Criminal Flashcards
1
Q
What are the ‘facts in issue’?
A
The facts which the prosecution bear the burden of proving or disproving (or, in exceptional cases, the defence bears the burden of proving)
2
Q
s 10 CJA 1976
A
Facts agreed by the parties which therefore do not need to be proved
3
Q
s 9 CJA 1976
A
A witness statement agreed by the parties which can therefore be read out in court (the witness cannot be examined)
4
Q
What is the first step in determining whether evidence should be admitted?
A
Relevance i.e., ‘logically probative’ of a fact in issue
5
Q
What is the second step in determining whether evidence should be admitted?
A
Is there an applicable exclusionary rule which makes the evidence inadmissible?
6
Q
s 78 PACE
A
Used to exclude any prosecution evidence which has, “having regard to all the circumstances…such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”
7
Q
Where a party admits an agreed fact under s 10 CJA, what must they do?
A
A written record must be made of the admission, and provided to the jury.
8
Q
In what circumstances can a party resile from an admission (agreed fact with the other party)?
A
Only with cogent evidence that the admissions were made by reason of mistake or misunderstanding.
9
Q
In what circumstance can relevant evidence which is not subject to an exclusionary rule be excluded?
A
If no reasonable jury, properly directed as to the evidence’s defects, could place any weight on it.
10
Q
What is the third step in determining whether evidence should be admitted?
A
Is there an inclusionary rule which allows the inadmissible evidence to become admissible?
11
Q
Definition of relevant
A
Evidence which makes the matter which requires proof more or less provable.
12
Q
What is the rule about the admissibility of good character evidence?
A
Good character evidence is generally inadmissible to show that a person is truthful and should be believed. However, it may be admissible if it is relevant.
13
Q
What is circumstantial evidence?
A
Evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred.
14
Q
What is direct evidence?
A
Evidence of facts in issue, including that which the witness claims to have personal knowledge of.
15
Q
What is the strength of circumstantial evidence?
A
It is not necessarily weaker than direct evidence. However, it must be narrowly examined to ensure that there are no other co-existing circumstances which would weaken or destroy the inference.
16
Q
What is real evidence?
A
Tangible objects relevant to an issue, produced in court for the inspection of the tribunal of fact.
17
Q
What must accompany real evidence in order for it to hold weight?
A
Testimony (sometimes expert) identifying the object and connecting it with the facts in issue.
18
Q
Does real evidence have to be produced to make argument about it?
A
No, but adverse inferences may be drawn if it is not produced which limit the weight of the oral argument relating to the missing object.
19
Q
What is a view?
A
An out of court inspection of an object which it is inconvenient or impossible to bring to court, or a scene.
20
Q
Who should attend a view?
A
The judge, tribunal of fact, parties, counsel, the accused, and a short-hand writer.
21
Q
What should be included in the judge’s ground rules written prior to a view?
A
What the jury will be shown and in what order, who will be permitted to speak and what will be said, and how the jury is able to ask questions.
22
Q
Who decides questions of law?
A
The tribunal of law i.e., the judge(s)
23
Q
Who decides questions of fact?
A
Generally, the tribunal of fact i.e., the jury or magistrates
24
Q
Examples of questions of law
A
D being unfit to plead; juror discharge; admissibility of evidence; no case to answer; various issues in summing up; ancillary issues such as costs
25
Examples of questions of fact
Credibility of witnesses; weight of evidence; whether the evidence passes the burden of proof.
26
What questions of fact does the judge decide?
Whether D is fit to plead; the existence of facts which are required for the admission of certain evidence; the sufficiency of evidence to determine whether it should be withdrawn from the jury; evaluation of evidence for summing up.
27
How should magistrates decide questions of law?
They should seek and accept the advice of the justice's legal advisor.
28
When should an application to exclude evidence under s 78 PACE be made?
Before the evidence is adduced or mentioned in an opening speech (either before the trial, at the beginning of trial, of right before the evidence is adduced). If the application, if successful, would be fatal for the prosecution, it should be made prior to trial.
29
Is the Court of Appeal likely to overturn the decision of a trial judge in relation to a s 78 PACE application? Why?
No - it is a discretionary power which depends on the context the trial judge (and not the CoA) has. It will only be overturned if no reasonable judge having heard the evidence could have reached the conclusion that he did.
30
What is the general common law rule as to the exclusion of evidence?
The judge always has discretion to exclude otherwise admissible evidence which would have a prejudicial effect on the minds of the jurors outweighing its probative value (it being sufficiently substantial).
31
What is the common law rule as to the exclusion of confession evidence?
Confession evidence 'obtained through improper or unfair means, and which might operate unfairly against the accused' should be excluded.
32
How does s 78 PACE extend the common law rule as to the exclusion of evidence?
It provides for exclusion of any evidence obtained unlawfully, improperly or unfairly from any source - not just admissions, confessions, and other evidence obtained from the accused.
33
What is the legal burden?
The burden imposed on a party to prove facts in issue.
34
If insanity is raised as a defence, who has the legal and evidential burdens of proving it?
The defence has both the legal and evidential burden (on the balance of probabilities)
35
How might you challenge an instance where the legal burden is put on the accused?
Article 6(2) ECHR
36
What is the legal burden on the prosecution?
Proving all elements of the offence beyond reasonable doubt (so that the jury is sure of guilt)
37
What is the legal burden on the defence?
On the balance of probabilities (so that the jury thinks it more probable than not).
38
What is the evidential burden?
The burden of adducing evidence to 'pass the judge' i.e., so that the judge allows the jury to hear the issue.
39
When is the legal and evidential burden likely to be split?
When numerous defences, such as self-defence, are raised, the defence bears the evidential burden and the prosecution bears the legal burden.
40
Does the prosecution bear the burden of proving a negative?
Most of the time, yes e.g., V did not consent. In exceptional circumstances, the defence may bear the burden, for example to prove that a product was not being sold for £2 in any local shop.
41
If the accused is alleged to be under a disability making him unfit to plead, who bears the burden of proof for this?
If the prosecution make this allegation and it is disputed by the defence, the prosecution must prove it beyond reasonable doubt. For the other way round, the defence must prove it on the balance of probabilities.
42
Where the defence of diminished responsibility to murder is raised, who has the burden of proving it?
The defence has the legal and evidential burden on the balance of probabilities.
43
If the charge is possession of an offensive weapon, and possession is proved, who bears the burden of proving/disproving lawful authority or reasonable excuse?
The defence has the legal and evidential burden on the balance of probabilities.
44
If the accused is raising that they killed someone in pursuance of a suicide pact, who bears the burden of proving this?
The defence has the legal and evidential burden on the balance of probabilities.
45
How will the court deal with a claim that the reverse burden of proof is contrary to Article 6(2) ECHR?
It will strike a reasonable balance between the interests of the community and the protection of the rights of the individual.
46
If the accused claims duress, who bears the burden of proving/disproving this?
The defence bears the evidential burden and the prosecution bears the legal burden (beyond reasonable doubt).
47
If the accused raises an alibi, who bears the burden of proving/disproving this?
The prosecution. The judge should give the jury a direction that the defence do not need to prove the alibi.
48
If someone is being prosecuted for neglect of someone who lacks capacity, what is the standard of proof for proving incapacity and who bears it?
The prosecution must prove incapacity on the balance of probabilities.
49
What direction must the judge give the jury regarding the burden of proof in summing up?
That the burden is on the prosecution to prove all elements of the offence so that the jury is sure of guilt.
50
What are the three classes of offences? In what courts must they be heard?
Summary only (Magistrates'), either way (Magistrates' or Crown Court), and indictable only (Crown Court).
51
What are indictable offences?
Offences which are indictable only or triable either way
52
In what circumstance can a summary offence appear on an indictment?
If it is linked to an indictable offence for which the accused has been sent to the Crown Court.
53
What class of offence are common law offences?
Indictable only
54
Where do all adult trials start? Where do they then go?
In the magistrates' court. They then either stay in the magistrates' or move up to the Crown Court.
55
What kinds of judges sit in the Crown Court?
Either a High Court judge; a Circuit judge, or a Recorder.
56
Who may a judge sit with in the Crown Court, and what is their role in decision-making?
They may sit with magistrates. The magistrates' decisions hold equal weight to the judge's (unless there is an event split, in which case the judge's vote prevails).
57
If a defendant plead guilty in the Magistrates' court, which court can they appeal to and on what basis?
To the Crown Court on sentence (but not on conviction).
58
If a defendant plead not guilty in the Magistrates' court, which court can they appeal to and on what basis?
To the Crown Court on sentence and/or conviction.
59
How many magistrates sit in the magistrates court?
At least two
60
Aside from magistrates, what other kind of judge sits in the magistrates court?
District judge
61
What two conditions must be satisfied for the magistrates to try an either-way offence?
1. The offence must not be so serious that the court's powers of punishment are inadequate in the event of convictions; 2. The accused must consent.
62
What is the maximum custodial sentence the magistrates can impose?
6 months, or two consecutive 6 month sentences (12 months) for multiple either-way offences.
63
What is the maximum fine the magistrates can impose?
Unlimited, subject to statutory maximums
64
In what circumstance can the magistrates commit the defendant to the Crown Court for sentencing?
If they have been convicted of an either-way offence and the magistrates deem their powers of punishment to be inadequate.
65
What classes of offence can the Youth Court deal with?
All three - summary, either-way, and indictable only.
66
In what two circumstances can the Attorney-General appeal a case to the Court of Appeal?
To obtain an opinion on a point of law following an acquittal (this has no impact on the acquittal itself), and to increase an unduly lenient sentence for an indictable only offence (or some specified either-way offenceS).
67
What kinds of appeal does the Court of Appeal hear?
Appeals on conviction and sentence for indictable only offences (from the Crown Court in its capacity as a trial court); appeals from the Attorney-General; and appeals from the CCRC.
68
What is the procedure for a party appealing a Court of Appeal decision to the Supreme Court?
They must obtain leave from either the Court of Appeal or the Supreme Court by making an application no more than 28 days after the decision being appealed was made, and serving this on the Registrar and all other parties.
69
What criterion must be satisfied for a case to be appealed to the Supreme Court?
The Court of Appeal or Supreme Court must be satisfied that the appeal involves a point of law of general public importance.
70
If a party is denied leave to appeal to the Supreme Court by the Court of Appeal, what should they do next?
Apply for leave to appeal from the Supreme Court within 28 days of the Court of Appeal giving reasons for its refusal.
71
From what statutory authority and by whom are legal aid grants made?
Mainly from LASPO 2012 and the Legal Aid Agency.
72
What is the overriding objective?
That criminal cases be dealt with justly.
73
What is the nature and objective of case management?
To actively manage a case by giving directions as early as possible, in order to further the overriding objective.
74
What should parties do to assist the court with case management?
Identify the real issues in the case as early as possible, and directly engage with the other side.
75
Who is the case progression officer?
Someone appointed by both parties and the court at the commencement of proceedings to progress the case, ensure party compliance with directions etc.
76
What form must parties proceeding in the Magistrates court fulfil for case management purposes?
The Preparation for Effective Trial (PET) form
77
What form must parties proceeding in the Crown Court fulfil for case management purposes and when?
The Better Case management (BCM) form at sending and the Plea and Trial Preparation Hearing (PTPH) form at the hearing.
78
What is the offence classification of theft?
Either-way, unless it is shoplifting under the value of £200, in which case it is summary (though D can still elect jury trial).
79
What is the offence classification of robbery?
Indictable only.
80
What is the offence classification of burglary?
Either-way.
81
What is the offence classification of fraud?
Either-way.
82
What is the offence classification of sexual assault?
Either-way.
83
What is the offence classification of rape?
Indictable only.
84
What is the offence classification of common assault?
Summary.
85
What is the offence classification of ABH?
Either-way.
86
What is the offence classification of s 20 GBH?
Either-way.
87
What is the offence classification of s 18 GBH?
Indictable only.
88
What is the offence classification of criminal damage?
Summary for value up to £5000, either-way for value over £5000 (unless caused by arson, in which case it is either-way regardless of value)
89
What is the offence classification of possession (with or without intent to supply)?
Either way.
90
What are the 5 purposes of sentencing adults?
Punishment; reduction of crime; reform and rehabilitation; protection of public; reparations.
91
What are the 2 purposes of sentencing youths?
To prevent offending; to have regard to the welfare of the youth.
92
If there is no definitive sentencing guidelines for an offence, would should the court take into account when sentencing?
The statutory maximum sentence, previous sentencing decisions of the Court of Appeal, and the sentencing guidelines for analogous offences.
93
What is meant by seriousness in the context of sentencing?
Culpability plus harm (caused, intended to cause, or foreseeably caused)
94
What is the effect of aggravating and mitigating factors on sentencing?
They move the starting point up or down within the range provided.
95
What two factors must the court consider when determining the value of a fine to be imposed?
The seriousness of the offence and the financial means of the offender.
96
What form of fine should be prioritised over all others?
Compensation (to those affected by the offence)
97
When sentencing an organisation, what kind of fine should be imposed?
One which is sufficiently substantial to have a real economic impact.
98
What can the court do to determine the defendant's financial means for the purpose of imposing a fine?
Require the defendant to disclose relevant data relating to their financial position. If necessary, the court may compel this pursuant to s 162 CJA.
99
What are five statutory aggravating factors?
Relevant previous convictions; offence committed while on bail; offence demonstrating hostility to a victim on the basis of a protected characteristic; offence against an emergency worker; terrorism-related offence.
100
Give three examples of mitigating factors
Good character, remorse, and age indicating lack of maturity.
101
In what two circumstances may an offender's sentence be reduced post applying mitigating factors?
For a guilty plea and for assisting the prosecutor or investigator.
102
What is the guideline sentence reduction for a guilty plea at the first opportunity? When exactly is this opportunity?
1/3 (at the first hearing in the magistrates)
103
What is the guideline sentence reduction for a guilty plea at the PTPH?
1/4
104
What is the guideline sentence reduction for a guilty plea on the day of trial?
1/10
105
What is the totality principle in sentencing?
When sentencing an offender for more than one offence, the court must consider whether the total sentence is just and proportionate to the overall offending behaviour.
106
Must the court give reasons for their sentence?
Yes
107
What is the effect of time spent on bail on sentencing?
Time spent on bail can reduce the sentence handed down - 2 days on bail is equivalent to 1 day in custody.
108
What must the judge indicate when making a sentence reduction for a guilty plea?
Whether they are making a reduction and if so, in what amount.
109
What is the guideline sentence reduction for a guilty plea part way through the trial?
Less than 1/10, and even 0.
110
If the offender's version of the facts is disbelieved at a Newton hearing, what should be the reduction in sentence?
The reduction which would have been available should normally be halved, unless the Newton hearing required witnesses to be called, in which case it may be appropriate to further decrease the reduction.
111
In what situation may a reduction for guilty plea be larger than the general guidelines?
If there were particular circumstances which made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done e.g., where they genuinely cannot know whether they are guilty or not.
112
What happens if a reduction for guilty plea takes the sentence below the statutory minimum?
It cannot go below 80% of the statutory minimum.
113
To what offences do the aggravating factors of racial and religious hostility not apply?
The racially or religiously aggravated offences under the CDA 1998 (these already have increased sentences).
114
What is the custody threshold for a custodial sentence?
The offence was so serious that neither a fine alone nor a community sentence can be justified.
115
What is the custody threshold for a community sentence?
The offence must be serious enough to warrant a community sentence.
116
What three factors indicate that it may be appropriate to suspend a custodial sentence?
Realistic prospect of rehabilitation; strong personal mitigation; immediate custody would result in significant harmful impact upon others.
117
Can a sentence be increased to reflect the prevalence of an offence?
Generally, no. This may be possible in exceptional circumstances with evidence from the local Criminal Justice Board or a 'community impact statement'. It must be demonstrable that the harm caused to that locality is significantly higher than elsewhere.
118
When should a concurrent sentence for more than one offence be imposed?
Where the offences arise from the same set of facts.
119
When should a consecutive sentence for more than one offence be imposed?
Where the offences arise from different facts.
120
What is a written charge and requisition?
An alternative to arrest - the suspect is sent a letter and told to attend court on a certain date. It arises where there has been an investigation and police are aware that an offence has been committed.
121
What statute governs police powers?
PACE 1984 and associated Codes of Practice
122
If an officer breaches PACE, are they liable to criminal or civil proceedings?
No.
123
Are the PACE Codes of Practice admissible as evidence in court?
Yes
124
Definition of interview
Questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which must be carried out under caution.
125
In what circumstances is it not necessary to caution someone before questioning them?
To establish the identity of a vehicle; to obtain information in accordance with a statutory requirement; in furtherance of the effective conduct of a search; to seek verification of a written record of comments made by that person.
126
Where should a suspect interview take place?
At a police station or other authorised place of detention, unless delay would lead to interference with evidence or other suspects, physical harm to others, or property damage or loss.
127
When must the caution be given?
On arrest, at the start of an interview, and at the recommencement of an interview after a break.
128
What are the words of the caution?
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
129
What is the consequence if a suspect is interviewed after charge or without a solicitor when they have requested one?
No adverse inference may be drawn against their silence in interview.
130
What is 'reasonable suspicion'? (Required for arrest and charge)
There must be some reasonable, objective grounds for the suspicion, based on known facts or information. This has a subjective element (the officer does suspect) and an objective element (a reasonable person would suspect).
131
What information must a person be given before they are interviewed?
Sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it.
132
s.36 CJPOA 1994 (adverse inference)
`Silence when asked to account for any object, mark or substance on their person, clothing, footwear or in their possession - a special warning must be given for an inference to be made.
133
s.37 CJPOA 1994 (adverse inference)
Silence when asked to account for their presence at the place where the arrest took place - a special warning must be given for an inference to be made.
134
What rights must the interviewing officer remind the suspect of before interview?
To free legal advice; to have someone informed of their arrest and the place of detention; to consult the Codes of Practice; to an appropriate adult; to an interpreter.
135
What is a significant statement and what must the interviewing officer do in relation to them?
It is a statement made in the presence of a police officer which appears to be capable of being used in evidence, and in particular a direct admission of guilt. It must be put to the suspect at the beginning of the interview.
136
What are the two instances of improper police conduct during interviews provided within PACE?
They must not use oppression to try to obtain answers, nor indicate (without being asked) what actions they will take if the suspect refuses to answer questions.
137
What will constitute oppressive police behaviour in interview?
Questioning continued after repeated denials or refusals; bullying. Rude and discourteous questioning is not oppression.
138
When should an interview be ceased?
When the investigating officer is satisfied that all the questions the officer considers relevant to obtaining accurate and reliable information about the offence have been put to the subject, and there is sufficient evidence to provide a realistic prospect of conviction (subject to the time limits imposed by PACE).
139
What are the time limits for detaining someone without charge?
24 hours after arrest/when the arrested person arrives at the police station (whichever is sooner). This period can be extended to 36 hours with authorisation from the superintendent and up to 96 hours with authorisation from the magistrates.
140
Do interviews have to be recorded? What about statements made outside of interview?
Yes, they should be contemporaneously recorded using an authorised recording device. Statements made outside of interview should also be recorded.
141
Who does an appropriate adult represent and what is their role?
Those under 18 or with a mental disorder or otherwise vulnerable. They should safeguard the rights, entitlements and welfare of these individuals by advising, observing police behaviour and facilitating communication.
142
What must happen before a child/mentally disabled person/foreign speaking person is interviewed/asked to provide a written statement?
An appropriate adult or interpreter must attend, unless the delay is likely to lead to some bad thing e.g., loss or harm to evidence/property/people.
143
Can an intoxicated person be interviewed?
No, if this means that they cannot appreciate the significance of questions/answers, or understand what is happening.
144
May an officer use force in exercising their powers under PACE?
Yes, they may use reasonable force, if necessary, unless the exercise of the power requires the accused's consent.
145
May a civilian use force in effecting an arrest?
Yes, they may use reasonable force, if necessary to effect an arrest for an indictable offence.
146
If an officer uses force which results in serious injury, does this breach their duty?
Not necessarily, if it was reasonable and necessary.
147
When can handcuffs be used?
Only where they are reasonably necessary to prevent an escape or a violent breach of the peace.
148
Is it lawful for an officer to make an arrest, knowing that there is no possibility of a charge being brought?
No.
149
What three things must an officer explain to a suspect when they are being arrested?
In plain language, that they are under arrest, on what (legal and factual) grounds they are under arrest, and why it is necessary to arrest them.
150
What is the consequence of a failure to caution?
Evidence may be inadmissible under ss. 76 or 78 PACE
151
What must the arresting officer record in their pocket book?
The nature and circumstances of the offence, the reasons why arrest was necessary, the giving of the caution, and anything said by the arrestee at the time.
152
Where might a suspect be taken after they are arrested?
Usually, to the police station. Alternatively, they may be taken somewhere else to carry out an investigation e.g., to check an alibi. Or, they may be released with or without bail.
153
What are the two requirements for someone to be released on bail immediately after arrest?
The officer must be satisfied that this is necessary and proportionate in all the circumstances, and this must be authorised by an inspector or above.
154
If someone is released on bail immediately after arrest, what happens next?
They are given a notice with the nature of the offence and grounds for arrest, and a time to attend a specific police station. This bail can last for a maximum of 28 days. They may be re-arrested during this time without a warrant if more evidence comes to light. They may also be arrested if they fail to attend the station.
155
What are the grounds for arrest without a warrant?
Someone who is (or is reasonably suspected to be) committing an offence; who is about to (or is reasonably suspected to be about to) commit and offence; or who has (or is reasonably suspected to have) committed an offence.
156
What must be proved to arrest someone without a warrant?
A ground for arrest and a reason why it was necessary
157
What are the reasons that an arrest without warrant would be necessary?
To prevent physical injury to the suspect or another; to prevent loss or damage to property; to prevent an offence against public decency or highway obstruction; to protect a child or vulnerable person; to allow a prompt and effective investigation; to prevent the disappearance of the person.
158
For what offence is there a common-law power of arrest?
Breach of the peace i.e., harm cause by an assault, affray, riot, unlawful assembly, or other disturbance.
159
In what circumstances can the magistrates issue a warrant for arrest/summons?
If there is written information substantiated on oath that a person has (or is suspected to have) committed an offence which is indictable or punishable through imprisonment, or the person's address is not known for a summons to be served; if a person fails to answer to summons.
160
In what circumstances can the Crown Court issue a warrant for arrest?
Where an indictment has been signed but the person charged has not been sent for trial; where the person does not attend the Crown Court when required.
161
Where must a suspect be taken if it is suspected they will be detained for more than 6 hours?
A designated police station where a custody officer is appointed.
162
Who has the authority to detain and release suspects?
The custody officer
163
What is a custody record?
It is a record kept by the custody officer of all matters required by PACE. It must be opened as soon as practicable after the offender arrives at the police station / is arrested.
164
When must a detainee be reminded of their right to free legal representation?
On arrival at the police station under arrest; at the beginning of any interview; before a review of detention; after charge; before being asked to provide an intimate sample, an intimate drug search, an x-ray or ultrasound; and before an identification parade or video identification.
165
Who can be an appropriate adult for a child?
Parent, guardian, social worker, someone representing the local authority (if the child is in care), or some other responsible person who is not involved with the police.
166
Who cannot be an appropriate adult for a child specifically?
An estranged parent who the child specifically objects to; an illiterate parent with a low IQ who does not understand the gravity of the situation.
167
Who can be an appropriate adult for a mentally disordered or vulnerable person?
Relative, guardian, someone responsible for the care of the person, someone with experience dealing with such persons (who is not involved with the police), some other responsible and experienced or trained adult.
168
Who cannot be an appropriate adult?
Someone involved with the police; the accused's solicitor; a suspect in the offence; a victim; someone to whom the suspect has made admissions.
169
Who is the director of public prosecutions? What is their main duty?
A barrister or solicitor of at least 10 years appointed by the A-G. Their duty is to take over almost all criminal proceedings from the police force.
170
What is the crown prosecution service? What is its role?
It is the body which takes over prosecutions begun by the police on behalf of the DPP (who is the head of the CPS).
171
What are Crown Prosecutors?
Agents of the CPS who have the authority to exercise the powers of the DPP e.g., to take over privately brought prosecutions.
172
Aside from CPS employees, to whom else may the DPP assign cases?
Any person with a general qualification (this often takes place to cover the volume of work in the magistrates'); or an unqualified 'associate prosecutor' (who can do pre-trial applications and trials for non-imprisonable summary offences).
173
What are the five ways to secure an accused's attendance before the magistrates'?
Arrest and charge; arrest and bail then written charge and requisition; arrest and bail with condition to attend station; written charge and requisition without arrest; summons.
174
Who can issue a written charge and requisition?
Only a 'relevant prosecutor' i.e., those who prosecute on behalf of the state, including the police, and not private prosecutions.
175
How must a private prosecution commence?
By making an application to the magistrates for the issue of a summons.
176
What is the difference between a warrant and a summons?
A warrant involves arresting the suspect whereas a summons just requires them to attend court.
177
What must an application for an arrest warrant or summons, and a written charge contain?
A description of the offence in ordinary language and sufficient details of the suspect's conduct to make clear what the prosecutor alleges.
178
What is the time limit for starting proceedings for a summary offence?
6 months from when the offence occurred
179
What is the time limit for starting proceedings for an indictable offence?
There is no limit
180
When may the magistrates adjourn a case?
At any stage before a case is sent to the Crown Court or, if it is not being sent, any time before or during the trial.
181
How would one challenge the grant or refusal of an adjournment? How likely is it to succeed?
Through judicial review, however the challenge is only likely to succeed on limited well-recognised grounds, due to the discretionary nature of the decision.
182
When the magistrates adjourn a case, what happens to the accused?
They can be remanded in custody or on bail, or, they can adjourn without remand (if the offence is summary, or the accused initially appeared in response to a summons/requisition and has not been remanded since).
183
When the magistrates adjourn a case, do they need to fix the date for the next hearing at the time of adjourning?
Yes, if the accused is on remand (on bail or in custody) but no, if the accused is simply released.
184
For how long may the magistrates remand an accused in custody?
8 clear days - then they must be brought back to court so that the court can remand them onwards to trial (to 28 days for the first onwards remand, then up to 56 days for the second)
185
For how long may the magistrates remand an accused on bail?
Longer than 8 clear days if the defence and prosecution agree.
186
What is the maximum time-limit that a defendant can be kept in custody awaiting the start of a summary or either-way trial which will be heard in the magistrates'?
56 days.
187
What is the maximum time-limit that a defendant can be kept in custody awaiting the start of an indictable trial, having been sent to the Crown Court?
182 days (minus any days spent in custody prior to being sent)
188
What is the maximum time-limit that a defendant can be kept in custody between the first hearing and committal proceedings?
70 days
189
What happens if a custody time limit expires before the relevant next step has taken place?
The defendant must be granted bail.
190
What two requirements must be met for the court to extend the custody time limit?
The court must be satisfied that the prosecution has acted with all due diligence and expedition, and there is good and sufficient cause for doing so.
191
When can the magistrates grant bail?
When adjourning a case, including after summary conviction e.g., awaiting medical reports to determine sentencing, and when the defendant is sent to the Crown Court for trial.
192
When can the Crown Court grant bail?
When someone is sent to the Crown Court for trial; appealing from the magistrates or to the Court of Appeal; when adjourning a trial; when a party is seeking judicial review or an opinion of the Divisional Court.
193
When someone is charged with murder, when and by whom must a decision on bail be made?
By the Crown Court within 48 hours of the day after the defendant appeared before the magistrates.
194
What is the right to bail?
A rebuttable presumption that a defendant will be entitled to bail.
195
When does the right to bail cease?
Once the defendant has been convicted of the offence. The court can still grant bail, but it is entirely discretionary.
196
If the defendant is granted bail, then enters a guilty plea in the plea before venue hearing, should he be given bail again?
Yes, unless there are good reasons for remanding him in custody. This is an exception to the rule that the right to bail ceases upon conviction.
197
What is the exception to the right to bail in the context of very serious offences?
The court may not grant bail to someone charged with murder/attempted murder/manslaughter/rape/attempted rape if they have a previous conviction for any of these offences (including if they were not guilty due to insanity or unfit to plead).
198
In what circumstances can someone charged with murder be granted bail?
Where there is no significant risk that they will commit an offence that would cause physical or mental injury to another person.
199
What are the three grounds withholding bail for an indictable offence?
'Substantial grounds for believing' D would fail to surrender to custody, commit further offences while on bail, or interfere with witnesses or otherwise obstruct the course of justice.
200
What evidence can be adduced during an application for bail?
The usual rules of evidence do not apply - so a party can introduce hearsay, for example
201
When do the three grounds for a remand in custody not apply?
Where there is no real prospect that the accused will be given a custodial sentence.
202
What are the relevant factors to consider when establishing the grounds for a remand in custody?
The nature and seriousness of the offence; the probable method of dealing with the offender; character; previous convictions; associations with people with criminal records; community ties; bail record in the past; strength of the evidence; whether they are likely to commit offences on bail which will cause harm to others.
203
What are other grounds for withholding bail, aside from the big three?
Custody would be for D's own protection; the court has insufficient information; D is already serving a sentence in custody; there is a risk of domestic violence; D is already on bail; drug misuse.
204
What are the grounds withholding bail for summary offence?
D has a previous conviction for failure to surrender; D has committed an offence on bail in the past.
205
What is unconditional bail?
Bail where the offender simply has to attend court at the date and time specified.
206
What happens if you fail to surrender to custody without reasonable cause while on bail?
You will have committed an offence for which you can be prosecuted, and a warrant may be issued for your arrest.
207
When may conditional bail be imposed?
Where the court deems conditions 'necessary' to prevent one or more of the big three grounds for withholding bail from occurring.
208
What are some commonly imposed bail conditions?
Residence at an address, reporting to a police station, curfew, restrictions on where D may go/with whom D may have contact, electronic monitoring, surrender of passport, residence at a bail hostel, surety, security.
209
What is a surety?
The offer of money made by someone with influence over the defendant, which will be paid to the court if the defendant absconds.
210
What must be established about a person before they can act as surety?
Their financial situation and any previous convictions
211
What is a security?
The payment of money or property by the defendant or someone on the defendant’s behalf, which will be forfeited if the defendant absconds.
212
How does a party make an application to vary bail conditions?
The defence or prosecution may apply for bail conditions to be varied, by giving notice to the court and other party as least 2 business days before the hearing at which it will be considered. The hearing should take place no more than 5 business days after notice was given.
213
What are the consequences of a breach of bail?
D may be arrested without a warrant, and bail may be withdrawn. But this is not a criminal offence!
214
Must D be present for a bail hearing?
Generally, yes (in person or by live link). However, if they are in custody and have waived their right to attend or was refused bail before and been in custody ever since, they are not required to attend.
215
What is the procedure in a bail application?
The judge asks the prosecution if they object to bail. The prosecution either summarises its objections (the specific statutory exception(s)) or states it has no objections. Then the defence presents arguments for bail. Then the court announces its decision.
216
To which court can the defendant appeal the imposition of bail?
They have two attempts at the magistrates court (they can present the same argument both times) then further attempts must show a change in circumstances/fresh evidence. Then, they have one appeal to the Crown Court, then further attempts must show a change in circumstances/fresh evidence.
217
What is a certificate of full argument?
A certificate confirming that full argument on bail was heard by the magistrates, required before D appeals a bail decision to the Crown Court.
218
To which court can the defendant appeal the imposition of bail conditions?
They must make an application to vary bail conditions in the magistrates'. If this is not successful, they can appeal to the Crown Court.
219
What is the procedure for bringing an appeal against bail or bail conditions?
The defence must serve notion of intention to appeal on the magistrates, crown court and opposition as soon as reasonably practicable after the magistrates' decision being appealed. If the prosecution opposes this, they must notify the crown court and defence asap, and serve notice of reasons for this. The appeal should be heard no later than the business day after the notice was given.
220
In what circumstances can the prosecution appeal a decision to grant bail?
If the relevant offence is punishable by imprisonment, the prosecution was conducted by or on behalf of the DPP, and before bail was granted the prosecution made representations against it.
221
What is the procedure for the prosecution appealing bail?
They must give oral notice of appeal at the end of the hearing in which bail was granted, and before D is let out of custody. This notice must be confirmed in writing and served on the court and D within 2 hours of the conclusion of the hearing. D will be held in custody until the appeal is determined, and a hearing will be held within 48 hours of bail being granted.
222
What happens if you fail to surrender to custody while on bail but with reasonable cause?
The court may adjourn and extend your bail. You must surrender to court as soon as reasonably practicable after
223
In what circumstances can police arrest the accused on bail without warrant prior to the surrender date?
If the officer has reasonable grounds to believe that D will not surrender/has breached conditions/is likely to breach conditions, or if the surety wishes to be relieved of their obligations as D is unlikely to surrender.
224
If the accused is arrested while on bail, within what time must they come before a magistrate?
24 hours
225
If the accused is arrested while on bail, what decision must the magistrate make and what consequences could they impose?
The magistrate must decide whether the accused is like to fail to surrender or has broken or is likely to break conditions. If yes, they may remand the accused in custody or impose more onerous conditions. If no, bail must be granted once again on the same conditions.
226
What is the punishment for failing to surrender without reasonable cause?
Imprisonment up to 3 months in the magistrates or 12 months in the crown court (if the issue is sent) and/or an unlimited fine in either court.
227
Where must all adults have their first hearing?
In the magistrates court
228
How long after being charged must the first hearing take place?
14 days, if the prosecutor anticipates a guilty plea to be sentenced in the magistrates. 28 days if the prosecutor anticipates a not-guilty plea or the case is likely to go to the Crown Court for sentence or trial.
229
Must the accused be present for the first hearing?
Generally yes, either in person or by video link
230
What are the two exceptions to the general rule that the accused be present for the first hearing?
Where the accused is legally represented and the court considers that due to their disorderly conduct it is not practicable for them to attend, and where the accused is legally represented and consents to the mode of trial proceedings being conducted in their absence and there is good reason for this e.g., ill health.
231
What are the 'initial details'?
A description provided by the prosecution of the case against the accused, served on the court and the accused if requested. It must be sufficient to allow the court to take an informed view on plea and venue for trial.
232
What must be contained within the 'initial details'?
If the accused was in police custody immediately prior to the first hearing, just a summary of the circumstances of the offence and the accused's criminal record. Otherwise, it must include any account given by the accused at interview, written statements and exhibits, and victim impact statements as well.
233
When must the Preparation for Effective Trial (PET) form be completed and by whom?
By the parties when there is to be a trial.
234
When must the initial details be served by?
As soon as practicable, and in any event no later than the beginning of the first day of the first hearing.
235
What happens if the initial details are not served by the time limit?
The court will usually adjourn the first hearing and/or award costs to the defendant.
236
For what offences must a plea be entered at the first hearing?
Summary and either-way
237
What are the available pleas to enter at a first hearing?
Guilty, not guilty, or no indication (for either way only)
238
What is an equivocal guilty plea?
One which suggests that the defendant is not guilty, either because they purport to rely on a defence or do not accept an element of the offence. It will be treated as a not guilty plea.
239
Will sentence be passed immediately after a guilty plea?
It may be, or sentence may be adjourned for the preparation of a pre-sentence report.
240
What is a case progression form?
A form filled out by the parties at the end of the first hearing where a not guilty plea is entered to a summary offence.
241
What must be included on a case progression form?
Contact details of D and his legal advisors; witness details; estimated trial length; the trial issues; any applications to be made; prosecution statements to be read out; special arrangements; that D has been advised of the reduction for guilty plea and that trial will go ahead in his absence.
242
What should be a time estimate for a summary trial?
No more than a day.
243
Who is the case progression officer?
Someone nominated by the magistrates' court to monitor directions made by the court and manage the progression of the case.
244
When are pre-trial hearings held?
For the court to make pre-trial rulings on things like the admissibility of evidence and fitness to plead.
245
Can pre-trial rulings be varied or discharged?
Yes, either party can apply for this if there has been a material change in circumstances. The court can allow it if it's in the interests of justice and both parties have had the opportunity to be heard.
246
What is the procedure if a party enters a guilty plea at the first hearing of an either-way offence?
The proceedings are treated as summary and the magistrates court will proceed to sentence. They may commit the trial to the Crown Court if they deem their sentencing powers (6 months/£5000) insufficient.
247
In what circumstances should a magistrates' court order a pre-sentence report for use by the Crown Court?
If the case is being committed for sentence, and the magistrates considers that there is a realistic alternative to custodial sentence; the accused is a dangerous offender; or there is some other reason.
248
What is the procedure if a party enters a not guilty plea at the first hearing of an either-way offence?
First, there is a mode of trial procedure, where both parties make submissions as to where the trial should be held. Then the magistrates decide where to allocate the case. If it is retained, the defendant must decide whether to consent to being tried summarily or by jury trial ('election'). If the defendant consents to summary trial, the court sets a trial date and conducts any case management.
249
In what circumstances should the magistrates send an either-way case to the Crown Court?
If they deem their sentencing powers insufficient, taking into account mitigation and guilty plea reduction, or for reasons of unusual legal, procedural, or factual complexity. The court must consider its power to commit after trial for sentencing.
250
When may the defendant ask for an indiciation of sentence?
During the first hearing, after having plead not guilty. They are able to change their plea to guilty in light of the indication.
251
What are the benefits of the defendant electing trial in the Crown Court?
Higher acquittal rates, separate tribunals of fact and law.
252
Is an indication of sentence binding?
Yes, if the defendant changes his plea to guilty, unless the dangerous offender provisions are later engaged.
253
What are the benefits of the defendant electing trial in the Magistrates Court?
Less formal, quicker, don't require a defence statement, magistrates give reasons for a conviction (juries do not), lower sentencing powers, less expensive.
254
Can allocation be changed after it is decided in the magistrates court?
The prosecution can apply for the case to be reallocated to the Crown Court on the basis of insufficient sentencing powers any time before the start of the trial.
255
What is the procedure for a first hearing of an indictable offence in the magistrates'?
The court has no jurisdiction to deal with such an offence, so this hearing is brief and D does not indicate a plea. D is sent forthwith to the Crown Court for plea.
256
Where there are multiple defendants jointly charged and pleas are mixed within them, when does sentencing usually take place?
At the end of the trials for those who have plead not guilty.
257
Where there are multiple defendants jointly charged and any of them are sent to the Crown Court, where must the others be tried?
In the Crown Court.
258
Where will a defendant have trial when charged with a summary and either-way offence?
If the either-way offence is to be heard in the magistrates, they are heard together. If it is to be heard in the Crown Court, they will be sent together if the offences are related and the lesser offence is either listed in s 40 CJA or is punishable by disqualification from driving or imprisonment. If the lesser offence is not related or does not fall under one of these categories, it must be heard in the magistrates.
259
Where will a defendant have trial when charged with a summary and indictable offence?
They will be sent to the Crown Court together if the offences are related and the lesser offence is either listed in s 40 CJA or is punishable by disqualification from driving or imprisonment. If the lesser offence is not related or does not fall under one of these categories, it must be heard in the magistrates.
260
What are the s 40 CJA offences?
Common assault, assaulting a prison officer or secure training officer, taking a motor vehicle, driving while disqualified, criminal damage.
261
Will a summary matter is related to a matter which is sent to the Crown Court, will it be included on the indictment?
Yes, if it's a s 40 CJA offence. No, if it's not a s 40 CJA offence but is punishable by disqualification from driving or imprisonment.
262
What is the procedure where a summary offence is sent to the Crown Court with a related indictable matter, but not included on the indictment?
After the trial for the indictable offence, if D pleads guilty to the summary offence, the Crown Court may deal with it in the same way the magistrates could. If D pleads not guilty, the court can dismiss the charge if the prosecution offers no evidence (likely if D was found guilty for the indictable offence) or remit it to the magistrates.
263
When will the magistrates adjourn a summary matter sine die, and what does this mean?
Where it was charged with an unrelated indictable offence that was sent to the Crown Court. The summary matter is adjourned 'without a date' until the indictable matter is concluded.
264
Where will a defendant have trial when charged with an either-way and indictable only offence?
The magistrates must send both offences to the Crown Court for trial without taking an indication of plea or considering allocation.
265
Where an offence has been sent to the Crown Court and the accused is subsequently charged with a related either-way, imprisonable summary, or disqualification offence, where will this new offence be tried?
The court may send D to the Crown Court for trial on the new offence. The magistrates must conduct a plea before venue and mode of trial procedure.
266
What is a prosecution notice and what is its effect?
The prosecution can serve a notice on a magistrates court in cases of serious complex fraud or harm to a person where a child will be called as a witness. If the notice is served, the magistrates must send the case to the Crown Court without an allocation hearing.
267
If a summary offence is included on an indictment with an indictable offence, what are the Crown Court's sentencing powers?
They can give any sentence which could have been imposed by the magistrates.
268
What are the sentencing powers of the Crown Court where summary criminal damage is included on an indictment with an indictable offence?
If the magistrates deemed the damage to be summary due to its value, the Crown Court is limited to the Magistrates' sentencing powers. If the count was added to the indictment after the case arrived at the Crown Court, the Crown Court will not be limited.
269
What representations should counsel make to the magistrates in reaching an allocation decision on an either-way offence?
Previous convictions, nature and seriousness of the offence, aggravating or mitigating factors, likely sentence, any unusual factual, legal or procedural complexity.
270
What must the defendant be told if sentence is adjourned by the magistrates for the preparation of a pre-sentence report?
That D may still be committed for sentence in the Crown Court.
271
Give three examples of common unused material
Witness statements not relied upon, previous convictions of prosecution witnesses, disciplinary findings against police.
272
Why should unused material be disclosed to the defence?
Fairness and avoiding miscarriages of justice
273
What is the 'golden rule' of disclosure?
Full disclosure of material which weakens the prosecution's case or strengthens the defence's.
274
During a criminal investigation, what should be done with material found?
It must be recorded in a durable or retrievable form and retained.
275
What is a disclosure officer?
Someone responsible for examining all material retained by the investigator and revealing material to the prosecution and defence by listing the material in a clear way.
276
Who is the investigator and what is their role?
A police officer, who must follow all reasonable lines of enquiry, whether these point towards or away from the suspect. They must be 'fair and objective’.
277
For how long must materials obtained through investigations be retained?
At least until a decision is made as to whether to institute proceedings. If proceedings are commenced, until the verdict. If the accused is found guilty, until they are released from custody (or if there is no custody, for 6 months from conviction). If there is an appeal, until the appeal is concluded.
278
How is unused material recorded?
It is recorded by the disclosure officer in an MG6C form (Crown Court) or a streamlined disclosure certificate (Magistrates).
279
What is sensitive material and how is it recorded?
Sensitive material is material the disclosure of which the disclosure officer believes would create a real risk of serious prejudice to an important public interest. It should be listed in a separate Sensitive Material schedule to other materials or exceptionally, revealed to the prosecutor separately.
280
What is the initial duty of disclosure?
The prosecutor must disclose to the accused any material which is capable of undermining the case of the prosecution or assisting the case of the accused, or give a written statement that there is no such material.
281
What material does the initial duty of disclosure apply to?
Material in the prosecutor's possession or which the prosecutor has inspected.
282
When deciding whether material should be disclosed, what factors should the prosecutor consider?
How the material may be used in cross-examination; the capacity of the material to lead to the exclusion of evidence/stay of proceedings as an abuse of process/a finding that a public authority had acted incompatibly with the accused's ECHR rights; the capacity of the material to explain the accused's actions; its bearing on scientific or medical evidence in the case.
283
What steps should the prosecution take in terms of disclosure in long, complex cases involving large volumes of material?
It should complete a Disclosure Management Document; encourage dialogue with the defence; engage promptly with the defence; formulate a disclosure strategy with the defence and court; use technology to search the material; follow the directions of the court.
284
When does the initial duty of disclosure arise?
In the Magistrates' where the defendant pleas not guilty, and in the Crown Court when a defendant is sent for trial.
285
What is the common law duty of disclosure?
Before the initial duty of disclosure arises, the prosecution should be alive to the need for advance disclosure of material which should be disclosed at this early stage in the interests of fairness and justice.
286
When must initial disclosure be made by?
As soon as is reasonably practicable after the duty arises. In practice, for summary trials, in the first hearing the magistrates will give a date by which unused material must be disclosed, and for Crown Court trials, this should be done by the PTPH or a date set at the PTPH.
287
What is the defence duty of disclosure?
For a Crown Court trial, the defence must serve a defence statement on the Crown Court and prosecution. The defence has no duty to disclose material that might be helpful to the prosecution.
288
What must the defence statement contain?
The nature of the defence, matters of fact on which the defence takes issue and why they take issue, points of law the defence wishes to take and authority for those points. If the statement includes an alibi, details of the witness or information to identify the witness must be given.
289
When must the defence statement be served?
Within 28 days (in the Crown Court) or 14 days (in the magistrates) of the prosecution complying with its initial duty of disclosure.
290
Can the time limit for serving the defence statement be extended?
Yes, if the application is made within the 28 days and the court is satisfied that it would not be reasonable to require the defendant to serve the statement within the time limit.
291
Can a defendant serve a defence statement in the magistrates court?
They can, but they are not obliged to.
292
What happens if the defendant does not serve a defence statement in the magistrates?
They will be unable to make an application for specific disclosure. Also, the prosecution will not have the opportunity to review disclosure in light of the defence case.
293
What must the defence disclose prior to magistrates or crown court trial?
If D intends to call witnesses, and the identity of those witnesses (except alibi witnesses, who will be included in the defence statement). This must be done within 28 days (in the Crown Court) or 14 days (in the magistrates) of the prosecution complying with its initial duty of disclosure.
294
What are the consequences of disclosure failure/inadequacy by the defence?
The jury may draw adverse inferences and the prosecution or co-defendants may comment on the failure. These are the only sanctions available.
295
What is the continuing duty of disclosure on the prosecution?
They must keep disclosure under review throughout the case, particularly when the defence statement is served.
296
How long does the continuing duty of disclosure last for?
Throughout the case, even if new material is discovered at a late stage or even after close of the prosecution case. It then continues until the verdict.
297
When can an application for specific disclosure be made?
When the defence has reasonable cause to believe that there is prosecution material which should have been disclosed but was not. This should be a last-resort, though, discussion between parties outside of court is preferred.
298
How is an application for specific disclosure made?
The defence must have served a defence statement and the prosecutor must have provided further disclosure in light of this statement or indicated that there is no further disclosure to be made. The defence must then serve the specific disclosure application on the court and prosecution identifying the material and explaining why they think the prosecutor has it and why it should be disclosed.
299
How long does the prosecution have to respond to an application for specific disclosure?
14 days from service of the application.
300
What are the consequences of failure to disclose by the prosecution?
Stay of indictment on the grounds of abuse of process; conviction quashed as unsafe; wasted costs order; refusal to extend custody time limits; exclusion of evidence.
301
What should be done in relation to third party disclosure?
The prosecution should take steps to obtain material (e.g., from a local authority, health authority, financial institution) which might be capable of undermining the prosecution case or of assisting the accused’s. They must inform the third party of the investigation and request that they retain the material.
302
What happens if third parties refuse to disclose materials?
The prosecution seek a summons for production of the material.
303
What is a Public Interest Immunity Application?
The prosecution applies to the judge for non-disclosure of sensitive materials which they are under a duty to disclose. The court may withhold disclosure to the minimum extent necessary to protect the public interest, whilst protecting the defendant's right to a fair trial.
304
When will pre-trial matters be dealt with?
Either at the first hearing (in the magistrates, this is often all that is needed), a pre-trial hearing such as a PTPH, or at the beginning of the day of trial itself.
305
When do you have a PTPH?
On a date before trial in the Crown Court.
306
How is case management done in the magistrates court?
The parties will prepare a case management form before the first hearing, and at that hearing the court will give directions for the service of documents and state whether any issues of law will be dealt with then and there, at a pre-trial hearing, or on the day of trial, as well as setting a date for trial.
307
Are pre-trial rulings in the magistrates' court binding?
Yes, until the case against the defendant is concluded, unless a party applies to have them varied or discharged. A party can only do so where there is a material change in circumstances or something was not brought to the attention of the magistrates at the time.
308
How does a defendant to an indictable only matter secure maximum credit for a guilty plea?
By indicating at the first hearing in the magistrates that they will enter a guilty plea and that they will contact the Crown Court to arrange for this to happen immediately.
309
What directions does the magistrates make when sending a case to the Crown Court for trial?
They make a series of standard directions for the prosecution to serve its case and the defendant to serve a defence statement.
310
What is the procedure for a PTPH?
Prior to the hearing, the parties fill out a PTPH form. At the hearing, the first stage is the plea stage, where the defendant enters their plea. If D pleads guilty, the court moves to sentence. If D pleads not guilty, they move to the next stage of the PTPH. If D pleads a mixture to multiple offences, the prosecution decides whether it wishes to pursue the not guilty charges. Then there is a trial preparation stage, where the court deals with various issues, sets a trial date and timetable for further preparation.
311
What happens if someone is found unfit to plead?
No plea is taken, the trial preparation stage of the PTPH takes place, they have a trial based on the actus reus only, if the jury finds that they committed the act they may be subject to a supervision order or hospital order or given an absolute discharge.
312
What kinds of issues may be dealt with at the preparation stage of the PTPH?
Special measures, bad character evidence, witness summons, agreed and disputed facts and issues, serving the defence statement, disclosure, the defendant's interview, hearsay, admissibility of other evidence, length of witness examination, trial length.
313
When will there be additional pre-trial hearings in a Crown Court case other than the PTPH?
Where it is a complex case where all issues cannot be dealt with either at the PTPH or beginning of trial.
314
When are applications to exclude evidence or introduce otherwise inadmissible evidence usually made?
Most often at the beginning of the trial on the day - applications under s 78 PACE or the hearsay/bad character rules.
315
What are special measures?
Arrangements put in place to assist young, vulnerable, and fearful witnesses in giving their best evidence before a court.
316
What are the 8 special measures set out in the YJCEA?
Screens, live TV link to give evidence from another room, clearing the public gallery to give evidence in private, removal of wigs and gowns, video recording evidence in chief, pre-recording cross-examination and re-examination, questioning through an intermediary, aids to communication.
317
What witnesses will be eligible for special measures?
Under 18s, those with a mental or physical disorder which is likely to diminish the quality of their evidence, those who are in fear/distress about testifying if this is likely to diminish the quality of their evidence; adult complainants of sexual offences; adult complainants in certain offences including forced labour and trafficking; those in a case involving a 'relevant offence'.
318
What other special measures are available to protect certain kinds of witnesses?
Witness anonymity orders, automatic anonymity of complainants in sex cases, prohibition of cross-examination by defendants, restricting the reporting of witnesses' identities.
319
What measures can be applied for by the defence to assist particularly vulnerable defendants?
To give their evidence by live link, to be assisted by an intermediary to understand what's going on.
320
When will a vulnerable defendant be entitled to give their evidence by live link?
When the court is satisfied that it would be in the interests of justice and the live link would improve the quality of evidence either because the defendant is under 18 and has diminished intellectual ability or social functioning, or the defendant is 18 or over and has a mental disorder or significant impairment of intelligence and social function.
321
In what way can intermediaries assist witnesses?
Before questioning of the witness begins, the intermediary can explain what types of questions are likely to confuse them so that the advocates can carefully prepare their questioning. During questioning, they can explain counsel's questions and D's answers.
322
Who is generally responsible for securing each side's witnesses?
The police are responsible for securing the attendance of prosecution witnesses and defence solicitors are responsible for ensuring that defence witnesses attend court.
323
What should happen if a party thinks that one of their witnesses is unlikely to attend court?
They can apply to the court for a witness summons, either requiring the witness to attend court or produce a document.
324
What must a party seeking a witness summons prove?
That the witness is likely to give material evidence, and that it is in the interests of justice to issue a summons.
325
What happens if a witness ignores a summons?
A warrant can be issued for their arrest, and this can be punishable as contempt of court.
326
How would a defendant go about changing their plea from not guilty to guilty?
They can ask through their counsel that the indictment/charge sheet be put again. The clerk will read the indictment and the defendant can plead guilty. This can happen before trial or during the trial.
327
When is a defendant unlikely to be able to change their plea from guilty to not guilty?
If the defendant has been properly represented i.e., given proper advice, not been pressured, and entered an unequivocal plea.
328
When may a defendant be able to change their plea from guilty to not guilty?
Where they can show that the prosecution has no evidence on an essential ingredient of the offence; where they were unduly pressured to plead guilty; or where they were materially misadvised by their legal team.
329
How would a defendant go about changing their plea from guilty to not guilty?
Any time before sentence, they can apply to court for leave to change their plea. They will often have to waive privilege to disclose their lawyer's advice. They will also often have to find alternative representation.
330
What is the indictment?
The document containing the charges (counts) that a defendant faces in the Crown Court
331
What three things must each count on an indictment contain?
A statement of the offence in ordinary language citing the any relevant statute, the particulars of conduct, and the date on which the offence took place.
332
What is the procedure for creating the indictment?
The prosecution prepares a schedule of charges (a draft indictment), this is sent to the Crown Court electronically, and a Crown Court officer signs a paper copy with a note to identify it as a copy of the indictment and the date on which the draft becomes an indictment (immediately before arraignment).
333
What is an arraignment?
The indictment is put to the defendant and they enter a plea of guilty or not guilty to each count.
334
Must an indictment be signed?
Criminal Practice Direction II, paragraph 10A.2 says no, but CrimPR 10.2(7) says a paper copy must be signed. So yes, probably.
335
By when must the indictment be served on the Crown Court officer?
Within 20 business days of the date on which a) copies of documents are served or b) a High Court judge has given permission to serve a voluntary bill of indictment, and at least 7 days before the PTPH.
336
Can the time limit for serving the indictment be extended?
Yes, by a Crown Court judge, even after the time limit has expired.
337
When should the indictment be served before the time limit?
When the prosecution intends to include different or additional counts to those which form the basis on which the accused was sent.
338
What is a voluntary bill of indictment?
An alternative to a case being sent to the Crown Court, where the defence has had an indictment dismissed by the Crown Court, but the prosecution wishes to seek trial. An application is made to a High Court judge.
339
When will a High Court judge give leave for a voluntary bill of indictment?
In exceptional circumstances where there are good grounds (e.g., significant new evidence since the dismissal) and doing so is in the interests of justice.
340
What is joinder?
Where more than one count or defendant is included on the same indictment.
341
When may the court order separate trials where there is more than one count joined on an indictment?
Where the defendant would be prejudiced or embarrassed in their defence by the joint charges, or where for any other reason it is desirable.
342
Can an indictment include multiple charges which are not founded on the same facts/do not form a series of offences of a similar character?
Yes, the rule formally prohibiting this has been abolished. However, this might be grounds for the court to separate the charges.
343
Who decides whether to join or separate charges and/or defendant on an indictment?
The court, taking into account the parties' representations and the overriding objective.
344
What are alternative counts/charges?
Lesser offences which are included on the indictment in case the jury doesn't find one ingredient of the offence/to encourage the defendant to plead guilty e.g., s 20 as an alternative to s 18.
345
Should the lesser or more serious count be listed first where an alternative count is included on the indictment?
The more serious.
346
What is the meaning of charges which are founded on the same facts?
They are offences which arise out of a single incident or an uninterrupted course of conduct, or offences where the second would not have happened but for the first. They have to have a common factual origin, but this doesn't have to be identical.
347
What is the meaning of charges which form or are part of a series of offences of the same or a similar character?
There must be some nexus between them i.e., 'a feature of similarity which in all the circumstances of the case enables the offences to be described as a series'. Generally, the further apart in time the offences are, the more difficult it is to establish this nexus.
348
When can a summary offence be included on an indictment?
Where the summary offence is founded on the same facts as the indictable offence, or is part of a series of offences of the same or similar character. The summary offence must be a s 40 CJA offence.
349
If a summary offence is joined with an indictable offence on the indictment, what sentence can the Crown Court pass in relation to the summary offence?
They are limited to the sentencing powers of the magistrates.
350
When can more than one defendant be joined on the same indictment?
Where they have committed a single offence together, or a number of offences together, or there is some other common link.
351
If more than one defendant is included on an indictment, does each defendant have to be charged with the same offences?
No.
352
When hearing a case involving more than one defendant, how should the jury treat the defendants?
They should be considered separately, and the jury may reach different verdicts for each defendant.
353
What is the rule against duplicity?
That each count should relate to a single offence. You should not have a single count relating to two victims, for example.
354
When can one count relate to more than one offence?
Where the offence is a continuous one, the offences are the same, the victim was the same, the offences were carried out in a similar way/took place in the same location, the offences took place over a defined period, the defence is the same to each offence i.e., where there were repeated incidents of very similar conduct.
355
What are specimen/sample counts?
Counts designed to show just one example of a defendant's repeated conduct, to avoid overloading an indictment. This can be used where rolling up the offences would not be appropriate e.g., if the offences took place over a number of years.
356
What should the prosecution do when drafting a specimen/sample count?
Provide the defence with a list of all the similar offences to which the sample counts relate.
357
What are the potential problems with specimen/sample counts?
The defence may dispute the other occasions on which similar offences are alleged (which are not included on the indictment), and defendants have the right to know precisely what the case against them is.
358
What is an overloaded indictment?
One that is unduly long, complex or difficult for a jury to follow.
359
How should prosecutors avoid an overloaded indictment?
Holding a number of shorter trials, including rolled up counts, using specimen/sample counts.
360
How are wrongly joined counts dealt with?
The court can amend or split the indictment on the application of a party.
361
What is an application for severance?
Where charges/defendants are properly joined on an indictment but the defence applies to amend the indictment to change this, resulting in multiple indictments and therefore trials.
362
On what grounds can the defence apply for severance?
If the indictment would be prejudicial or embarrassing for the defendant and separate trials would be in the interests of justice. However, there is a presumption in favour of a joint trial unless the risk of prejudice is particularly great.
363
Can an indictment be amended?
Yes, the judge can do this at any time before the verdict if it appears that the indictment is defective, so long as the amendment can be made without injustice.
364
What can be amended within an indictment?
Charges can be added, removed, or changed. If new counts are added after arraignment, they will need to be put to the defendant. Alternatively, the judge could quash the whole indictment meaning proceedings would have to start again.
365
When will applications for an amendment of the indictment usually be made?
At the PTPH.
366
If a defendant is found unfit to plead, is there any situation in which they can enter a plea?
If their mental condition improves before prosecution evidence is called.
367
What happens practically if a defendant pleads guilty to an alternative offence?
Either, the prosecution can apply to amend the indictment to add the lesser offence, or, if the lesser offence is a direct alternative, the defendant can simply say 'Not guilty, but guilty to the alternative'.
368
What is a direct alternative offence?
One which is included in the definition of the more serious offence e.g., s 20 is s 18 without the intent.
369
What must happen before the defendant is able to plead guilty to the alternative?
The prosecution must accept this, making the decision with the assistance of the CPS, police and victim(s).
370
Where the defendant pleads guilty to the alternative, what happens to the more serious offence?
The prosecution must bring it to an end by either offering no evidence or asking the judge to lie the count on the file.
371
What is the difference between offering no evidence and leaving the count to lie on the file?
If no evidence is offered, the jury must be directed to find the defendant not guilty and the issue will be over. If the count is lied on the file, it is put on hold, normally permanently, but can be pursued in the future e.g., if the defendant successfully appeals the lesser conviction.
372
When should the prosecution offer no evidence following a guilty plea to the alternative?
Where they have little or no evidence to prove the more serious offence.
373
When should the prosecution apply to lie the count on the file following a guilty plea to the alternative?
Where they have evidence to prove the more serious offence but have chosen not to pursue it for other reasons.
374
When will the prosecution usually dispose of remaining counts (by offering no evidence/asking to lie the count on the file)?
After sentencing, so as to prevent the defendant from doing something sneaky to take advantage of the situation.
375
What happens if the prosecution does not accept the defendant's offer of a guilty plea to the alternative?
They should still include the lesser offence on the indictment in case the jury finds the defendant not guilty of the more serious offence.
376
What is meant by competence?
Whether a witness may lawfully be called to testify.
377
What are the two main exceptions to the general rule that anyone is a competent witness?
The defendant is not competent as a prosecution witness against himself or co-defendants; and a child or disabled person who cannot understand questions and/or give comprehensible answers.
378
What is meant by compellability?
Whether a witness can be required to give evidence even if they don't want to.
379
What are the two main exceptions to the general rule that anyone is a compellable witness?
The defendant cannot be compelled to give evidence by the prosecution or defence; spouses/civil partners cannot be compelled as a prosecution witness unless the charge against their partner is assault on a partner, assault on an under 16, a sexual offence on an under 16, or aiding/abetting/attempting/conspiring any of the above.
380
Are children and disabled people compellable?
Yes, if they are competent.
381
Are spouses/civil partners competent?
Yes, but they may not be compellable.
382
Can spouses/civil partners be compelled as defence witnesses?
Yes.
383
What happens if a witness is brought before the court but refuses to answer questions?
They can be held in contempt of court - though they cannot be forced to answer.
384
In what two circumstances can witnesses give their opinions?
If the opinion is commonplace and relevant to their perception e.g., drunkenness, recognition of voice or handwriting; or if the defendant is an expert.
385
What limits are there to opinions that experts can give?
Sometimes the law specifies a level of qualification required before opinion can be given e.g., doctor and not nurse; they should not give opinion on things outside of their expertise; they should not give their opinion on the 'final' question e.g., did the driver cause death by dangerous driving?
386
Are experts partisan or neutral in court?
They should be neutral and objective.
387
How should the jury treat expert evidence?
They are not obliged to accept it, unless the judge directs that they should as there is no opposing evidence.
388
What is privilege against self-incrimination?
The court will uphold a witness's right (other than the defendant) to refuse to answer questions or disclose documents which would make them liable to incriminate themselves.
389
What does privilege against self-incrimination not cover?
Protecting another person, or avoiding civil proceedings. It also does not prevent a party from obtaining the privileged information from some other route.
390
What is litigation privilege?
Communications between a client and their lawyer (or third party) to advance or act in a process of litigation are privileged.
391
What is advice privilege?
Direct communications between a client and their lawyer to obtain advice is privileged, but communications with a third party are not.
392
How can legal privilege be waived?
By the client, either explicitly or by conduct. Privilege must be waived entirely if it is to be waived at all. If privilege is waived, the information can be shared with the court and opposition.
393
Who decides whether a witness is competent/compellable?
The judge, often informed by medical evidence.
394
Does the spouse/civil partner compellability restriction apply to long term partners?
No.
395
What must all witnesses generally do before giving evidence?
Take an oath or make an affirmation.
396
What kinds of witnesses do not have to take an oath?
Children and those of 'unsound mind', who may only take an oath if they are over 14 and have 'sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth'.
397
What quality does the oath have to have?
It must be binding on one's conscience, though it need not be the exact right religion.
398
What happens if a witness refuses to take an oath or affirmation?
This can be punished as contempt of court.
399
What is the form of questioning for examination in chief?
Non-leading questions.
400
What are the two exceptions to the general rule that questions should not be leading in examination in chief?
Where the issue is not in dispute, and where the witness has been deemed hostile.
401
What does memoring refreshing refer to?
A witness may ask the court to refresh their memory from their statement (or another document). They will be given a few moments to read over it, before continuing with examination in chief (they will not simply read out the statement).
402
When should memory refreshing be permitted?
Where the earlier written account provides a 'significantly better' recollection than could be achieved without it.
403
Must the witness refresh their memory from within the witness box?
No, they can leave the courtroom to read the statement if this would be desirable e.g., if they have dyslexia.
404
Is material used to refresh a witness's memory and/or materials raised in examination in chief put into evidence?
Material used to refresh memory is not, but other materials are.
405
When will a witness be deemed hostile?
When they give an account at trial inconsistent with their original statement, so that the judge deems the witness 'not desirous of telling the truth'. The party calling that witness may apply to the judge to treat them as hostile.
406
What is the general rule about earlier consistent statements?
When the witness makes a statement in court, it is not generally admissible to elicit evidence that the witness made earlier consistent statements.
407
What are the exceptions to the general rule about earlier consistent statements?
Res gestae, responses to police allegations (if D wholly denies these allegations, this evidence can be raised to show consistency of denial but not truth of denial), complaints (can be raised to show consistency and truth), recent fabrication (to show they haven't just made something up in the box).
408
What is res gestae?
A statement made as an immediate reaction to a crime being committed against the statement maker.
409
What is the form of questioning in cross examination?
Leading questions.
410
What happens if counsel does not challenge a witness's account on a particular point in cross-examination?
It is deemed to have been tacitly accepted.
411
What kind of question are witnesses often asked even though they shouldn't be?
The type that asks one witness to comment on another witness e.g., 'Well, you can't both be right, so are you calling X a liar?'
412
Are police witness statements admissible as evidence?
Generally, no, as they are hearsay. However, if the witness being questioned departs materially from it, it can become admissible.
413
When can previous inconsistent statements become admissible?
When the witness is clearly contradicting or adding to a previous statement. The original statement can be produced to challenge the discrepancy, and counsel will likely point out that the original statement was made closer to the time of the incident and signed and sworn.
414
Can counsel upset or annoy witnesses during cross-examination?
Yes, so long as it serves a clear and useful purpose and is not done for its own sake.
415
Can the judge restrict cross-examination?
Yes, they can put time limits on matters which have been sufficiently explored and on peripheral issues.
416
What kinds of question can you not ask victims/complainants of sexual offences?
Questions about the victim's general promiscuity or other sexual behaviour are not allowed without leave of the court.
417
What is meant by finality on collateral matters?
The witnesses' answers on collateral issues which go only to credibility will be taken as final, and further questioning/adducing of evidence on these issues will be prohibited.
418
When may counsel re-examine their witness?
Where matters are raised in cross-examination which could not reasonably have been covered in examination in chief.
419
What is the form of questioning in re-examination?
Non-leading questions, and witnesses may refresh their memories.
420
What is meant by visual identification?
An eyewitness claims to have seen the suspect, and be able to describe or identify him.
421
What are the two main reforms which have been introduced to improve the reliability of visual identification?
PACE Code D (deals exclusively with identification) and Turnbull (criteria and direction).
422
Why is visual identification unreliable?
It is easy for an honest and convincing witness to be mistaken even if the suspect is well known to them. Inaccurate eyewitness testimonies have led to many miscarriages of justice.
423
What is the police's identification procedure and how does it work?
VIPER (Video Identification Parade Electronic Recording) - the suspect is filmed looking left and right, and this video is put alongside the videos of 8 lookalikes. The videos are then shown to the witness in the controlled identification suite.
424
How does the judge determine if there has been a breach of PACE Code D?
Usually, this can be done without a voir dire. However, if evidence around the alleged breach is dispute, one may be required.
425
What is a voir dire?
A trial within a trial (a procedure for the judge to resolve a factual dispute which is relevant to legal argument)
426
What should the defence do if there has been a breach of PACE Code D?
Apply to exclude the identification evidence obtained under s 78 PACE.
427
What test will the judge apply when considering an application to exclude evidence under s 78 on the grounds of a breach of PACE Code D?
Where there has been any significant prejudice to the accused, and whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
428
What happens if there is a breach of Code D but the evidence is admitted anyway?
Defence counsel may comment on the breach during cross-examination/closing speech, and the judge should draw the jury's attention to the breach.
429
When should a Turnbull direction be given?
Where the case against the accused depends wholly or substantially on disputed identification evidence.
430
When must a particularly robust Turnbull direction be given?
Where the disputed evidence is adduced as hearsay in the form of statement from a witness who has not been cross-examined.
431
In what kind of identification case will it be unlikely that a Turnbull direction will be given?
Where the defendant disputes their role in the incident but admits being at the scene. However, each case turns on its facts.
432
When and between whom should discussions about whether to make a Turnbull direction take place?
Between the judge and counsel in the absence of the jury, before closing speeches and summing up.
433
If a judge fails to give a Turnbull directions where it should have or gives it incorrectly, what are the consequences?
If convicted, that conviction may be quashed by the Court of Appeal if it is viewed as unsafe.
434
What five key points should the judge convey in a Turnbull direction?
The special need for caution when convicting on the basis of the correctness of identification; the possibilities that a mistaken witness could be convincing and all such witnesses could be mistaken; to closely examine the circumstances in which the identification(s) came to be made; that mistakes in recognition of close friends and relatives are sometimes made; and reminding of any specific weaknesses in the identification evidence.
435
What other evidence should the judge direct the jury's attention to in relation to identification?
Evidence which supports the correctness of the identification e.g., forensic evidence, telephone records, multiple independent identifications, bad character, previous convictions, silence at interview, admissions, lies.
436
What is a Galbraith application?
A half time submission - where at the end of the prosecution's case, on the defendant’s application or on its own initiative, the court may (direct the jury to) acquit on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict.
437
What two things must the judge determine when considering a half time submission in a case depending on identification evidence?
The quality of the identification evidence itself, and the existence of any other evidence to support the correctness of the identification.
438
What is the ADVOKATE mnemonic (Turnbull)?
Amount of time under observation, Distance, Visibility, Obstruction, Know or seen the witness before, Any reason to remember, Time lapse, Error or material discrepancy.
439
After having determined the quality of the identification evidence as part of a half time submission, what options are available?
If the evidence is good quality it can be left to the jury to assess. If it is poor quality the judge should consider whether there is any supporting evidence. If there is not, the judge should withdraw the case and order the jury to acquit. If there is, the supporting evidence and weak identification can be left to the jury.
440
What is a dock identification and how is it seen?
It is where a witness identifies the defendant for the first time in the dock. It is treated as undesirable as the fact that the defendant is standing in the dock is highly prejudicial.
441
Are dock identifications allowed?
Only in rare, exceptional circumstances. The judge can permit one where this will not jeopardise the fairness of the accused's trial.
442
What are the two pre-conditions to ID being a live issue?
D disputes the ID evidence, and the ID evidence is wholly or substantially the only evidence implicating D.
443
Who can make a s 78 PACE application?
The defence only. It cannot be made by the prosecution or a co-defendant aiming to exclude defence evidence.
444
What can lead to a s 78 PACE application?
This section has very broad application, so it can be evidence obtained unlawfully, improperly, unfairly, or in breach of the ECHR or PACE or the PACE Code of Practice.
445
What effect is bad faith on the part of a police officer likely to have on a s 78 PACE application?
It increases the likelihood that the evidence in question will be excluded - though the test is about fairness, not about good faith.
446
What are the PACE Codes of Practice and are they admissible as evidence?
They set out the procedures that the police (or other investigators) must follow in the exercise of their powers under PACE. They are admissible e.g., as grounds for a s 78 PACE application.
447
How many PACE Codes of Practice are there?
8 (A-H)
448
Can police deviate from the words of the caution set out in the PACE Codes of Practice?
Minor deviations are permissible.
449
Is a s 78 PACE application likely to be successful?
Just because PACE was breached or there was some other impropriety does not automatically mean that the evidence will be excluded. However, the more 'significant and substantial' the breach, the more likely that it will result in exclusion. The key test is if it creates unfairness.
450
Can the prosecution raise evidence which is going to be subject to a s 78 PACE application in their opening speech?
No, not until the application has been dealt with.
451
How do the parties know when a s 78 application will be heard?
The judge will give directions usually at the PTPH (in the Crown Court) or case management (in the magistrates') as to when the application will be heard.
452
What is the procedure for a s 78 PACE voir dire?
The defence representative will address the court first, followed by the prosecution advocate responding. Each party will present evidence on the disputed facts relating to the s 78 claim, and the judge will make a decision on the law. The normal criminal burden and standard of proof applies.
453
What oath is taken by witnesses during a voir dire?
'That I will true answer make to all such questions as the court shall demand of me'.
454
Does a voir dire take place in front of or away from the jury?
Away from.
455
If the sole witness in a case is 99% sure that the accused is the offender and this is the only ID evidence, is this sufficient to find ID?
No - qualified i.e., not certain identification is not enough.
456
What should the judge do if a witness does an unanticipated dock identification?
Direct the jury not to attach any weight to the ID, or, if this will not suffice, dismiss the jury.
457
What are the four conditions to the admission of evidence of previous complaints?
The witness testifies that they made the complaint and it is true; the witness claims that an offence was committed against them; the offence is one to which the proceedings relate; the complaint is about conduct which would amount to an offence.
458
Do the prosecution have to adduce self-serving statements made by the defendant on accusation?
If the statement is adverse to the accused or mixed, then yes. If the statement is wholly exculpatory, then no (its not admissible as evidence of its truth, but of evidence of D's reaction).
459
What is the judge's role during cross examination?
Intervene in inappropriate questions, protect witnesses, and support litigants in person (including by securing an independent barrister to conduct cross examination on their behalf).
460
What is the definition of a confession?
Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.
461
Is a mixed statement i.e., one which is partly exculpatory and partly inculpatory, a confession?
Yes.
462
Can a nod, sign or gesture be a confession?
Yes, depending on the context.
463
In what two circumstances does s 76 PACE kick in to exclude confessions?
Where the confession was obtained by oppression, or anything said or done is likely to have made it unreliable.
464
Who can bring a challenge to the admissibility of a confession under s 76 PACE?
The defence, or the court of its own motion.
465
s 76 PACE
Used to exclude confession evidence on the basis that it was obtained by oppression or rendered unreliable by something said or done.
466
What is the definition of oppression in s 76(8) PACE?
"oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
467
Should we judge what oppression is objectively or subjectively?
Subjectively - what might be oppressive to one person might not be to another, so it is legitimate to consider the character and attributes of the accused.
468
Who bears the burden of proving/disproving that a confession was obtained in breach of s 76 PACE?
The prosecution - they must prove beyond reasonable doubt that the confession was not obtained through oppression/something said or done.
469
If the court denies a s 76/78 PACE application and admits the evidence, what can the defence do?
They can discredit the evidence through cross-examination and within their closing speech, by suggesting that it was obtained through oppression/ unfairness.
470
What is the three-stage approach to an application made under s 76(2)(b) PACE?
Identify the thing said or done; ask whether this was likely in the circumstances to render the confession unreliable; and ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said or done.
471
What can the 'thing said or done' include, for the purposes of s 76(2)(b)?
Positive acts such as a promise, threat or trick, and omissions such as interviewing someone without an appropriate adult.
472
Can the 'thing said or done', for the purposes of s 76(2)(b), be internal to the person who gave the confession?
No - it must be external. Therefore, someone who confesses to get bail where this has not been promised cannot rely on this section.
473
What is often argued alongside a breach of s 76(2)(b)?
A breach of PACE code C.
474
Can you use s 78 to challenge a confession?
Yes, you can use it alone or alongside s 76. Section 76 uses stronger language (shall not vs may refuse), but s 78 exerts a broader protective sweep.
475
What question will the court ask when determining whether a confession was rendered unreliable under s 76?
Is there a likelihood that any confession would be unreliable in the circumstances prevailing at the time? (i.e., not the actual confession that was made)
476
What does unreliable mean in the context of s 76?
Not true.
477
What are some examples of unreliable confessions?
Deprivation of sleep (without rest for 18 hours); failure to caution; denial of access to legal advice.
478
Who determined whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done? And how do they do this?
The judge (even though this is a question of fact). They should approach this in a common sense way.
479
Is evidence discovered as a result of an unreliable confession admissible?
Yes, under s 76(4)(a) PACE. However, the prosecution cannot suggest that the evidence was discovered by reason of something the defendant said.
480
How else is it permissible to use an unreliable confession?
To show that the accused speaks, writes or expresses himself in a particular way.
481
Does a breach of the PACE codes render evidence inadmissible?
Not necessarily.
482
When deciding whether to exclude evidence under s 78, will the court seek to mark its disapproval of police conduct?
No - the application of this test is only concerned with fairness.
483
In what document should the defence raise points as to the admissibility of evidence?
The defence statement. It is likely that the court will then order the defence to serve a skeleton argument making s 76/78 arguments.
484
What is the time limit for submitting skeleton arguments in the magistrates?
The defence skeleton must be submitted at least 14 days before trial and the prosecution skeleton 7 days after that.
485
When should an application to exclude evidence under s 76/78 be made in the crown court?
At a pre-trial hearing or at the beginning of trial in the absence of the jury.
486
When will it be appropriate to hold a pre-trial hearing to determine admissibility of evidence?
Where the admissibility of that evidence determines whether the prosecution can continue with its case.
487
When should an application to exclude evidence under s 76/78 be made in the magistrates' court?
It should be dealt with as a preliminary issue, with evidence heard.
488
Who determines whether a confession was obtained by oppression and/or anything said or done? What kind of hearing is used to determine this?
The judge (even though this is a question of fact), within a voir dire (trial within a trial).
489
What is the procedure for a voir dire?
The prosecution will call evidence, and then the defence will do so. The judge will then resolve the disputed facts before ruling on the admissibility of the evidence. This all takes place in open court in the presence of the defendant, but not the jury.
490
What issue arises where evidence is deemed inadmissible in the magistrates court?
As he judges of both fact and law, the magistrates must put the evidence out of their minds.
491
When is a voir dire required to resolve a question of the admissibility of evidence?
When a factual matter relating to the substance of the legal argument needs resolution. Where the background facts are agreed there is no need for voir dire and legal argument can be made e.g., both sides agree there was a breach of Code C, but dispute whether this amounts to oppression.
492
If the prosecution is put on notice that the defence will challenge the admissibility of some evidence, what must the prosecution not do?
They must not refer to that evidence in their opening speech, or until the judge rules on its admissibility.
493
Who may raise the issue of s 76/78 compliance?
The defence or the court.
494
What function does common law rule regarding the exclusion of evidence have?
If s 76 and s 78 don't apply, the defence may consider making an application to exclude evidence under the common law rule.
495
How did the right to silence function pre-1994?
No evidential significance could be attached to a defendant’s decision to exercise the right to silence.
496
What is an adverse inference?
A common-sense conclusion that is adverse to the interests of a party.
497
s.34 CJPOA 1994
Silence at interview - adverse inferences may be drawn where the defendant fails to mention facts which they could reasonably have been expected to mention when being questioned prior to being charged/when being charged which he later relies on in his defence.
498
What must have been done for adverse inferences to be drawn under s.34 CJPOA 1994?
The defendant must have been cautioned.
499
Why will an interviewer continue to ask the defendant questions in an interview long after it is clear that they will answer no comment to everything?
The defendant must have been asked a question about the specific fact or issue for adverse inferences to be drawn in relation to it.
500
What happens if a suspect refuses to leave their cell for interview in relation to adverse inferences?
No such inference can be drawn under s.34 as they have not been questioned.
501
What alternative to answering questions in interview is sometimes preferred?
Reading out a pre-prepared statement setting out the defendant's explanation, and then answering no comment to all further questions.
502
How does the court determine whether the defendant could reasonably have been expected to mention a fact?
The court should consider any factors relevant to the accused, such as age, experience, mental capacity, health, sobriety, tiredness and personality. The court may conclude that it was reasonably for D to remain silent where, for example, he was ill, frightened, or suspicious of police.
503
Where a defendant has varied their account between interview and their testimony at trial, what is the correct approach?
A Lucas direction (rather than a s 34 direction)
504
What specific inferences may a jury draw from a defendant's silence at interview?
That the fact has been invented after the interview; that the accused had the fact in mind at in the interview, but was unwilling to expose their account to scrutiny ; and that the accused had to choose between silence and lying.
505
Can adverse inferences be drawn if the defendant has not been allowed an opportunity to consult a solicitor?
No - even where access to legal advice has been lawfully (or unlawfully) delayed.
506
What must a waiver of the right to free legal advice be?
Voluntary, informed and unequivocal.
507
Does reliance on legal advice preclude the jury from drawing adverse inferences from the defendant's silence during interview?
No - the jury is asked to consider the reasons why the defendant chose to rely on the advice e.g., because they knew they did not have a story which would stand up to scrutiny.
508
If a defendant wants to rely on the fact of receiving legal advice to avoid adverse inferences, what must they do?
Waive privilege.
509
Can conviction be based on adverse inferences drawn from silence?
Conviction cannot be based solely or mainly on silence (from the European Court of Human Rights)
510
Who decides whether an adverse inference is drawn from s 34 CJPOA 1994?
The judge decides whether an adverse inference can be drawn as a matter of law, the jury decides whether it is in fact drawn.
511
What direction should the judge give the jury about s 34 CJPOA 1994?
The judge should advise the jury on whether an adverse inference can be drawn, what the specific fact in question is, and the nature of the inference that may properly be drawn.
512
s.35 CJPOA 1994
Silence at trial - adverse inferences may be drawn where a defendant either refuses to give evidence at their trial or refuses to answer certain questions.
513
What must be done for an adverse inference to be drawn under s 35 CJPOA 1994?
The defendant must be told at the end of the prosecution case that the time has arrived for them to give evidence, and be warned that the jury may draw adverse inferences from their failure to testify.
514
What specific inference may a jury draw from a defendant's silence at trial?
That the defendant is guilty of the offence charged.
515
In what circumstances may an adverse inference not be drawn from the defendant's silence at trial?
If the defendant's guilt is not in issue, or the physical/mental condition of the defendant makes it undesirable for them to give evidence (rare).
516
s.36 CJPOA 1994
Silence while in possession of incriminating objects - adverse inferences may be drawn when an arrested person fails to explain an object, substance or mark on their person, clothing, footwear or in their possession or in any place where the accused is at the time of their arrest.
517
What must the constable believe for an adverse inference to be drawn under s.36 CJPOA 1994?
They must reasonably believe that the object, substance or mark may be attributable to the accused's participation in a specified crime.
518
What must the constable inform the defendant of for an adverse inference to be drawn under s.36 CJPOA 1994?
They must inform the defendant of their belief, request an explanation of the possession, and explain the consequences of failing to provide an explanation.
519
s.37 CJPOA 1994
Silence on arrest - adverse inferences may be drawn where an arrested person fails to account for their presence at or near the scene of a crime at or around the relevant time.
520
What must the constable believe for an adverse inference to be drawn under s.37 CJPOA 1994?
They must reasonably believe that the accused’s presence at the scene of a crime may be attributable to the accused's participation in a specified crime.
521
What must the constable inform the defendant of for an adverse inference to be drawn under s.37 CJPOA 1994?
They must inform the defendant of their belief, request an explanation of the presence, and explain the consequences of failing to provide an explanation.
522
What is a Lucas direction?
A warning to the jury against the 'forbidden reasoning' that lies by their very nature demonstrate guilt e.g., even if a defendant's alibi is a lie, this does not mean the defendant is guilty.
523
In what situations is the judge usually required to make a Lucas direction?
Where the defence is alibi; where the prosecution rely on the lie as evidence of guilt; where the judge envisages that the jury may find the lie as evidence of guilt; where the judge considers it necessary to suggest that the jury should look for corroboration of one piece of evidence from other evidence in the case, and amongst that evidence draws attention to lies.
524
What does the Lucas direction require the jury to find before using the defendant's lie as support of the prosecution's case?
The defendant has told a lie, the lie was deliberate, the lie relates to a material issue i.e., is relevant, and there is no innocent explanation for the lie (e.g., to conceal an extramarital affair).
525
Can the jury convict solely on the basis of lies?
No.
526
Can an adverse inference be drawn under s 34 CJPOA if the defendant changes his defence part way through?
No - this will be made through s 11(5) CPIA 1996. In this situation, there can be comment by the judge OR adverse interference.
527
If the defendant decides not to testify in their own defence, can they still call witnesses?
Yes.
528
What is the 'special warning'?
The police warn the accused, in ordinary language, of the consequences of a failure to account for an object/substance/mark on their person or their presence at the scene of a crime.
529
What is good character?
The defendant has no previous convictions and there is no evidence of other reprehensible conduct.
530
What is effective good character?
The defendant has previous convictions that are old, minor or relate to offences of a different nature to the offence charged.
531
What is positive good character?
The defendant adduces evidence showing that they have behaved virtuously e.g., charity work.
532
Through what methods can the defendant adduce good character evidence?
Cross-examination of a police officer to confirm that the defendant has no previous convictions; formal admissions under s 10 CJA; examination in chief of defendant as to character; calling a character witness.
533
Who asks the court to make a good character direction and when should they do this?
Defence council. If they want to argue effective good character, they should do this at the beginning of trial so they know whether to adduce evidence of previous convictions. Otherwise, they should do this at the end of the evidence, before closing speeches.
534
What did the case of Hunter established?
It increased the discretion of judges in giving good character directions - where there is absolute good character, such a direction would be normal - otherwise, it is up to the judge's discretion. It also discouraged the giving of good character directions where there is evidence of old/irrelevant previous convictions.
535
What is the two-limb good character direction?
1) The jury should take the defendant's good character into account in weighing the credibility of the evidence D gave, 2) The jury should take into account the defendant's good character in considering the likelihood of the defendant having committed the offence charged.
536
Can good character amount to a defence?
No, and the judge should direct the jury that this is the case.
537
What will a judge direct if a defendant of good character is jointly tried with a defendant not of good character?
The judge will give the full good character direction in relation to the first defendant, and usually not say anything about the character of the other defendant.
538
What can a defendant not of good character do if they are concerned about being jointly charged with a defendant of good character?
Apply for severance - but this is unlikely to be granted.
539
What will a judge do where the defendant has old/minor/irrelevant previous convictions?
They must decide whether that person can be treated as having effective good character, and whether to give a good character direction. If a direction is made, the jury should be informed of the previous convictions.
540
What should the judge do if bad character evidence is admitted, but the defendant doesn't have any previous convictions?
They must give a bad character direction, but they may choose to weave in a modified good character direction to take account of the absence of previous convictions.
541
What is bad character?
Evidence of misconduct (the commission of an offence or other reprehensible behaviour), other than evidence which has to do with the facts of the alleged offence, or which is evidence of misconduct in connection with the investigation or prosecution of that offence.
542
What is meant by 'reprehensible behaviour'?
This is not defined in statute, but case law suggests that it involves some degree of moral blameworthiness e.g., membership of a gang.
543
What section of the CJA sets out the gateways for non-defendant bad character?
s 100
544
What section of the CJA sets out the gateways for defendant bad character?
s 101
545
How can bad character be shown?
Through previous convictions (in the UK or abroad), cautions, acquittals where the prosecution contends that D was guilty, agreed facts which amount to reprehensible behaviour, and witness evidence of a reputation for reprehensible behaviour.
546
What are the two requirements for bad character evidence to be admissible?
It must be relevant, and it must pass through a s 100 or s 101 gateway.
547
Can bad character evidence from previous convictions be rebutted?
Yes - the defendant is entitled to adduce evidence tending to show - on the balance of probabilities - that they were wrongly convicted.
548
Is bad character evidence which has to do with the facts of the alleged offence, or which is evidence of misconduct in connection with the investigation or prosecution of that offence, admissible?
Yes! It doesn't need to go through the ss. 100/101 gateways.
549
Where it is necessary to prove previous convictions for the offence charged, will this need to go through the bad character gateways?
No e.g., for a driving while disqualified charge, the prosecution can adduce evidence of the previous conviction resulting in disqualification.
550
s 101(1)(a) CJA 2003
Bad character evidence is admissible is all parties agree to its admissibility.
551
s 101(1)(b) CJA 2003
Bad character evidence is admissible if it is adduced by the defendant himself or intentionally given in answer to cross-examination.
552
Why would a defendant intentionally raise evidence of their own bad character?
To come clean about an old/minor/irrelevant conviction; to show they have never been convicted of the type of offence they are charged with; to put forward a defence which relies on the previous conviction; to show why police may be biased against him.
553
Through which gateways is leave of the court not required to adduce bad character evidence?
a (agreement) and b (blurts it out).
554
s 101(1)(c) CJA 2003
Bad character evidence is admissible if it is important explanatory evidence i.e., without it the court/jury would find it difficult to understand other evidence in the case, and its value for understanding the case as a whole is substantial.
555
s 101(1)(d) CJA 2003
Bad character evidence is admissible if it is relevant to an important matter in issue between the defendant and the prosecution - particularly that which evidences a propensity to commit offences of the kind with which D is charged (either the same description or the same category), or a propensity to be untruthful.
556
When does bad character evidence which evidences a propensity to commit offences of the kind with which D is charged become inadmissible?
When the court is satisfied, due to the length of time since the conviction or for any other reason, that it would be unjust for it to be admissible (s 103(3)).
557
What is the s 101(3) bar to the admissibility of bad character evidence?
The court must not admit evidence under ss. (1)(d) or (g) if the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not admit it.
558
What test does the case of Hanson establish?
Three-part test for establishing the admissibility of evidence under s 101(1)(d): does D's history establish a propensity to commit offences of the kind charged? Does that propensity make it more likely that D has committed the offence? Would it be unjust to rely on this evidence?
559
What additional principles did the case of Hanson establish?
There is no minimum number of previous convictions required to establish a propensity (though the fewer, the weaker the evidence); and the strength of the prosecution case should be considered (the weaker, the less just it is to admit the evidence).
560
Can evidence of the defendant's conduct after the offence charged be admitted under s 101(1)(d)?
Yes, so long as it is likely that the propensity is ongoing e.g., being racist.
561
What is the guidance around offences of 'striking similarity'?
Bad character evidence of previous convictions is likely to be admissible if the facts of the previous conviction are strikingly similar to the current offence, indicating a 'signature' style of offending. In such cases, it is not necessary for the judge to direct not to convict solely or mainly on evidence of bad character.
562
What is meant by evidence which shows a propensity to be untruthful?
Previous convictions where there was a plea of guilty and so the jury must have disbelieved the defendant's evidence, and previous convictions where the offence involved being untruthful (but not dishonest! Like burglary).
563
Where a defendant faces multiple charges in the same proceedings, can evidence of one offence be used as bad character evidence in another offence?
Yes, but this evidence must pass through a gateway, which is likely to be s 101(1)(d).
564
Who decides whether evidence established a propensity?
The judge decides whether evidence is capable of establishing a propensity, and the jury decides whether that evidence does in fact show a propensity.
565
s 101(1)(e) CJA 2003
Bad character evidence is admissible if it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. In other words, D1 can adduce evidence that D2 is untruthful (if the nature of D1's defence is to undermine D2's defence) /has a propensity to commit offences (if D2 attests to the opposite).
566
s 101(1)(f) CJA 2003
Bad character evidence is admissible if it serves as evidence to correct a false impression given by the defendant for which he is responsible.
567
What is meant by a false impression in the context of s 101(1)(f) CJA 2003?
An express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.
568
In what situations is the defendant treated as responsible for the making of a false statement?
The defendant makes the statement during proceedings/under caution before charge/while being charged; a witness called by the defendant makes the statement; any witness in cross-examination makes the statement in response to a question from the defendant intended to elicit it; the defendant adduces evidence of the statement as made by someone out of court; the conduct of the defendant gives a false impression.
569
How can a defendant who is treated as responsible for the making of a false statement be deemed not to be responsible?
If he withdraws it or dissociates himself from it.
570
What kind of evidence can be adduced under s 101(1)(f) CJA 2003?
Prosecution evidence which goes no further than is necessary to correct the false impression.
571
s 101(1)(g) CJA 2003
Bad character evidence is admissible where the defendant has made an attack on another person's character.
572
What does the defendant have to do to make an attack on another person's character for the purpose of s 101(1)(g) CJA 2003?
Adduce evidence attacking their character; ask questions in cross-examination intended to elicit such evidence; give evidence of an imputation about their character on being questions under caution before charge/on being charged.
573
What is evidence which would attack another person's character?
Evidence to the effect that they have committed an offence, or behaved in another reprehensible way (including being dishonest or untruthful).
574
Where the defendant makes an attack on another person's character, who does that person have to be for s 101(1)(g) to apply?
Anyone - whether living or dead, or a witness in the case or not.
575
What must the judge cover in their direction to the jury about bad character?
The jury must determine the weight to be placed on the evidence, but they should not over-rely on it to bolster a weak case. The jury should not find D guilty or untruthful solely because D has previous convictions, and propensity is not enough to show that D committed the offence.
576
In what 3 circumstances can evidence of the bad character of someone other than the defendant be admitted under s 100 CJA 2003?
(a) It is important explanatory evidence; (b) it has substantial probative value in relation to a matter in issue in proceedings of substantial importance in the context of the case as a whole; or (c) all parties agree.
577
What is meant by 'important explanatory material' in the context of s 100 CJA?
The same as in s 101! That without it the court/jury would find it difficult to understand other evidence in the case, and its value for understanding the case as a whole is substantial.
578
What factors must the court have regard to when assessing the probative value of evidence for entry via s 100 CJA?
The nature and number of things to which the evidence relates, and when those things are alleged to have happened.
579
If evidence of probative value is going to be admitted under s 100 CJA for the purpose of suggesting similarity between the person's past misconduct and the alleged misconduct, what must the court take into account?
The nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct.
580
If evidence of probative value is going to be admitted under s 100 CJA for the purpose of suggesting that a person's past misconduct makes them responsible for the present misconduct and the identity of the person who committed the present misconduct is disputed, what must the court take into account?
The extent to which the evidence shows or tends to show that the same person was responsible each time.
581
Who can adduce evidence under s 100 CJA 2003?
Any party
582
Is leave of the court required to admit evidence under s 100 CJA 2003?
Yes, unless all parties agree to the admission of the evidence.
583
What is a 'matter in issue' for the purpose of s 100(1)(b)?
Credibility, a disputed fact, or propensity.
584
What is the meaning of 'substantial' (i.e., value for understanding the case as a whole is substantial) in s 101(1)(b)?
Capable of having an impact on the way in which the jury could assess the evidence of a witness or the case as a whole.
585
What are the three main differences between s 78 PACE and s 101(3) CJA?
s 101(3) only applies to evidence coming through gateways 101(1)(d) and s 101(1)(g); in s 101(3) the court 'must not' admit such evidence whereas in s 78 they 'may not'; s 78 can only be used to exclude prosecution evidence whereas s 101(3) can be used against any evidence.
586
What is the bad character evidence safeguard under s 107 CJA 2003?
The court can stop the case any time after the close of the prosecution case where it is satisfied that bad character evidence that has been admitted is contaminated, making any conviction unsafe.
587
Does the court have to give reasons for its ruling on bad character?
Yes, in public court without the jury, under s 110 CJA.
588
How is a conviction or acquittal proved, where there is dispute as to which occurred?
Under s 73 PACE, conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where it took place, along with evidence that the person on the certificate is the person in question.
589
What is the time limit for the prosecution to submit bad character evidence against the defendant in the magistrates?
They must serve notice not more than 20 business days after the defendant pleads not guilty.
590
What is the time limit for the prosecution to submit bad character evidence against the defendant in the crown court?
They must serve notice not more than 10 business days after the defendant pleads not guilty.
591
What is the time limit for a co-defendant to submit bad character evidence against the defendant?
They must serve notice as soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the (co-defendant's) notice is based.
592
What is the time limit for a defendant to submit a response to bad character evidence submitted by another party?
Not more than 10 business days after service of the notice by the prosecution/co-defendant.
593
What does a party who wants to adduce defendant bad character evidence have to do?
Give notice (rule 21.4 CrimPR)
594
What does a party who wants to adduce non-defendant bad character evidence have to do?
Make an application (rule 21.3 CrimPR)
595
What must a prosecution or co-defendant's application to admit defendant bad character evidence contain?
It must set out the facts of misconduct on which the party relies; how the party will prove those facts if disputed; and explain why the evidence is admissible.
596
What must a defendant's response to an application to admit defendant bad character evidence contain?
Which facts set out in the notice D disputes and which he admits; why the evidence is not admissible; why it would be unfair to admit the evidence; any other objection to the notice.
597
What is the time limit to submit an application to admit bad character evidence of a non-defendant in either court?
As soon as reasonably practicable; and in any event not more than 10 business days after the prosecutor discloses material on which the application is based.
598
What is the time limit to submit a response to an application to admit bad character evidence of a non-defendant?
Not more than 10 business days after service of the application to admit the evidence.
599
What must an application to admit non-defendant bad character evidence contain?
The facts of the misconduct on which that party relies; how the party will prove those facts if disputed; and why the evidence is admissible.
600
What must a response to an application to admit non-defendant bad character evidence contain?
Which facts set out in the notice D disputes and which he admits; why the evidence is not admissible; any other objection to the notice.
601
Can the time limits around bad character evidence be extended?
Yes, the court has discretion to shorten or extend time limits or to allow allow an application or notice to be given in a different form - this can be granted even after the time limit has expired.
602
What is the rule against hearsay?
A statement made out of court may not be presented in evidence as proof of its contents.
603
What two questions must the court ask when determining if a statement is admissible through one of the hearsay gateways?
1) Does the statement fall within the definition of hearsay? 2) Does it fall within one of the exceptions to the general exclusionary rule?
604
What is the main rationale behind the general exclusion of hearsay evidence?
The maker of the statement cannot be cross-examined to test the quality of the evidence, resulting in an obvious risk of unfairness to the defendant if it is admitted.
605
How are the hearsay provisions reconciled with Article 6 ECHR?
Case law has found that the statutory hearsay framework is sufficient to provide for a fair trial. It also requires there to be a sufficient basis for the absence of the witness, as well as good reason to admit the evidence.
606
Through what 4 routes is hearsay admissible?
The gateways, the common law preserved in s 118, agreement amongst the parties, the court is satisfied that it is in the interests of justice to admit it.
607
What is the four part test for the definition of hearsay (twist)?
Is there an out of court statement? Is the party seeking to enter the statement seeking to prove the truth of the content of that statement? Was it one of the purposes of the statement maker that the listener should believe it to be true or act upon it?
608
Does hearsay have to be speech?
No, it is a representation made by whatever means e.g., a sketch, photofit, pictorial, gesture etc.
609
What are three examples of things which are not hearsay?
Private diaries (they did not intend anyone to read them so did not intend for anyone to believe the truth of their content); CCTV (not made by a person); questions (no statement of a fact).
610
What happens if there is no statement of the fact seeking to be proved within the communication?
It is not hearsay and therefore admissible, subject to relevance.
611
What is original evidence?
A relevant statement adduced for some reason other than to prove the statement is true
612
What is an example of original evidence?
Threats - they are adduced to show that the threat was made, not the truth of the contents of the threat.
613
Where an out of court statement is adduced to show the effects of words, is this hearsay?
No, as the purpose of adducing the statement is not to show the truth of what was said.
614
Where the words spoken out of court have significance as a matter of law, is this hearsay?
No, e.g., the making of an offer of sexual services is admissible should show that it is a brothel.
615
Where one party seeks to adduce an out of court statement while asserting that it is not true, is this hearsay?
No e.g., this was D's alibi but it's false.
616
s 116 CJA 2003
Hearsay may be admissible if the witness is unavailable (dead, unfit to be a witness due to his bodily or mental condition, outside the UK and not practicable to secure his attendance including by video link, cannot be found, fearful).
617
What three conditions must be satisfied for hearsay to be admitted under s 116 CJA 2003?
The evidence must be admissible if it were given in live evidence, the witness must be identified to the court's satisfaction, and the witness must be unavailable for one of the 5 reasons.
618
What is meant by someone being unfit to be a witness due to his bodily or mental condition, for the purpose of s 116 CJA?
This refers to their ability to give evidence, rather than their ability to physically attend court.
619
In determining whether all reasonably practical steps have been taken to find the witness, what is one consideration?
The cost of this, which must be balanced against the importance of the evidence.
620
What is the meaning of fear in s 116 CJA?
It should be widely construed and (for example) includes fear of the death or injury of another person or of financial loss. There is no need for this fear to have been caused by the defendant.
621
What is the other requirement if the court is to admit evidence under the fear gateway in s 116 CJA?
That the statement ought to be admitted if this is in the interests of justice.
622
What must police not do in relation to the fear gateway in s 116 CJA?
Tell a witness that their statement can be read out in court if they are too fearful to attend.
623
To what standard must the court be satisfied that the witness does not give evidence due to fear to admit the evidence as hearsay?
Beyond reasonable doubt, there being a causal link between the fear and the failure to give evidence.
624
When there has been witness intimidation by a defendant, what is that defendant barred from arguing?
He cannot complain that his right to a far trial has been infringed on the basis that he was not able to cross-examine the witness.
625
s 117 CJA 2003
Hearsay may be admissible if it is a business document (a statement created or received in the course of trade, business profession or other occupation) and the person who supplied that document had personal knowledge of the matters within it, and the document would have been admissible if given in live evidence.
626
In what circumstance does the court have discretion to exclude such a business document?
Where the document's reliability it doubtful.
627
What kinds of documents are covered by s 117 CJA?
It is wide enough to cover a lot of documents that are not in any sense business documents e.g., medical records, statements written down by police.
628
What are the extra conditions which must be present for documents prepared for the purpose of pending or contemplated criminal proceedings to be admissible under s 117 CJA?
Either, one of the 5 conditions in s 116 must be present, or the person who supplied the document must not reasonably be expected to remember the matters dealt with within it.
629
When determining if the reliability of a document is doubtful for the purpose of s 117, what should the court take into account?
The content of the document, the source of the information, or the way it was supplied, received, or created.
630
s 114 CJA 2003
Hearsay may be admitted where it is in the interests of justice to do so.
631
What evidence will the court consider in determining whether hearsay should be admitted under s 114 CJA?
How much probative value the statement has; what other evidence can be given on the matter; how important the matter is in the context of the case as a whole; circumstances in which the statement was made; reliability of the statement maker; reliability of the evidence of the making of the statement; whether oral evidence of the matter can be given; the difficulty involved in challenging the statement and any prejudice this would cause the party seeking to challenge it.
632
In what circumstances should s 114 not be used to adduce hearsay evidence?
It should not be used to get around the failure of the evidence to pass through another gateway, or to make up for a failing of the party seeking to adduce the evidence e.g., if they failed to take reasonable steps to find the witness.
633
s 118 CJA 2003
Common law exceptions to the exclusion of hearsay: public information, evidence of reputation, res gestae, confessions, common enterprise, body of expertise.
634
What are examples of public information which may be admissible under s 118 CJA?
Dictionaries, maps, public registers, court records, public treaties, someone's age and place of birth.
635
Where an out of court statement is adduced to show the state of mind of the speaker, is this hearsay?
No, this does not go to whether the statement is true or not.
636
What is meant by evidence of reputation for the purpose of admission through s 118 CJA?
Evidence used to prove character.
637
What is the common law rule of res gestae?
A hearsay statement is admissible if it was made by a person so emotionally overpowered by an event that the possibility of concoction can be disregarded (the event was so startling as to dominate the thoughts of the victim so that the utterance was instinctive).
638
What warning must be given to the jury when res gestae evidence is admitted?
It must be made clear to the jury that they must be satisfied that the witnesses made no mistake as to what was said.
639
How does the res gestae rule apply in domestic violence cases?
What is said by the complainant in a 999 call or to officers immediately after the alleged incident will usually be admissible. This gives an alternative to s 116 fear admissibility.
640
In what sense is evidence of common enterprise admissible under s 118?
The statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise.
641
What does the 'body of evidence' common law rule of hearsay allow?
It allows expert witnesses to draw on a body of expertise when giving evidence.
642
s 119 CJA 2003
Hearsay in the form of a previous inconsistent statement that a witness admits to having made or is proved to have made is admissible as evidence of the matter stated.
643
s 120 CJA 2003
Hearsay in the form of a previous consistent statement is admissible to rebut a suggestion of recent fabrication or as recent complaint evidence.
644
What is multiple hearsay?
Two or more layers of hearsay e.g., X testifies to what Y said Z told Y.
645
Through which gateways is multiple hearsay possibly admissible?
s 117 (business documents) 119 (previous inconsistent statement) or 120 (previous consistent statements).
646
How can the credibility of the maker of a hearsay statement be challenged?
Under s 124 CJA, the opposing party can put into evidence anything that it would have been able to put to the maker of the statement in cross-examination.
647
What can the judge do in relation to unconvincing hearsay?
Under s 125 CJA, the judge can stop a case which depends wholly or partly on hearsay evidence where that evidence is so unconvincing that the defendant’s conviction would be unsafe. The judge must either order a retrial or order the jury to acquit.
648
What can the court do in relation to hearsay evidence, the admission of which would result in undue waste of time?
Under s. 126, the court may exclude this evidence (e.g., where it relates to peripheral issues).
649
What directions should the jury be given in relation to hearsay?
That hearsay is not given on oath and cannot be tested by cross-examination. The jury should be directed to scrutinise hearsay and rely on it with care. If the court has concerns about a particular bit of hearsay, this should be pointed out.
650
For admission of hearsay under which gateways is notice required?
s 114 (interests of justice), 116 (witness unavailable), 117(1)(c) (document prepared in contemplation of criminal proceedings), and 121 (multiple hearsay).
651
On whom must notice to admit hearsay be served and what must this notice contain?
It must be served on the court and on every other party, and must identify the hearsay, set out the facts which make the evidence admissible, explain how those facts will be proven if disputed, and explain why the evidence is admissible.
652
What is the time limit for the prosecution to serve notice of an intention to introduce hearsay evidence?
28 days after a not guilty plea in the magistrates, and 14 days after a not guilty plea in the Crown Court.
653
What is the time limit for the defence to serve notice of an intention to introduce hearsay evidence?
As soon as reasonably practicable.
654
On whom and when must a party serve an application objecting to the introduction of hearsay evidence?
On the court and every other party as soon as reasonably practicable and in any event not more than 14 days after service of the notice to introduce it, service of the evidence objected (if no notice is required) or a not guilty plea (whichever is latest).
655
What must an application to oppose hearsay evidence explain?
Which (if any) facts set out in the notice the party disputes, why the evidence is not admissible, and any other objection to the evidence.
656
How many judges sit in the magistrates for summary trial?
Either two or three lay magistrates, or one District Judge.
657
What is the difference between a magistrate and a district judge?
A district judge is a professional lawyer whereas a magistrate is a lay volunteer.
658
What is the role of the authorised court officer?
To advise magistrates on the relevant law and procedure required for them to perform their function justly, whether or not it has been requested. They can also assist magistrates with the recollection of the evidence.
659
What was an authorised court officer formerly known as?
The justices' clerk, the court clerk, or a legal advisor.
660
What are the 13 steps in a summary trial?
Legal arguments, prosecution opening speech, defence identify matters in issue, prosecution evidence, conclusion of prosecution case, submission of no case to answer, defendant informed of right to give evidence and adverse inferences, defence evidence, prosecution closing speech, defence closing speech, legal advice from authorised court officer, judges retire, verdict.
661
What is the purpose of the prosecution's opening speech?
To summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute.
662
What is the procedure for witness examination?
Examination in chief by their side, cross examination by the other side, re-examination by their side.
663
When is the prosecution able to make a closing speech in the magistrates?
Where the defendant is legally represented, or they have introduced evidence other than their own i.e., what they said in the witness box.
664
Do the magistrates have to give reasons for their verdict?
If it's guilty, they must give sufficient reasons to explain their verdict. If it's not guilty, they do not have to give reasons, but they may choose to do so.
665
What kinds of judges sit in the Crown Court?
Circuit judges, recorders, and High Court judges.
666
When do High Court judges hear cases in the Crown Court?
In the most serious cases.
667
Who are recorders?
They are barristers or solicitors who sit as part-time judges.
668
What is the role of the Crown Court clerk?
They are not legally qualified and never give the judge legal advice. Instead, they carry out administrative duties as well as many duties relating to selecting and taking verdicts from the jury and arraigning defendants.
669
What are the 18 steps in a Crown Court trial?
Legal arguments, jury selection and swearing in, preliminary instructions to jury, prosecution opening speech, defence identifies matters in issue, prosecution evidence, conclusion of prosecution case, submission of no case to answer, defendant informed of right to give evidence and adverse inferences, defence opening speech, defence evidence, legal discussions, prosecution closing speech, defence closing speech, judge's summing up, jury bailiffs sworn and jury retire, further directions during retirement, verdict.
670
When does the defence give an opening speech?
Only in the Crown Court where the defendant intends to call at least one witness other than themselves to give factual (as opposed to merely character) evidence. In practice, such speeches are rare outside of murders and serious lengthy trials.
671
When is the prosecution able to make a closing speech in the Crown Court?
Where the defendant is legally represented, or they have called at least one witness other than themselves, or the court so permits.
672
What is the rule about trying an absent defendant in the magistrates court?
The court may try an absent defendant who is under 18 and must try one who is 18 or over unless doing so appears to be contrary to the interests of justice.
673
Does the Crown Court have to give reasons for their verdict?
No - the jury does not have to justify their decision.
674
Does the magistrates court have to take into account the reasons for the defendant's absence when deciding whether to try him in his absence?
Yes, the court shall not proceed if it considers that there is an acceptable reason for the defendant’s failure to appear. However, the court need not enquire into the reasons for the accused's failure to appear.
675
Can a trial in the magistrates ever be heard on the papers i.e., without oral argument?
Yes, s.16A MCA allows for a limited class of cases (non-imprisonable summary only offences where the defendant is aged 18 or over) to be tried by a single justice on the papers.
676
What must the court be satisfied of before trying an absent defendant in a case which was commenced by summons or requisition?
That the summons or requisition was served on the defendant a reasonable time before the hearing.
677
What must the court be satisfied of before trying an absent defendant in a case which was previously adjourned?
That the defendant had reasonable notice of when and where the trial would resume.
678
If an absent defendant is convicted, will the court sentence straight away?
The court can do, or it can adjourn to give the defendant notice to attend.
679
What is the rule about trying an absent defendant in the crown court?
The court must not proceed if the defendant is absent, unless it is satisfied that the defendant has waived the right to attend and the trial will be fair despite the defendant’s absence.
680
Is the Crown Court likely to proceed in the defendant's absence where they deliberately fail to attend?
Yes.
681
What is the consequence if a defendant fails to attend trial without reasonable cause?
They commit an offence and are liable to be arrested as the judge is likely to issue a warrant for their arrest.
682
What factors will the court have regard to when deciding whether or not a trial should proceedin the the absence of the defendant?
The nature and circumstances of the absence particularly whether it was voluntary; whether an adjournment might resolve the matter; the likely length of any such adjournment; whether the defendant wished to be represented; whether a representative could present the case on the defendant's behalf; the extent of the disadvantage to the defendant; the risk of the jury reaching an improper conclusion about their absence; general public interest, particularly of victims or witnesses; effect of delay on memory; where there are more than one defendant the prospect of a fair hearing for those who are present.
683
Is the Crown Court likely to proceed in the defendant's absence where they are absent for reasons beyond their control?
No, unless the defendant consents and the case can be fully presented in their absence without unfairness.
684
What direction should the jury be given if the defendant is tried in their absence?
They must be warned not to hold the defendant's absence against the defendant.
685
What assistance will the court (the judge/authorised court officer) give an unrepresented defendant?
Explaining to them what should happen at each stage of the trial; asking witnesses any questions necessary in the defendant's interests.
686
What will the court do if the defence counsel/solicitor withdraws or is dismissed and the defendant remains eligible to receive legal aid?
The judge will ordinarily adjourn for the defendant to gain new representation.
687
Who is an unrepresented defendant unable to cross-examine?
A complainant in a sexual offence; a child complainant or child witness in proceedings for sexual offences and certain other offences; any other witness if this is appropriate in the circumstances of the case and would not be contrary to the interests of justice.
688
If an unrepresented defendant is prohibited from cross-examining a witness, what will the court do?
An advocate will be appointed to conduct the cross-examination, if this is necessary in the interests of justice.
689
Can witnesses refresh their memory from documents other than their own witness statement?
Yes, if they verified those documents as true at the time of their making.
690
Is there any slack given to police in exercising their PACE duties when dealing with suspects who have been in trouble many times before?
Yes e.g., police may get away with not cautioning a suspect with a criminal history, on the grounds that the suspect will be aware of their legal rights.
691
What must happen regarding representations from the parties in a pre-trial hearing?
The parties must be given an opportunity to make representations, and an unrepresented defendant must be given the opportunity to apply for legal aid before a ruling is made.
692
When do the magistrates determine questions of admissibility?
They have discretion as to whether to deal with the question when it arises, or hear all of the evidence and then make a ruling. However, if the evidence in question is a confession, this should be dealt with early, when the question arises.
693
In what circumstances will the defence be invited to identify the matters in issue?
Where the judge feel it would assist them to understand the case and resolve any issue. This is particularly important in summary trials where the defendant has not served a defence statement.
694
When will a party conduct cross-examination of a witness?
Where there is something in the witness' statement that they disagree with.
695
How does the defence first indicate which witnesses it intends to cross-examine?
The witness statements will be included in the 'Preparation for Effective Trial' form that was handed in at the first hearing at the magistrates'/ PTPH. The defence will read through the statements and determine which witnesses they will cross-examine.
696
What is the standard witness affirmation?
They will affirm 'that the evidence which I shall give shall be the truth, the whole truth and nothing but the truth'.
697
When can witnesses be in court?
They can stay in court after they have given their evidence, but they cannot be in court beforehand.
698
Does a party have to call their witness if the other party indicates that they intend to cross-examine them?
Yes. The exception is where, after service of the statement but before trial, the prosecutor forms the view that the witness is not capable of belief.
699
s.9 Criminal Justice Act 1967
Where a witness's evidence within their witness statement is not disputed, or the witness is unavailable (their evidence is admitted as hearsay under s 116 CJA) the statement can simply be read out rather than the witness attending court.
700
Can a witness statement be edited by the parties before it is read out in court?
Yes, if the parties can agree on this. For example, they may edit out a part likely to require the calling of the witness, where neither party seeks to rely on it.
701
s.10 Criminal Justice Act 1967
Where facts are agreed by all parties they can be written down and presented to the court as admissions.
702
When is s 10 CJA likely to be utilised?
Where agreeing a series of facts to cover the salient matters contained in a number of witness statement is more convenient and easy to follow than reading out the full statements.
703
What is a ROTI?
Record Of Taped Interview
704
Will the transcripts of the entire police interview be presented to the court?
Not usually - in practice, the prosecution and the defence agree an edited record of interview which contains only the relevant questions and answers.
705
How is the ROTI usually presented in court?
A written copy is given to the judge and authorised court officer, and it is common practice for the prosecution to read this out.
706
What must the court do before directing the jury to acquit following a Galbraith application?
Give the prosecutor the opportunity to make representations.
707
What are the two names for a Galbraith application?
Half time application, submission of no case to answer.
708
When should the judge reject a Galbraith application despite the evidence being of a somewhat tenuous character?
Where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are within the province of the jury, and where on one possible view of the facts there is evidence upon which a jury could properly convict.
709
Should the court grant a Galbraith application where the submission relates to the credibility of a witness?
No, other than in the clearest of cases.
710
What is the procedure for a Galbraith application?
The defendant will make submissions first (one after the other if there are more than one); the prosecutor has a right to response; in the magistrates the authorised court officer will advise the magistrates on the law; the judge will decide whether to accept the application (and (direct the jury) to acquit D) or reject it (and continue with the trial).
711
What needs to be explained to the defendant before the defence case begins?
That the defendant has the right to give evidence and now is the time to do so, and the potential effect of not doing so (adverse inferences).
712
Where there is more than one defendant, what is the process of D1's evidence being examined?
D1 gives their evidence in chief, D2 cross-examines D1, prosecution cross-examines D1, D1 is re-examined.
713
How does an unrepresented defendant give their evidence in chief?
They simply read out their evidence, being prompted by where necessary by the judge or authorised court officer.
714
Where there is more than one defendant, what is the process of the defendants giving their evidence?
D1 gives their evidence (witnesses, agreed statements and written admissions), then D2 gives their evidence (witnesses, agreed statements and written admissions) etc.,
715
When is the defence able to make a closing speech?
The defence are always entitled to make a closing speech!
716
Where there is more than one defendant, how do closing speeches work?
The prosecution may do a closing speech, then each of the defendants does their closing speech in turn.
717
When the authorised court officer gives the magistrates advice on the law, is this done in open court?
Yes, so that the the prosecution and defence can make representations on the law should a dispute arise between either of them and the authorised court officer.
718
What happens if the magistrates disagree on the verdict?
In a bench of 3, majority wins. In a bench of 2, they must adjourn the case for a rehearing before a new bench.
719
Can the magistrates find a defendant guilty of an alternative lesser offence?
As a general rule, no. The exceptions are certain driving offences e.g., careless driving instead of dangerous driving, and the Theft Act 1968, s.12A(5) - taking a vehicle without consent instead of aggravated vehicle taking .
720
What are the magistrates' options once they have found the defendant guilty?
They can sentence him, adjourn the case for sentence awaiting a pre-sentence report/statement of the defendant's means, or commit the defendant to the Crown Court for sentence.
721
When does the prosecution lose their right to reply to the defence's submission of no case to answer?
Where the court determines that there is a case to answer after hearing the defence's submission.
722
What case management powers does the magistrates’ have if the defendant tries to pursue an issue at trial that they did not identify at case management?
The magistrates court can limit proceedings on the day of trial to the issues previously identified. However, in practice they may allow the new issue but impose sanctions as a result of the adjournment which is likely to be required.
723
What should one party do if the other enters new evidence very late in the day?
Deadlines are not always abided by - so this is no cause for exclusion. They could argue that service of the evidence has “such an adverse effect on proceedings that the court not admit it”, but this is a very high standard. Alternatively, they might seek an adjournment to consider the new evidence.
724
When legal arguments are made after the swearing in of the jury, what must the jury do?
They must leave the courtroom when such arguments take place.
725
What kind of language should the prosecutor use in their opening speech?
Not overly emotive or persuasive language
726
If the defence is invited to identify the matters in issue, do they have to accept this invitation?
No, but if they done the judge is likely to provide the jury with a copy of the defence statement. The defence statement can be edit to remove unfairly prejudicial or inadmissible material.
727
Can the judge call witnesses whom neither the prosecution nor defence choose to call?
Yes, but this power should be sparingly exercised and only when required in the interests of justice.
728
Are the addresses of witness taken?
Only if this is relevant to an issue in the case.
729
Where there is more than one defendant, what is the process of a prosecution witness' evidence being examined?
W gives their evidence in chief. W is cross-examined by D1. W is cross-examined by D2. Then W is re-examined.
730
What must the judge explain to the jury before a witness' statement is read out under s 9 rather than the witness being called?
That this is agreed evidence which is why it is being read to them.
731
What is the jury given when agreed facts are admitted under s 10 CJA?
A copy of the agreed facts to use when considering their verdict.
732
What must the judge explain to the jury before an admission is made out under s 10?
That admissions are agreed evidence that they are entitled to take into account.
733
Will a ROTI be presented to the jury where the defendant made a no comment interview?
No, usually the prosecution will present agreed written admissions stating what the defendant was asked about and that the defendant replied 'no comment' to all questions put.
734
Will the audio/video recording of the defendant interview be played?
Rarely, but it is possible in cases where the defendant, for example, wants to show aggressive questioning or to get across the emotional impact of certain responses.
735
What is the difference between the direction given by the judge before the defence begins their evidence where the defendant is represented and unrepresented?
If they are represented, the judge will ask the lawyer if they have advised their defendant about giving evidence and the consequences of not doing so. If they are unrepresented, the judge will tell the defendant that now is the time to present their evidence, and if they do not, the jury may hold this against them.
736
In what order will the defence witnesses give their evidence?
Usually, the defendant goes before any other defence witness.
737
What often takes place after the defence evidence but before closing speeches in the Crown Court?
The jury is sent out, and the judge and counsel have the opportunity to discuss and make submissions on matters of law which will be raised in summing up, including any good character direction.
738
What duty are counsel under when discussing the judge's summing up with the judge?
A duty to assist the court, which means that they must bring any procedural irregularities and relevant authorities to the judge's attention.
739
What must counsel bring to the attention of the judge prior to summing up in a murder case specifically?
Evidence by which the jury could find provocation, inviting the judge to direct the jury accordingly.
740
What is a written 'route to verdict'?
A series of questions for the jury to answer to lead them to the correct verdict. This is taken by the jurors into deliberations.
741
What should prosecutors not do in their closing speech?
They should not make an emotive speech, make unjustified attacks on the defence case, or make assertions which are not justified from the evidence called. They should also not comment upon the potential consequences of police officers' evidence being disbelieved, or criticise the defence.
742
What should defence counsel not do in their closing speech?
They should not refer to the consequences to their clients of a conviction, and should not seek a recommendation for mercy. They should also not criticise the defence.
743
What will the judge do if an advocate says something they shouldn't have in their closing speech?
They will raise the issue with the advocate and correct it during their summing up.
744
What are the two parts to the judge's summing up?
The law (all applicable legal directions) and the facts (summing up the prosecution and defence cases).
745
What should counsel do if the judge makes an error in summing up?
They should be alert to such errors and draw them to the judge’s attention at its close so that corrections can be made.
746
What 5 standard things should the judge include in their summing up?
The difference between the functions of the judge and the jury; the burden and standard of proof; a direction to consider each count and each defendant separately (where applicable); the ingredients of the offence(s); how the jury should approach specific defences.
747
Does the jury have to accept the judge's directions on the law?
Yes.
748
What kinds of legal directions should the judge give during summing up?
(Modified) good character; how to deal with bad character; adverse inferences; Lucas direction for proven lies; Turnbull direction for identification.
749
What is a split summing up?
Where part of the summing up is done before the closing speeches, and part is done after.
750
When summing up the facts, what should the judge cover?
They should fairly summarise the important features of both sides - they don't have to go through every detail of all the evidence. They should give a balanced and fair account.
751
What should the judge advise the jury about the facts they cover or do not cover in summing up?
That they should feel free to ignore any piece of evidence mentioned that they do not consider important, and take into account any piece of evidence that they consider important that is not mentioned.
752
What is the foreman?
The juror appointed by the jury to deliver their verdict.
753
Who are the jury bailiffs?
Court ushers who assist in running the courtroom.
754
What do the jury bailiffs have to swear/affirm?
To keep the jury 'in some private and convenient place' and not to allow anyone to speak to them or to speak to them themselves without the leave of the court.
755
Can the jury ask questions after they have been sent for deliberations?
Yes, they can pass a note to the jury bailiff who can pass it on to the judge. The judge will assemble the court with counsel and seek representations on the question before asking the jury to return to court to answer the question.
756
What is the minimum time period for a majority direction?
2 hours 10 minutes
757
How should the judge determine the appropriate time period for a majority direction in a particular case?
The jury should be given such a period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case.
758
Where there are 12 jurors, what can the majority be?
10-2 or 11-1
759
Where there are 11 jurors, what can the majority be?
10-1
760
Where there are 10 jurors, what can the majority be?
9-1
761
Where there are 9 jurors, what can the majority be?
There can be no majority verdict.
762
If a majority verdict is entered, will the court inquire about numbers of agreement and dissent?
Yes, if the defendant is convicted. No, if the defendant is acquitted.
763
Where there are alternative counts and the jury convicts on the more serious, what happens to the less serious?
It does not require a verdict.
764
Must a lesser alternative offence be included on the indictmnet?
Yes, unless it is a direct alternative, in which case it is implied.
765
If it is clear from the evidence that an conviction for an alternative offence could be reached, but it is not included on the indictment, what should be done?
The judge should leave the alternative to the jury, directing that it is open to them. They will also often direct the prosecution to amend the indictment.
766
What is a hung jury?
Where the jury is unable to reach a verdict either unanimously or by majority.
767
What happens after the jury is hung?
The defendant still faces the indictment, and the prosecution will usually ask for 7 days to decide whether to seek a retrial.
768
How likely is the prosecution to seek a retrial after a hung jury?
Very likely the first time (in the absence of exceptional reasons otherwise) and quite unlikely the second time. They will likely offer no evidence and a not guilty verdict will be entered.
769
What features must a witness statement have to be admitted under s 9?
Be signed, have a statement of truth, be served on all other parties, and not be objected to by any other party.
770
If a witness statement is admitted under s 9, may the witness be called to attend to give evidence?
Yes, by the other party or the court.
771
What features must a witness statement have to be admitted under s 10?
Must be in writing and signed.
772
When will a juror be removed through jury selection?
Where they know the defendant, where the defendant knows them, where they have a pre-formed view on the case (if it is high profile) and where they have prejudice against the defendant.
773
Will the court always grant an application to adjourn for sentence?
No - it is entirely at the court's discretion. If a party seeks a pre-sentence report, they will have to justify why time and resources should be used to prepare such a report.
774
When will a pre-sentence report be required and when will it not?
It will not be required where counsel could be expected to take instruction on the issues e.g., the defendant's personal circumstances. It may be required where the court needs specific information from a third party, particularly the Probation Service.
775
For how long can the magistrates adjourn for sentence?
4 weeks if the defendant is on bail, 3 weeks if they are in custody. However, they can adjourn more than once.
776
When will a defendant be sentenced when they have pled guilty to some offences and not guilty to others, and there is to be a trial?
The court has discretion, but it will usually adjourn sentence until the conclusion of the trial so that all of the offences can be sentenced together.
777
When will sentencing take place where there are multiple defendants with mixed pleas?
The court has discretion, but it will usually adjourn sentence until the conclusion of the trial of the defendants who pled not guilty.
778
Where will sentencing of an individual summary offence take place?
In the magistrates
779
Where will sentencing of an individual indictable only offence take place?
The Crown Court
780
Where will sentencing of an either-way offence where the defendant had their trial in the Crown Court take place?
In the Crown Court
781
Where will sentencing of an either-way offence where the defendant had their trial/plead guilty in the Magistrates' Court take place?
In the magistrates if their sentencing powers are sufficient, and in the crown court if they are not.
782
Where a defendant is committed for sentencing as the Magistrates deems its sentencing powers insufficient under s.3 PCCSA 2000, what sentencing powers does the Crown Court have?
The crown court can sentence up to its maximum.
783
Where the defendant pleads guilty to an either-way offence but not guilty to an indictable offence and all offences are sentenced together by the Crown Court under s.4 PCCSA 2000 , what is the court's sentencing powers for the either-way offence?
The crown court maximum if the magistrates indicate that they would have committed for sentence or D is found guilty of the indictable offence, and the magistrates' maximum otherwise.
784
Where a defendant is committed for sentence along with other offences which have been committed under ss. 3 or 4, but ss. 3 and 4 don't apply to that offence, what is the Crown Court's sentencing powers?
The crown court is limited to the magistrates' sentencing powers.
785
Where a defendant is found guilty of multiple either-way offences and the magistrates determine that some are within their sentencing powers and some are not, what are their options for sentencing those which are?
They can commit them along with the other offences, or sentence them in the magistrates. Either court is limited to the magistrates' sentencing powers.
786
Can the magistrates ever commit a summary only offence to the crown court for sentencing?
Yes, if D was found guilty at the same time of an offence for which he is committed to the crown court under ss., 3 or 4. Also, if the conviction puts the defendant in breach of a conditional discharge or suspended sentence order imposed by the Crown Court.
787
Goodyear
Prior to pleading, the defendant can ask the court for an indication of the sentence D would get if he entered a guilty plea.
788
When can the defendant ask for a Goodyear indication?
At any stage of the proceedings before the jury return their verdict.
789
What are the two requirements the defendant must satisfy before asking for a Goodyear indication?
There must be a settled factual basis (no Newton hearing required), and the defendant must have given his counsel clear instructions that he wishes to ask for an indication of sentence.
790
If the defendant applies for a Goodyear indication, does the court have to give one?
No - this is discretionary. If the judge chooses not to, they may explain why and indicate under what circumstances they may be willing to give an indication in the future.
791
What is the procedure when the judge gives a Goodyear indication?
This must be done in open court with all parties present, but with reporting restrictions imposed to prevent a future jury from hearing about the defendant considering changing his plea.
792
What exactly can a judge indicate in a Goodyear indication?
That the same sentence or type of sentence will be passed irrespective of a plea change, or the maximum sentence that would be imposed upon a guilty plea.
793
On whom and for how long is a Goodyear indication binding?
On the judge who made it, and any other judge for a reasonable period of time (unless the sentencing guidelines change or the Court of Appeal alters the applicable case law).
794
What is the reasonable period of time for which a Goodyear indication remains binding?
This is determined by the judge, who may inform the defendant of how long this is.
795
What is the necessary procedure if a defendant wants to plead guilty but on a different factual basis to that set out by the prosecution?
They must enter a guilty plea but on a written basis. The prosecution must indicate whether they accept the basis. Then, the court must consider whether the basis is acceptable and whether a Newton hearing is required.
796
How does a defendant enter a guilty plea on a basis?
When being read the charge, the defendant replies 'guilty' and their lawyer indicates that this is on a basis and hands the written basis up, or 'guilty on a basis' and their lawyer hands the written basis up.
797
Who should sign the written basis of plea?
The defendant and the prosecution if they accept the basis of plea as correct. If the prosecution does not, they should not sign.
798
What are the options open to the prosecutor in considering a written basis of plea?
Accept it, reject it, or state that they are unable to accept or reject it as it contains matters outside of the prosecution's knowledge (this should only be resorted to if they really cant accept or reject it).
799
What two questions must the court ask itself when considering a written basis of plea?
1) is the basis of plea absurd? If not, 2) will it make a material difference to sentence if the court sentences on the defence version of events? If yes, hold a Newton hearing.
800
If the basis of plea is absurd, what will the court do?
Reject the plea out of hand and proceed to sentence the defendant.
801
If the basis of plea will not make a material different to sentence, what will the court do?
Sentence the defendant on the defence version of the facts.
802
Who is the tribunal of fact and law for a Newton hearing?
In the magistrates, it is the magistrates or District judge. In the crown court, it is the judge alone (no jury).
803
What is the procedure for a Newton hearing?
The prosecution makes an opening speech and calls evidence, including witnesses who can be cross-examined by the defence. Then the defendant calls evidence. Both parties are entitled to a closing speech.
804
What is the burden and standard of proof in a Newton hearing?
The prosecution must prove its version of the facts beyond reasonable doubt.
805
What two consequences follow if the prosecution proves its version of the facts beyond reasonable doubt in a Newton hearing?
The defendant is sentenced based on the prosecution's version of the facts, and loses some of the credit it received for pleading guilty.
806
By how much is credit for a guilty plea reduced if the defendant is unsuccessful in a Newton hearing?
Usually, by half. Potentially more if witnesses have been called.
807
What should the prosecution provide the court with at sentencing?
The facts (if necessary, particularly when the case was adjourned for sentencing in the magistrates); previous convictions; any ancillary orders e.g., costs, restraining order; relevant sentencing guidelines; other sentencing issues e.g., mandatory minimum; victim impact statement(s).
808
What is the rule for ordering a pre-sentence report?
A court must obtain a pre-sentence report before passing a custodial or community sentence, unless it considers it unnecessary to do so.
809
If the court is contemplating a sentence pursuant to the Mental Health Act 1983, what must it obtain before passing sentence?
Evidence from two medical practitioners stating that in their opinion the defendant is suffering from a mental disorder as defined by the Act.
810
How is good character evidence given?
Usually by written testimonials (these must be agreed by the prosecution but this is not usually problematic) and exceptionally by live evidence.
811
What are the three categorisations of offences based on harm and culpability?
Greater culpability and greater harm; greater culpability and lesser harm, or greater harm and lesser culpability; and lesser culpability and lesser harm.
812
What are 'offences taken into consideration'?
Where a suspect is arrested and admits carrying out an offence, the police may invite the suspect to clear their conscience by admitting further offences that could be 'taken into consideration' when D is sentenced.
813
What is a serious specified offence?
A specified offence under schedule 15 CJA which has a maximum sentence of either life or 10+ years.
814
When must be court consider the issue of dangerousness?
When the defendant has been convicted of a specified offence.
815
What is the definition of dangerousness?
A significant risk to members of the public of serious harm (death or serious personal injury, whether physical or psychological) occasioned by the commission by him of further such offences.
816
What should the court take into account when assessing dangerousness?
The court must consider the nature and circumstances of the instant offence and then may take into account pretty much anything else. It may request a pre-sentence or psychiatric report to determine this question.
817
Can the court increase a sentence due to prevalence?
Generally no, unless it has evidence from a local Criminal Justice Board or a 'Community Impact Statement'.
818
What must the court do when passing sentence?
Explain in non-technical language the sentence that has been passed, identify the sentencing guidelines, explain why the custody threshold is passed (if it is), explain what credit has been given for guilty plea (if any), set out aggravating and mitigating factors.
819
In what circumstances and for how long can a court defer sentencing?
Sentencing can be deferred for up to 6 months, to give the defendant time to prove that they have changed or the offence was a one off. If they stay out of trouble during this time, they will often receive a lighter sentence.
820
Can the deferral period be extended?
Generally, no. Only if the magistrates defers, then commits for sentence, then the crown court defers for a further 6 months.
821
What is a bind over?
Requiring someone to 'keep the peace' for a sum of money that they forfeit if they fail to do so. A bind over can also include the condition not to possess, use, or carry a firearm.
822
When can a bind over be imposed?
Instead of trying the defendant, as a sentence following conviction, where the defendant is acquitted by the court considers they may breach the peace, on a witness who the court considers may breach the peace.
823
What is an absolute discharge?
No punishment at all. There is no way of breaching this sentence.
824
When may an absolute discharge be ordered?
To reflect the triviality of an offence; the circumstances in which an offender came to be prosecuted; or special factors relating to the offender.
825
What is a conditional discharge?
A discharge (no actual punishment) with a condition attached to it that if the defendant commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence.
826
For what period of time can a conditional discharge be imposed?
Not more than 3 years.
827
When re-sentencing an offender following a breach of conditional discharge which was imposed by the magistrates, what sentencing powers do the magistrates have?
Anything the court could have sentenced D to at the time.
828
When re-sentencing an offender following a breach of conditional discharge which was imposed by the magistrates, what sentencing powers does the crown court have?
Limited to anything the magistrates court could have sentenced D to at the time.
829
When re-sentencing an offender following a breach of conditional discharge which was imposed by the crown court, what sentencing powers do the magistrates have?
They cannot re-sentence and must commit D for sentence.
830
When re-sentencing an offender following a breach of conditional discharge which was imposed by the crown court, what sentencing powers does the crown court have?
Anything the court could have sentenced D to at the time.
831
How must a fine be paid?
The amount is due immediately and can only be paid in instalments with the agreement of the court.
832
What sentences can a fine be imposed alongside?
Any sentence, including a discharge for a single offence, except a hospital order.
833
What will the court do before imposing a fine?
Inquire into the defendant's means, either by asking them to fill in a means form, or by making them subject to a more formal Financial Circumstances Order.
834
What happens if a defendant fails to disclose their means?
This is an offence in itself for which they can be fined.
835
What should a fine take into account?
The gravity of an offence and the means of the offender.
836
What happens if a defendant fails to pay a fine?
They may be brought back before a magistrates' court (regardless of which court imposed the fine) and a means enquiry can be held. The court can give them more time to pay, require payment in instalments, write off some or all of the fine, sentence D to a period of imprisonment in default.
837
What is a community order?
A sentence that requires a defendant to comply with one or more requirements available to a court to punish and/or rehabilitate a defendant in the community.
838
What is the time limit for a community order?
A maximum of 3 years - the court must specify the time limit in the case.
839
What range of hours of unpaid work can be ordered as part of a community order?
Between 40 and 300 hours.
840
What is an attendance centre for the purpose of a community order?
A disciplined learning environment for 18-24 year olds where they are punished through loss of their free time.
841
What procedural steps must the court take if a defendant fails without reasonable excuse to comply with their community order?
For the first breach, they must be warned that their failure is unacceptable. For the second breach, proceedings must be instituted against the defendant. If D denies the breach, the court will hold a trial to determine if there was a failure without reasonable excuse.
842
What procedural steps may the court take if a defendant fails without reasonable excuse to comply with their community order?
Making the order more onerous, fining the defendant up to £2,500, revoking the community order and re-sentencing D.
843
What is a victim surcharge?
A tax to be paid by an offender on top of their (custodial or community) sentence.
844
What are the schedule 15 CJA specified offences?
A number of violent, sexual, or terrorism-related offences.
845
What is a determinate custodial sentence?
A prison sentence for a defined period of time.
846
Does D spend the entirety of a determinate custodial sentence in prison?
No - they serve half the time in prison, and the other half on license in the community (they can be recalled to serve the remaining time if they breach the license conditions)
847
Generally, what length of sentence should the court seek to impose?
The shortest possible sentence which reflects the purposes of sentencing and the seriousness of the offence.
848
If a defendant is remanded in custody prior to being handed a custodial sentence, what is the effect?
The period remanded in custody is automatically counted towards their sentence.
849
If a defendant is on bail prior to being handed a custodial sentence, what is the effect?
If the court says so, the time spent on bail gives them credit towards their sentence (1 day on bail = 1/2 day in custody, rounded up) so long as there was at least a 9 hour/day curfew and tagging. Any days on which the curfew is breached are discounted.
850
Who decides whether a defendant should be recalled to prison following a license breach?
The Home Office
851
What is a suspended sentence of imprisonment?
A prison sentence, but the defendant does not go into immediate custody and if they fulfil certain criteria, they can avoid prison entirely.
852
What length prison sentence may the magistrates suspend?
Any determinate custodial sentence of between 14 days and 6 months.
853
What length prison sentence may the crown court suspend?
Any determinate custodial sentence of between 14 days and 2 years.
854
What are the three parts to a suspended sentence?
The custodial term (how long they would have received but for the suspended sentence), the operational period (how long the custodial term is suspended for), and the supervision period (optional, how long the defendant must be supervised by the Probation Service).
855
What is the range of the operational period for a suspended sentence?
Between 6 months and 2 years.
856
What is the range of the supervision period for a suspended sentence?
Between 6 months and 2 years AND equal to or shorter than the operational period.
857
How is a suspended sentence breached?
By committing another offence during this period, failing to comply with the Probation service where there is a supervision period, failing to comply with any attached community order requirement.
858
What happens if a suspended sentence is breached by failing to comply with the probation service or a community order requirement?
For the first breach, they must be warned that their failure is unacceptable. For the second breach, proceedings must be instituted against the defendant. If D denies the breach, the court will hold a trial to determine if there was a breach.
859
What are the available consequences if a defendant breaches a suspended sentence?
The court must activate the suspended custodial sentence in part or whole, unless it would be unjust to do so. If it is unjust, they may impose a fine of up to £2,500, make the community order more onerous, or extend the operational period (but not beyond 2 years).
860
Which court(s) can impose a minimum sentence for third offences?
The crown court only
861
What is the minimum sentence for three Class A drug trafficking offences?
7 years
862
What is the minimum sentence for three domestic burglaries?
3 years
863
In what order must the offences take place for a minimum sentence to be imposed?
Offence 1, conviction for offence 1, offence 2, conviction for offence 2, offence 3, conviction for offence 3.
864
When can the minimum custodial sentence for three drug/burglary offences be avoided?
Where it would be unjust to pass such a sentence.
865
What is the maximum reduction for early guilty plea for a minimum custodial sentence for three drug/burglary offences?
The final sentence must be at least 80% of the minimum term.
866
What is the mandatory sentence for murder?
Life imprisonment.
867
How long will someone who is given a life sentence for murder actually serve?
They will serve a minimum term (15 years, 25 years, 30 years, whole life), and can then apply to the Parole Board for release on license for the rest of their life.
868
How does the court determine the minimum term for a murderer?
They adjust the statutory starting point (15 years, 25 years, 30 years, whole life) according to aggravating and mitigating factors.
869
What happens if a murderer breaches their license?
They will be liable to recall to prison indefinitely.
870
What is a prosecution costs order?
An order that the defendant pay a ‘just and reasonable’ amount of the prosecution costs
871
What happens if a prosecution costs order is breached?
The consequence is a period of imprisonment in default and the sum still due.
872
What is a compensation order?
An order that the defendant pay a person (the victim of the crime) financial compensation.
873
Is a court obliged to make a compensation order?
It must make a compensation order where it is allowed to do so, unless it would be unjust. If it does not, then it must give reasons as to why it chose not to.
874
What happens if a compensation order is breached?
D may be brought back before a magistrates' court and a means enquiry held. They may be given more time to pay, allowed to pay in instalments, have some or all of the debt written off, be sentenced to a period of imprisonment in default.
875
What are forfeiture and depravation orders?
Orders that allow the forfeiture and destruction of property which was used or intended to be used for the purpose of committing, or facilitating the commission of, any offence.
876
What is a confiscation order?
An order pursuant to the Proceeds of Crime Act 2002 that requires an offender to pay a sum of money to the court that represents the offender’s benefit from criminal conduct.
877
Who can impose a confiscation order?
Only the crown court
878
By when must a confiscation order be made?
Within 2 years of conviction.
879
What happens if a confiscation order is breached?
The consequence is a period of imprisonment in default and the sum still due.
880
What is automatically subject to a deprivation order for a driving offence?
The car.
881
What must the court have regard to when making a deprivation order?
The value of the property and the likely financial and other effects of the order on the offender.
882
Can you impose a custodial sentence on an offence which does not pass the custody threshold when convicted with other offences?
Yes.
883
What is the slip rule (in the magistrates)?
The power of the magistrates to vary a sentence or set aside a conviction if it is in the interests of justice to do so.
884
In what circumstances is the slip rule most likely to apply?
Where all parties agree that a mistake has been made. In amending a sentence, it is more likely to be used to reduce that sentence.
885
Who makes an application under the slip rule?
Usually the defendant, but the court can make an amendment under this rule of its own volition.
886
Can the court sentence outside of the statutory minimums and maximums?
No
887
What are the three routes of appeal open to a defendant in the magistrates?
Appeal to the Crown Court by way of re-hearing, appeal to the High Court by way of case stated, application to the High Court for judicial review.
888
When should a defendant in the magistrates appeal to the crown court?
Where the defendant complains that the magistrates made an error of fact or mixed fact and law.
889
When should a defendant in the magistrates appeal to the high court by way of case stated?
Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction.
890
When should a defendant in the magistrates appeal to the high court by way of judicial review?
Where the defendant alleges unfairness, bias or procedural irregularity.
891
Does the defendant need to obtain leave to appeal to the Crown court from the magistrates?
No - this is an automatic right.
892
Can a defendant in the magistrates appeal both sentence and conviction to the Crown Court?
If the pled not guilty, yes. If they pled guilty, they can only appeal sentence (unless they can show their plea was equivocal).
893
Through what routes can the prosecution appeal following a decision in the magistrates?
Only to the high court by was of case stated or judicial review - not to the Crown Court.
894
If a defendant from the magistrates appeals conviction, can the Crown Court change the sentence?
Yes - if they uphold the conviction they can pass any sentence that the magistrates could have.
895
What is the procedure for appealing from the magistrates to the crown court?
The party must serve notice of appeal on the magistrates and the prosecution within 15 business days of sentence.
896
Can a notice of appeal to the crown court be served outside of the 15 day window?
Possibly. If it is, it must be accompanied by an application for an extension of time, with reasons for the delay.
897
What must a notice to appeal to the crown court contain?
The decision being appealed, the court that made that decision and the date it was made on, a summary of the issues, whether the magistrates has been asked to apply the slip rule, the parties on whom the notice has been served.
898
What is the procedure for an appeal in the crown court?
Exactly the same as in the magistrates - speeches, witness evidence, submissions if the appeal is of conviction, and facts and mitigation if it is of sentence.
899
Are the parties in an appeal to the crown court limited to the evidence they called in the magistrates?
No
900
Can the charge be amended upon appeal from the magistrates to the crown court?
No
901
Who hears an appeal in the Crown court?
A Crown Court judge and two lay magistrates (or just one, if finding 2 would cause unreasonable delay)
902
Can bail be applied for pending appeal and to whom?
Yes, although there is no right to bail pending appeal. The defendant can apply to the magistrates, and if refused, to the crown court/high court.
903
When can an appellant abandon their appeal to the Crown Court and how do they do this?
They may abandon their appeal at any time, though permission is required from the Crown Court once the hearing is started. They give notice in writing to the magistrates, crown court and prosecution.
904
What happens if the defendant fails to attend their appeal and they are unrepresented?
The appeal is treated as abandoned.
905
What are the powers of the crown court on appeal from the magistrates?
To confirm, reverse or vary the decision; remit the matter to the magistrates; or make any other order it thinks just (so long as within the powers of the magistrates)
906
Does the crown court have to give reasons for a convictions appeal?
Yes, though they do not have to formally rexamine the magistrates' decision.
907
Who pays the costs of an appeal?
The appellant, if they are unsuccessful, the prosecution if they are successful (maybe). If the appeal is abandoned within 24 hours of the hearing, the appellant.
908
What is the procedure for appealing by way of case stated?
The applicant applies to the magistrates to 'state a case' for the opinion of the high court, in the form of a question about law or procedure. The final 'case stated' will be agreed by all parties and include a summary of the trial. Once the case has been stated, it is treated as a civil matter for procedural purposes.
909
What is the procedure for an appeal by way of case stated?
It is heard by at least two, usually three judges in the Divisional Court of the Queen’s Bench division of the High Court. No evidence is heard, it is based on legal submissions.
910
What is the deadline for appealing from the magistrates by way of case stated?
21 days from the date of the decision (if the defendant is sentenced, this will be from the date of sentence).
911
When can the magistrates refuse to state a case?
Where they consider it to be vexatious
912
Can the defendant appeal both to the crown court and the high court by way of case stated?
Only if done in that order.
913
What are the powers of the high court on appeal from the magistrates?
To confirm, reverse or vary the decision; remit the matter to the magistrates; or make any other order it thinks fit.
914
Where is a decision of the high court on case stated appealed to?
The supreme court
915
What is the time limit for appealing to the high court by way of judicial review?
The application must be lodged promptly and in any event within 3 months of the grounds for appeal arising.
916
To whom does the defendant apply for bail pending appeal by way of judicial review?
The high court only.
917
Can a decision of the court of appeal be appealed to the high court by judicial review?
Yes. However, if it concerns an error of law this should be done by case stated.
918
Where there is an exercise of discretion, what is the standard for judicial review?
Wednesbury unreasonableness
919
Where is a decision of the high court on judicial review appealed to?
The supreme court
920
What is the slip rule (in the crown court)?
The power of a crown court judge to vary or rescind a sentence (or other order such as driving ban or compensation - but not conviction) within 56 days of it being made.
921
What can be amended under the slip rule in the crown court?
Not just the length of the sentence, but the type of sentence and community requirements as well.
922
Where are appeals against conviction and sentence from the crown court as a trial court heard?
In the court of appeal criminal division.
923
Does the defendant need to obtain leave to appeal to the court of appeal from the crown court?
Yes - they must convince a single judge that their appeal is arguable on the merits before proceedings to an oral hearing. If leave is refused, the applicant may renew their application orally before the panel.
924
How many judges hear an appeal from the crown court to the court of appeal?
2 for a sentence appeal and 3 for a conviction appeal.
925
What is the time limit for serving a notice of appeal to the court of appeal?
The notice must be served on the Registrar of the Criminal Division of the Court of Appeal within 28 days of the conviction (in conviction appeals) or sentence (in sentence appeals).
926
Can the time limit for serving a notice of appeal to the court of appeal be extended?
Yes, this can be applied for when serving the notice of appeal, giving reasons for the delay. This will likely be allowed if the court finds merit in the grounds of appeal.
927
What should counsel do in anticipation of an appeal?
Set out their advice on the merits of an appeal and any proposed grounds on which the appeal could be brought and send this to the solicitor. They should include any transcripts for the registrar to obtain and any authorities.
928
What happens if an application for appeal is 'wholly without merit'?
The single judge may indicate this and the full court may impose a 'loss of time' order if the application is renewed. The effect of this is that some or all of the time the appellant has spent in prison will not count towards their sentence.
929
What happens after counsel's advice and grounds are sent to the solicitor?
They are sent to the defendant for approval. Then the notice of appeal form is signed, and sent to the Registrar along with the advice and grounds. The Crown Court will then send the relevant papers from their files to the Court of Appeal.
930
What is a 'fit for appeal' certificate?
Unusually, the trial judge may certify a case as fit for appeal e.g., where they seek guidance in applying a new piece of legislation.
931
What happens if a 'fit for appeal' certificate is granted?
The parties do not need leave to appeal, but they must comply with the normal appeal procedure.
932
When and how are transcripts used in appeals?
They are used if required to resolve the appeal. Counsel will indicate the date and time at which the disputed direction occurred, and the Registrar will obtain the transcript to determine exactly what was said.
933
What is meant by 'perfecting grounds'?
Once transcripts have been received, counsel will be sent a copy and invited to 'perfect' grounds within 14 days by adding references to the transcripts to support the arguments advanced / reconsidering the grounds.
934
Does the respondent to an appeal to the court of appeal have to serve notice?
They may be directed to do so (Form RN) by the registrar or single judge.
935
Who will consider an application for leave to appeal?
A single judge, on the papers alone (without oral arguments).
936
What are the powers of the single judge considering an application for leave to appeal?
They can grant the application (wholly or in part), refuse the application, or refer it to the court of appeal without granting leave (if they identify an issue requiring the full court’s attention).
937
What is the time limit for renewing an application for leave to appeal which was refused by the single judge?
10 business days from receipt of notice of the single judge's decision.
938
In what circumstances is the appeal to the single judge bypassed and notice sent straight to the panel?
Where there is an unlawful sentence which must be amended, or a novel point of law. It may also be used where the matter requires expedient resolution.
939
Can a defendant appeal conviction to the court of appeal where they pled guilty?
Yes e.g., where the guilty plea was entered following an allegedly incorrect legal ruling by the trial judge which left no option but to plead guilty.
940
When will skeleton arguments be required on appeal to the court of appeal?
Where the appeal notice does not sufficiently outline the grounds; in cases involving a novel point of law; or where complex issues are raised
941
If skeletons are required for an appeal to the court of appeal, what are the time limits for submitting them?
the appellant must serve theirs 21 days prior to the hearing and the respondent 14 days before, unless otherwise directed.
942
What is the test for allowing a conviction appeal?
The court must think that the conviction was unsafe.
943
What is the test for allowing a sentence appeal?
The court must think that the defendant should have been sentenced differently.
944
What are the powers of the court of appeal on allowing a conviction appeal?
Quash the conviction, order the appellant to be retried, substitute a verdict of guilty for an alternative offence (where the jury would have been able to do this), and amend the sentence.
945
What are the powers of the court of appeal on allowing a sentence appeal?
Quash any sentence or order and replace it with any sentence or order they think is appropriate (which the lower court would have been able to pass). The appellant cannot be dealt with more severely on appeal than they were in the lower court.
946
Can fresh evidence be introduced on appeal?
Yes, in both the Crown Court and the court of appeal.
947
What evidence can the court of appeal order?
The production of any document, exhibit or thing connected with the proceedings; and the attendance of any witness for cross examination.
948
What will the court of appeal consider when deciding whether to allow the introduction of fresh evidence?
The reason that the evidence was not adduced at the original proceedings; whether the evidence would have been admissible, whether the evidence is capable of believe, and whether it may afford a ground for allowing the appeal.
949
What is the time limit for the AG to seek leave for review of an unduly lenient sentence?
28 days
950
What happens if the court agrees with the AG's submission that a sentence was unduly lenient?
The sentence will be increased, with a discount for 'double jeopardy' (having to wait before knowing their sentence).
951
What cases can the CCRC send for appeal and on what ground
They can send those on indictment to the court of appeal and summary convictions to the crown court, where there is a real possibility that the Court will quash the original conviction or sentence.
952
What is a prosecution appeal against terminatory rulings?
The prosecution can appeal to the court of appeal on a ruling which would bring the case to an end made in the course of a Crown Court trial on indictment.
953
What are the three requirements for an appeal against terminatory rulings?
The ruling must have been made before summing up, an acquittal agreement must be given by the prosecution, and the ruling must not be appealable to the court of appeal by any other route.
954
What is the procedure for the prosecution to appeal?
They can notify the judge they wish to appeal immediately or ask for an adjournment to consider appeal. Then, they can serve written notice on all parties or made an oral application for leave to appeal (to the trial judge, and then the court of appeal, if unsuccessful).
955
Can decisions made in a preparatory hearing be appealed?
Yes, to the court of appeal in long, complex or fraud cases.
956
How old is a youth?
17 or under
957
Where do youths have their first hearing?
In the youth court, unless they are jointly charged with an adult/involved in aiding or abetting.
958
Where do youths have their trial?
In the youth court, unless they are sent to the crown court for trial.
959
Where are decisions in the youth court appealed to?
The crown court, or the high court by way of case stated or judicial review.
960
How old is a juvenile?
17 or under
961
How old is a child?
Under 14
962
How old is a young person?
Between 14 and 17 inclusive
963
What is a persistent young offender?
A youth who has been convicted of, or made subject to a pre-court disposal that involves an admission or finding of guilt, in relation to imprisonable offences on at least 3 occasions in the past 12 months.
964
What are alternatives to prosecution for youths?
The youth can be given an out of court disposal such as Community Resolution, Youth Caution or Youth Conditional Caution.
965
What is the age of criminal responsibility and what does this mean?
10, which means that children under the age of ten cannot be convicted of an offence.
966
Where will an individual who is 17 when they commit an offence but turns 18 before their first court appearance be heard?
In the adult magistrates court.
967
What happens if the court is misled as to the age of a young offender?
Any orders or judgments of the court (such as findings of guilt and sentences) will not be invalidated.
968
Who sits in the youth court?
A district judge or not more than three magistrates.
969
What is the rule as to reporting restrictions in the youth court?
Reporting restrictions apply automatically to those who appear in the youth court. These can be lifted, but this is very rare.
970
Who can be present in a youth court?
Court officials, parties, the parties' parents or guardians, legal representatives for the parties, witnesses and other persons directly concerned in the case, bona fide news representatives, other persons as the court may specially authorise.
971
Is the youth court public?
No
972
Can the public attend the trial of a youth in the adult magistrates or crown court?
Yes
973
Does a parent/guardian/local authority representative have to attend court with a youth?
Yes if the accused is under 16 (unless such attendance would be unreasonable), no if they are 16 or 17 (the court may require them to attend).
974
Who is a guardian?
Anyone who 'has for the time being the care of the child or young person'.
975
How are proceedings in the youth court different to the adult courts?
They are less formal e.g., everyone remains seated, lawyers are not robed, youth sits in a chair rather than the dock.
976
What is the difference between the youth oath and adult oath, if they have sufficient understanding of the solemnity of the occasion and are over 14?
'I promise' rather than 'i swear'
977
In what circumstances will a youth have their first hearing in the adult magistrates court?
If they are jointly charged with an adult, charged with aiding or abetting an adult, an adult is charged with aiding or abetting them, or they are charged with an offence arising out of the same circumstances as an offence an adult is charged with.
978
When will a youth enter a plea?
In the first hearing
979
What is the next step after a youth enters a guilty plea?
The court should try to pass sentence on the same day, unless they need a pre-sentence report
980
What is the next step after a youth enters a not guilty plea?
The parties will complete a case management form and directions will be made for future management of the case.
981
When must a youth be tried in the crown court?
Homicide; firearms offences; where the youth court's sentences are inadequate and thus it is a grave crime; specified offences and the youth is a dangerous offender; jointly charged with an adult who has been sent to the crown court.
982
Is there a plea before venue and mode of trial procedure in the youth court?
Generally no, unless the youth is charged with a grave crime or jointly charged with an adult for an either-way or indictable only offence.
983
Where there are several youths jointly charged, must they all have trial in the same court?
No
984
What is a grave crime?
One which carries a sentence of 14+ years or is a serious sexual offence.
985
What is the court's sentencing powers for a youth convicted of a grave crime?
A Crown Court can sentence a youth to any length of detention which would be possible if they were an adult.
986
What is the maximum sentence of the youth court?
2 years
987
What is the plea before venue/mode of trial procedure for grave crimes?
The youth enters a plea. Then, the youth court must consider whether its sentencing powers are sufficient. If not, the youth court can commit for trial or sentencing.
988
If a youth is charged with multiple offences and some are grave, what can the court do?
It can consider their combined seriousness in deciding whether to commit, though the crown court can only order long-term detention for the grave offence(s).
989
What kind of youth cases should be sent to the crown court?
The most serious cases. The power to send youths to the Crown Court for trial under the dangerousness provisions should be rarely used
990
What happens if a youth is charged with a specified offence, and they are considered a dangerous offender?
There is no plea before venue or mode of trial procedure and they must be sent to the crown court for trial.
991
What are the conditions for a youth being considered a dangerous offender?
Specified offence, significant risk of serious harm to the public, sentence of at least 4 years.
992
What happens if an offender is found to be dangerous?
They must serve 2/3rds of their sentence, when they will be considered for release by the parole board. Then, they will be on license for an extended period.
993
Where an offence is both specified and grave, should the question of grave crime or dangerousness be dealt with first?
Dangerousness.
994
If a child is jointly charged with an adult, is there a plea before venue / mode of trial procedure ?
Yes
995
Where is the youth tried if the adult with whom they are jointly charged is sent to the Crown Court and the youth pleads not guilty?
The magistrates must determine whether it is ‘necessary in the interests of justice’ to send the youth to be tried with the adult (both parties can make representations about this).
996
What factors should the court take into account when deciding whether to send a child to the crown court with an adult?
Injustice caused to witnesses or the case as a whole, age/maturity/relative culpability of the child, age gap between the child and adult, whether the child played a minor role, lack of previous findings of guilt for the child.
997
Where is the youth tried if the adult with whom they are jointly charged is tried summarily and the youth pleads not guilty?
The youth must be tried in the magistrates if they are jointly charged, and may be if it involves aiding or abetting or offences arising from the same circumstances.
998
Where is the youth tried if the adult with whom they are jointly charged pleads guilty and the youth pleads not guilty?
The adult magistrates may try the youth without the adult but are more likely to remit to the youth court.
999
Where is the youth tried if joint with an adult and the youth pleads guilty?
The magistrates need to consider whether their sentencing powers are appropriate. If they are not (they cant impose reparation orders, youth rehabilitation orders, DTOs, or parenting orders), they will remit the youth to the youth court.
1000
What is the relevant age for the purpose of sentence?
The age at the date of conviction
1001
Which court(s) can impose a DTO?
The youth court and crown court
1002
For which offences can the youth court commit the youth to the crown court for sentencing?
Grave offences with sentence of 2+ years, specified offences with dangerousness (4 years), grave offences where youth has already been sent to the crown court for related offences.
1003
When the youth is sent to the crown court for sentence, what are its sentencing powers?
the Crown Court can deal with the youth in any way it could if they had been convicted of the offence on indictment before the court.
1004
What young person sentences can the crown court not impose?
parental bind over, parenting order, referral order
1005
What young person sentences can the youth court not impose?
long term detention (grave crimes), extended detention for dangerous offenders, detention at her majesty's pleasure (murder)
1006
When can a DTO be imposed?
When a child or young person has been convicted of an offence which is punishable with imprisonment in the case of an adult, and the custody threshold is passed.
1007
How is the time of a DTO spent?
Half the time is spent in custody, with the remaining period under supervision in the community
1008
How old does a youth have to be to be given a DTO?
They cannot be given one if they are 10 or 11. They can only be given one if they are 12-14 if they are a PYO.
1009
What is the minimum and maximum length of a DTO?
4 months-24 months
1010
What length DTOs can be imposed?
4, 6, 8, 10, 12, 18 or 24 months long
1011
What is detention in a Young Offenders Institution?
the usual custodial sentence for those aged between 18 and 21
1012
When a defendant is 17 at the time of the offence but turns 18 by the time of sentencing, will they be given a DTO or sentence in a Young Offenders Institution?
DTO
1013
What are the principle non-custodial sentences for youths?
Youth rehabilitation order (no statutory minimum, maximum 36 months); and referral orders (minimum 3 months, maximum 12 months).
1014
Can court make orders against parents?
Yes, the youth court can.
