Criminal 1

Question 1

Criminal Litigation Process

Answer 1

Arrest (PACE arrest(reasonable grounds)-> CPS charge) /Requisition (compel attendance before court)
Plea- not guilty -> trial, guilty -> no trial
Trial
Sentence
Appeal

Question 2

Criminal litigation funding

Answer 2

private or online application to Legal Aid Agency (interests of justice (loss of liberty/unable to communicate) + defendant’s means test)
Oral application to judge not allowed except where refused by LAA/urgent situation (contempt of court/breach of court order/brought to court on warrant)
Litigants in person (self-rep) very common

Question 3

Summary only offence (magistrates court)

Answer 3

Assault
Battery
Simple criminal damage (£5k or less)
Attempt to commit simple criminal damage (aggregated £5K or less- s22 Magistrates Court act, unless arson (always either way))
(assault and battery cannot be object of crim attempt)

Question 4

Either way offences (summary or indictable)

Answer 4

Theft - s1 Theft Act 1968
Burglary - s9(1a/b) Theft Act 1968
Fraud (false rep/abuse of position/failure to disclose)
Assault occasioning actual bodily harm- s47 OAPA 1861
Wounding/Inflicting GBH- s20 OAPA 1861
Simple criminal damage over £5k
Simple arson
Attempts of all triable either way
plea before venue hearing in magistrates (deciding between it and crown court(s14 Sentencing Act)), guilty plea- allocation s19 MCA on MC or CrownC dependent on limited sentencing powers of MC

Question 5

Indictable only offences

Answer 5

Robbery- s8 Theft act 1968
Wounding/causing GBH with intent- s18 OAPA 1861
Aggravated Burglary s10 Theft Act
Aggravated Arson
Aggravated Criminal Damage
Murder- where voluntary manslaughter is possible
Involuntary manslaughter (unlawful act/gross negligence)
transferred from Magistrates to Crown on same day - s51 crime and disorder act

Question 6

Criminal Damage Sentencing

Answer 6

value £5k or below- summary only, max sentence 3 months imprisonment/ level 4 fine, cannot be committed to sentence (Transferred from magistrates)
Value over £5k- triable either way, Magistrates- max 12 months imprisonment/level 5 fine (can be committed for sentence higher- indictment max sentence is 10 years)
Uncertain value- D asked for consent to be tried summarily - max sentence 3 months/level 4 fine. No consent -> either-way and higher sentencing powers apply on conviction.

Question 7

Evidence in trial

Answer 7

Burden of proof rests with prosecution, Defendant can challenge admissibility/relevance/strength/credibility/weight of prosecution evidence.

Question 8

Low value shoplifting (under £200)

Answer 8

charged with theft but summary only offence (can be in Magistrates Court), but adult D can elect trial in Crown Court so treat shoplifting as theft (either way offence)

Question 9

Courts of first instance (crime)

Answer 9

determine a D’s guilt (plea/trial)
Magistrates-3 lay magistrates (bench) or district judge, lay justice, Deputy DJ (both tribunal of fact and law)- all cases commence here for 18+, no jury
Crown- circuit judge/HC judge/Recorder (arbiter of law), jury (arbiter of fact), jury only for trials (12- no role at sentence)
Trials- all indictable offences, either way where MC declined/D elected trial in CC
single court that sits in different places (92)
Youth
voir dire- admissibility of evidence discussed away from jury

Question 10

Appeal Courts (Criminal)

Answer 10

Supreme - general public importance from CoA
Court of Appeal (from Crown), no jury, Judges are tribunal of fact and law, no trials but sometimes new evidence, alters OG sentence (can’t make it harsher), can appeal/uphold/quash/order retrial
Divisional
Crown (from Magistrates)- circuit judge with 2 lay magistrates

Question 11

Magistrates Court Sentencing Powers

Answer 11

1 or more summary only offence- max 6 months prison
1 either way offence - max 6 months prison
2 or more either way offences- max 12 months prison
unlimited fines (unless max penalty lower)
Costs + ancillary orders
can commit for sentence to Crown Court
Powers of CrownC depend on offfence
no criminal appeal jurisdiction

Question 12

Court decides on summary trial

Answer 12

D can request indication of sense (s20 MCA) but court doesn’t have to proved
not guilty plea- D must consent to trial in MC
If no consent– D sent to Crown Court s51 CDA

Question 13

Courts decides on trial for indictment

Answer 13

case sent from MC to Crown Court under s51 CDA (D has no choice)
Plea and Trial Prep Hearing at CC within 28 days (charge-> indictment)
solicitors w/ Higher Rights can represent in MC and CC

Question 14

Criminal liability=

Answer 14

actus reus + mens rea + absence of a valid defence
(must have coincidence of AR and MR)
Continuing act theory- Fagan- as long as MR occurs at some point during AR, that suffices

Question 15

Actus Reus

Answer 15

Result (consider but for)
omission (not usually liable unless legal duty to act)
conduct
circumstances (e.g. belonging to another)

Question 16

Mens Rea

Answer 16

direct or oblique intention
recklessness

Question 17

strict liability offences

Answer 17

do not need MR for at least one aspect of actus reus
punished by fine
Road Traffic (breaking speed limit)
protects public/environment

Question 18

absolute liability offences

Answer 18

do not require mens rea
AR + lack of defence

Question 19

Assault (Summary)

Answer 19

AR- causing the victim to apprehend immediate + unlawful personal violence
MR- intention/recklessness to causing AR
threats/silence/words or physical movement

Question 20

Battery (Summary)

Answer 20

AR- applying unlawful force to another
MR- intention/recklessness as to AR
touch/slap/scratches/superficial cuts

Question 21

S47 OAPA 1861

Answer 21

AR- Assault/battery occasioning actual bodily harm
MR- mens rea for assault/battery + intent/recklessness as to causing the victim to apprehend immediate/unlawful personal violence/applying unlawful force to another
Temporary loss of sense/consciousness, heavy bruising, cutting hair w/o consent, minor fracture, more than trivial psychiatric harm

Question 22

S20 OAPA 1861

Answer 22

AR- Wound/Inflict GBH
MR- intend/be reckless to the causing of some harm
GBH- permanent loss of sense/ perm disability/broken bones/fractured skull
wound: breaking both layers of skin

Question 23

S18 OAPA 1861

Answer 23

AR- Wound/ Cause GBH
MR- Intend to cause GBH

Question 24

Criminal Procedure Rules (CrimPR- applies to all crim courts) overriding objective

Answer 24

Part 1- criminal cases be dealt with justly
consider interests of all involved (not just D)
recognise Art 6 ECHR, respect witnesses/victims/jurors, efficient +expeditious, consider gravity of offence /complexity/severity of consequences
Court must apply this when exercising power/applying + interpreting rules and IDs

Question 25

Duties of the participants of the case

Answer 25

Applies to anyone involved in any way to crim case
Prep + conduct case according to overriding objective, comply w/ Rules/PDs/court directions + inform court of any significant failure to do so

Question 26

CrimPR Part 3- Case Management

Answer 26

3.2 court’s duty- early indication of issues, evidence presented in short and clear way, discourage delay (trial will go ahead in D’s absence), avoid unnecessary hearings, participants should co-operate in progression of case (don’t ambush)
Rule 3.5- court can issue direction/any party can seek direction (timescale/disclose/reporting/expert)
Sanctions if directions/deadlines not complied with (costs/adjourn hearings/refuse evidence/adverse inferences from lateness)

Question 27

summary trial MC has standard directions (amended/varied on request)

Answer 27

after not guilty plea- 20 days for prosecution to introduce evidence, D has 10 BDs to oppose
Defence statement w/ 10 business days of initial prosecution disclosure
Defence must notify prosecution + court that witness is required to attend court for live evidence not more than 5 BDs after witness statement served
Both have certificate of readiness + skeleton arguments of points of law 10 BDs before trial

Question 28

Detention without charge (Police and Criminal Evidence Act PACE 1984)

Answer 28

Police officer must demonstrate
1. legal authority to exercise this power
2. That they have exercised the power lawfully

Question 29

Detention overview

Answer 29

taken to police station as soon as practicable after arrest (6 hour+ detention anticipated must take to designated station)/ street bail (attend station later)
see custody officer
informed of rights
non-intimate samples taken + see dr
can speak to solicitor if requested
interviewed (often w/ solicitor present)
released under investigation on bail /charged + released on police bail to appear at MC at later date/ charged + remanded in custody to appear at MC following day

Question 30

Role of custody officer

Answer 30

Responsible for handling + welfare of suspects in detention
Must be police officer at rank of sargeant or higher
Must be unrelated to process of investigation of the offence
s37 PACE COP C2,3,4
authorises detention/orders release
if unavailable, can be another officer not investigating that person’s defence
does risk assessment, makes special arrangements, arranges for interpreters, deals with detainee’s property, contacts healthcare if needed (if flawed, evidence can be excluded)

Question 31

Custody record

Answer 31

Opened as soon as practicable for each detainee
COP C
requirement to inform person of reason for arrest
circumstances of arrest
why arrest necessary
comments made by arrested person
solicitor views this ASA practicable on arrival/any time whilst client detained
COP C solicitor- current practising/ on Legal Aid Agency register

Question 32

Reviews of detention

Answer 32

compulsory s40 PACE- 1st must occur within 6 hours of detention authorised by custody officer, then every 9 hours
reminded at every review of right to free legal advice + given opportunity to make representations (unless unfit/asleep during review)
Review officer (inspector or higher/not custody officer/not involved in investigation) must be satisfied that detention still needed (if s37 grounds for detention still exist)

Question 33

Detention time limits

Answer 33

s41 PACE, max time in custody is 24 hours from relevant time (when suspect arrives at police station - indicated on custody record)
Before expiry must be charged/released
Summary only (cannot be extended)

Question 34

Extending detention (36 hours (24+12))

Answer 34

s42 PACE- before expiry of initial 24 + after 2nd review, grounds in custody record + explained to suspect, suspect + solicitor should be allowed to make representations
Superintendent or higher must authorise to secure/preserve evidence/obtain by questioning
Indictable offenses only
Investigation must be dilligent/expeditious

Question 35

Extending detention (96 hours max 24+36+36)

Answer 35

ss43+44 PACE
apply to MC for warrant for further detention (1st application +36, 2nd +36)
MC believes reasonable to secure/preserve evidence/obtain by questioning
Indictable offence
Investigation diligent + expeditious

Question 36

PACE Codes of Practice

Answer 36

admissible in evidence in civil and criminal proceedings

Question 37

Rights of detained person

Answer 37

Custody officer notifies them + records when used in custody record
continuing (exercisable at any point of custody)
- right to consult privately w/ solicitor/ availability of free independent legal advice
- right to have someone informed of their arrest
- right to consult COP (codes of practice)

Question 38

Right to consult a solicitor

Answer 38

s58 PACE- free and independent legal advice
consulting w/ solicitor in person/on telephone/in writing
Detainee must be told of this right immediate before an interview/an intimate sampling/ intimate drug search/identification parade/identification parade (lineup)/video identification
if declined- note on custody record
Legal advice must be provided as soon as practicable/shouldn’t dissuade detainee
Wait to begin interview for solicitor/ if declined then changed mind- wait to recommence for solicitor

Question 39

Power to delay right to legal advice

Answer 39

Serious step- implicates evidence
s58 COP C Annex B
max delay time 36 hours, suspect must be informed and grounds noted
if D interviewed w/o solicitor due to delay- restrictions on adverse inferences
must be:
indictable offence
granted in writing by superintendent/higher due to reasonable grounds that right will
interfere/ harm evidence connected to other indictable offence/harm others/alert suspects for indictable offence not yet arrested/ hinder recovery of property obtained in offence (POCA 2002)
only if grounds to believe solicitor will pass on message - police can deny access to named solicitor but not delay legal advice generally (D can choose alternative)

Question 40

Right to have someone informed of arrest

Answer 40

s56 PACE
1 person known to them/likely to take interest in their welfare as soon as practicable is at public expense
Exercisable every time suspect taken to diff station
In order to delay right (max 36 hours):
indictable/either way
in writing by inspector/higher
due to interference/harm to evidence of indictable offence/others/alerting suspects of indictable offence not yet arrested/hinder recovery of property obtained in offence

Question 41

Right to an appropriate adult (under 18/mentally disorder/vulnerable)

Answer 41

Child- parent/guardian/representative of care authority/social worker (at push any non-police adult)
Mentally diff- parent/guardian/relative/someone with experience dealing with such persons (must be 18+ non police)
Cannot be solicitor/legal rep, involved in offence as suspect/victim, involved in investigation, low IQ, estranged parent child object to, someone who has received admissions from detainee in case

Question 42

Right to an interpreter (where required)

Answer 42

Custody officer determines if necessary
Can’t be interviewed w/o unless Superintendent/higher satisfied that delaying interview may harm/interfere with evidence/physical harm to others/serious loss or damage to property

Question 43

Conditions of detention: Treatment of suspects in police station

Answer 43

COP C 8
as practicable- 1 detainee to each cell
cells must be adequately heated/cleaned/ventilated
supply bedding/toilet/washing facilities
if clothes removed, provide replacement clothing of reasonable standard
2 light meals + 1 main meal every 24 hours

Question 44

Police interview

Answer 44

Code C para 11.1A- questioning of a person regarding their involvement in a criminal offence/s
must be done under caution (redone after break)- you do not have to say anything…
purpose- gather evidence

Question 45

Police rankings

Answer 45

Constable
Sergeant
Inspector
Chief Inspector
Superintendent
Chief Superintendent
Crim. Invest. Dept. CID- same system- Detective
Investigating Officer (IO)- police officer of any rank, usually officer in charge of that part. offence (Officer in the Case OIC), suspect’s legal rep speaks to them for pre-interview disclosure, will lead interview

Question 46

Interview should be at police station/authorised place of detentions

Answer 46

exception- where delay is likely to lead to
interference/harm to evidence/physical harm to others/serious loss or damage to property/alerting other suspects not yet arrested/hinder recovery of stolen property

Question 47

Disclosure- police interviews

Answer 47

No general right to disclosure except significant statement and custody record
signif statement- one that is capable of being used in evidence (admission of guilt)
But PACE COP C 11.1A- before interview solicitor must be given sufficient info to understand the nature of any offence + why client suspected of it
IOfficer will hold back info for untainted account from D
Solicitor wants as much information as possible to act in client’s best interest

Question 48

Recording and fitness for interview

Answer 48

All interviews must be contemporaneously recorded
Interviews under caution for indictable offence- audio recorded as well
Exception- done in writing for minor offences/ person not arrested/ not at police station
No person should be interviewed if unable to appreciate significance of questions/answers, intoxicated or illness/ailment/condition but Superintendent can authorise an interview in these circs

Question 49

Practicalities of interview

Answer 49

before- solicitors obtains pre-interview disclosure/ has private consultation w/ client to discuss case + advise them on options for interview
Properly conducted interview -
interview room in designated station
recorded
presence of lawyer if suspect used s54 PACE right
gives client option to suspend interview + further consult solicitor

Question 50

Solicitor intervention in interview

Answer 50

undisclosed info/evidence referred to
clarification for client
inappropriate behaviour
further advice to client
break
inappropriate questioning (misrepresenting info/hypothetical qs/ repetitive qs/ disruptive listening (assuming knowledge/not listening)

Question 51

Confessions

Answer 51

Must be admissible
s76(2) PACE- confession excluded due to oppression(torture/inhuman treatment causing confession) /unreliability (breach of PACE caused confession’s unreliability) - doesn’t automatically exclude, defence can apply for it
s78 PACE- court has discretion to exclude evidence that would adversely affect fairness of proceedings (can be used on any evidence prosecution relies on not just confession, can be used to exclude where either limb of s76(2) breached)

Question 52

Solicitor must actively defend (protect and advance the legal rights and interests of their clients)

Answer 52

Obtaining as much info as possible from police
Advising client fully
Advising on issues such as providing samples/extending detentions/searches/bail
Attending + advising in interviews
Comprehensive + Contemporaneous note taking -> give evidence in trial
Make note of PACE/COP breaches
Request that refusals are noted in custody record

Question 53

Vulnerable suspect

Answer 53

Does not include intoxicated clients
Mental health condition/disorder -> unable to understand/communicate, unclear about their position/agrees to everything/info from health + social care services
Custody officer does risk assessment for this at beginning of their detention, then provides access to an appropriate adult (inform them of location/grounds for arrest/ ensure they arrive ASAP)

Question 54

Role of appropriate adult

Answer 54

-Ensure D understands what’s happening/why
- Support/advise/assist D,
- Ensure police are acting properly/fairly
- Assist w/communication,
- Ensure D understands their rights + rights are protected/respected
Can request legal rep but D doesn’t have to use them (can consult without AA too)
Needed for interview/written statement unless superintendent satisfied that delay will lead to harm to evidence/others/loss/damage to property/alerting other suspects not yet arrests/hindering recovery of property obtained in crime

Question 55

Solicitor’s role when representing vulnerable clients

Answer 55

• Ensure appropriate adult appointed
• Ensure custody officer has requested medical assessments if needed
• Take time to ensure client understands your role, what’s happening, the interview and ‘no comment’ option, what happens after
• Request regular breaks in interview, intervene if language/tone of officers inappropriate

Question 56

Options for suspect in interview

Answer 56

1. Answer questions
2. “No comment”
3. Written statement + “no comment”
   Anything said can be used in evidence.
   Silence may cause adverse inferences from court.
   Mixed ‘no comment’ and answers not allowed- transcript of interview read in court/no comment interview not read in court- adverse inference from avoiding questions, confusing, tactics may be used to push suspect to talk where they hadn’t planned on it

Question 57

Interview- prepared written statement

Answer 57

Sets out defence at beginning of interview then ‘no comment’.
Where facts will be relied on at trial but lawyer doesn’t think client should answer now.
Difficult to ensure its sufficient- any fact not mentioned but relied on later -> adverse inference

Question 58

Interview: Should the client answer questions?

Answer 58

Amount of disclosure (if police don’t disclose enough (offence + why suspected) -> difficult to advise -> remain silent (court won’t draw adverse inference here)
Admissibility of evidence - are witnesses compellable/s 78 PACE applications/witnesses written statements
Strength of evidence- silence good if little evidence (unlikely to go to trial), consider evidence yet to be obtained
Client’s account/instructions- if D has defence, put forward now as may lose credibility/adverse inferences if not at early stage
State of your client (physical +mental) court won’t draw inferences from silence where Argent factors (sick/confusion/intoxication/shock) gives lawyer cause for concern - medical examiner should certify them fit for interview
Significant statements- any statement capable of being used in evidence against suspect- suspect will confirm or deny the earlier statements
Possible adverse inferences- relied on in court, then mention now, failure to account for mark/object/substance or presence at scene

Question 59

Advising client before interview

Answer 59

Private, confidential discussion
Explain allegation then get their version of events in full (not testing strength yet), do they have legal defence/accept involvement?
Assess fitness to be interviewed
Provide advice on legal position
Explain options for interview/ which is best + their consequences
Advise on samples

Question 60

Right to silence - suspects do not have to answer police questions but adverse inferences can be drawn (if it goes to trial)

Answer 60

Criminal Justice and Public Order Act 1994:
s 34: If fact later relied on at trial was reasonable to mention at interview (only if D cautioned)(reasonable: police disclosure/what suspect knew/state of suspect/legal advice given to suspect)
s 36: Failure to account for mark/object/substance. Suspect must have been given special warning
s 37: Failure to account for presence at scene. Suspect must have been given special warning.

Question 61

Effect of an adverse inference

Answer 61

Must be proper
Ranges from accepting defence as true but D chose not to reveal to inference that they are guilty
Fabrication since interview
Withheld as resisting police questioning (ambush defence)
D had no reasonable explanation at time of interview which would refute prosecution

Question 62

Caution

Answer 62

You do not have to say anything. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.

Question 63

Special warning (needed for s36, 37 adverse inference)

Answer 63

Not a requirement that there is failure to mention sth later relied upon.
Ordinary language caution: what offence, what they need to account for, that they are a suspect, that a court may draw a proper inference if they fail/refuse, that the interview may be given in evidence at trial

Question 64

s38 CJPOA : No defendant may be convicted solely based on an adverse inference. No adverse inference can be drawn where suspect has not been allowed access to legal advice

Answer 64

If case never gets to trial/client pleads guilty, adverse inferences are irrelevant- balance the likelihood whilst advising.

Question 65

PACE Code D: process when witness purports to make visual identification

Answer 65

Protects innocent suspects from incorrect identification Makes successful identification watertight

Question 66

Suspect not known to police: Visual identification

Answer 66

Eyewitness may be taken to particular neighbourhood/place to try and identify the person they previously saw
Can be shown photographs (Code D, Annex E)

Question 67

Suspect known to police : visual identification

Answer 67

Duty to hold identification procedure (Code D, 3.12) where:
1. Eyewitness to offence has:
- identified suspect /purported to have
- is available + expresses ability to identify suspect
- has reasonable chance of being able to identify the suspect
2. Or suspect disputes being the person eyewitness has seen
If not practicable/serves no useful purpose in proving/disproving (suspect known to witness)- no need to hold ID procedure

Question 68

Types of identification procedures

Answer 68

Suspect known + IP available
Video identification- eyewitness shown video of known suspect with similar videos of others resembling suspect
Identification parade- lineup incl. suspect w/ others resembling them
Group identification- Eyewitness sees suspect in informal group of people
Arrangements + conduct led by inspector or above not involved in investigation (identification officer)

Question 69

First instance - video identification procedure

Answer 69

Unless not practicable or identification parade more suitable.
If suspect refuses -> alternative
Covert procedures- last resort (all other considered + refused)

Question 70

Formalities before video identification procedure

Answer 70

• Make record of description of suspect first given by eyewitness (give copy to suspect/solicitor before procedure carried out)
• Give notice to suspect + explain purpose of procedure, entitlement to free legal advice, process + right to have solicitor/friend present, that they don’t have to consent/co-operate but if they don’t, refusal may be given in court evidence + police may proceed covertly
• Invite suspect to participate in video identification procedure first

Question 71

Video identification procedure- Code D Annex A (VIPER)

Answer 71

1. Officers film all sides of suspect
2. Identification officer, suspect and legal representative select lookalikes from over 10,000 videos on VIPER system (at least 8 others) considering age/general appearance/position in life
3. Unusual features on suspect concealed/replicated on others
4. Suspect/their solicitor/friend/AA given reasonable opportunity to see full set first, can raise reasonable objections (must state reasons)
5. Tell eyewitness suspect may/may not be in clips immediately before showing them
6. Suspect’s solicitor can be present whilst eyewitnesses watch (if identification officer approves)
7. Process recorded on video with sound showing all persons present within sight/hearing of eyewitness, dialogue between eyewitness and anyone present (this can be watched by suspect/solicitor at discretion of investigating officer)
8. Do not direct their attention
9. Eyewitnesses can’t communicate with each other- 1 at a time

Question 72

Identification parades (Code D Annex B)

Answer 72

1. Suspect must have reasonable opportunity to have solicitor/friend there
2. In normal room/with screen
3. Once lined up, everything done in presence + hearing of suspect/interpreter/solicitor/friend/AA present
4. Video recording/colour photograph taken of parade and shown to suspect/solicitor within reasonable time on request
5. At least 8 people + suspect who resemble suspect (age, height, appearance, life position)
6. Unusual physical features concealed on all/replicated
7. Suspect may select own position in line
8. Witnesses brought in one at a time (cannot interact with/overhear each other/ see any of the IParade members before/after)
9. Witness told immediately before that the suspect may or may not be there
10. Witness can tell the members to speak/move

Question 73

Identification procedure: Group identification (Code D annex C)

Answer 73

Can take place with the suspect’s consent + co-operation or covertly
Location- where other people are passing by/waiting around (escalator/shopping/station)
Colour photograph/video taken of scene to give impression of number of people present
Witnesses cannot communicate with each other

Question 74

Identification procedure: Confrontation by an eye-witness (code D annex D)

Answer 74

Before the confrontation, tell the eyewitness that the suspect may or may not be the person they confront, if not then they should say so.
Should be in police station (normal room or screen)

Question 75

Breach of Code D (process of Identification Procedures)

Answer 75

Breach determined without voir dire (trial in trial) unless evidence of breach (voir dire)
Breach of Code D -> D applies to exclude evidence obtained in breach of code under s78 PACE
Trial judge must decide if significant prejudice -> will there be adverse effect on fairness if admitted
excluded where safeguards flouted, D had right to have the correctness of IP tested
Where admitted despite breach of Code D:
Defence can comment on breach in closing speech
Trial judge alerts jury to breach
Jury assesses whether breach causes them to have doubts about safety of identification

Question 76

Who decides whether to charge?

Answer 76

• Generally Crown Prosecutor under power from Director of Public Prosecutor
• Police (custody officer) retain discretion of whether to charge some summary offences (road traffic/public order s5/criminal damage under £5k/low value shoplifting)

Question 77

Crown Prosecutors

Answer 77

Exercise DPP powers.
DDP delegates powers to lawyers w/ rights of audience, subject to Crown Prosecutor’s instructions.
Uniformity sought by Code for Crown Prosecutors (by DPP)
Associate Prosecutors- CPS non-lawyers- represent CPS on bail/pre-trial applications. Conduct trials for non-imprisonable summary offence.

Question 78

Different ways of commencing criminal proceedings

Answer 78

1. Arrest and charge
   at end of police detention/after bail when re-attending station/ after bail whilst CPS decides on charge
   Most common
2. Written charge and requisition
   s29 CJA- no arrest needed,
   Serve written charge + simultaneously public prosecutor issues requisition requiring person to attend a Magistrates Court
   Only available to those who prosecute on behalf of State (CPS/Environment Agency etc.)
3. Laying an information
   Private prosecutions only
   Information alleging offence on Magistrates Court -> Court issues summons/arrest warrant

Question 79

Pre-charge police bail

Answer 79

1. Where insufficient evidence to charge a suspect (released pending further investigation)
2. Sufficient evidence to charge but matter needs to be referred to CPS for charging decision.
   Police decide whether released with/without bail/any conditions on bail- consider views of victims.
   If not released on bail but police looking into matter -> ‘released under investigation’

Question 80

Content of written charge

Answer 80

Statement of offence in ordinary language
Statutory provision creating the offence
Particulars of conduct complained of (so accused knows allegations)

Question 81

Content of summons/requisition

Answer 81

• Notice setting out where + when the accused is required to attend court
• Specific each offence relevant
  Summons - identify issuing court
  Requisition- identify person under whose authority it was issued

Question 82

Timing of charge

Answer 82

No statute of limitation beyond summary only offences (information laid/complaint made within 6 months of offence.)(Prosecution has burden of proving proceedings were brought in time)
Indictable- no time limit.

Question 83

Funding - police station advice

Answer 83

ALL suspects entitled to free legal advice at police station regardless of means

Question 84

Public funding : representation order

Answer 84

Must pass both means and merit test

Question 85

Funding- means test

Answer 85

Automatic pass if under 18/on benefits

Question 86

Magistrates Means Test

Answer 86

pass if below than £12,475, fail if above £22,325
weighted by adding to partner’s (unless co-D/victim)
Full means test form if in between - annual household disposable income below £3398 -> pass
Can apply for eligibility review

Question 87

Means Test- Crown court

Answer 87

assessed by income and capital - including equity in properties
After combined allowance of £30k, applicants required to contribute
If from income- pay throughout case, if capital, pay at end
inelligible for funding- £37500 or more
Eligible w/ no contribution- £3398
Eligible with contribution- between - 90% of disposable income for 6 months paid (max dependent on offence- refunded on acquittal)
Can apply for eligibility/hardship review

Question 88

Merits test

Answer 88

Interests of justice to be legally represented
Automatically passed if indictable only or an either way at crown court
Even when pleading guilty if custodial sentence likely will pass
10 propositions- most important - I will lose my liberty
Suspended sentence re-activated if convicted of new offence

Question 89

Merits test - 10 propositions

Answer 89

1. I will lose my liberty
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.
3. It is likely I will lose my livelihood
4. It is likely I will suffer serious damage to my reputation
5. A substantial question of law may be involved
6. I may not be able to understand the court proceedings or present my own
   case
7. Witnesses may need to be traced or interviewed on my behalf
8. The proceedings may involve expert cross examination of a
   prosecution witness
9. It is in the interests of another person involved in proceedings that I am represented (young victim, difficult for victim to be cross-examined by defendant, NOT family that will suffer if guilty)
10. Any other reasons (not guilty-> trial, CC, child witnesses)

Question 90

Representation order granted

Answer 90

Solicitor prepares case and can claim for preparation, advocacy, routine letters and calls

Question 91

Failing means or merits test

Answer 91

Failing means - no right of appeal but submit another form if circs changed
Failing magistrates merits- interests of justice appeal to legal aid agency
May consult with duty solicitor if imprisonable offence (can only represent them on 1 occasion)
Then instruct private/ self-represent

Question 92

First Hearing- all adult Ds in Magistrates regardless of offence

Answer 92

Within 14 days of being charged - prosecutor anticipates guilty plea (sentenced in MC)
Within 28 days of being charged - anticipated not guilty plea (CC for trial or sentence(
If D detained in police custody following charge, must be brought before next available court (ASAP)

Question 93

Location of first hearing (adults)

Answer 93

Summary - Trial and Sentence in MC
Indictable only- Trial and Sentence in CC
Either way-
1. MC accepts jurisdiction + D consents to summary trial -> Trial in MC and Sentence in MC or CC
2. MC declines jurisdiction or D elects CC trial -> Trial and Sentence in CC

Question 94

D must be present at first hearing

Answer 94

if on bail - court issues warrant for their arrest (Bail Act 1976)
If just doesn’t attend - try and proceed anyway unless allocation of either way or sending indictable to CC
Summons for court (non-imprisonable offence- no penalty for not appearing, penalty for offence imposed in absentia

Question 95

Initial details of prosecution case (IDPC Crim PR Part 8)

Answer 95

Prosecution is obliged to serve the initial details on the court officer/ D if requested as soon as practicable, no later than beginning of day of first hearing
Online: Common Platform
Failure to supply -> adjourn/award costs to defence for failure (Not dismiss/abuse of process)

Question 96

Content of initial details

Answer 96

Summary of circs of offence
D’s account in interview
Written statements/exhibits material
Victim impact statements
D’s criminal record

Where D in police custody up until hearing: just summary of circs of offence and D’s criminal record

Question 97

Purpose of initial details

Answer 97

Sufficient for court to take informed view on plea and trial venue
If no guilty plea anticipated, sufficient to assist court in identifying real issues and giving directions - Preparation of Effective Trial (PET) form completed by both parties for summary trial

Question 98

First hearings

Answer 98

Summary + either way
- deals with plea, bail, representation and legal aid (depending on offence, sentence)
Indictable only
Brief first appearance in MC- bail + legal aid
Plea on CC sending form
CC 3 or 4 weeks later depending on bail status

Question 99

Summary offences never go to Crown Court - Exception

Answer 99

D charged with offence to be tried in Crown Court and there is a summary only offence connected to the indictable
Sent to CC
Must be sent to CC for trial
- common assault
- assaulting prison/centre officer
- taking vehicle without authority
- driving whilst disqualified
criminal damage
Included on CC indictment
Must be sent to CC for plea only
- other summary matter punishable by disqualification from driving or imprisonment
Enter plea for summary after indictable, guilty plea -> CC deals as if MC, not guilty plea -> remitted to MC as CC has power

Question 100

Either way- indicate plea before venue

Answer 100

D receives initial details and decides
- guilty
- not guilty/ no indication (treated as not guilty)
Warned before indicating guilty that they can be sentenced by court/sent to CC

Question 101

Guilty plea

Answer 101

Must be unequivocal (free of any suggestion otherwise)
If equivocal plea then treated as not guilty (self-defence/other excuse)
Unequivocal guilty plea indicated- formal plea of guilty -> sentence
MC max sentence 6 months for summary/1 either way, 12 months for 2 or more either way
If not enough -> CC
If MC sufficient - sentence passed immediately or adjourned for pre-sentence report (PSR) (committal to CC still available)

Question 102

MC powers insufficient -> commit to sentence at CC

Answer 102

MC orders Pre sentence report for use by CC if
- realistic alternative to prison
- dangerous offender
- other appropriate

Question 103

Not guilty plea -> allocation (s 19 MCA)

Answer 103

Allocation guideline - either way offences should be tried summarily unless
- court’s sentencing powers insufficient
- unusual legal, procedural, factual complexity requires CC

Question 104

Allocation hearing

Answer 104

Allocation guideline- in cases with no factual/legal complexity, court should consider committing for sentence after trial or retaining jurisdiction if unlikely to exceed sentencing powers
-> likely to stay in MC unless so serious that CC
consider submissions of the parties

Question 105

Allocation hearing - submissions

Answer 105

Prosecution
- opens with facts, outlines D’s criminal record, makes submissions on where trial should be held in accordance with guidelines (nature + seriousness of offence + particular aggravating/mitigating factors)

Defence
- makes submissions as to venue (can just agree to prosecution’s submission)
- if disagree on sending to CC, make fuller, persuasive submissions

Question 106

Decision at allocation hearing

Answer 106

• Allocate to CC - s51 crime and disorder act -> D appears at CC next (no right to elect MC trial)
  Court completes Case sent to CC for trial questionnaire
• Accept jurisdiction (s20 MCA) court explains to defendant that
• summary trial more suitable
• D can consent to be tried summarily or by jury in CC
• if convicted after summary trial can still be sent to CC for sentence
  MC progresses as if summary only offence, sets trial date, does case management

Question 107

Indication of sentence

Answer 107

D can ask for this if they were to plead guilty instead
Court has discretion to provide
Court can decline to give an indication
If they do- confined to custodial or non-custodial
D can then change plea to guilty (treated as if pleaded guilty from outset)
Non- custodial sentence indication for guilty plea is binding on later MC (unless they keep not-guilty plea- no indication binding)

Question 108

Election : Court asks D if they consent to being tried in MC (adjourned) or if they want trial by jury (transferred to CC)

Answer 108

Where D doesn’t ask for indication/ indication refused/ not-guilty plea kept
Informed that could still be sentenced by CC
Not guilty plea- no indication binding
D’s legal rep must advise on this decision (often advise CC)

Question 109

Election : Advantages of CC trial

Answer 109

Often legal advice given is to elect CC
- acquittal rate higher in CC
- separate tribunals of law and fact advantageous (voir dire- judge can hear arguments to exclude evidence in absence of jury)
- CC won’t always sentence more harshly than MC

Question 110

Election: Advantages of MC Summary Trial

Answer 110

• less formal
• shorter waiting time before trial date
• trial much quicker itself
• no requirement for defence statement
• less expensive
• magistrates have to provide reasons, juries do not give reasons
• magistrates have less sentencing powers than CC (but can send to CC after trial)

Question 111

Exceptions to summary only in MC, indictable only in CC , either way in either

Answer 111

Low value shoplifting
Criminal damage
Complex fraud
Child witnesses

Question 112

Low value shoplifting - summary only

Answer 112

Theft is either way but shoplifting valued at £200 or less summary only, max 6 month sentence
D has right to elect CC trial

Question 113

Criminal damage

Answer 113

Only CC when over £5000 or caused by fire (arson)
If under £5k - summary only, max penalty is 3 months prison/ level 4 fine

Question 114

Notice given of cases of complex fraud or involving child witnesses (sent to CC)

Answer 114

Sent to CC without allocation procedure/plea before venue
Complex fraud - 2 of:
over £500k
significantly international
requires specialised knowledge
numerous victims, substantial + significant fraud on public body
widespread public concern or misconduct endangered UK economy (undermining confidence in financial markets

Question 115

Cases sent to Crown Court

Answer 115

• indictable only
  Either way
• sentence after guilty plea
• sentencing after MC trial
• MC declined jurisdiction after not guilty plea
• MC accepts jurisdiction after not -guilty plea but D elects CC
• complex fraud/ child witness notice given
  Except low value shoplifting where D hasn’t elected CC and simple criminal damage of £5k or lower

Question 116

Adjournment

Answer 116

D presented to court and court cannot conclude the case in 1 hearing -> case adjourned.

Question 117

Remand

Answer 117

D sent away and told to come back another day. D on remand obliged to return . Remand in custody or served in the community on bail.

Question 118

Remanded into custody

Answer 118

Prosecution applies for it by presenting objections to bail (always presumption in favour of bail).
Objections- finite, defined by law, vary by offence to prevent custody being longer than potential sentence.

Question 119

Bail

Answer 119

After prosecution raises objection to bail, defence applies for bail. 1st decision about bail made in MC (murder: only CC Judge can grant bail). Defence and Prosecution can appeal these decisions.
Conditional bail- subject to conditions (DA should consider what would help the court allow bail)
Bail is an ongoing consideration.

Question 120

Right to bail (s4 Bail Act 1976)

Answer 120

Presumption that D has right to bail, can only be refused with proper objection. (rebut the right on legally specified objection)
Still applies after conviction, where case adjourned for sentence, despite fear of absconding.
Applies after breaching community order.
Time limits for each case- right to bail absolute where case doesn’t progress in time

Question 121

Right to bail does not apply (can be granted but no presumption)

Answer 121

• those appealing their conviction/sentence
• Ds being committed for sentence from MC to CC

Question 122

Grounds for prosecutions objections to bail

Answer 122

Only needs to succeed in showing one ground to deny bail/conditional bail
a) Indictable
b) Summary imprisonable (common assault)
c) Summary non-imprisonable (road traffic)

Question 123

Bail objections : Indictable (/Either way)

Answer 123

Most cases- all theft, most violence, all drugs/sex
Substantial grounds for believing that the D would either:
a) fail to attend a subsequent hearing (surrender to custody)
b) commit further offences on bail
c) interfere with witnesses or obstruct the course of justice (destroy evidence)
Final filter- bail shouldn’t be removed on these grounds where there are no real prospects of D getting a custodial sentence

Question 124

Indictable bail opposition: substantial grounds for believing

Answer 124

• not a high bar, judge has subjective view of risk of 1
  Witnesses/hearsay evidence allowed
  Magistrates have inquisitorial role - can ask qs, insist on sureties giving evidence of relationship to D

Question 125

Summary offences-Objection to bail

Answer 125

Only allowed if D had already been given bail and breached a condition of it in these proceedings, or has a fail to surrender conviction before
Trigger- D arrested for breach of bail

Question 126

Need not be granted bail (1 of these needed)

Answer 126

a) remand in custody for D’s protection
b) court has insufficient info to deal with bail, short remand to produce enough evidence
c) D already serving a sentence in custody

Question 127

Process of bail objections for other special cases

Answer 127

1. D falls in special case
2. If serious case provisions are satisfied, court follows more stringent test (if no pre-convictions, general objections )
3. If case of particular character, P can use those grounds or general grounds

Question 128

Bail for serious crime :murder

Answer 128

Only CC judge can grant bail
If D has pre- conviction for murder/attempted, rape, serious sexual D not granted bail unless exceptional circumstances.
If not, D not be granted bail unless no significant risk of D causing physical/mental injury on bail

Question 129

Bail for serious crime: attempted murder, rape, serious sexual offence

Answer 129

If D has a pre-conviction for murder (attempted), rape or serious sexual offence, not granted bail unless exceptional circumstances

Question 130

Bail for serious crime : offence carrying life imprisonment

Answer 130

if D was already on bail/ or fails to attend after bail, D may not be granted bail unless
- no significant risk of further offences being committed or failure to attend

Question 131

Bail for cases particularly affecting risk (D charged with offence suggesting mental/physical risk to partner/family or an abuse of drugs)

Answer 131

a) offence against partner/family
D need not be granted bail for imprisonable offence if substantial grounds to believe D would cause physical/mental injury to associated person
also for non-imprisonable offence if D arrested under s7 Bail Act for breach of bail
b) abuse of drugs
Test shows D has Class A drug in body and offence related to/caused by Class A drugs
Court may not grant bail unless no significant risk of D committing an offence on bail

Question 132

Bail infringement- on bail at time of the offence

Answer 132

indictable - need not grant bail
absconding on indictable - bail need not be granted again unless before conviction + no chance of custodial sentence
summary imprisonable - need not grant bail if substantial grounds for believing D will commit further offences

Question 133

Factors when considering grounds for objecting to bail (ground is what removes bail- failure to surrender, commit further offences, interfere with witnesses)

Answer 133

a) nature and seriousness of the offence and likely disposal (sentence)
- long, tempted to abscond
b) character of D, D’s antecedents (previous convictions), associations, community ties
- criminal associations
- addictions
- fixed community ties (children, job -> less likely to abscond)
c) bail record in past
- absconded
- committed offences on bail
d) strength of evidence
- chance of acquittal -> less likely to abscond

Question 134

Common bail conditions (no max)

Answer 134

• Residence at given address (prevent absconding)
• Curfew
  (pattern of offending at night)
• Reporting to local police station at given times
  (prevent absconding)
• Surety - recognisance (money) by someone with influence over D (given after absconding)
• Security - money/valuable item by D or on D’s behalf - given on release on bail, forfeiting on absconding.
• restriction on where D can go on bail
  (reduce risk of interfering with witnesses/committing further sentences)
• restriction on contact
  victims/witnesses (obstruct justice) or co-defendants (further offences)
• electronic tagging
  fear of failure to surrender/ protect witnesses
• bail hostels + comply with rules of bail hostel (breach -> leave -> breach of bail condition)
  if D doesn’t have fixed address
• surrender of passport

Question 135

Bail conditions

Answer 135

duty to surrender to custody by attending court at time/date specified (s3 Bail Act)
other conditions - relevant, proportionate, enforceable
ECHR art 5(3)- every arrestee/detainee brought promptly before a judge and entitled to trial in reasonable time/ release pending trial which can be conditioned by guarantees to appear at trial

Question 136

Applications made to vary bail conditions

Answer 136

Made by defence or prosecution on advance notice to other party
Make application to court which granted bail or CC if sent for trial/committed for sentence
If parties agree, court can vary without a hearing

Question 137

Breach of bail conditions (not actual offence)

Answer 137

Arrested under s7(3) Bail act
risk of tightened bail conditions or remanded in custody (bail withdrawn)
Breaching conditions not committing an offence
s7 - Police have power of arrest those in breach or about to be in breach -> brought to MC to determine bail going forward
Breach indicates new grounds of objection, likely to be remanded in custody until case concluded

Question 138

Only criminal offence bail breach- failure to surrender (FTS) to custody without reasonable cause

Answer 138

Summarily punished by up to 3 months imprisonment and/or unlimited fine
Indictment- up to 12 months imprisonment and or unlimited fine

Question 139

Bail Procedure

Answer 139

Refused bail by police, D appears before next MC in custody
DA checks with Prosecution if intending to object to bail - if none -> bail
If Prosecution has objections to bail, after hearing both prosecution and defence submissions , court decides (fills out form)
Where D has right to bail under s 4 Bail Act (presumption), court must give its reasons if it refuses bail

Question 140

Bail attempts -

Answer 140

MC - two attempts at getting bail (then appeals to CC or finds fresh points (new surety) (2 in MC, 1 in CC)
CC- D has trial in CC then 1 attempt at bail in first hearing at MC (unless murder) and further application as of right in CC

Question 141

Bail timeline- most cases

Answer 141

D attends court for first time, applies for bail
If unsuccessful, case returned a week later, bail raised 2nd time (can be identical and denied then allowed just because of different bench)
Then secure certificate of full argument from MC before appealing to CC .
Appeals heard 1 business day after appeal notice served.
Can only apply after if circumstances changed.

Question 142

Bail timeline- urgent cases

Answer 142

second attempt in MC quicker than a week -> D appeals to CC after only 1 application to MC (lose 2nd application in MC)
Can only apply again on change of circumstance.

Question 143

Magistrates Court grants bail

Answer 143

Rare for prosecution to appeal but can if
1. Prosecution opposed bail originally
2. Punishable by imprisonment
3. Prosecution says at hearing they will appeal (D kept in custody)
4. Appeal confirmed in writing, served on court and defence in 2 hours
5. Appeal heard within 48 hours excluding weekends
6. Appeal heard by CC judge
Same for CC prosecution appealing granting of bail - except appeal heard by High Court Judge in High Court

Question 144

Custody time limits

Answer 144

Prosecution cannot hold D beyond this unless court has sanctioned extension
Summary only/either way in Magistrates, when court begins hearing prosecution evidence- 56 days
Indictable/Either way in Crown Court - starts when jury drawn, 182 days minus any days spent in custody before case sent to CC (usually 0)
Trial must commence before expiry of custody time limit - D released if not unless prosecution applies to extend (acts with diligence + expedition and good and sufficient cause for further custody)

Question 145

Remand in MC court

Answer 145

if remanded into custody at first hearing, trial must take place in MC, first remand must be no more than 8 clear days
D can then make another bail application
Courts clogged with pointless 2nd appearance (after 8 more days)- video link or consent to onward remands (after 2nd appearance D must be brought back at least every 28 days remanded onwards to trial - D can consent to for court to do in absentia w/ no video link)

Question 146

Pre-trial matters

Answer 146

Considered at first hearing, hearing after first hearing before the trial, on day of trial directly before trial starts
Welsh - indicated on Preparation for Effective Trial (PET form) in MC or PTPH in CC

Question 147

Criminal Procedure rules - parties and court resolve all pre-trial matters before the day of the trial where possible

Answer 147

Magistrates - resolved at first hearing
Crown - PTPH (plea and trial preparation hearing)- at least one, usually more for more complex cases

Question 148

Pre-trial matters in Magistrates Court

Answer 148

First hearing
Case management - PET form (prep for effective trial) completed by both parties before hearing
Court gives directions for:
- service of docs
- resolve matters of law/set out timetable for when they will be resolved (pre-trial hearing /morning of trial)
Court says trial date
Pre trial hearing deciding on admissibility of evidence- ruling binding on MC at trial (unless party applies for it to be discharged/varied : material change in circs/something not brought to the attention of court before justifying discharge/variation)
Same MC judges hear case for excluding evidence + trial -> difficult to ignore after - rare to have differently constituted court decide

Question 149

Plea and trial preparation hearing (PTPH)

Answer 149

Main, often only, CC pre-trial hearing
Scheduled within 28 days of case being sent from MC
Both parties fill out PTPH form before
- First stage : plea
- Second stage: sentence or trial preparation

Question 150

Magistrates sending case for trial to Crown Court

Answer 150

CC sets date for PTPH within 28 days
MC completes ‘sending sheet’ - specifying offences and which CC, sent to D and CC (no prescribed form)
Evidence served on defence within:
- 50 days (if D in custody)
- 70 days (if D on bail)
of date D sent to trial at CC
Evidence uploaded to Crown Court Digital Case System
Draft Indictment served by prosecutor on CC officer within 20 days of serving prosecution evidence

Question 151

1st Stage PTPH : plea

Answer 151

Defence makes any application to dismiss charges before plea taken
Indictment put to D -> D enters plea of guilty/not guilty to each count of indictment -> case moves to sentence
Guilty plea to sole count of indictment/all of multicount -> sentence
Not guilty to sole count of indictment/all of multicount -> trial preparation of the hearing
At least 1 guilty plea and at least 1 not-guilty plea on multicount indictment -> prosecution decides how to proceed (sentencing or if trial, move to trial preparation stage)

Question 152

Unfit to plead

Answer 152

Judge determines after medical evidence -> counts as no plea -> trial with jury (so trial prep stage)-> If jury finds guilty:
- absolute discharge
- supervision order
- hospital order

Question 153

2nd Stage PTPH: Sentence or Trial preparation

Answer 153

Trial Preparation- 4 stage dates to comply w/ directions
Trial date set- estimate length/witness availability
Prosecution evidence - prosecution confirms they’ve served all the evidence/ what’s left + when they’ll serve
Expert evidence- directions for service and seeking agreement between experts
Witness requirements - defence informs prosecution- which prosecution witnesses required to give evidence + estimate of time needed to question, defence gives details of any defence witnesses
Standardised directions:
- special measures (live link/screen)
- bad character applications (non- conviction evidence)
- witness summons
- agreed facts and issues (drafted as admissions for trial use)
- disputed facts and issues
- defence statement
- advance disclosure
- D’s interview - edited interview record for trial use
- Hearsay
- Admissibility + legal issues
If party fails to comply with directions, has to explain to court expectation of no future hearings before trial but may need to be listed again

Question 154

Disclosure

Answer 154

Used materials - relied upon at trial
Prosecution uses to prove case against D (case papers, prosecution witness statements, D’s taped interview, documentary exhibits)
Unused materials - not relied upon at trial
Material prosecution has that doesn’t prove their case- D can present in trial (statements from other witnesses, previous convictions of witnesses, disciplinary findings against police officers)

Question 155

Full and proper disclosure required

Answer 155

Material that weakens prosecution case/strengthens D’s case should be served to D to ensure a fair case

Question 156

Four stages of disclosure

Answer 156

1. Investigation stage - duty to record + retain material during investigation
2. Initial duty of disclosure on prosecution
3. Defence disclosure
4. Continuing duty on prosecution to keep disclosure under review

Question 157

Investigation stage disclosure

Answer 157

Disclosure COP- all relevant material recorded in durable/retrievable form
Every investigation has
- Officer in charge of investigation- ensures procedures in place for recording + retaining material
- Investigator - fair + objective, follows all reasonable lines of inquiry
- Disclosure officer - examines retained material from investigator (personal declaration that this is done) and reveals it to prosecutor + defence (at prosecutor’s request). Where doubt of disclosable - ask prosecutor.

Question 158

Investigation stage- duty to retain + record relevant material

Answer 158

Crime reports, tape/telephone messages (999) with descriptions of offender, witness statements + differing drafts, exhibits, interview records, expert records + communications between police + experts, records of first descriptions of suspects , material casting doubt on witness reliability
Information from the accused w/ explanation for the offence charged + material casting doubt on reliability of a confession
Duty to retain lasts until decision taken whether to start proceedings , then until acquitted/convicted/prosecution drops case
D convicted -> keep material until released from custody/hospital order, if neither, 6 months from date of conviction
Where appeal in progress, keep material until appeal concluded
If material comes to light after proceedings concluded, prosecutor should consider disclosure

Question 159

Providing unused material to prosecutor (notified of every item)

Answer 159

Crown Court- disclosure office prepares MG6C schedule- individually lists items of unused material
Magistrates Court- Not guilty plea anticipated -> unused material listed on streamlined disclosure certificate.
Sensitive material (serious prejudice to important public interest) - listed on separate schedule or revealed to prosecutor separately (can be Public Interest Immunity Application later)

Question 160

Prosecution’s initial duty of disclosure

Answer 160

Objective test- where prosecution material might help the defence, it should be disclosed
Consider:
- use of material in cross-examination
- capacity to support submission leading to excluding evidence/stay of proceedings as abuse of process- material needed for proper application to be made/ court or tribunal finding public authority breaching with accused’s ECHR rights
- capacity to explain accused’s actions
- capacity to have bearing on scientific/medical evidence in case
- ability to support other evidence
Prosecution supporting evidence not relied upon/neutral evidence- doesn’t need to be disclosed
Time limit- no later than beginning of first hearing day CrimPR Part8

Question 161

Prosecution initial disclosure w/ large volumes of materials

Answer 161

Disclosure Management Document
Prosecution engages promptly with defence - assist with court’s overriding objective
Law requires result not method- prosecution has disclosure strategy (appropriate search given volume)
Judge has robust case management of disclosure process- orders + directions
Flexibility - not box ticking

Question 162

Time limits for initial disclosure by prosecution (used material)

Answer 162

No later than the beginning of the day of the first hearing (CrimPR Part 8)
Sufficient information to allow D + Court at first hearing to have an informed view on
- plea
- venue for trial (either way)
- case management
- sentencing (committal for sentence for either way)

Question 163

Time limits for disclosure of unused material by prosecutions

Answer 163

Statutory duty where:
MC- if D pleads not guilty and case adjourned for summary trial
CC- D sent for trial or where Voluntary Bill of Indictment preferred against D
No statutory duty, common law duty of disclosure- where prosecutor recognises its in the interest of justice + fairness (as soon as is reasonably practicable)

Question 164

First hearing in MC -> D pleads not guilty -> adjourned for summary trial

Answer 164

Court gives date for service of further prosecution evidence /initial disclosure from prosecution
Done in time to ensure trial date effective

Question 165

MC sends case to CC for trial -> PTPH (within 28 days) -> trial

Answer 165

P gives sufficient evidence prior to PTPH for case management (no further hearing unless murder/children involved)
Dates given for initial disclosure/further prosecution evidence at PTPH
Prosecution has continuing duty to review disclosure thoughout proceedings
After initial disclosure from P, defence has duty to provide defence statement (compulsory in CC, optional in MC) - allows P to review disclosure given nature of defence

Question 166

s5 CPIA- D must serve defence statement on CC + Prosecution

Answer 166

Written statement of nature of defence (not proof of evidence to defence lawyers- privileged doc)
No duty on defence to serve material which might be helpful to the prosecution
IncludesL

Question 167

Contents of defence statement

Answer 167

Clear + detailed exposition of issues of fact + law
Nature of defence, particular defences relied on
Disputed matters of fact - reasons why disputed
Particulars of fact D will rely on
Point of law + authority
If alibi - name, address, DOB of witness giving support of alibi, info that can help find witnesses to the alibi

Question 168

Defence statement - time limits

Answer 168

CC- defence statement compulsory , served on prosecution + court within 28 days of compliance with initial disclosure, can be extended if court satisfied that 28 days not reasonable
MC- defence statement not compulsory, but if so, must be within 10 business days of prosecution’s initial disclosure, if no defence statement - defence unable to make application for specific disclosure

Question 169

Defence witnesses : Notice of Intention to call defence witnessess

Answer 169

D must give court + prosecution notice of witnesses in MC and CC
- name, address, DOB of witness
Alibi witnesses not mentioned here (in defence statement instead)
Notice must be given within 10 business days (MC) and 28 days (CC) of prosecution initial disclosure
Notice can be amended to add/remove witnesses

Question 170

Failure of disclosure by defence - consequences

Answer 170

Failure to serve/ do so in time/ deficient defence statement- not adequately describing defence or missing alibi witness called at trial/ relying on different defence to statement at trial
Adverse inferences drawn - judge warns of this at pre-trial hearing
Prosecution/co D can comment on failure without leave of court (except where point of law)- challenge inadequacy, court can require adequate statement
Court can’t prevent calling witness not mentioned - only sanction is comment/adverse inference
No adverse inference in MC as no duty to provide defence statement, but if done, then adverse inferences can be drawn for same reasons as CC
Application for specific disclosure can’t be made without defence statement
No statement - prosecution can’t review disclosure in light of defence

Question 171

Prosecution keeps disclosure under review throughout case

Answer 171

Especially in response to defence statement

Question 172

Defence applications for specific disclosure- section 8 application CPIA

Answer 172

Reasonable cause to believe that there is prosecution material which should have been disclosed
Must have served defence statement + prosecution must have provided further disclosure in light of it
Must only request unused material referable to issues set out in defence statement - or rejected
Can request hearing too
Prosecution has 10 business days to reply to application (in writing)
Application is last resort - parties should co-operate outside court

Question 173

Prosecution - failure to disclose consequences

Answer 173

• Defence brings application to stay indictment - continuing case an abuse of process of court
• Conviction can be quashed on appeal for being unsafe
• Results in delay + imposition of wasted costs for unnecessary hearings/refusal to extend custody time limits
• Exclusion of evidence due to unfairness
  Before formal application, defence should write to prosecution specifying material they seek + make formal application for specific disclosure - legal reps should co-operate

Question 174

Third party disclosure

Answer 174

Investigators + prosecutors must pursue all reasonable lines of enquiry
If material held by 3rd parties (LA, health/education/financial authorities) might be capable of undermining the prosecution case / assisting defence, prosecutors should take steps to obtain it if reason to believe its relevant
If 3rd parties refuse, prosecution can seek summons for material

Question 175

Public interest immunity application

Answer 175

Prosecution must make this application if it doesn’t wish to disclose material if it would cause real risk of serious prejudice to important public interest
Court may withhold disclosure where necessary to public interest but ensuring fair trial for D
Sensitive Material schedule- investigators state this info-
- why sensitive + how sensitive
- consequences of disclosing to defence (involvement of 3rd parties)
- relevance of material to issues in case
- implications for continuing prosecution if material disclosed
- if its possible to make disclosure without compromising sensitivity

Question 176

Evidence: Facts in issue

Answer 176

Elements each party needs to prove to prove their case - establishing guilt/defence
Support/undermine witness credibility
Prosecution - ingredients of the offence
Court then narrows the issues- which elements does the defence agree to, if any- still require proof but not necessarily live evidence

Question 177

Evidence: proving a fact without live evidence

Answer 177

• agreeing a witness statement is true by consent of the parties
  no challenge to it, if challenged then witness called and challenged orally
• agreeing any fact between the parties
  Written fact signed by both parties in agreement of it
• judge/jury takes judicial note of the fact
  Where facts generally + widely known - no proof required
  Doctrine of notice - judge takes judicial notice of fact on enquiry - judge looks up answer (jury cannot do)
  Jurors cannot take notice on personally matters they happen to know but aren’t generally known - specific to the case

Question 178

Types of evidence

Answer 178

• Oral evidence given by witness in court
• Written evidence
  a) agreed statements
  b) admitted facts
• Real evidence: objects/things brought to court for inspection (docs)
• Direct evidence - witness has direct experience of matter in issue
• Circumstantial evidence - facts inferred (train ticket)
• a ‘view’ - juries can visit scene of crime/ leave court to view an object that can’t be brought in - their observations become evidence

Question 179

Admissibility, relevance, weight of evidence

Answer 179

Relevance- is evidence prove/disprove a fact in issue
Irrelevant - inadmissible
Relevant - admissible
Excluded by exclusionary rule (protect fairness of trial)
Weight- tell jury how important the evidence is - if poor quality evidence but important, likely to impact admissibility

Question 180

Tribunal of fact - determining facts, validity of defence

Answer 180

MC - bench of magistrates/district judge
CC - jury

Question 181

Tribunal of law- determine law, determine admissibility of evidence

Answer 181

MC- bench magistrates/ district judge
CC - judge

Question 182

Tribunals of fact and law same in MC

Answer 182

Defendants may prefer trial in CC as jurors don’t hear inadmissible evidence (aren’t biased)

Question 183

Excluding evidence/ seeking to stop a case (unfair/legally improper to continue or insufficient evidence)

Answer 183

• Applications for dismissal
• Submission of no case to answer
• Applications to exclude evidence under s78 PACE
• Applications to exclude confessions under s 76 PACE
• Applications to exclude evidence under preserved common law - s82.3 PACR
• Abuse of process applications

Question 184

Applications for dismissal

Answer 184

Pre trial application to have charges dismissed
Made :
- after D send by MC to CC
- after D served with evidence of offence
- before D arraigned (offence put to D, D pleads guilty/not guilty)
Made to CC Judge- can also make oral application- D must give written notice of intention to do so
Test: dismissed if evidence insufficient to properly convict D
Must take into account all evidence, inferences

Question 185

Submissions of no case to answer

Answer 185

During a trial, after prosecution has presented all of its evidence (half time submission) defence can submit that there is no case to answer on one/all charges
CC + MC
In CC, takes place in absence of jury (if application unsuccessful, they never find out it was made, if successful, foreman enters verdict of not guilty)
Prosecution had right to reply to application
Galbraith test: no evidence crime committed by D or prosecution evidence at its strongest, is such that a properly directed jury could not properly convict on it
If weak evidence- up to tribunal of fact (jury/magistrates) to weigh up verdict not no case to answer
No requirement to give reasons for rejection of application

Question 186

s 78 application - fairness

Answer 186

only applies to evidence which the prosecution intends to rely on - not the defendant’s evidence

Question 187

Abuse of process- stop the case - issue of unfairness/impropriety

Answer 187

1. accused can’t receive a fair hearing
2. unfair to try the accused- continuing offend’s court’s sense of justice and propriety + undermines public confidence in the criminal justice system
   stay of proceedings - last resort - permanent remedy (consider if lesser remedy just + proportionate)
   CC for 1 + 2, MC for 1 (not integrity -> JR application to divisional court
   Defence has to prove abuse of process on balance of probabilities -> prosecution can’t proceed, no conviction, no record for D (not same as not guilty though)

Question 188

Reasons for abuse of process

Answer 188

• D coerced/tricked into committing offence
• D prosecuted despite unequivocal promise from Prosecutor that D will not be
• Police have undermined public confidence - deliberately destroying evidence
• Prosecution has manipulated/misused process of the court to deprive a D of protection afforded by law
• Prosecution deliberately delayed proceedings for tactical advantage- inordinate/unconscionable delay due to prosecution inefficiency + prejudice caused to defence

Question 189

Common law discretion to exclude evidence s82(3) PACE

Answer 189

Where prejudicial effect outweighs its probative value, court retains discretion to exclude where necessary for a fair trial- only applies to prosecution evidence (never defence evidence)
If significant unfairness for D from Co- Defendant’s evidence, D can apply to be tried separately
Rarely used - s78, 76 wide reaching

Question 190

s78 PACE - excluding prosecution evidence

Answer 190

Test: whether the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it
- including circs it was obtained in (unlawful/unfair/improper- breach of ECHR/PACE/COP) but only exclude if leads to unfairness (bad faith of police in breach) - just because irregularly obtained not fatal
- where COP breached (issued under s66 PACE) - codes are admissible in evidence, D can rely on content of code of procedures which should have been followed

Question 191

PACE Codes of Practice (8)

Answer 191

A: Stop and search
B: Entry, search, seizure
C: Detention, treatment + questioning of non-terrorist suspects
D: Identification
E: Audio recordings of interviews
F: Visual recording of interviews with sound
G: Arrest
H: Detention, Treatment, Questioning of terrorism suspects

Question 192

Code C : detention, treatment, questioning of non terrorist suspects

Answer 192

right to solicitor/inform s.o. of arrest, consult COP
caution before interviewed/on arrest - do not mention sth that you later rely on in court
Interview: questioning regarding involvement, at police station
Interview delayed only when danger/interference to evidence/others/property, alerting other suspects, hinder recovery of property
Appropriate adult for juveniles/vulnerable people

Question 193

s78 application examples for significant/substantial breaches of code

Answer 193

Trial judge has discretion - conduct of police lead to unfairness/injustice - effect of the breach - Court of Appeal won’t interfere with judge’s s78 exclusion provided a reasonable judge could reach same conclude
Can be breach of code but no prejudice to D
- fundamental right to legal advice improperly denied
- waiver of right to legal advice wasn’t voluntary, informed or unequivocal
- failure to caution suspect before question
- appropriate adult not provided
- identification procedures not followed

Question 194

Making a s78 application

Answer 194

• Before trial
• at commencement of trial
• just before prosecution admits evidence which defence wants to exclude
  If granted -> prosecution fatally weakened (no/insufficient evidence left), so judge wants applications at pre-trial hearing/start of trial (CC- before jury sworn). If argument not heard then, prosecution shouldn’t reference disputed evidence in opening speech
  If matter of less significance- any point during trial
  Must be done before disputed evidence is taken
  When point of law is clear from case papers/initial disclosure -> defence should include the point of law in Defence Statement with authorities (skeleton arguments from each for/against)
  Directions given by CC judge at PTPH on when s78 application heard - case management in MC

Question 195

Voir dire (trial within a trial)- s78 application- dispute on facts between D and P

Answer 195

Defence addresses court, then prosecution advocate responds
CC - dispute on facts, judge can’t determine s78 until facts resolved - hear evidence on breach of code etc. before applying law
witnesses take special oath - will true answer make…
beyond reasonable doubt burden of proof
absence of jury
in MC- magistrates both fact and law- ruling on admissibility made early for fairness to consider approach/submission of no case to answer (e.g. where confession excluded)
significant + substantial breach of code leading to unfairness -> evidence likely to be excluded

Question 196

Confession (s82.1 PACE)

Answer 196

Any statement wholly or partly adverse to the person who made it, whether made to a person in authority and whether made in words or otherwise (wide definition)
- unequivocal confessions of guilt
- mixed statements - partly inculpatory/exculpatory- confessions as partly adverse
- nod/sign/gesture dependent on context
It was nothing to do with me - wholly exculpatory, not confession

Question 197

s76- 2 ways to exclude confessions

Answer 197

s76(2)(a)- oppression
s76(2)(b)- anything said or done which was likely, in the circumstances at the time, to render any confession unreliable in consequence of
Not automatic- defence must represent it to the court
- but if no defence, court can require prosecution to prove that s76 2a/b doesn’t apply (s76.3)
Either or both can be used

Question 198

Excluding confessions for oppression s76(2a)

Answer 198

Confession obtained by oppression + prosecution can’t prove it wasn’t obtained so beyond reasonable doubt
Oppression widely defined- torture, inhuman/degrading treatment, use or threat of violence (ECHR article 3)
Oppression given its ordinary dictionary meaning : harsh/wrongful -> implies impropriety from interrogator
Consider accused’s character + attributes
If prosecution proves it wasn’t obtained by oppression -> defence can still discredit evidence in cross-examination, reference oppression + unreliability in closing speech

Question 199

Excluding confessions for unreliability (s76 (2b)) (Barry)

Answer 199

1. Identify thing said/done (causing confession) - trial judge takes into account police actions/words
2. Was what was said/done likely in all circumstances to render a confession unreliable? - objective test
3. Has prosecution proved beyond reasonable doubt that confession wasn’t obtained in consequence of thing said/done - common sense question of fact

Question 200

1. Thing said/done causing unreliability

Answer 200

Positive act- promise/inducement/trick
- promise to release someone early from custody if they ‘tell all’
- promise of bail from station conditional on full confession
- threat to arrest suspect’s family/partner if they don’t cooperate
Negative act- omission/failure- no appropriate adult
Must come externally from suspect (not their own belief that confessing will get them anything- can’t rely on s76(2b)
Often breach of PACE CODE C

Question 201

2. Did thing said/done render confession unreliable in all circumstances?

Answer 201

Hypothetical question - likelihood that any confession would be unreliable in circs prevailing at the time?
Not whether untruthful/inaccurate- can be truthful and unreliable
Unreliable : cannot be relied on as the truth
- deprivation of sleep
- failure to caution
- no access to legal advice
Objective test- all circs
No appropriate adult where needed - regardless of deliberate/unknown breach - did the absence of the AA render the confession unreliable?

Question 202

3. Has the prosecution proved beyond reasonable doubt the confession was not obtained in consequence of thing said/done?

Answer 202

Question of fact for judge - common sense
Defence Counsel acting on D’s instructions/evidence - once they represent s76 -> prosecution must prove

Question 203

Evidence admissibility when confession excluded (s76(4))

Answer 203

Even when confession excluded, this doesn’t prevent
a) facts discovered as a result of it being relied upon in evidence
b) prosecution using part of the confession if necessary to show the speech/writing/expressions of the accused
e.g. discovery of body, but prosecution can’t suggest that body was found as a result of D’s confession- circumvents exclusion

Question 204

s78 PACE- exclude unfair evidence (confessions)

Answer 204

Broader sweep than s76- Article 6 ECHR (right to fair trial)- overall fairness
can apply to exclude under both s76 and s78
Codes of Practice important for suspects + police - confession should be timed and signed by maker to confirm accuracy
Just because irregularly obtained, not per se inadmissible - only if it has an such an adverse effect on fairness that court ought not to admit - police acting in bad faith

Question 205

Prosecution burden of proof in criminal cases

Answer 205

To prove the elements of the offence necessary to establish guilt

Question 206

Legal burden

Answer 206

Requirement to prove an element of the case to the prescribed standard
Prosecution - convince the jury so that they are sure (beyond reasonable doubt)
Defence - balance of probabilities

Question 207

Evidential burden (no particular standard)

Answer 207

Burden to raise some evidence to satisfy judge (tribunal of law) that matter should be argued before the jury (tribunal of fact)
Judge intervenes if burden not discharged with evidence - defence can use ‘no case to answer’ as matter of law, won’t reach jury
Not on defence unless active defence - rare - automatism, insanity, diminished responsibility - show medical evidence

Question 208

Legal and evidential burden

Answer 208

Legal burden to prove fact in issue and evidential burden of passing the judge with the same evidence
Detach rarely - self defence - some evidence to put issue before jury but no specific standard of proof -> prosecution on notice that the force used was lawful + must disprove self defence in order to show force was unlawful
Therefore defence must raise matter with some evidence

Question 209

Duress defence

Answer 209

Prosecution don’t have to predict but if sufficient evidence raised that it is relevant -> burden on prosecution to disprove it beyond reasonable doubt

Question 210

Alibi defence

Answer 210

Judge directs jury that although the defence raised the alibi defence, it is for the prosecution to disprove the alibi

Question 211

Admissibility of evidence

Answer 211

1. Is it relevant (to a fact in issue)? logical
2. Is there an exclusionary rule? (unfair- discretion)- s78 PACE + common law
3. Is there an inclusionary rule? - some evidence inadmissible by its nature

Question 212

Evidence : Inclusionary rule

Answer 212

Bad character evidence (previous convictions) generally inadmissible if it doesn’t relate to offences now charged (exceptions in bad character gateways s101 CJA)
Still consider exclusionary discretion of unfairness

Question 213

Exclusionary discretion

Answer 213

Filer for unfairness
1. s78 PACE- prosecution evidence wrongly obtained obtained through significant and substantial PACE breach (evidence must be of poor quality) Admission would have such an adverse effect on fairness that court ought not to admit it.
- searches without authority/ interviews without caution/ denying legal access/ oppression or tricks in interview/ ID procedure not followed
2. Common law- probative value of the evidence outweighed by its prejudicial effect (more harm than good in assisting tribunal of fact) - eavesdropping

Question 214

Turnbull guidelines: what a judge should say to a jury when a case depends wholly/substantially on disputed identification evidence (considers fallibility)

Answer 214

1. Instruct Jury as to the reason for the need for such a warning - mistaken witnesses can be convincing
2. Direct Jury to examine circs in which the witness identification was made
3. Remind jury of any specific weaknesses in identification evidence

D picked out in ID but maintains that witness mistaken or alleged recognition
No Turnbull- presence at scene but D disputes roll in incident

Question 215

Turnbull : consider other evidence supporting the identification

Answer 215

• scientific evidence (footwear, telephone)
• multiple IDs by different witnesses (so long as sufficient quality to leave to jury)
• D’s bad character/ prev. convictions if admissible
• D’s silence in interview - if proper for adverse inference to be drawn
• D’s admissions at the scene/ interview/ witness box

Question 216

Quality of visual identification- trial

Answer 216

1. Quality of ID evidence?
   ADVOKATE
   A - amount of time witness observed them
   D- distance between witness and D
   V- visibility
   O- obstructions
   K- known or seen before
   A - any reason witness remembered them
   T - time lapsed from first observation and ID procedure
   E - error or material discrepancy between first witness description and D’s appearance
   -> if good quality, left for the jury to assess (w/ warning for special need for caution)
   -> if bad quality
2. Other evidence supporting ID evidence?
   –> none - judge withdraws case from jury + directs them to acquit
   –> some - judge lets jury assess weak ID evidence alongside supporting evidence, but each must be strong enough to be safely left to jury - gives Turnbull warning directing how they should assess weight of ID evidence

Question 217

Dock identification

Answer 217

V rare - D already in dock is prejudicial, no alternative for witness
Trial judge retains discretion to order - but must consider if unjust (may not be unjust in alleged recognition)

Question 218

Is Identification a live issue?

Answer 218

1. D disputes the identification evidence and
2. the identification evidence is wholly/substantially the only evidence implicating D
   Could be at scene but D denies participation

Question 219

Voir dire

Answer 219

If disputed facts remain unresolved, conviction likely to be quashed as not proven beyond reasonable doubt

Question 220

Application to exclude confession : Magistrates Court

Answer 220

Advance notification : defence skeleton argument at least 10 business days before trial, prosecution response 5 business days after
Timing : s76 is preliminary issue
Voir dire:
Application under s76 + 78 and disputed evidence -> magistrates hear evidence + decide applications as preliminary issue
Application only under s78 -> magistrates have discretion to hear evidence in usual way and decide on admissibility later

Question 221

Applications to exclude confessions : Crown Court

Answer 221

Advance notification - Defence statement compulsory, raises issue, at PTPH, judge orders defence to serve skeleton argument of s76/78 arguments, prosecution to respond, and when arguments will be heard
Timing : pre-trial hearing specifically for this purpose or just prior to opening case to jury (in their absence but with D)
Voir dire: required where application made under s76 (or s76 and s78) and the evidence founding application is disputed

Question 222

Submissions

Answer 222

No need for voir dire if agreed factual basis - make submissions instead -> ruling in open court

Question 223

Confession excluded

Answer 223

Prosecution cannot refer to it at trial
If only real evidence -> no evidence against D -> not guilty

Question 224

Confession admissible

Answer 224

Judge deems it safe.
Prosecution can refer to it
Defence can still mention conditions it was made under (oppression, unreliability, unfairness) -> jury then decides if this is fact they can rely upon

Question 225

Crown Court Trial (trial on indictment)

Answer 225

Only needed where D pleads not guilty + guilt determinable by hearing evidence
D can elect to be tried in Crown Court
D can be sent from MC as CC’s sentencing stronger
Indictable only: murder, attempted murder, manslaughter, causing GBH with intent, robbery

Question 226

Crown Court clerk

Answer 226

Not same as authorised court officer in MC
- not legally qualified
- select jury and takes verdict
- arraigns D

Question 227

Crown Court judges

Answer 227

Circuit Judges - Your Honour
- Violet, black, red
Recorders - Your Honour
- barristers/solicitor part-time judges
- black robes
High Court Judges - My Lord/My Lady
- occasional for most serious CC cases
- red robes = red judges

Question 228

Judge in Crown Court

Answer 228

• arbiter of law
• makes rulings on admissibility (in absence of jury)
• directs jury on matters of law (who proves what)
• can direct jury to find D not guilty (successful no case to answer) but cannot direct to find guilty

Question 229

Jury

Answer 229

• sole arbiter of fact
• decides on D’s guilt
• must accept + apply judge’s directions on law
• must reach its decision only based on evidence heard in court :
  -> determines whether + to what extent evidence should be believed
  -> decides whether to draw inferences from evidence/ D’s silence

Question 230

Crown Court Trial Procedure : Criminal Procedure Rules Part 25

Answer 230

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

Question 231

CC Trial 1: Legal arguments

Answer 231

CC cases actively managed prior to trial so it runs smoothly
Sometimes pre-trial hearings w/ trial judge specifically for dealing with legal arguments
Before/after the jury is sworn
Voir dire always w/o jury - factual disputes
‘matter or law arisen’ -> jury retires
Prior to trial often:
- bad character applications
- hearsay applications
- applications to exclude evidence (s76/78)
- abuse of process applications

Question 232

CC Trial 2: Jury selection + swearing in

Answer 232

Jury panel of 16 -> 12 chosen at random -> enter jury box
Before jury oath/affirmation, D is told they have right to object to any juror ->
Each member sworn in

Question 233

CC Trial 3: Judge’s preliminary instructions to the jury

Answer 233

Judge tells jury :
- evidence they decide the trial on is only presented in court (don’t discuss with anyone else who doesn’t have evidence)
- Matters of law decided by judge alone so they will be asked to retire

Question 234

CC Trial 4: Prosecution opening speech

Answer 234

Focused on facts + issues of case- backgrounds, disputed areas, prosecution’s basis for guilt + offences charged
What counts the D faces (jury given counts)
avoid emotive language

Question 235

CC Trial 5: Defence identifies matters in issue

Answer 235

Judge can invite the defence to confirm/clarify any issues

Question 236

CC Trial 6: Prosecution evidence

Answer 236

Prosecution evidence served on defence at outset
Defence witnesses included in PTPH form - Defence will only question prosecution witness if some disagreement with their witness statement (if both agree, P can read out P’s statements- no live evidence- judge explains to jury that this is agreed evidence)
Prosecution starts by calling all prosecution witnesses that the defence asked to be called -> prosecutor takes witness through evidence in chief -> witness cross-examined by defence
D’s record of taped interview (ROTI) edited + given to jury + read aloud by P (if no comment interview, no ROTI but P presents agreed written admissions of the questions in interview so jury can decide whether to draw inference from D’s silence )
After this Prosecution case ends

Question 237

CC Trial 7: Conclusion of Prosecution case

Answer 237

Prosecution case concluded after prosecution evidence heard

Question 238

CC Trial 8: Submission of no case to answer

Answer 238

After prosecution evidence , D’s application or judge themselves may direct jury to acquit on the ground that prosecution evidence is insufficient for any reasonable court to properly convict (must wait until prosecutor has has opportunity to make representations)
Half-time submission
In accordance with Galbraith test (properly directed jury cannot properly convict)

Question 239

CC Trial 9: Right to give evidence + adverse inferences

Answer 239

After prosecution’s case closed, judge asks defence if D is going to give evidence :
Yes -> case proceeds
No -> judge asks if D has been advised that if D chooses not to do so/ having been sworn, without good cause refuses to answer, the jury may draw inferences from their failure s35 CJPOA
(yes, advised -> case proceeds (written record that D has received advice and freely chosen not to testify, no -> adjourned for advice)

Question 240

CC Trial 10: Defence opening case

Answer 240

After P evidence/ rejected submission of no case
Right to defence opening speech rarely used (1 or more defence witnesses, other than D irl, called for factual, not character evidence)

Question 241

CC Trial 11: Defence evidence

Answer 241

if D represented + chooses to give evidence -> Defence Advocate calls D + takes them through evidence in chief
Other Ds + Prosecution then cross examine them
Any other defence witnesses examined in chief -> cross-examined -> re-examined in same order

Question 242

CC Trial 12: Legal discussions

Answer 242

After defence closes common for jury to be sent out to allow judge + prosecution + defence to consider matters of law which should be raised in judge’s summing up
Submissions made on all legal matters arisen -> forms part of judge’s directions on law to jury
Ensures appeal less likely if convicted

Question 243

CC Trial 13: Closing speeches

Answer 243

Prosecution can make closing speech if
- D legally represented or
- has called at least 1 defence witness for factual evidence
- where court permits
Prosecution closing speech first, then defence always entitled to take closing speech

Question 244

CC Trial 14: Judge’s summing up

Answer 244

2 parts : law + facts
Tailored to each case
Prosecution + defence alert to any errors in summing up + draw them to judge’s attention
Judge directs jury that judge is arbiter of law- jury must accept any directions on law + jury is arbiter of fact, must reach own conclusion on evidence
- burden + standard of proof
- ingredients of offence + defences
- written route to verdict
- other relevant legal directions
- electing a foreman (deliver verdict)
- unanimity - judge can only accept this, if majority then further direction needed
- separate considerations of counts + defendants if needed
- reminder of issues + nature & evidence of each one (not in detail)
- balanced account of points raised by parties
- outstanding directions

Question 245

CC Trial 15: Jury bailiffs sworn and jury retire

Answer 245

Court ushers become jury bailiffs on oath/affirmation
Jury bailiffs swear to keep jury in private + convenient place + not allow anyone to speak to them (including themselves) without leave of court other than to ask if they’ve reached verdict
Jury -> retirement room to deliberate on verdict , entitled to ask judge questions by passing note to jury bailiff (judge can give further directions)

Question 246

Majority verdict direction

Answer 246

Jury can give majority verdict after they have deliberated for at least 2 hours (in practice minimum 2 hours, 10 minutes - accounting for time spent not deliberating)
Majority verdict shouldn’t be accepted if deliberation time unreasonable for nature + complexity of case
Multiple Ds - jury can be out for says before thinking of majority direction

Question 247

CC Trial 16: Verdict

Answer 247

Once jury reached verdict, inform jury bailiff
Court reassembles, foreman asked to stand
if no majority direction, court clerk asks foreman if jury have reached a verdict on which they are all agreed:
yes - what is your verdict? guilty/not guilty
Jury can convict of lesser offence alternative to count on indictment - s20 v s18(intent)
Judge thanks jury
Guilty D -> sentenced immediately or if presentence report/psychiatric report, case adjourned
Not guilty D- acquitted so discharged, free to leave if no other matters