 years of age; and/or  those on specified welfare benefits such as Universal Credit and income-based jobseeker’s allowance. * All other defendants have to demonstrate their eligibility but the means test differs depending on whether the case is tried in the magistrates’ court or Crown Court.

Answer 52

o An initial assessment works out their weighted gross annual income i.e. the applicant’s gross annual income is generally added to any partner’s (unless the partner is the complainant, a prosecution witness or a co-defendant in conflict with the applicant). A weighting is applied to take into account the number of people living in the household. Once this figure is calculated the applicant will:  Be eligible for public funding- if below the lower threshold i.e. at present if the weighted gross annual income is £12,475 or less  Be ineligible for public funding- if above the upper threshold i.e. at present, if the weighted gross annual income is £22,325 or more  Be required to undertake a full means test (form CRM15)- if in between the lower and upper thresholds i.e. at present, more than £12,475 and less than £22, 325. The full means test will establish the applicant’s annual household disposable income- if it is below the threshold the applicant will be funded (at present if the annual household disposable income threshold is £3,398 or less).  The applicant can apply for an eligibility review if they have failed the means test or hardship review if for example they have unusually high outgoings or defence costs.

Answer 53

o The applicant is assessed on their income and capital, including any equity in properties owned by the applicant. o After a combined capital and equity allowance of £30,000, applicants can be required to contribute any balance towards their defence costs. o The outcome of the assessment may require defendants to pay:  All  some; or  none of the costs of defending their case. o If a contribution towards their defence costs are required, it can come from income (payable throughout the case) and/or capital (payable at the end, if any income contributions have not covered the defence costs). o In relation to the applicant’s annual household disposable income, the applicant will be:  ineligible for public funding- if above the eligibility threshold i.e. £37,500 or more at present.  eligible for public funding without any contribution- if below the threshold i.e. £3, 398 or less at present.  eligible for public funding with a contribution- if in between the thresholds i.e. between £3,399 and £37,499.99 at present. The income based-contribution is 90 percent of disposable income for a maximum of six months in instalments and subject to a maximum based on the type of offence (refunded with interest if the defendant is acquitted). o The applicant can apply for an eligibility review if they have failed the means test or a hardship review if subject to a contribution order e.g. if the applicant suspects an error or circumstances have changed.

Answer 54

o In order to pass the merits test the defendant must complete a form (CRM14- Application for Legal Aid in Criminal proceedings) in order to demonstrate that it is in the interests of justice for them to be legally represented. o defendant will automatically pass the interests of justice test if:  charged with an indictable-only offence;  or an either-way offence is later sent to the Crown Court. o The interests of justice test requires the defendant to provide information in support all or some of the 10 propositions in the application form. The purpose of the 10 propositions is to evaluate whether the matter is so serious or complicated that the defendant could not conduct their own defence.

Answer 55

o 1. I will lose my liberty o 2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence. o 3. It is likely I will lose my livelihood o 4. It is likely I will suffer serious damage to my reputation o 5. A substantial question of law may be involved o 6. I may not be able to understand the court proceedings or present my own case o 7.Witnesses may need to be traced or interviewed on my behalf o 8. The proceedings may involve expert cross examination of a prosecution witness o 9. It is in the interests of another person that I am represented o 10. Any other reasons

Answer 56

o Once a representation order is granted, a solicitor can start working on preparing the case in the magistrates’ court and in due course, will be able to claim for:  Preparation, including taking instructions, interviewing witnesses, assessing the prosecution case, advising on plea and mode of trial, preparing and perusing documents, dealing with letters and telephone calls which are not routine, preparing for advocacy, instructing counsel in the Crown Court, instructing expert witnesses, conferences, consultations, views, and work done in connection with advice on appeal or case stated.  Advocacy, including applications for bail and other applications before the court.  Routine letters and telephone calls.

Answer 57

o If the defendant:  Fails the means test- there is no right of appeal but they can submit another form if their circumstances have changed.  Fails the merits test in the magistrates’ court- they can submit another application and if unsuccessful, can appeal to the magistrates’ court.  If the defendant fails either or both tests they may consult with the duty solicitor, provided they are charged with an imprisonable offence. However, the duty solicitor can only represent them on one occasion – usually the first hearing at court.  Defendants can instruct a solicitor privately if they do not qualify for public funding.  Alternatively, the defendant would have to represent themselves with the assistance and support of the court.

Answer 58

Assault * Battery * Simple criminal damage where the value is £5,000 or less is treated as summary only. An attempt to commit simple criminal damage £5,000 or less is treated as summary only. Attempt to commit a summary only offence * Assault and battery cannot be the object of a criminal attempt (as summary only offences).

Answer 59

Theft- s 1 Theft Act 1968 * Burglary- s 9(1)(a) or s 9(1)(b) Theft Act 1968 * Fraud: - by false representation - by abuse of position - by failing to disclose * Assault occasioning actual bodily harm- s 47 Offences Against the Person Act (OAPA) 1861 * Wounding or inflicting grievous bodily harm- s 20 OAPA 1861 * Simple criminal damage where the value exceeds £5,000 * Simple arson Attempts to commit either-way offences will be triable either way.

Answer 60

* Robbery- s 8 Theft Act 1968 * Wounding or causing grievous bodily harm with intent- s 18 OAPA 1861 * Aggravated burglary- s 10 Theft Act 1968 * Aggravated arson * Aggravated criminal damage * Murder- where a verdict of voluntary manslaughter can be a possible outcome * Involuntary manslaughter: - unlawful act manslaughter - manslaughter by gross negligence Attempts to commit indictable only offences will be triable only on indictment.

Answer 61

The representation order granted to a defendant for a summary- only matter, or an either- way matter which is dealt with by the magistrates’ court, will cover all the work done by the solicitor in connection with those proceedings in the magistrates’ court, and may be extended to cover an appeal to the Crown Court against conviction and/ or sentence. If, for an either- way matter, the magistrates decline jurisdiction or the defendant elects trial in the Crown Court (see Chapter 6), the representation order will extend automatically to cover the proceedings in the Crown Court. A representation order granted in respect of an offence that is triable only on indictment will cover proceedings in both the magistrates’ court and the Crown Court.

Answer 62

The solicitor’s role at this stage involves taking the following steps: (a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf (unless the client is paying for their legal costs privately); (b) obtaining details of the prosecution case from the CPS (for summary and either- way offences); (c) taking a statement from the client; (d) advising the client on the strength of the prosecution evidence and the plea the client should enter (for summary and either- way offences); and (e) in the case of an either- way offence where the client is indicating a not guilty plea, informing the client that their case may be dealt with either by the magistrates’ court or by the Crown Court, and advising the client about the advantages and disadvantages of each court; and (f) making an application for bail, where necessary

Answer 63

After the solicitor has obtained details of the prosecution case, the defendant’s solicitor will then need to take further instructions from their client. The following matters will have to be discussed: (a) The client’s response to the prosecution case. Each prosecution witness statement needs to be discussed with the client and an accurate note taken of any points of dispute. This note should then be added to the client’s statement. The solicitor should also listen to the record of the audibly recorded interview to check that the transcript which has been provided is accurate. If the client made any admissions when interviewed, the solicitor needs to take instructions from the client – are the admissions correct, or did the client make admissions because of the manner in which the interview was conducted or just to get out of the police station as quickly as possible? Does the client come across well on the audio recording (in which case, should the solicitor ask for the interview to be played out at trial rather than the transcript being read out)? Are there grounds on which an application may be made to the court to exclude the interview record from being used in evidence at trial? (See Chapter 9.) (b) The strength of the prosecution case. Whilst it is the client’s decision as to the plea they will enter, if the prosecution case is overwhelming, the solicitor should inform the client of this and remind the client that they will be given credit for entering an early guilty plea when they are subsequently sentenced (c) Whether it is necessary to obtain any further evidence in support of the defendant’s case. For example, in light of the prosecution evidence which has been disclosed, the client may recall the identity of other witnesses who could give evidence on their behalf. (d) Where the client has been charged with an either- way offence and is pleading not guilty, if given the choice, whether they should elect to be tried in the magistrates’ court, or before a judge and jury in the Crown Court (see below). The ultimate decision the client will need to take once the CPS has disclosed details of its case is what plea to enter. This is the client’s decision, not the solicitor’s. As mentioned in (b) above, as part of the duty to act in the best interests of the client, the solicitor should give the client their view of the strength of the evidence against them. It is also appropriate for the solicitor to advise the client that, when it comes to sentencing, the client will receive a reduced sentence for entering an early guilty plea.

Answer 64

If the magistrates consider that an either- way case is suitable for summary trial, the defendant will then have a choice as to whether they want the trial to take place in the magistrates’ court or the Crown Court. The defendant’s solicitor must advise them about the factors in favour of each venue.

Answer 65

(a) the defendant is sent to the Crown Court for trial for a related offence; (b) the defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence; (c) the defendant is charged jointly, or charged with a related either- way offence, with a youth defendant who is sent to the Crown Court for trial. In all other cases where a not guilty plea is indicated (or where the defendant refuses to enter a plea, as they are entitled to do), the court must determine whether the offence appears more suitable for summary trial or trial on indictment, ie make a decision as to allocation (Magistrates’ Courts Act 1980, s 19(1)).

Answer 66

The procedure, which is set out in the amended ss 19 and 20 of the Magistrates’ Courts Act 1980, is as follows: (a) The prosecution will inform the court of facts and the defendant’s previous convictions (if any) (s 19(2)(a)). (b) The magistrates shall consider: (i) any representations made by the prosecution or defence, as to whether summary trial or trial on indictment would be more suitable (s 19(2)(b)); and (ii) whether the sentence which they would have power to impose for the offence would be adequate (s 19(3)(a)); and (iii) the Allocation Guideline issued by the Sentencing Council. The Allocation Guideline states that, in general, either- way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. In addition, it states that the court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case, including those advanced by the defence. The magistrates will do this by considering the Magistrates’ Court Sentencing Guidelines (MCSG) for the relevant offences. (c) In considering the adequacy of its sentencing powers when dealing with two or more offences, the court should consider its potential sentencing powers in the light of the maximum aggregate sentence the magistrates could impose for all the offences taken together, if the charges could be joined in the same indictment or arise out of the same or connected circumstances (s 19(4)). (d) If the court decides that the offence appears more suitable for trial on indictment, the defendant is sent forthwith to the Crown Court (Magistrates’ Courts Act 1980, s 21). (e) If the court decides that the case is more suitable for summary trial, it must explain to the defendant that: (i) the case appears suitable for summary trial; (ii) they can consent to be tried summarily or choose to be tried on indictment; and (iii) if they consent to be tried summarily and are convicted, they may be committed to the Crown Court for sentence (Magistrates’ Courts Act 1980, ss 20(1) and (2)). (f) At this stage, the defendant may request an indication of sentence, ie an indication of whether a custodial or non- custodial sentence would be more likely if they were to be tried summarily and plead guilty. It should be no more specific than that (Magistrates’ Courts Act 1980, ss 20(3)– (7) and 20A; CrimPR, Part 9). Under s 20A(1) of the Magistrates’ Court Act 1980, where the case is dealt with in accordance with s 20(7), no court (whether a magistrates’ court or not) may impose a custodial sentence for the offence unless such a sentence was indicated in the indication of sentence referred to in s 20. Further, s 20A(3) states that, subject to subsection (1), an indication of sentence shall not be binding on any court (whether a magistrates’ court or not), and no sentence may be challenged or be the subject of appeal in any court on the ground that it is not consistent with an indication of sentence. (g) The court may, but need not, give an indication of sentence. It would appear that the court cannot give an indication of sentence unless the defendant requests one. If the court gives an indication of sentence, the court should ask the defendant whether they want to reconsider the earlier indication of plea that was given. (h) If the defendant indicates that they want to plead guilty, they are treated as if they had been tried summarily and pleaded guilty. In these circumstances, an indication of a non- custodial sentence will generally prevent a court from imposing a custodial sentence for the offence. (i) If the defendant does not change their plea to guilty, the indication of sentence shall not be binding on any court, and in these circumstances no sentence may be challenged or be the subject of appeal in any court because it is not consistent with an indication of sentence. Equally, an indication of a custodial sentence does not prevent the court from imposing a non- custodial sentence. (j) Where the court does not give an indication of sentence, whether requested to do so or not, or the defendant does not indicate that they want to reconsider the indication of plea or does not indicate that they would plead guilty, the court must ask the defendant whether they consent to summary trial or wish to be tried on indictment (Magistrates’ Courts Act 1980, s 20(8) and (9)) (k) If the defendant consents to summary trial, the court shall proceed to summary trial (Magistrates’ Courts Act 1980, s 20(9)(a)). (l) Under s 25 of the Magistrates’ Court Act 1980, the prosecution (not the defence) are allowed to make an application, before summary trial begins and before any other application or issue in relation to the summary trial is dealt with, for an either- way offence allocated for summary trial to be sent to the Crown Court for trial. The court may grant the application only if it is satisfied that the sentence which a magistrates’ court would have power to impose for the offence would be inadequate. Where there is a successful application by the prosecution for the offence to be tried on indictment, the case will be sent forthwith to the Crown Court for trial. (m) If the defendant does not consent to summary trial, they must be sent forthwith to the Crown Court for trial (Magistrates’ Courts Act 1980, s 20(9)(b)).

Answer 67

Occasionally a defendant who is charged with more than one either- way offence will indicate different pleas at the plea before venue hearing. The defendant may indicate a plea of guilty to one offence, but a plea of not guilty to the other. In such circumstances, the magistrates will proceed with the allocation hearing in respect of the offence to which the defendant has indicated a not guilty plea. If, at the allocation hearing, the magistrates accept jurisdiction (and the defendant does not elect trial at the Crown Court), the magistrates will either sentence the defendant immediately for the offence to which they have pleaded guilty, or adjourn sentence until the end of the trial of the offence to which they have entered a not guilty plea. If, at the allocation hearing, the magistrates decline jurisdiction (or the defendant elects trial at the Crown Court), the magistrates will send the offence to which the defendant has entered a not guilty plea to the Crown Court for trial. In this situation, the magistrates will then have a choice as to what to do with the offence to which the defendant has pleaded guilty. They may either sentence the defendant themselves or commit the defendant to the Crown Court for sentence.

Answer 68

In certain circumstances, either- way offences will be sent straight to the Crown Court in accordance with s 50A of the CDA 1998. These circumstances are as follows: (a) Where notice, in serious or complex fraud cases, has been given by the DPP under s 51B of the 1998 Act. Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, and the evidence reveals a case of fraud of such seriousness or complexity that the management of the case should without delay be taken over by the Crown Court. (b) Where a notice, in certain cases involving children, has been served under s 51C of the CDA 1998. Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, a child will be called as a witness and that for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceed without delay by the Crown Court. The offences to which this procedure applies include assault or threat of injury to a person, child cruelty, certain sexual offences, kidnapping, false imprisonment and child abduction. (c) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which the same defendant is being sent to the Crown Court. Where a defendant is sent to the Crown Court for trial for an offence triable only on indictment, or for an offence in respect of which notice has been given under ss 51B or 51C of the CDA 1998, the court must at the same time send the defendant for trial for any either- way offence which appears to the court to be related (s 50A(3)(a)). However, where the defendant appears on the related either- way charge on a subsequent occasion, the court may send them for trial. (d) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which another defendant is being sent to the Crown Court (s 50A(3)(a)).In certain circumstances, either- way offences will be sent straight to the Crown Court in accordance with s 50A of the CDA 1998. These circumstances are as follows: (a) Where notice, in serious or complex fraud cases, has been given by the DPP under s 51B of the 1998 Act. Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, and the evidence reveals a case of fraud of such seriousness or complexity that the management of the case should without delay be taken over by the Crown Court. (b) Where a notice, in certain cases involving children, has been served under s 51C of the CDA 1998. Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, a child will be called as a witness and that for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceed without delay by the Crown Court. The offences to which this procedure applies include assault or threat of injury to a person, child cruelty, certain sexual offences, kidnapping, false imprisonment and child abduction. (c) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which the same defendant is being sent to the Crown Court. Where a defendant is sent to the Crown Court for trial for an offence triable only on indictment, or for an offence in respect of which notice has been given under ss 51B or 51C of the CDA 1998, the court must at the same time send the defendant for trial for any either- way offence which appears to the court to be related (s 50A(3)(a)). However, where the defendant appears on the related either- way charge on a subsequent occasion, the court may send them for trial. (d) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which another defendant is being sent to the Crown Court (s 50A(3)(a)).

Answer 69

the hearing at which case management directions are given

Answer 70

The case management directions are standard directions, although the court may vary them if necessary. The directions allow the parties eight weeks to prepare the case for trial (or 14 weeks when expert evidence is required). There is a standard form used to record these directions called the Magistrates’ Court Trial Preparation Form. The blank form used to record the directions is reproduced at 8.5 below. You will see that Parts 1 to 4 of the form require the prosecution and the defence to provide very detailed information about how they will prepare for and conduct the trial. This is to ensure the trial is effective on the date that has been fixed for trial. Part 5 of the form contains all the decisions and directions made by the court.

Answer 71

The CrimPR contain standard case management directions that the magistrates’ court will issue when a case is sent for trial to the Crown Court. In some limited circumstances, however, when an offence triable only on indictment is sent for trial, a preliminary hearing may take place at the Crown Court. If such a preliminary hearing is needed, any directions necessary will be given by the judge at this hearing. A preliminary hearing will take place for an offence triable only on indictment if: (a) there are case management issues which the Crown Court needs to resolve; (b) the trial is likely to exceed four weeks; (c) it is desirable to set an early trial date; (d) the defendant is under 18 years of age; or (e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing. A preliminary hearing must take place within 10 business days of the date on which the magistrates send the case to the Crown Court.

Answer 72

At the start of the PTPH the defendant will be arraigned. This means that the count(s) on the indictment will be put to the defendant who will either plead guilty or not guilty (see Chapter 10). If the defendant pleads guilty to some counts but not guilty to others, the jury at the defendant’s trial will not be told about the counts to which a guilty plea has already been entered (so they are not in any way prejudiced against the defendant). It will sometimes be the case that a defendant charged with several counts will agree with the CPS to plead guilty to certain counts if the CPS does not proceed with other counts. If this happens, at the arraignment, the CPS will offer no evidence in respect of these other counts and the judge will order that a verdict of not guilty be entered. The CPS will also offer no evidence at the arraignment if, since the case was sent for trial, further evidence has become available which leads it to conclude that there is no longer a reasonable prospect of securing a conviction. In this case, the judge will again order that a not guilty verdict be entered, and the defendant will be formally discharged. As an alternative to offering no evidence, the CPS may ask that a count ‘lie on the court file’. This may happen when there are several counts on the indictment and the CPS evidence in respect of each count is strong. If the defendant is prepared to plead guilty to the more serious counts, the CPS may agree to lesser counts being left on the file. In such a case a not guilty verdict will not be entered and (in theory) with the leave of the court the CPS may be allowed to re- open the case at a later date.

Answer 73

If the defendant pleads guilty at the PTPH, the judge will either sentence immediately or, if necessary, adjourn sentence for the preparation of pre- sentence reports, such as medical reports or reports from the Probation Service. The judge may also need to adjourn the case if the defendant pleads guilty but disputes the specific factual allegations made by the prosecution witnesses. In such a situation a separate hearing (called a ‘Newton hearing’ – see Chapter 11) will be necessary to determine the factual basis on which the defendant will be sentenced. If the case is adjourned, the defendant will either be released on bail or remanded in custody pending either the sentencing hearing or the Newton hearing.

Answer 74

If the defendant pleads not guilty at the PTPH, the judge will then consider if any further directions are necessary to prepare the case for trial (over and above those given by the magistrates’ court when the case was sent to the Crown Court). To determine whether further directions may be necessary, the judge will require the prosecution and defence advocates present at the PTPH to be in a position to supply the following information: (a) a summary of the issues in the case; (b) details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial; (c) whether the transcript(s) of the defendant’s police station interview(s) require(s) editing; (d) whether a defence statement has been served and, if so, whether there is any issue as to the adequacy of the statement; (e) whether the prosecution will be serving any additional evidence; (f) whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution; (g) whether any expert evidence is to be called and, if so, whether any additional directions are needed in respect of this; (h) whether any further directions are necessary concerning hearsay or bad character evidence; (i) whether special measures are required for any witnesses; (j) any facts which can be formally admitted; (k) any points of law or issues concerning the admissibility of evidence which are likely to arise at trial; (l) dates of availability to attend trial of the witnesses and the advocates.

Answer 75

At the PTPH, the judge will give any further case management directions that are necessary in the light of the above information disclosed by the parties, and then either fix a date for the defendant’s trial or place the case in the ‘warned list’. The warned list is a list of cases awaiting trial that have not been given a fixed date for the trial to start. If a case is placed in the warned list, the Crown Court will contact the defendant’s solicitor to let them know that the case has been listed for trial shortly before the date when the trial is due to start. At the conclusion of the PTPH, the defendant will either be released on bail, or remanded in custody pending his trial.

Answer 76

(a) records of the first description of a suspect given to the police by a potential eyewitness if that description differs from that of the defendant; (b) any information provided by the defendant which indicates an innocent explanation for the offence; (c) material casting doubt on the reliability of a witness (eg previous convictions); (d) material casting doubt on the reliability of a confession; and (e) any statements from witnesses which appear to support the defendant’s account.

Answer 77

(a) material relating to matters of national security or intelligence; (b) material relating to the identity of police informants or undercover police officers; (c) material revealing techniques and methods relied upon by the police (eg covert surveillance techniques used); and (d) material relating to a child witness (such as material generated by a local authority social services department). If such material satisfies the test for disclosure to the defence in s 3 of the CPIA 1996 (see above), the CPS can withhold the material only if it is protected by ‘public interest immunity’. It is the decision of the court as to whether disclosure can be avoided on the grounds of public interest immunity (R v Ward [1993] 1 WLR 619). The CPS must therefore make an application to the court for a finding that it is not obliged to disclose the relevant material. The relevant procedural rules which must be followed when a public interest immunity application is made to the court are set out in Part 15 of the CrimPR and this type of an application will often be made ex parte (ie without notice to the defence). It is usual, when drafting a defence statement (see below), to ask the CPS if a schedule of sensitive materials has been prepared and, if so, whether the CPS has made any application to the court for an order that it is not obliged to disclose the existence of such material.

Answer 78

The defence statement must be a written statement which: (a) sets out the nature of the defence, including any particular defences on which the defendant intends to rely (for example, alibi or self- defence); (b) indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue; (c) sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence; (d) indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely for this purpose; and (e) in the case of an alibi defence, provides the name, address and date of birth of any alibi witness, or as many of these details as are known to the defendant.

Answer 79

Section 6E of the CPIA 1996 provides that defence statements will be deemed to be given with the authority of the defendant unless the contrary is proved. A defendant’s solicitor should therefore ensure that the defendant sees and approves a copy of the defence statement before this is served. As the defence statement will usually be drafted by the defendant’s solicitor, the usual practice will be for the defendant’s solicitor to sign the original statement which is served, and for the defendant to sign a copy of the statement which will be kept on the solicitor’s file

Answer 80

Defence statements are effectively obligatory for defendants pleading not guilty in the Crown Court because, if there are any ‘faults’ in disclosure given by the defence, the court may draw an adverse inference from this when determining the defendant’s guilt (CPIA 1996, s 11). These faults include: (a) failing to provide a defence statement at all; (b) late service of the defence statement; (c) serving a defence statement that is incomplete; (d) serving a defence statement which is not consistent with the defence put forward at trial; and (e) failing to update a defence statement.

Answer 81

Section 8(2) of the CPIA 1996 enables a defendant who has provided a defence statement to make application to the court if the CPS has failed to comply with its continuing duty of disclosure in light of the matters contained in the defence statement. The defendant may ask the court for an order that the CPS disclose material provided the defendant has reasonable cause to believe that there is prosecution material which should have been, but has not been, disclosed. The defendant will only be allowed to make such an application if they have set out in detail in their defence statement the material which they consider the CPS has in its possession which it has not subsequently disclosed. The procedure to be followed when such an application is made is contained in Part 15 of the CrimPR.

Answer 82

There is a general right to bail at all appearances before the magistrates or Crown Court up to the occasion on which the defendant is convicted or acquitted (starting point for bail). Following conviction there is a right to bail if the case is adjourned for reports prior to sentencing.

Answer 83

The right to bail does not apply to:  those appealing their conviction or sentence; or  to defendants being committed for sentence from the Magistrates' Court to the Crown Court. * Bail can be granted in both these cases; it is simply that the presumption does not apply.

Answer 84

court must find that there is an exception to the right to bail under s. 4

Answer 85

 In any case where the defendant is presented to court, and the court cannot conclude the case in one hearing, the case will have to be adjourned. It is important to note the word 'adjournment' applies to the case. It does not describe what happens to the defendant.

Answer 86

 When a defendant is sent away and told to come back another day, it is called a 'remand'. A defendant on remand is obliged to come back to court to continue with the case. The remand may either be served in custody, or served in the community on bail.

Answer 87

 It is for the prosecution to apply to have the defendant remanded into custody if that is its desire.

Answer 88

 To have the defendant remanded into custody the prosecution present objections to bail, due to the presumption in favour of bail.

Answer 89

 Once a prosecution objection to bail has been raised, it is then for the defence to apply for bail. All cases commence in the magistrates' court, and so the first decision in relation to bail is made by that court (except in murder cases, where only a Crown Court Judge can grant bail). The defence and the prosecution can appeal decisions on bail from the magistrates.

Answer 90

 Bail can be granted subject to conditions, and it is important for a defence advocate to consider what sort of conditions might alleviate the court's concerns in relation to the defendant's behaviour on bail.

Answer 91

 Bail is an ongoing consideration, and can evolve during the currency of proceedings, for example if a defendant breaches the terms of D’s bail.

Answer 92

o The test, set out in the Bail Act 1976, Schedule 1, para 2, is whether, if the defendant is released on bail, there are 'substantial grounds' for believing that the defendant would either:  fail to attend a subsequent hearing (failure to surrender to custody);  commit further offences on bail; and/or  interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence. o Factors the court looks at for when analysing this - believing - Bail Act 1976, Schedule 1, Part 1 Para 9  Nature and seriousness  Character  Antecedents  Associations  Community ties  Bail record  Strength of evidence  Risk of physical or mental injury

Answer 93

o It is not for the court to conclude that the defendant would behave in the way specified in the ground, or even that D’s behaviour would be more likely than not to include the behaviour in the ground. It is not enough for the judge simply to have a subjective perception of one or more of these three risks. o It is only necessary to show that the fears of the behaviour happening have substance and merit. This enquiry is a factual one, and is not a trial per se, and so there are no formal rules of evidence in determining if the ground is made out. Representations will be made by both the prosecution and the defence but generally neither party needs to call witnesses or produce documentary evidence. Witnesses can be called (such as a police officer or the person proposed as a surety although it's rare) and hearsay evidence is permitted (i.e. statements made out of court presented in evidence as proof of its contents). The magistrates have an inquisitorial role in this process and may ask questions of either party or insist that sureties are called to give evidence of their means and relationship with the defendant.

Answer 94

o The final filter is that bail should not be removed under one of these grounds if the defendant is charged with an offence (or offences) where there are ‘no real prospects’ of the defendant receiving a custodial sentence.

Answer 95

o For lesser summary offences, the general rule is that they are only available if a defendant, having been given bail, breaches a condition of that bail in these proceedings or has a conviction for 'fail to surrender' in their past.

Answer 96

 a remand in custody would be for the defendant's own protection;  the court has insufficient information to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or  the defendant is already serving a sentence in custody. * For these three grounds, the test is simply that the defendant 'need not' be granted bail if one of these conditions exist.

Answer 97

 serious cases with high penalties; and  cases of a particular nature that affect the assessment of the risk posed by a defendant on bail. * Under the latter heading, the most notable ground of objection to bail relates to defendants who might commit offences and cause physical or mental injury (or fear of it) to an 'associated person'. This is an important ground used frequently in domestic violence cases.

Answer 98

 serious cases (such as murder and rape) where it is harder to get bail because of the gravity of the consequences of such offending;  cases of a particular character (such as drugs and domestic violence) where a different approach needs to be taken because of the particular behavioural difficulties commonly encountered with defendants who commit these offences;  cases where the defendant infringes bail;  the remaining cases - dealt with in relation to their classification and, even with the 'standard' cases, there are a number of provisos to watch out for.

Answer 99

* Check whether your defendant falls into the provisions of one of the special categories (either serious crime, or crimes of particular character). * If the provisions in relation to serious cases (eg murder) are satisfied, the courts must follow the more stringent test and the more general objections cease to apply. * For cases of a particular character, the prosecution can either use these additional grounds or rely on the more general grounds.

Answer 100

* Murder (Note: only a Crown Court Judge can grant bail) · If D has a pre-con for: (i) murder; (ii) attempted murder; (iii) rape; or (iv) a serious sexual offence, D may not be granted bail unless there are exceptional circumstances to justify it* · If D does not fall into the above, D may not be granted bail unless there is no significant risk of D causing an offence likely to cause physical or mental injury * Attempted murder, rape, serious sexual offence etc · If D has a pre-con for: (i) murder; (ii) attempted murder; (iii) rape; or (iv) a serious sexual offence, D may not be granted bail unless there are exceptional circumstances to justify it* * An offence carrying life imprisonment · If D was either: (i) already on bail; and/ or (ii) fails to attend having been on bail,D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend

Answer 101

* Is D charged with: (a) an offence that suggests D would cause injury (mental or physical) to a partner or family member; or (b) abuse of drugs? o An offence against partner or family- D need not be granted bail for any imprisonable offence if the court believes there are: substantial grounds to believe that D would commit an offence on bail by engaging in conduct that would, or would be likely to cause physical or mental injury to an associated person. An associated person is a spouse, partner or a family member. This ground is available for non-imprisonable offences only if D is arrested under s.7 Bail Act for a breach of bail. * Abuse of drugs- Where: o the test shows D has a Class A drug in D’s body; and o (ii) the offence relates to a Class A or was caused/ motivated by D taking Class A drugs  Court may not grant bail unless there is no significant risk of D committing an offence on bail.

Answer 102

o If the defendant was on bail at the time of the alleged offence: · If D is said to have committed an indictable offence, then the court ‘need not’ grant bail; or · If D is said to have committed a summary imprisonable offence, then the court ‘need not’ grant bail if there are substantial grounds for believing that D will commit further offences. * If D absconds whilst on bail for an indictable offence, then bail need not be granted again, unless it is prior to conviction and there are no realistic prospects of the defendant receiving a custodial sentence.

Answer 103

o Substantial grounds for believing D will… · Fail to surrender (FTS) * Imprisonable offence (indictable)- ground is available * Imprisonable offence (summary only)- ground is available but only if: (i) D has a prior FTS; or (ii) following s.7 Bail Act arrest. * Non-imprisonable offence- ground is available but only if: D has been convicted in the proceedings and either: (i) D has a prior FTS; or (ii) following s.7 Bail Act arrest · Commit further offences (CFO) * Imprisonable offence (indictable)- ground is available * Imprisonable offence (summary only)- ground is available but only if: following s.7 Bail Act arrest * Non-imprisonable offence- ground is available but only if: D has been convicted and D is then subject to a s.7 Bail Act arrest · Interfere with witnesses or obstruct the course of justice * Imprisonable offence (indictable)- ground is available * Imprisonable offence (summary only)- ground is available but only if: following s.7 Bail Act arrest * Non-imprisonable offence- ground is available but only if D has been convicted and D is then subject to a s.7 arrest  …unless there is no real prospect D will receive a custodial sentence  Need not be granted bail… * For their own protection o Imprisonable offence (indictable)- ground is available o Imprisonable offence (summary only)- ground is available o Non-imprisonable offence- ground is available * If already in custody o Imprisonable offence (indictable)- ground is available o Imprisonable offence (summary only)- ground is available o Non-imprisonable offence- ground is available * If insufficient time o Imprisonable offence (indictable)- ground is available o Imprisonable offence (summary only)- ground is available o Non-imprisonable offence- ground is not available

Answer 104

 the nature and seriousness of the offence and the likely disposal (ie sentence)- if convicted of a serious offence, D is likely to receive a long sentence and will therefore be tempted to abscond  the character of the defendant, D’s antecedents, associations and community ties; * Antecedents refers to previous convictions which can make a custodial sentence more likely. * Character might include any personal circumstances such as drug addictions. * Associations might include friends with criminal records. * Examining the 'community ties’ helps to see how easy it could be for the defendant to abscond and how much D has to lose by absconding. If D is married with children or in a job then D might be less likely to ‘disappear’ compared to someone of 'no fixed abode'.  the defendant’s bail record in the past- whether D has absconded in the past can be seen as indicative that D may do so again. Here, the court will also look at whether D has a tendency to commit offences on bail.  the strength of the evidence- a D who knows there is a good chance of being acquitted is arguably less likely to abscond than one who anticipates almost certain conviction. * It is unclear the extent to which the court would expect to hear reference to these factors in any of the other grounds. * These factors give the court a wide discretion.

Answer 105

* If there is a risk that D might fail to surrender, commit further offences or interfere with witness while on bail for example, the defence can offer conditions to be attached to D’s bail, which would lessen any risks

Answer 106

relevant, proportionate and enforceable.

Answer 107

· residence, · curfew, · reporting, · surety, · security, · restrictions on D’s movement or who D may contact, · electronic monitoring, · bail hostel and · surrender of passport.

Answer 108

* Applications to vary bail conditions can be made by either party on notice generally to the court that granted bail. A hearing is not always necessary.

Answer 109

may result in the accused being arrested under the Bail Act 1976, s 7(3)and bail being withdrawn.

Answer 110

* There is no offence of 'breaching a bail condition’. However, it is a criminal offence to fail, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’).

Answer 111

o A person granted bail in criminal proceedings is under a duty to surrender to custody, by attending court at the time and date specified

Answer 112

o The court can impose 'such conditions as appear necessary' meaning technically that there is no limit to the conditions that a court could choose to impose.

Answer 113

o In order to overcome any objections to bail, the defence can offer conditions to be attached to bail, which would lessen any risk associated to the granting of bail.

Answer 114

· Residence at a given address- a condition that the defendant must live and sleep at a specified address. This helps solicitors and the court communicate with the defendant by post, and the police to know where to find the defendant if the defendant doesn't attend court. This will be imposed to reduce the risk of the defendant absconding. · Curfew- curfews are designed to prevent further offences being committed while on bail. A curfew requires the defendant to remain indoors during certain hours. These are often imposed for offences which occur at night i.e. burglary. A curfew is only appropriate where the time of day/night is relevant to the pattern of offending. · Reporting to a local police station at given times- to check the defendant is still 'in town’. This condition would be imposed to reduce the risk of the defendant absconding. · Surety- the offer of money made by someone with influence over the defendant to secure the defendant's return to court. A surety is usually required where there is a risk of the defendant absconding. The surety will agree to forfeit a sum of money if the defendant absconds. The defendant cannot stand as a surety in their own case. Sureties do not deposit the sum of money, referred to as a recognisance, at the time bail is granted. They merely promise to pay that sum of money if the defendant fails to surrender to the court and the court then orders all or part of the recognisance to be forfeited. · Security- the defendant, or someone on the defendant’s behalf, putting up money or some other valuable item to be forfeited if the defendant does not answer bail and attend court. The taking of a security is another means of trying to reduce the risk of the defendant absconding. Note the difference between a surety, which can only be given by a third party and a security which can be given by either a third party or the defendant. Securities are deposited with the court or the police before the defendant is released on bail. · Restriction on where a defendant may go during bail- prohibiting the defendant from going into a certain area or to a specific place. This condition could be imposed to reduce either: the risk of the defendant committing any further offences while on bail and/or (depending on the circumstances) interfering with witnesses. · Restriction on who the defendant might have contact with during bail- The court can direct that the defendant does not approach or contact, either directly or indirectly, named individuals (these can be victims or prosecution witnesses), in order to reduce the risk of interference with witnesses and/or obstructing the course of justice, or co-defendants to prevent further offending. · Electronic monitoring (tagging)- A curfew can be subject to electronic monitoring (tagging). In addition to preventing further offences being committed on bail, electronic monitoring requirements can also be imposed to address fears of failure to surrender and interference with witnesses. · Bail hostels- Residence at a bail hostel and a further condition that the defendant complies with the rules of the bail hostel can be used to try to prevent the defendant absconding, and/or interfering with witnesses and/or committing further offences on bail. A bail hostel may be used if the defendant does not have a fixed address. It provides a residence and a curfew while the defendant is on bail. The bail hostel will also place upon the resident its own rules with which the defendant must comply e.g. not to bring alcohol or controlled drugs onto the premises. If the rules are breached, the resident would have to leave and would consequently be in breach of the court imposed bail condition of residence. · Surrender of passport- In some circumstances it may be necessary for the court to impose a condition that the defendant surrenders their passport to prevent the risk of them absconding.

Answer 115

o Can be made by the defence or the prosecution on advance notice to the other party. o The application should be made to the court which granted bail (or the Crown Court if the accused has been sent for trial or committed for sentence). o If the parties agree on the variation, the court may decide to vary a bail condition without a hearing.

Answer 116

o Breach of bail conditions may result in the accused being arrested under the Bail Act 1976, s 7(3) and D is at risk of either having the bail conditions tightened or being remanded in custody, ie bail being withdrawn. o It is routine for courts to impose conditions on bail. o If a defendant is found in breach of a condition, the defendant is not actually committing an offence. There is no offence of 'breaching a bail condition’. o The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so. o If D is given bail with a condition to be indoors at home in London by 8pm, and D is found in a field in Glastonbury at 7:30pm, the officer does not have to wait until 8pm to arrest D for breaching bail. o Given that the breach of bail is not an offence, the defendant who is arrested for a breach of bail must then be brought forthwith to a magistrates' court, and then the question to determine is simply whether the defendant should have bail going forward.

Answer 117

o The only bail breach which is a criminal offence is failing, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’). This is an offence punishable summarily by up to three months' imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment.

Answer 118

if the prosecution has objections to bail, after hearing both the prosecution and the defence submissions, the court will announce its decision. Where the defendant has a right to bail under s. 4 Bail Act 1976 the court must give its reasons if it refuses bail or imposes conditions.

Answer 119

the general rule is that a D who is having a trial in the magistrates' court can have two attempts at getting bail at the magistrates' court, and one attempt on appeal to the Crown Court which will be listed no later than one business day after receipt of the appropriate notice. The timeline for bail attempts varies depending on whether it is a usual or urgent case.

Answer 120

- the prosecution cannot hold a defendant beyond this unless the court has sanctioned an extension: · (i) 56 days for trials in the magistrates' court of summary only or either-way offences; and · (ii) 182 days for trials in the Crown Court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court (usually zero).

Answer 121

o If the defendant has been refused bail by the police, D will appear before the next available magistrates’ court in custody. o On D’s arrival at the court the defence advocate will first check with the prosecutor to see if the prosecutor intends to object to bail being granted. If the prosecutor has no objections then this will be stated to the court. o If however the prosecution objects to the grant of bail, the prosecutor will outline the objections to the court. Where the accused has previous convictions, these are handed to the court. o The defence then presents its arguments for bail to be granted. o After hearing both the prosecution and the defence submissions, the court will announce its decision. Where the defendant has a right to bail under s. 4 Bail Act 1976 the court must give its reasons if it refuses bail or imposes conditions. A form setting out the decision of the court will also be completed.

Answer 122

o The general rule is that a defendant who is having a trial in the magistrates' court can have two attempts at getting bail at the magistrates' court, and one attempt on appeal to the Crown Court.

Answer 123

o There are some complications around this general principle. If bail is refused, then D can repeat the same application and have a second attempt at getting bail at the next hearing. Thereafter, D has either to appeal the decision against granting bail to the Crown Court, or to find fresh points to make (eg by finding a surety which D didn't have available before).

Answer 124

o A defendant whose trial will be heard in the Crown Court has one attempt at bail at the first hearing in the magistrates' court (unless charged with murder; the magistrates' court has no jurisdiction to consider bail where a person is charged with murder) and a further application as of right in the Crown Court.

Answer 125

· The defendant attends court the first time the case is listed, and applies for bail. · If the defendant is unsuccessful, the case will be returned to court a week later where the issue of bail can be raised a second time without any restriction or qualification, and the defendant can apply again. In principle it is possible for the defence advocate to make identical applications at the first and second hearings and to find that the same application is denied first but then allowed by a different bench of magistrates (or District Judge). · Once the defendant has had both applications, the defendant must secure a 'certificate of full argument' from the magistrates' court before then appealing to the Crown Court (if D wishes to do so). The certificate is simply a short summary that the magistrates produce so that the Crown Court knows what has transpired in the court below. Appeals are heard one business day after an appeal notice is served. · D can only apply again if there has been a change in circumstances.

Answer 126

o In urgent cases, the defence may wish to exercise its appeal right more quickly than would be allowed by waiting a week for a second attempt in the magistrates' court. o The Crown Court will hear a bail appeal no later than one business day after the appropriate notice is served, but clearly this is still a quicker route to being heard than waiting for a week to pass and applying again in the magistrates' court. o If a defendant appeals to the Crown Court after only one application in the magistrates' court, then the defendant loses the right to a second application in the magistrates' court. o D can only apply again if there has been a change in circumstances. o Appeal notices must be served as soon as practicable.

Answer 127

o It is very rare for the prosecution to appeal against the granting of bail. It is possible, and the very basic process, is that the:  prosecution must have opposed bail originally  offence must be punishable by imprisonment  prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody)  intention to appeal is confirmed in writing and served on the court and defence within two hours  appeal is heard within 48 hours – excluding weekends  appeal is heard by a Crown Court Judge

Answer 128

o Equally rare is the prosecution appealing the grant of bail by the Crown Court. o The procedure is the same as for a magistrates' court appeal save that the appeal is heard by a High Court Judge sitting in the High Court.

Answer 129

must be formally remanded into custody every 28 days until their trial. This can be in their absence.

Answer 130

o If the limits expire, then the defendant will be released, unless the prosecution applies to extend the time limits and can show that it has acted with 'all due diligence and expedition' and that there is 'good and sufficient cause' to have the defendant further remanded into custody.

Answer 131

The basic rule is that a defendant may not be remanded in custody for more than eight clear days at a time. However, if the defendant’s case is still in the magistrates’ court, where there are successive remands in custody, the defendant needs to be brought before the court on every fourth remand, provided they have consented to this and have legal representation. In addition, the court may remand a defendant in custody for up to 28 days if: (a) it has previously remanded them in custody for the same offence; and (b) they are before the court; and (c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place

Answer 132

actively protect and advance the legal rights and interests of their client through: - The solicitor may intervene in order to seek clarification, - challenge an improper question to their client or the manner in which it is put, - advise their client not to reply to particular questions, - or if they wish to give their client further legal advice’.

Answer 133

* There are ways a solicitor can help protect the interests of a vulnerable client such as: - Ensure that: * an appropriate adult has been appointed. * the custody officer has requested a medical assessment where appropriate. * Take as much time as is necessary to take your client’s account and to clearly advise them. * Ensure the client understands: * your role. * everything that is happening. * what will happen in the interview and how to approach the ‘no comment’ interview if that is the option taken. * what happens after interview. * In the interview: * request regular breaks. * be especially mindful of the language and tone used by officers- intervene if necessary.

Answer 134

* A solicitor should actively defend and promote their client’s interests. * Active defence should include: - Obtaining as much information from the police as is possible. - Advising your client fully and in accordance with your professional obligations. - Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of periods of detention, searches of premises and bail. - Attending and advising during the interview. * Practical aspects of active defence - Be familiar with both PACE and the Codes of Practice. - Avoid confrontation with officers, instead make notes of apparent breaches of PACE and/or the COP. - Where interviewing officers have refused a reasonable request, speak to the custody officer and ask them to make a note in the custody record. - Don’t be rushed. Take as much time as you need to properly advise your client.

Answer 135

* Generally, a person under the influence of drink or drugs should not be treated as vulnerable.

Answer 136

states that ‘”vulnerable” applies to any person who, because of a mental health condition or mental disorder: - may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with: * their arrest and detention; or (as the case may be) * their voluntary attendance at a police station; or their presence elsewhere…for the purpose of a voluntary interview; and * the exercise of their rights and entitlements. - does not appear to understand the significance of what they are told, of questions they are asked or of their replies; appears to be particularly prone to: * becoming confused and unclear about their position; * providing unreliable, misleading, or incriminating information without knowing or wishing to do so; * accepting or acting on suggestions from others without consciously knowing or wishing to do so; or * readily agreeing to suggestions or proposals without any protest or question’.

Answer 137

* At the beginning of the suspect’s detention, the custody officer will undertake a risk assessment and identify whether the suspect is or might be ‘vulnerable’. * If so, the vulnerable suspect will be provided with access to an appropriate adult. * The custody officer must inform the appropriate adult of the grounds for detention, where the suspect is being detained and ensure the appropriate adult attends the police station as soon as possible. * COP C Annex E states that if at any time an officer (such as the investigating officer) suspects that a person is vulnerable then the person will be treated as vulnerable unless there is clear evidence to the contrary.

Answer 138

* If a person is vulnerable, an appropriate adult should be appointed and their role is to: - ensure that the detained person understands what is happening and why; - support, advise and assist the detained person; - observe whether the police are acting properly and fairly and to intervene if they are not; - assist with communication between the detained person and the police; and - ensure that the detained person understands their rights and that those rights are protected and respected. * An appropriate adult can request a solicitor on behalf of the person detained, though the person detained does not have to see the solicitor if they do not want to. A vulnerable suspect can consult privately with a solicitor in the absence of the appropriate adult if they wish.

Answer 139

* A solicitor attending the police station for the suspect. * A person under 18 years old. * A police officer or police employee. * A person: - suspected of involvement in the offence; - the victim of, or a witness to, the offence; - involved in the investigation; - who has received admissions from the person detained before acting as an appropriate adult; - of low IQ and unable to appreciate the gravity of the situation; or - an estranged parent that an arrested youth specifically objects to.

Answer 140

* In the case of a vulnerable suspect, the appropriate adult can be: - a parent; or - a guardian; or - a relative; or - someone who has experience in dealing with such persons. * The appropriate adult must be 18 years old or over.

Answer 141

* Generally, a vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult. However, an urgent interview can take place if a superintendent or above is satisfied it would not significantly harm the person’s physical or mental state and delay would lead to: - interference with or harm to evidence connected with an offence; - interference with or physical harm to other persons; or - serious loss of, or damage to, property; or - the alerting of other persons suspected of having committed an offence but not yet arrested for it; or - hindering the recovery of property obtained in consequence of the commission of an offence. * These provisions are contained in COP C paragraphs 11.1, 11.18- 11.20. Questioning in these circumstances may not continue in the absence of the appropriate adult once sufficient information to avert the risk has been obtained. A record must be made of the grounds for any decision to begin an interview in these circumstances.

Answer 142

- Amount of disclosure - Admissibility and strength of evidence- that you are aware of or that might become available in the future - Your client’s account/ instructions - The state of your client- prepare them for the interview - Significant statements - Possible adverse inferences

Answer 143

* The consultation with the client should take place in private and is confidential. * The lawyer should not breach any professional conduct issues by, for example taking instructions from: - a relative or third party unless you are satisfied that the person giving instructions has authority to do so on behalf of your client; or - two clients in relation to the same matter and one client blames, or might blame, the other. * The lawyer should: - Be supportive and explain their role. - Assess the client’s fitness to be interviewed. - Provide advice on the legal position. - Explain the options the client has in the interview and consider which option would be best. - Explain and advise of the consequences of those options. - if necessary, provide advice on samples. * The client’s account * Once the lawyer has outlined the circumstances as provided by the police, the client should be asked for their version of events: - Do they accept involvement? - Do they have a legal defence e.g. self defence?

Answer 144

- Answer questions - Don’t answer questions (‘go no comment’) - Provide a written statement and ‘go no comment’ * Anything that the client says can be used in evidence, so it is important to undertake an assessment and balance the risks of answering questions or remaining silent. * Whilst a client is entitled to remain silent in an interview the lawyer must explain the consequences of any silence. * Consequences might include a court drawing ‘adverse inferences’.

Answer 145

* Handing in a prepared written statement is a strategy sometimes used to try and avoid later adverse inferences. * A statement is handed in at the beginning of the interview which sets out the defence. * It is often used where there are facts which will be later relied on at trial but the lawyer thinks that there are reasons why the client should not participate in answering questions. * It can be difficult to ensure that sufficient information is contained in the statement as any fact relied on later that is not mentioned could still attract an adverse inference. * A prepared statement should not be thought of as a ‘best of both worlds’ option between answering questions and not answering any questions as: - avoiding adverse inferences using a statement is very difficult. - the client will still have to answer ‘no comment’ to questions put in the interview.

Answer 146

* A mixed interview (stating ‘no comment’ to some questions and answering others) is not a valid option in the interview, and you should advise your client in the strongest terms to avoid this approach because: - The transcript of the interview will be read in court. A ‘no comment’ interview is not read as evidence. Imagine a jury hearing a suspect apparently avoiding some questions. - The interviewing officers will use tactics and techniques to push the suspect into talking about matters they had intended not to speak about. - The suspect is likely to become confused as to what they have already said.

Answer 147

* Deciding whether to advise the client to answer questions is a careful balancing exercise. There are numerous factors to consider: - Amount of disclosure - Admissibility and strength of evidence- that you are aware of or that might become available in the future. - Your client’s account/ instructions - The state of your client - Significant statements - Possible adverse inferences

Answer 148

* Prior to interview a solicitor must be given sufficient information to enable them to understand the nature of any offence and why their client is suspected of committing it

Answer 149

* The lawyer needs to assess whether, irrespective of the client's instructions in relation to the offence, they would be able to handle the interview. * A number of cases have confirmed that the court should not draw inferences from silence where the suspect's condition, such as ill-health (especially mental), confusion, intoxication or shock gives the lawyer cause for concern. Such factors are referred to as ‘Argent factors’, from the case of R v Argent[1997] 2 Cr App R 27. * The lawyer should check on the custody record to see whether the forensic medical examiner has certified the suspect fit for interview. * Remember that a police interview can be a frightening experience and you should prepare your client for what to expect. For example, if your client is going to go ‘no comment’ then you will have to prepare them for attempts by officers to engage them in what seems like only friendly conversation.

Answer 150

* A significant statement is one capable of being used in evidence against the suspect. * At the beginning of the interview the interviewing officer will put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer. The suspect will be asked whether they confirm or deny that earlier statement.

Answer 151

Section 34 – if a fact is later relied on at trial and it would have been reasonable to have mentioned it now. - Section 36 – if there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so that you are not ambushed in interview. - Section 37 – if there is a failure to account for presence at the scene. Where was the suspect arrested? Can this be linked to their involvement?

Answer 152

suspects are not obliged to answer police questions in interview. However, an inference can be drawn under the Criminal Justice and Public Order Act 1984: * Section 34 – if a fact is later relied on at trial and it would have been reasonable to have mentioned it in the interview. The suspect must have been cautioned. - Occurs when there is silence in interview – inference in trial - In the circumstances the accused could have reasonably mentioned * Need to look at the circumstances – not automatic o Inference that could ne properly drawn in the circumstances

Answer 153

* Section 36 – if there is a failure to account for a mark, object or substance. The suspect must have been given a special warning * Section 37 – if there is a failure to account for presence at the scene. The suspect must have been given a special warning. * Sections 36 and 37 only matter in court and when it is a jury or magistrates drawing that inference

Answer 154

no defendant may be convicted solely based on an adverse inference.

Answer 155

* No adverse inference can be drawn where the suspect has not been allowed access to legal advice.

Answer 156

* If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant.

Answer 157

allows for an inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning. o A court does not have to draw any inference but, if it does, any inference that is drawn must be ‘proper’. As such an inference can range from: - an acceptance that the defence as presented in court is true but the defendant chose not to reveal it in their interview; to - an inference that the defendant’s account in court is untrue and they are in fact guilty. * The suspect must be cautioned o If the suspect is not cautioned then no inference can be drawn. o The words of the caution explain to the suspect the consequences of not mentioning a fact later relied upon.

Answer 158

o It must have been reasonable to have mentioned the fact at the time, bearing in mind all the circumstances existing at the time. o Guidance from the Law Society states that ‘circumstances existing at the time’ can include: - what disclosure had been made to the suspect, or their lawyer, by the police; - what information the prosecution can demonstrate the suspect knew at the time of questioning or charge; - the condition and circumstances of the suspect; and - any legal advice that the suspect received.

Answer 159

o The ultimate effect of an adverse inference being drawn at trial from a defendant’s silence at interview is that it undermines their defence. When the jury or magistrates draw an adverse inference, they are effectively saying that: - the explanation given at trial has been fabricated since the time of the interview; or - the defendant withheld their account at interview as they knew that it would not stand up to police questioning (the ambush defence); or - at the time of the interview the defendant had no reasonable explanation which would refute the prosecution case.

Answer 160

when the suspect fails to account for an object, substance or mark found on them at the time of arrest. Section 36 might include a failure to account for bruising or a hammer in the suspect’s rucksack.

Answer 161

when the suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed. Section 37 might include failing to explain why they were found on a burglary victim’s driveway.

Answer 162

as soon as there is a failure by the defendant to account for their possession of the object in question or presence. o It is not a requirement that there is a failure to mention something later relied upon.

Answer 163

‘special warning’. The requirements of the special warning can be found in PACE Code of Practice C paragraph 10.11. They must be told: - what offence is being investigated; - what fact they are being asked to account for; - this fact may be due to them taking part in the commission of the offence; - a court may draw a proper inference if they fail or refuse to account for this fact; and - a record is being made of the interview and it may be given in evidence if they are brought to trial.

Answer 164

· An officer with no connection to the case of at least the rank of inspector has responsibility for arranging the identification procedure

Answer 165

 has identified a suspect or purported to have identified them; or  is available who expresses an ability to identify the suspect; or  has a reasonable chance of being able to identify the suspect.  The suspect disputes being the person the eye-witness claims to have seen. ## Footnote Code D, Annex E

Answer 166

there would be no useful purpose or suspect is already known to the eyewitness

Answer 167

* video identification- the eye-witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect. * identification parade- the eye-witness sees the suspect in a line of others who resemble the suspect. * group identification- the eye-witness sees the suspect in an informal group of people. * Confrontation

Answer 168

the process to be adopted by the police where a witness purports to identify a suspect or expresses an ability to make a visual identification. · It was introduced for two reasons: - to protect an innocent suspect from an incorrect identification; and - to make a successful identification as watertight and 'challenge-proof' as possible.

Answer 169

· Code D paragraph 3.12 states that an identification procedure shall be held (unless an exception exists) where: - An offence has been witnessed and an eye-witness: * has identified a suspect or purported to have identified them; or  is available who expresses an ability to identify the suspect; or  has a reasonable chance of being able to identify the suspect. * The suspect disputes being the person the eye-witness claims to have seen. · An identification procedure does not need to be held if it is not practicable or it would serve no useful purpose in proving or disproving the suspect was involved in the offence e.g. the suspect is already known to the eye-witness.

Answer 170

 a video identification procedure is not practicable; or  an identification parade is more suitable. - If the suspect refuses, then an alternative can be considered. - Covert procedures should be used as a last resort and only if all other procedures have been considered and refused.

Answer 171

* A record shall be made of the description of the suspect as first given by the eye-witness. * A copy of the record shall be given to the suspect or their solicitor before any identification procedures are carried out. * A notice must be given to a suspect and the following must be explained:  the purpose of the procedure  their entitlement to free legal advice  the procedures for holding it, including their right to have a solicitor or friend present;  that they do not have to consent to or co-operate in the procedure;  that if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements. · The suspect shall be invited to participate in a video identification procedure first.

Answer 172

* It takes the form of VIPER (Video Identification Parade Electronic Recording). * Officers film the suspect asking them to face the camera and be filmed from the right, left and centre. * The identification officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system. * A video clip is produced with the suspect placed amongst at least eight other individuals who, so far as possible, resemble the suspect in age, general appearance and position in life. * If the suspect has an unusual physical feature e.g. a facial scar, tattoo, distinctive hairstyle or hair colour which does not appear on the images of the other people that are available to be used, steps may be taken to: - conceal the location of the feature on the images of the suspect and the other people; or - replicate that feature on the images of the other people. * The suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any eye-witness. * If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection. * Immediately before the images are shown, the eye-witness shall be told that the person they saw on a specified earlier occasion may, or may not, appear in the images. * The video clip is then shown to the witnesses. * The suspect’s solicitor may only be present at the video identification procedure on request and with the prior agreement of the identification officer. * The video identification procedure must be recorded on video with sound. The recording must show: - all persons present within the sight or hearing of the eye-witness whilst the images are being viewed; - what the eye-witness says; and - what is said to the eye-witness by the identification officer and by any other person present. * Care must be taken not to direct the eye-witness’ attention to any one individual image or give any indication of the suspect’s identity. * A supervised viewing of the recording of the video identification procedure by the suspect and/or their solicitor may be arranged on request, at the discretion of the investigating officer. * Eye-witnesses are not able to communicate with each other. One eye-witness may see the set of images at a time.

Answer 173

* A suspect must be given a reasonable opportunity to have a solicitor or friend present. * An identification parade may take place either:  in a normal room; or  one equipped with a screen permitting witnesses to see members of the identification parade without being seen. * Once the identification parade has been formed, everything afterwards, in respect of it, shall take place in the presence and hearing of the suspect and any interpreter, solicitor, friend or appropriate adult who is present. * A video recording or colour photograph must normally be taken of the identification parade and supplied, on request, to the suspect or their solicitor within a reasonable time. * The identification parade shall consist of at least eight people (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life. * If the suspect has an unusual physical feature e.g. a facial scar, tattoo, distinctive hairstyle or hair colour which cannot be replicated on other members of the identification parade, steps may be taken to conceal the location of that feature on the suspect and the other members. For example, by use of a plaster or a hat, so that all members of the identification parade resemble each other in general appearance. * The suspect may select their own position in the line. * Witnesses must not be able to:  communicate with each other;  overhear a witness who has already seen the identification parade;  see any member of the identification parade; or  see the suspect before or after the identification parade. * Witnesses shall be brought in one at a time. * Immediately before the witness inspects the identification parade, they shall be told the person they saw on a specified earlier occasion may, or may not, be present. * The witness can ask to hear any identification parade member speak, adopt any specified posture or move.

Answer 174

* Group identifications may take place either:  with the suspect’s consent and co-operation; or  covertly without their consent. * The location should be one where other people are either passing by or waiting around informally, in groups such that the suspect is able to join them and be capable of being seen by the witness at the same time as others in the group. Examples given include people leaving escalators, pedestrians walking through a shopping centre, passengers on railway and bus stations. * A colour photograph or video should be taken of the general scene, if practicable, to give a general impression of the scene and the number of people present. * As in other procedures the witnesses should not be able to communicate with each other.

Answer 175

* Before the confrontation takes place, the eye-witness must be told that the person they saw on a specified earlier occasion may, or may not, be the person they are to confront and that if they are not that person, then the witness should say so. * The confrontation should normally take place in the police station, either in a normal room or one equipped with a screen permitting the eye-witness to see the suspect without being seen.

Answer 176

· The first issue for a trial judge in these circumstances is to determine if a breach of Code D has in fact occurred. This can usually be achieved without a voir dire (trial within a trial). However, there may be circumstances when evidence around the alleged breach is disputed. In those circumstances, a v_oir dire_ may be required and the judge will have to hear evidence under oath. · If there has been a breach of Code D, the remedy for the defendant is to apply to exclude evidence obtained in breach of the code under s 78 PACE 1984. · A breach of the code does not automatically lead to the exclusion of the evidence. · The key issue for the trial judge to decide is whether there has been any significant prejudice to the accused. If the judge has determined that there is prejudice, they must then decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. · Identification evidence will usually be excluded when important safeguards have been flouted, such as the right to a formal identification procedure. · The defendant has the right to have the correctness of the visual identification tested under formal conditions.

Answer 177

* defence advocates are still permitted to comment on the breach in their closing speech. * the trial judge ought to draw the jury's attention to the breach and invite them to consider the reasons why the code has been drawn in the way it has. * the jury should assess whether in their estimation the breaches were such as to cause them to have doubts about the safety of the identification.

Answer 178

* When the arrested person arrives at the police station, a number of things will happen to that person:  The detainee will see the custody officer who must authorise continued detention.  The detainee will be informed of their rights.  The detainee will have certain non-intimate samples taken.  The detainee may see the appropriate healthcare professional if necessary.  If the detainee requests, they will speak to a solicitor.  The detainee may be interviewed, often with their solicitor present.  After the interview, the detainee may be: * released under investigation or on police bail; * charged and released on police bail to appear at the magistrates’ court at a later date; or * charged and remanded in police custody to appear at the magistrates’ court on the following day.

Answer 179

* On arrival at the police station the arrested person will be presented to the custody officer as soon as possible. The custody officer:  is responsible for the handling and welfare of suspects in detention at the police station  must be a police officer of the rank of at least sergeant.  must be unrelated to the process of the investigation of the offence. * The procedure that should be followed by the custody officer upon arrival at the police station of the detainee is governed by s. 37 PACE and Code of Practice (COP) C 2, 3 and 4. * The reason for arrest must be explained to the custody officer, who can then authorise detention of the person arrested. The custody officer must order the release of the person detained if the custody officer becomes aware that the grounds for detaining the person have ceased to exist. A person can only be detained at the police station on the authority of the custody officer, and may be released only on the custody officer’s authority. * If the custody officer is not available, their role may performed by another officer, though that officer must not normally be involved in the investigation of an offence for which the person is in detention. * The custody officer will firstly determine whether or not there is sufficient evidence to proceed to charge the detainee. If not, then the arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:  secure or preserve evidence; or  obtain such evidence by questioning. * If there are grounds to detain, the custody officer will then:  authorise detention of the suspect;  open a custody record;  inform the detainee of the reason for their arrest;  inform the detainee of the reason for their detention; and  advise the detainee of their rights. * The custody officer is responsible for the welfare of each detainee. Additional duties include:  Conducting a risk assessment procedure for each detainee.  Making special arrangements, if necessary, for detainees who may be physically or mentally incapacitated.  Arranging for interpreters to be present, where appropriate.  Dealing with a detainee’s property.  Contacting healthcare professionals, if needed. * The role of the custody officer is a vital one. The custody officer is responsible for ensuring that a detained person is treated in accordance with the provisions of the Codes of Practice. Custody officers are well aware that if there are any procedural flaws in the detention process, the result might be the subsequent exclusion of evidence and that ultimately it is they who can be held accountable.

Answer 180

* Reviews of detention must be carried out during the detention of a suspect (s.40 PACE). The review officer must be satisfied that the detention is still necessary. They must therefore consider whether the grounds for the detention, as authorised by the custody officer under s.37, still exist. The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer. * * At the time of the review, the detained person must be reminded of their right to free legal advice, and be given the right to make representations unless they are unfit to make such representations or asleep at the time of the review.

Answer 181

* Section 40 stipulates that the first review of the suspect’s detention will take place not more than six hours after the suspect's detention was first authorised by the custody officer and then periodically every nine hours thereafter.

Answer 182

* Under s.41 PACE, the maximum period that a suspect can be kept in custody, before being charged, is 24 hours from the ‘relevant time’. * * Before the 24 hour limit on detention has expired the suspect must either be charged or released.

Answer 183

* In most cases, where the arrest has taken place within the particular police area, the relevant time begins at the moment the suspect arrives at the police station. The relevant time is indicated on the custody record.

Answer 184

* Authority  Section 42 PACE allows for detention to be extended for a further 12 hours, taking the maximum period of detention in the police station to 36 hours calculated from the relevant time. * Criteria  Section 42 specifies that for detention to be extended: * an officer of at least the rank of superintendent must authorise the continued detention; * the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning; * the offence must be an indictable offence; and * the investigation must be being conducted diligently and expeditiously. * Section 42 stipulates that:  authorisation to extend must be given before the expiry of the initial 24 hours but after the second review has occurred;  the grounds for the extension must be explained to the suspect and noted in the custody record; and  the suspect and/or the suspect’s solicitor should be allowed an opportunity to make representations.

Answer 185

* If the police want to detain beyond 36 hours then they must apply to the magistrates’ court for a warrant of further detention under ss.43 and44 PACE. * The warrant may authorise continued detention for a further 36 hours on a first application and 36 hours (up to a maximum of 96 hours) on a second application. * The same criteria apply as under s.42 and ss.43 and44 stipulate that:  the magistrates’ court is satisfied that there are reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning;  the offence must be an indictable offence; and  the investigation is being conducted diligently and expeditiously

Answer 186

o The custody officer must make sure that a person arrested and taken to a police station or attending a police station voluntarily is told clearly about the following continuing rights which may be exercised at any stage during the period in custody:  the right to consult privately with a solicitor and the availability of free independent legal advice;  The right to have someone informed of their arrest; and  The right to consult the Codes of Practice (COP). o There are also circumstances in which there is a right to an appropriate adult and/ or an interpreter. o The custody record will record that these rights have been given and any response made by the suspect (e.g. the name of the solicitor or person to be notified).

Answer 187

o The right under s.58 PACE is the fundamental right to free and independent legal advice. This includes consulting with a solicitor either in person, on the telephone, or in writing. o The person detained must be told again of the right to free legal advice immediately before:  the commencement or recommencement of an interview;  being asked to provide an intimate sample;  an intimate drug search;  an identification parade or video identification procedure. * If legal advice is declined, that should be noted on the custody record. * Where legal advice is sought, it must be provided as soon as is practicable.  Police should usually await the arrival of a solicitor/ legal representative before beginning an interview.  Nothing should be done to dissuade the suspect from obtaining legal advice.  If a detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice. o ‘Solicitor’ in COP C means: a solicitor who holds a current practising certificate or an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

Answer 188

o The decision to delay a suspect’s right to legal advice is a serious step and must be justified by the police, as it can have major implications for any evidence obtained against the suspect as a result. A number of domestic and European cases have reinforced the position that the right to legal advice is a fundamental one. o Authority  It can only be delayed in accordance with s.58 and COP C Annex B. o Criteria  In order to delay the right in accordance with s.58 (see also COP C Annex B): * the person must be in detention for an indictable offence; and * the authority to delay the exercise of the right must be granted in writing by a police officer of at least the rank of superintendent; and * the superintendent must have reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences: o interference with/harm to evidence connected with an indictable offence; o interference with/harm to others; o alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or o hinder the recovery of property obtained in consequence of the commission of such an offence. o This right can only be delayed up to a maximum of 36 hours. o Where the grounds are authorised they must be recorded and the suspect must be informed. o If the suspect is interviewed before he has been able to consult with a solicitor because this right has been delayed, then there are restrictions on the drawing of adverse inferences at court. Adverse inferences will be dealt with in other elements. o The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct i.e. they have obtained property which they might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of the Proceeds of Crime Act 2002 (‘POCA’). o COP C Annex B provides helpful guidance regarding the power to delay this right. o Authority to delay may only be given if there are grounds to believe that the solicitor might pass on a message or act in some other way that would lead to the consequences mentioned previously. But although this suggests that, on rare occasions, the police might be justified in delaying access to a named solicitor if the grounds can be made out, this would not usually provide justification to delay the right to legal advice generally and the suspect must be allowed to choose an alternative solicitor.

Answer 189

o Section 56 PACE provides that an arrested person has the right to have a friend, relative or other person told that they are under arrest. o This right, to have one person known to them or likely to take an interest in their welfare informed of their whereabouts as soon as is practicable, is at public expense. o The right can be exercised every time the suspect is taken to a different police station.

Answer 190

 Authority- This right can only be delayed if the necessary criteria are met under s.56 PACE. o Criteria- In order to delay the right:  the person must be in detention for an indictable offence (an offence that may be tried in the Crown Court i.e. indictable only and either way offences); and  the authority to delay the exercise of the right must be granted in writing by a police officer of at least the rank of inspector; and  the inspector must have reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences: * interference with/harm to evidence connected with an indictable offence; * interference with/harm to others; * alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or * hinder the recovery of property obtained in consequence of the commission of such an offence.  The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct, i.e. obtained property which the person might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of POCA.

Answer 191

o A young or mentally disordered or vulnerable detainee should not be interviewed or asked to provide a written statement without the presence of an appropriate adult unless delay would be likely to lead to:  interference with or harm to evidence connected with an offence;  interference with or physical harm to other people;  serious loss of or damage to property;  alerting other suspects not yet arrested; or  hindering the recovery of property obtained in consequence of commission of the offence.

Answer 192

o Interviews must be carried out under caution, therefore a person must be cautioned before they are asked any questions about their suspected involvement in the commission of an offence. o The person should be cautioned again at the recommencement of an interview after a break. o The words of the caution are:  'You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.'

Answer 193

 * Constable  * Sergeant  * Inspector  * Chief Inspector  * Superintendent  * Chief Superintendent

Answer 194

o Where an officer has decided to arrest a person, that person should be interviewed at a police station or other authorised place of detention. o The requirement that an interview be conducted at a police station is subject to exceptions, where delay would be likely to:  * Lead to interference with or harm to evidence connected with an offence;  * Lead to interference with or physical harm to other persons; or  * Lead to serious loss of, or damage to, property; or  * Lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or  * Hinder the recovery of property obtained in consequence of the commission of an offence.

Answer 195

 * a significant statement; and  * the custody record.

Answer 196

o Generally, no person should be interviewed if they are unable to:  * appreciate the significance of the questions asked and their answers; or  * understand what is happening because of the effects of drink, drugs or any illness, ailment or condition. * However, an officer of the rank of Superintendent can authorise an interview in these circumstances.

Answer 197

 A properly conducted interview: * * Takes place in an interview room in a designated police station; * * Is recorded; * * Is in the presence of a lawyer, if the suspect has exercised their right under s 58 Police and Criminal Evidence Act 1984; * * Gives the client the option to suspend the interview and have further consultations with their solicitor. * In the interview o Your role as a solicitor at the police station is to protect your client's interests and advance their case. As such a solicitor should consider intervening in a number of circumstances:  * information or evidence is referred to or produced that was not disclosed before the interview;  * clarification on any matter is required at any time;  * there is inappropriate questioning;  * there is inappropriate behaviour;  * further advice to the client is needed;  * a break is required; or  * the circumstances require.