CRIMINAL LAW AND PRACTICE Flashcards

Question 1

Q

What does ‘adjournment’ mean?

Answer

A

Cannot conclude case in 1 hearing, reconvene another day

Question 2

Q

What does remand mean? Two options?

Answer

A

D sent away and told to come back to court on another day.

Two options:
1. remand IN CUSTODY
2. remand ON BAIL

Question 3

Q

Presumption around bail?

Answer

A

Presumption IN FAVOUR of bail
- Prosecution must raise objection to bail if think should be on remand IN CUSTODY
Defence apply for bail -> always in Mags 🥭in first instance - except for Murder - only CC can grant bail for murder.
Both parties can appeal bail decision from Mags.

Question 4

Q

Exemption to presumption around bail?

Answer

A

The presumption of bail does not apply to:
1. Those appealing conviction/sentence; or
2. Ds being committed for sentence at CC

Defence would therefore need to apply for bail in both these cases.

Question 5

Q

What are the THREE groups of ‘GROUNDS’ for objecting to Bail?

Answer

A

A. THE BIG THREE

B. TRIO that D ‘NEED NOT’ be granted bail

C. OTHER

Question 6

Q

What are THE BIG THREE?

For Indictable offences (carrying imprisonment)?

For summary offences?

Answer

A

THE BIG THREE

A. For Indictable Offences (carrying imprisonment) - BIG THREE + Final Filter
1. Substantial grounds for believing D would
either:
a. Fail to attend subsequent hearing (failure to
surrender to custody)
b. Commit further offences on bail
c. Interfere with witnesses, or otherwise
obstruct course of justice

AND 🚪Final Filter: Bail should not be removed under one of these grounds if D is charged with an offence(s) where ‘no real prospect’ of D receiving a custodial sentence.

⚡Substantial grounds for believing = show that fears of behaviour happening have substance and merit - this is a factual enquiry.

B. For Summary offences

Big three only available if TRIGGER EVENT 🔫 activates their availability:
a. D been given bail, breaches condition in
these proceedings; or
b. Has conviction for ‘failure to surrender’ in
past

Question 7

Q

What does ‘substantial grounds for believing mean?

Answer

A

⚡Substantial grounds for believing = show that fears of behaviour happening have substance and merit - this is a factual enquiry.

Question 8

Q

What are the ‘NEED NOT’ TRIO?

Answer

A

TRIO : D ‘need not’ be granted bail is any of following exist:
a. Remand in custody would be for D’s own
safety
b. Court has insufficient information to deal with
issue of bail, and so remands in custody for a
(short) period for the production of sufficient
evidence
c. D is already serving a sentence in custody

Question 9

Q

What are the TWO ‘OTHER’ options

Answer

A

SERIOUS CASES with high penalties
Cases of PARTICULAR NATURE THAT AFFECT ASSESSMENT OF RISK posed by D on bail.

Question 10

Q

How do you deal with cases with particular characteristics that affect risk?

What is rule for option 1?

What is rule for option 2?

Answer

A

Q1: Is D charged with:
a. an offence that suggests D would cause injury
(mental or physical) to a partner or family member;
b. abuse of drugs

IF a. -> D need not be granted bail for any imprisonable offence if the court believes there are SUBSTANTIAL GROUNDS TO BELIEVE THAT D WOULD COMMIT AN OFFENCE ON BAIL BY ENGAGING IN CONDUCT THAT WOULD OR WOULD BE LIKELY TO CAUSE PHYSICAL OR MENTAL INJURY TO AN ASSOCIATED PERSON. An associated person is a spouse, partner or a family member. This ground is available for non-imprisonable offences only if D is arrested under s7 Bail Act for a breach of bail.

If b -> Where: test shows D has CLASS A drug in D’s body AND offence relates to a class A or was caused/motivated by D taking Class A drugs…..THE COURT MAY NOT GRANT BAIL UNLESS THERE IS NO SIGNIFICANT RISK OF D COMMITTING AN OFFENCE ON BAIL.

Question 11

Q

Serious cases with high penalties - what are the three applicable group of crimes?

Answer

A

MURDER
ATTEMPTED MURDER, RAPE, SERIOUS SEXUAL OFFENCE etc
AN OFFENCE CARRYING LIFE IMPRISONMENT AS MAXIMUM SENTENCE

Question 12

Q

Is D charged with MURDER (note: only a CC judge can grant bail) - what is the next step?

Answer

A

If D has a previous conviction for:
(i) murder
(ii) attempted murder
(iii) rape
(iv) a serious sexual offence ,
D MAY NOT BE GRANTED BAIL UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY IT (note, the present charge and pre-con do not have to be the same offence. If D does not have qualifying pre-con, bail is assessed on usual grounds).

If D does not have such pre-cons, D MAY NOT BE GRANTED BAIL UNLESS THERE IS NO SIGNIFICANT RISK OF D CAUSING AN OFFENCE LIKELY TO CAUSE PHYSICAL OR MENTAL INJURY.

Question 13

Q

Is D charged with ATTEMPTED MURDER, RAPE, SERIOUS SEXUAL OFFENCES etc?

Answer

A

If D has pre-con for:
(i) murder
(ii) attempted murder
(iii) rape
(iv) a serious sexual offence ,
D MAY NOT BE GRANTED BAIL UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES TO JUSTIFY IT (note, the present charge and pre-con do not have to be the same offence. If D does not have qualifying pre-con, bail is assessed on usual grounds).

Question 14

Q

Is D charged with an offence carrying LIFE IMPRISONMENT AS THE MAXIMUM SENTENCE?

Answer

A

If was was either:
(i) already on bail; and/or
(ii) fails to attend having been on bail.
D MAY NOT BE GRANTED BAIL UNLESS THERE IS NO SIGNIFICANT RISK OF FURTHER OFFENCES BEING COMMITTED OR FAILURE TO ATTEND.

Question 15

Q

WHAT IS D WAS ON BAIL AT TIME OF THE ALLEGED OFFENCE?

Answer

A

If D is said to have committed an INDICTABLE offence, then the court ‘need not’ grant bail.

If D is said to have committed a SUMMARY IMPRISONABLE offence, then the court ‘need not’ grant bail if there are SUBSTANTIAL grounds for believing D will commit further offences.

If D ABSCONDS WHILST ON BAIL for an indictable offence, then bail need not be granted again, unless it is prior to conviction and there are no realistic prospects of the D receiving a custodial sentence.

Question 16

Q

Is ground available for failure to surrender (FTS) for:
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence

Answer

A

a. YES
b. YES if (i) D has prior FTE or (ii) following s7 Bail Act arrest
c. YES if D has been convicted in the proceedings and either (i) D has prior FTE or (ii) following s7 Bail Act arrest

Question 17

Q

Is ground available for commit further offences (CFO) for:
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence

Answer

A

a. YES
b. YES if (i) D was on bail at date of alleged offence, or (ii) following s7 Bail Act arrest
c. YES if D has been convicted and D is then subject to a s7 Bail Act arrest

Question 18

Q

Is ground available for interfere with witness or obstruct course of justice for:
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence

Answer

A

a. YES
b. YES if: following s7 Bail Act arrest
c. YES if D has been convicted and D is then subject to a s7 Bail Act arrest

Question 19

Q

Is ground: Need not be granted bail - for their own protection available for
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence

Answer

A

a. YES
b. YES
c. YES

Question 20

Q

Is ground Need Not Be Granted Bail - if already in custody available for
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence

Answer

A

a. YES
b. YES
c. YES

Question 21

Q

Is ground Need Not Be Granted Bail - if insufficient time available for:
a. imprisonable offence (indictable)
b. Imprisonable offence (summary only)
c. Non-imprisonable offence

Answer

A

a. YES
b. YES
c. NO

Question 22

Q

What are the FOUR factors that will be considered in determining ground?

Answer

A

NATURE AND SERIOUSNESS OF OFFENCE AND LIKELY DISPOSAL (i.e. sentence) - D will be tempted to abscond if convicted of serious offence.
CHARACTER OF D, D’S ANTECEDENTS (i.e. previous convictions), ASSOCIATIONS AND COMMUNITY TIES- previous convictions mke custodial sentences more likely, personal circs such as drug addictions, associations = friends w criminal records, community ties might reveal how easy it could be for D to abscond and how much they have to lose by absconding i.e. if married with job - less likely to abscond.
D’S BAIL RECORD IN THE PAST - e.g. tendency to commit offences on bail in past, or absconded in past
STRENGTH OF EVIDENCE - D who knows a good chance of acquittal = less likely to abscond than one with a certain conviction.

Question 23

Q

What factors relevant to FAIL TO SURRENDER?

Question 24

Q

What factors relevant to COMMIT FURTHER OFFENCES?

Answer

A

1 and 2, i.e. nature and seriousness of the offence (likely disposal) AND Character of D, D’s antecedents, associations and community ties

Question 25

Q

What facts relevant to INTERFERE WITH WITNESSES?

Answer

A

1 and 4, i.e. nature and seriousness of the offence (likely disposal) AND Strength of Evidence

Question 26

Q

What duty comes with bail?

Answer

A

🔏Duty to surrender to custody at time and date specified

Question 27

Q

What can court impose on bail?

Answer

A

Court can impose such conditions as are necessary (i.e. no limit)

BUT must consider if condition relevant, proportionate, enforceable
ECHR Art 5(3) - bail conditions permissible.

Defence can offer conditions on bail to overcome objections to bail from prosecution

Question 28

Q

TEN common bail conditions?
Write down for each, what fear re remand on bail each condition is trying to address?

Answer

A

Residence at given address - live + sleep there - reduce risk of absconding
Curfew - only relevant where time of offence relevant to crime e.g. burglary - night
Reporting to local police station at given times - checks D still ‘in town’
Surety - promise to pay sum if D absconds by person w influence of D (e.g. mum)
Security - money given by D or TP, deposited at court/police before release on bail
Restriction on where D may go during bail - to stop further offence/witness interfere
Restriction on who the D might have contact with during bail - x witness interfere
Electronic monitoring - for fear of failure to surrender / witness interference
Bail Hostels - where D x have fixed address - rules of hostel + curfew + residence
Surrender of Passport - prevents risk of absconding

Question 29

Q

How are conditions of bail varied?

Answer

A

Application by either party - to court which granted bail (except if sent for trial or committed to CC for sentence) - with advance notice of both parties

Or no hearing needed if parties in agreement re variation of bail conditions.

Question 30

Q

What are the consequences of breach?

Answer

A

BREACH
If D breaches conditions/about to - police have power to ARREST
although, note: no offence of breaching bail conditions!!

If do breach conditions - D at risk of
(1) tightening of bail conditions; or
(2) remand into custody (bail withdrawn)

E.g. If you need to be inside by 8pm and at 7.30pm are over 30 mins from home, can arrest.

Upon arrest - take to Magistrate court to determine if bail should continue forward

Question 31

Q

Is FAILING, without reasonable cause, TO SURRENDER TO CUSTODY an offence?

Answer

A

YES - Failing, without reasonable cause, to surrender to custody is an offence

Question 32

Q

Summary punishment for failing without reasonable cause to surrender to custody?

Answer

A

Summarily punishable - up to 3 months’ imprisonment and/or unlimited fine

Question 33

Q

Indictment sentence for failing without reasonable cause to surrender to custody?

Answer

A

On indictment - up to 12 months’ imprisonment and/or unlimited fine

Question 34

Q

What is the procedure for applying for bail?

Answer

A

Upon D’s arrival (where police refused bail) defence check if prosecutor intends to object
- if no objection, this stated to court
- if prosec objects, they outline objections (any previous convictions handed to court), defence then presents arguments for bail - court announce decision

where D has right to bail, court must give reasons for refusing bail or any conditions.

Question 35

Q

How many attempts at getting Bail does D have?

Answer

A

If trial at Mags 🥭 - TWO attempts at getting bail plus one appeal)
If bail refused - D can repeat same application 1 WEEK later
If bail refused on second attempt - D can appeal to CC, or find fresh points to make e.g. find surety D did not have available before.

If trial at CC 👑 - ONE attempt at getting bail
One attempt at getting bail in first hearing of
Mags, unless murder (CC)
One further application as of right in CC

Question 36

Q

USUAL - BAIL TIMELINES?

Answer

A

⚡USUAL

Case listed, D applies for bail
If refused, case appears again 📅 1 WEEK LATER - D can re-apply for bail
If refused again, D must get ‘certificate of full argument’ 📜 (from Mags) - provides short summary of what has happened in Mags re bail so that CC knows what has happened before.

Appeals are heard ONE BUSINESS DAY after an appeal notice is served.

After the Application on appeal to CC, D can only apply again if there has been a change in circumstances

Question 37

Q

URGENT - BAIL TIMELINES?

Answer

A

⏰URGENT
Here the 1st appearance includes the 1st bail application and at this first hearing, D gets a certificate of full argument, to then take to the CC via application on appeal.

CC will hear bail appeal 📅No later than 1 business day after appropriate notice served

Note, if D applies to CC after 1st attempt in Mags, they lose right to the second application in Mags

After the appeal, D can only apply if there has been a change in circumstances

Question 38

Q

What is the process for prosecution to appeal bail grant in Mags court?

Answer

A

Mags’ Court Grants Bail - rare for prosec to appeal bail grant - process if do appeal:
1. P must have opposed bail originally
2. Imprisonable offence
3. P must say when bail granted at hearing that will appeal (D then held in custody)
4. Intention to appeal confirmed in writing, served on court and D 📅 within 2 hrs
5. Appeal heard 📅 within 48 hours
6. Appeal heard by CC Judge

Question 39

Q

What is the process for prosecution to appeal bail grant of CC?

Answer

A

CC Grants Bail - rare for prosec to appeal bail grant - same process as in Mags, except appeal heard by HC Judge sitting in HC, not CC Judge.

P must have opposed bail originally
Imprisonable offence
P must say when bail granted at hearing that will appeal (D then held in custody)
Intention to appeal confirmed in writing, served on court and D 📅 within 2 hrs
Appeal heard 📅 within 48 hours
Appeal heard by HC Judge sitting in HC

Question 40

Q

How quickly is a prosecution appeal against bail heard by the court?

Answer

A

Within 48 HOURS, EXCLUDING WEEKENDS

This applies where Mag’s court and CC grant bail.

Question 41

Q

CUSTODY time limits and impact of this on how long prosecution can hold D?

Answer

A

⭐Custody Time limits = prosecution cannot hold D beyond this unless court sanctioned extension i.e. trial must take place within:

📅56 days for trials in Mags Court of summary only or either-way offences; and

📅182 days for CC trials of indictable only or either-way offences, less any days spent in custody prior to case being sent to CC (usually 0).

Question 42

Q

When does custody time limit actually expire i.e. what is the end point?

Answer

A

In MAGS: start of trial is defined as WHEN COURT BEGINS HEARING EVIDENCE FROM PROSECUTION

In CC: start of trial is defined as WHEN JURY IS SWORN

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

Question 43

Q

FIRST AND ONWARD REMAND IN MAGS ?

When might D be sent to CC?

Requirement in Mags for:
- First Appearance
- Second Appearance - when must this happen in relation to the first appearance?
- After 2nd Appearance - how frequently must D be brought back and until when?
- Trial -when must this happen compared to first appearance?

Answer

A

Sent to CC 👑– D charged with indictable-only or either way where Mags decline jurids or D elects for CC trial, custody limit = 182 days. No further appearance at Mags

Trial in Mags 🥭
First appearance - remanded into custody

Second appearance (in person/via link 📹) must be 📅NO MORE THAN 8 CLEAR DAYS FROM FIRST APPEARANCE. D can make another bail application, although may choose not to make one.

After 2nd appearance, D must be brought back 📅EVERY 28 DAYS OR FEWER so that court can remand them onwards, and this repeated at intervals UP TO 28 DAYS UNTIL TRIAL - D can consent to have these conducted in their absence.

Trial - must be 📅within 56 days of first appearance, unless prosecution successful apply to extend custody time limits.

Question 44

Q

WHO must have first hearing before Mags?

Answer

A

ALL ADULTS - irrespective of offence.
– Summary-only: can only be dealt with in Mags
– Either Way: can be dealt with in Mags or CC
– Indictable-only: Can only be dealt with in CC

Question 45

Q

What are the timings for first hearing:
a. if D on bail?
b. If D detained in police custody following charge?

Answer

A

Timing of first hearing

If D on bail:
– 📅14 days of being charged where prosecutor anticipates guilty plea likely to be sentences in Mags.
– 📅 28 days of being charged where
a. NG plea anticipated; OR
b. case likely to go to CC for trial or sentence

If D detained in police custody following charge:
must appear before 📅next available court

Question 46

Q

Does D need to be present at first hearing?

Answer

A

Yes, D must be present

Question 47

Q

What is significance of failure to surrender at appointed time?

Answer

A

OFFENCE

ALTHOUGH NOTE: If D been summonsed to court (typically non-imprisonable, minor or road traffic offences), D does not commit any offence for non-appearance. Provided P served statements and D been warned of hearing, case can proceed. If convicted, penalty can be imposed in abstencia.

Question 48

Q

What can court do if D has failed to attend?

Answer

A

Court can continue without D if D failed to attend although not usually possible if hearing will deal with allocation of either way/indictable only

Question 49

Q

What must prosecution serve on court officer re details of case ? and by when?

Answer

A

Prosecution must serve initial details on court officer 📅ASAP and 📅No later than beginning of day of first hearing

If fail to supply IDPC, this does not = grounds on which court may dismiss charge or give rise to abuse of process application
usual remedy = court ADJOURN first hearing and/or AWARD COSTS to defence for prosecution’s failure to serve.

Must include:
- Summary of circumstances of offence,
- any account given by D in interview,
- any written statements + exhibits that are
available and material to plea and/or mode of
trial/sentence;
- victim impact statements;
- D’s criminal record;

EXCEPT, where D IN POLICE CUSTODY IMMEDIATELY BEFORE FIRST HEARING: initial details need only comprise:
(1) summary of circumstances of offence; AND
(2) D’s criminal record

Must have sufficient info at first hearing to allow the court to take informed view on plea + venue before trial.
Where no G plea anticipated, information should be sufficient to assess court to identify real issues and in giving directions.

Question 50

Q

What will FIRST HEARING of Summary + EW offences deal with?

Answer

A

Summary and Either-Way offences: First hearing will deal with matters such as plea, bail, representation and Legal Aid.

Question 51

Q

What will FIRST HEARING of indictable-only deal with

Answer

A

If charged with indictable only, D makes only brief first appearance in Mags - court will deal with bail and legal aid - then D sent to CC to enter a plea.
Hearing at CC = 📅3 or 4 weeks later depends on D’s bail status.

Question 52

Q

What is the general rule re summary-only offences and the CC? Exception to this?

Answer

A

⭐General rule = summary-only offences never go to CC.

But, important EXCEPTION where D is:
charged with an offence that is to be tried in CC and
there is a summary only offence which is
connected to indictable offence
and
summary only offence = one of those below and
is before Mags at same hearing as indictable offence, it must be sent to CC:

A. Related summary matters that must be sent for trial AND INCLUDED ON INDICTMENT (s40 CJA 1988):
- Common Assault
- Assaulting a prison or secure training centre
officer
- Taking a motor vehicle or other conveyance
without authority
- Driving a motor vehicle while disqualified
- Criminal damages
Summary offence that is on this list and related to matter that has been sent to CC for trial can be included on indictment and jury will consider it then return a verdict.

B. Related summary matters that must be sent for PLEA ONLY (s51(3) CDA 1998):

Any summary matter not listed in s40 CJA 1988 but that is punishable by disqualification from driving or imprisonment.

When summary-only offence = not on s40 list, it will not appear on indictment. When the trial for the indictable offence is over, the accused will be asked to enter a plea in relation to the summary-only offence. If D pleads guilty, CC may deal with the offence in any way that would have been open to Mags’ court. If D pleads not guilty, CC has no further power to deal with the offence. If there is to be a trial, it is remitted to the Mags’ court.

Question 53

Q

If D please G to summary-only offence what happens?

Answer

A

Court will proceed to sentence. Sentence will often be passed immediately but can be adjourned for further information. Sentence most used by Mags = FINE. Max sentence that Mags court can impose for summary only = 6 MONTHS’ IMPRISONMENT.

Question 54

Q

Summary-only NG Plea?

Answer

A

Court will set trial date, and do any necessary case management to ensure trial is effective on that date.

This includes completed case progression form ‘Preparation for Effective Trial form (‘PET’):
- D’s and legal rep’s contact details
- names, numbers, types of witness + which party requires their attendance at court
- estimated length of trial
- identification of trial issues
- advance warning whether any applications are to be made (e.g. special measures, bad character and hearsay)
- whether any prosecution statements can be read
- whether any special arrangements need to be made (e.g. interpreter, wheelchair access, hearing loop system) for anyone attending the trial, and
- that D advocate has advised D of credit for an early guilty plea and
- that trial will still go ahead in D’s absence if D fails to attend on trial date.

Court must give standard directions about how parties should prepare the case - these must be complied with unless Mags indicate otherwise. Directions concern issues such as:
- bad character evidence
- hearsay evidence
- special measures to protect witnesses when they are giving evidence
- disclosure
- expert evidence
- editing transcripts of interviews and serving certificates of readiness for trial
Both CPS and defence advocates must indicate nominated person in their respective offices who will be responsible for complying with the directions.

Question 55

Q

What happens at a summary-only NG plea pre-trial hearing?

Answer

A

Court can conduct pre-trial hearing at which pre-trial rulings can be made, where case has been set down for summary trial.

Rulings can be made on aplication of defence or prosecution, or of court’s own motion.

A pre-trial ruling is binding until case is disposed of by:
- conviction or acquittal of D; or
- a prosecution decision not to proceed; or
- the dismissal of the case.

The court can discharge or vary pre-trial ruling if it is in the interests of justice to do so and parties have been given the opportunity to be heard.

A party can apply to have a pre-trial ruling varied or discharged only if there has been a material change of circumstances.

Question 56

Q

Pleading guilty by post?

Answer

A

In summary only cases where:
a. matter been commended by summons/requisition; AND
b. prosecutor has served a summary of the evidence on which the prosecution case is based; AND
c. prosecutor has served information relevant to sentence….

D can complete the necessary documentation and plead guilty in writing without the need to attend court at all.

Court may accept such a G plea and pass sentence in the D’s absence.

This procedure is used for minor non-imprisonable offences, such as speeding or driving without insurance.

Question 57

Q

Where offence is triable either way - what happens? What are the THREE options for D in terms of plea?

Answer

A

Plea before Venue

Where offence is triable either-way, D will be asked to indicate their plea - D supplied with a copy of initial details by prosecutor - Charge is written down and read out to D.

THREE options for this part of hearing, known as ‘plea before venue’:
1. Indicate Guilty {this plea must be unequivocal - i.e. free of any statement that not guilty/purport to rely on defence or refuse to accept section of offence}
2. Indicate Not Guilty
3. Give No Indication {This is treated as NG indication}

Question 58

Q

When D gives no indication at first hearing for offence that is TRIABLE EITHER WAY, what is the effect?

Answer

A

This is treated as a NG plea.

Question 59

Q

What is a Plea before hearing?

Answer

A

Part of first hearing where offence is one which is triable either way, D will be asked to indicate a plea. D is supplied with a copy of the initial details by the prosecutor in accordance with CrimPR Part 28. Charge written down and read to D.
D can:
- indicate G;
- indicate NG; or
- give no indication.

Question 60

Q

What must D be warned about before they indicate their plea?

Answer

A

🧠 Before D indicates their plea, D must be warned that, if they plead guilty, they can be:
Sentenced by court; or
Committed to CC for sentence if a Mags Court is of opinion that its sentencing powers are insufficient to deal with offence.

Question 61

Q

Question 62

Q

Can a guilty plea be qualified?

Answer

A

NO - G plea must be UNEQUIVOCAL; free of any suggestion or statement that D is not guilty, either because purport to rely on a defence or refuse to accept an element of the offence.

Question 63

Q

What happens if D indicated G plea in plea before venue?

Answer

A

If D indicated G plea, court will treat it as a formal plea of G and -> sentence.

Mags 🥭must consider whether its sentencing powers would be sufficient

Note: Mags ❌does not have power to impose:
For summary only: more than 6 months imprisonment
For single either-way: more than 6 months imprisonment
For multiple either-way: more than 12 months’ imprisonment

If court decides powers are sufficient - sentence may be passed immediately or adjourned for prep of pre-sentence report (PSR) - when adjourning for PSR, court should make clear to D that all sentencing options, including committal to CC for sentence, remain open

Question 64

Q

What happens if Mags court decides powers are insufficient to deal with either-way offence because sentence exceeds their maximum, or because D should be made subject to a sentence of kind they cannot pass?

Answer

A

D will be COMMITTED FOR SENTENCE TO CC.

Answer 63

A

Mags’ court should order a PSR by CC if it considers that:
- there is a REALISTIC ALTERNATIVE to a custodial sentence
- the D may be a DANGEROUS offender; or
- there is SOME OTHER APPROPRIATE REASON for doing so.

D will make their next appearance at CC to be sentenced by CC Judge who will be able to pass a sentence of anything up to the CC limit for the offence.

Answer 64

A

If D indicated NG, court moves on to consider where trial will be held = ALLOCATION - set out s19 MCA 1980. Court must allow the allocation guideline, which indicates, offences should generally be tried summarily unless:
Court’s sentencing powers would be insufficient i.e. would clearly be a sentence in excess of the court’s powers for the offence after taking into account personal mitigation and any potential reduction for guilty plea; or
For reasons of unusual legal, procedural or factual complexity, the case should be tried in the CC.

Allocation guidelines do say in cases with no factual/legal complications, court must bear in mind power to commit for sentence after trial and, crucially, may retain jurisdiction notwithstanding that likely sentence might exceed its powers.

Usually retained!

Answer 65

A

Prosecution open with facts, D’s offending history, and submissions for venue.
Defence makes submissions, giving fuller argument where disagree with prosecution.

The court must decide whether to allocate the case to Mags (accept jurisdiction) or send it to CC.

Answer 66

A

Explain to D that court decided summary trial more suitable.
Explain to D that D can consent to be tried summarily or, if D so wishes, be tried by jury
Explain to D that if D is tried summarily and is convicted, D may still be committed to CC for sentence.

Answer 67

A

D may ask for this if they were to plead G instead.

Court has discretion as to whether they will give indication.

Court can decline to give indication.

If they do give indication, it must be confined to telling D whether sentence would be CUSTODIAL or NON-CUSTODIAL.

If D asks for indication and one is given, they can change their plea to guilty and process followed will be as if they had pleaded guilty at outset.

Where non-custodial sentence is indicated, the indication will be binding on any later Mags’ court.

Answer 68

A

If D does not ask for an indication, or if court refuses to give one, or if having heard indication, D sticks with NG plea, court asks D:

– if they consent to being tried in Mags, meaning case will be adjourned; or
– if they want to elect to be tried by a jury meaning the case will be transferred to the CC.

This is known as ‘ELECTION’.

D will be told that even if they consent to summary trial, the court still has the power to commit them to the CC for sentence.

NOTE: if D chooses not to change their plea to G, then the indication given will NOT bind any later court in event that D falls to be sentenced.

Answer 69

A

Often advice will be to elect trial on indictment in CC as e.g. acquittal rate higher in CC.

Answer 70

A

Proceedings in Mags court:
- are less formal
- waiting time before trial date is much shorter
- trial itself is much quicker
- do not require D to serve a defence statement
- are less expensive than the CC
- mags have to provide reasons for their decision whereas juries do not give reasons
- Mags have fewer sentencing powers than those of the CC. However, the Mags court has the power to commit to the CC for sentence even after trial.

Answer 71

A

Court:
- progresses as if case were a summary only offence
- sets a trial date
- conducts any case management that is required

Answer 72

A

If D elects trial at CC then:
- matter is sent pursuant to s51 Crime and Disorder Act 1998
- D will make their next appearance at the Crown Court
- court will complete the ‘Case sent to the Crown Court for trial - case management questionnaire’

Answer 73

A

Low-value shoplisting = stealing goods valued at £200 or less.

Theft = either way offence, however, low-value shoplifting = treated as summary only.

Maximum sentence for it = 6 MONTHS.

BUT, D still has right to elect to be tried at CC under s22A(2) MCA 1980!

Answer 74

A

Although classed as either-way, the offence be dealth with a CC ONLY when the damage is:
- over £5k; or
- caused by fire (arson)

If £5k or less, offence becomes summary only and must be dealt with in mags court. When this is case, max penalty that can be imposed is 3 months’ imprisonment or level 4 fine. This = exception to normal rule regarding mags’ powers.

Answer 75

A

s50A provides that cases involving complex fraud or where children may be called as witnesses should be sent directly to the CC, if notice has been given under:
— s51B (regarding fraud); or
— s51C (regarding children).

Although offences themselves might be classed either-way, these types of cases will be sent to CC without going through the plea before venue or allocation procedure.

For all intent and purposes, they are indictable only.

Answer 76

A

In cases of SERIOUS COMPLEX FRAUD and in cases where allegation - harm or threat of harm to a person and CHILD WILL BE CALLED AS A WITNESS, prosecution can serve a notice on Mags’ court to effect that case should be taken over by the CC.

Answer 77

A

Mags must sent case to CC without conducting an allocation hearing.

Answer 78

A

AT LEAST TWO of the following must be present:

amount alleged to exceed £500k
significant international dimension
case requires specialist knowledge of financial, commercial, fiscal or regulatory maters such as operation of markets, banking systems, trusts or tax regimes
there are numerous victims
there is substantial and significant fraud on a public body
the case is likely to be of widespread public concern or the alleged misconduct endangered the economic well-being of the UK, for example by undermining confidence in financial markets.

Answer 79

A

Always sent to CC.

Answer 80

A

Committed for sentence following G plea

Committed for sentence after trial in Mags’ court

Sent for trial where court has declined jurisdiction following NG plea

Sent for trial where court has accepted jurisdiction following a NG plea but D elects CC trial

Cases involving complex fraud or where children may be called as witnesses when notice has been given.

Except for ‘special’ cases of low-value shoplifting where D has not elected trial in CC and simple criminal damage to value of £5k or below.

Answer 81

A

No - committal for sentence is only available for EITHER-WAY OFFENCES.

Answer 82

A

Those who plead guilty will usually have their sentence adjourned until after the trial of those who have pleaded NG.

Answer 83

A

Any Ds jointly charged with the same offence and/or any related offence MUST also be sent to the CC.

It will then ask them individually to enter their plea.

If there is a mixture of pleas, those who plead guilty will usually be sentenced after the trial of anyone who pleads not guilty.

Answer 84

A

If person appears at first hearing either jointly charged with person who case has already been sent to the CC, or charged with an offence related to one for which another person has been sent for trial.

If D goes on to plead NG, court will consider where their trial should be held. s51(5) CDA 1998 says if any one D is sent for trial to CC either by Mags allocating their case to CC or by them electing a CC trial, a Mags court can then use that provision to reallocate ANY OTHER D to the CC (despite any decision that has already been made) or use it to allocate the case of any D yet to enter their indication of plea.

To avoid having to revisit decisions later. Mags court entitled to ask Qs about intention of co-accused, if any one of them says they will indicate NG and elect CC trial, they will be dealt with first.

Answer 85

A

Ds will all be sent to CC by way of s51 CDA 1998.

Answer 86

A

If to stay in Mags, all matters will be tried together in Mags.

if EW matter to be sent to CC then court will proceed in same way as where D charged with summary-only and an indictable-only offence.

Answer 87

A

whether it is RELATED to the indictable only/either-way matter; and
if it is related, which CATEGORY it falls into.

Where the lesser related offence is dealt with at the same hearing as the more serious offence, it MUST be sent to the CC if it is one of the first two categories.

If it is dealt with at a subsequent first hearing, it MAY be sent.

Answer 88

A

Common Assault

Assaulting a prison or secure training centre officer

Taking a motor vehicle or other conveyance without authority

Driving a motor vehicle while disqualified

Criminal Damage

Answer 89

A

Any summary matter not listed in s40 CJA 1988 but that is punishable by disqualification from driving or imprisonment.

Answer 90

A

Any other summary matter i.e. one not in s40 CJA 1988 and not punishable by disqualification from driving or imprisonment.

Answer 91

A

MUST be tried in Mags court and usual procedure it to adjourn the summary matter without a date until conclusion of indictable matter.

Answer 92

A

ONE - where D charged with E-W offence AND an indictable only offence: provisions of s51(3) require Mags court to send E-W offence to CC for trial without having to take na indication of plea and consider allocation if offences are related to each other

TWO - where an offence has been sent to CC and the accused is SUBSEQUENTLY CHARGED with a related offence. Where subsequently appears before Mags court chared with EW or imprisonable summary offence, or one that carried disqualification, that appears to be related to the offence that has been sent, the court MAY send D to the CC for trial on a new offence. THis is a DISCRETIONARY power, so the court must conduct a plea before the venue and mode of trial hearing in respect of a new offence.

Answer 93

A

If D pleads, NOT GUILTY.

Answer 94

A

NO - a D cannot elect CC for sentencing - it is only when pleads NG, and then court says happy to proceed in mags that D given option to consent to this or elect for CC trial.

Answer 95

A

at first hearing
at hearing on date after first hearing and before trial date (for example a PTPH); OR
on day of trial itself before trial starts

Answer 96

A

in simple, summary only cases in mags, many if not all pre-trial matters can be resolved in 1st hearing.

In more complex, further P-T hearings may be needed

Answer 97

A

At least one hearing in CC, the PTPH, deals with pre-trial matters.

In complex CC cases, further pre-trial hearings may be necessary to ensure parties trial ready.

Answer 98

A

Parties + court should try resolve all pre-trial matters BEFORE day of trial where possible.

Answer 99

A

Parties will be expected to deal with case management issues in first hearing.

Both parties will be expected to complete PET form before first hearing commences.

At first hearing, court will give directions for:
- service of docs between parties (if needed)
- either resolve there and then any matters of law (rarely) or set out timetable as to when will resolve either at p-t hearing or on morning of trial.

Court will also set TRIAL DATE

Answer 100

A

YES (whether composed of the same lay justices/District Judge or not, unless one party applies for the ruling to be discharged or varied).

Answer 101

A

material change of circumstances

OR

something not brought to attention of court when they made the ruling which could justify variation or discharge.

In short, cannot vary/discharge based on the same arguments or facts.

Answer 102

A

within 28 DAYS

Answer 103

A

Notice completed by Mags court where sending case for trial to CC - notice specifies the offences for which D is being sent and the CC where the D will be tried. This notice should be sent to D and the CC. No prescribed form for such a notice.

Answer 104

A

a. 50 DAYS (if D is in custody); or

b. 70 DAYS (if D is on bail)

of date on which D has been sent for trial in CC.

Answer 105

A

Evidence uploaded on to the CC Digital Case System: i.e. copies of the documents containing the evidence on which a charge is based.

Answer 106

A

Draft Indictment must be served by the PROSECUTOR on the CC OFFICER not more than 20 BUSINESS DAYS after serving prosecution evidence.

Answer 107

A

indictable only matters; or
triable either way matters where:
- D is sent for trial by Mags’ court; or
- D elects CC trial.

There will then be a PTPH

Answer 108

A

PTPH form in advance of hearing as judge uses it when the hearing is conducted.

Answer 109

A

first ‘plea’; and
second either ‘sentence’ or ‘trial preparation’ stage.

Answer 110

A

Before plea is taken

Answer 111

A

Indictment put to D and they enter plea of G or NG to each count on indictment (this is known as ARRAIGNMENT)

Answer 112

A

Case moves to sentence

Answer 113

A

Court proceeds to the trial preparation of the hearing

Answer 114

A

prosecution will neeed to consider how it wishes to proceed, result being either that court moves to sentence or if there is to be a tiral the trial prep stage needs to take place.

Answer 115

A

Can make determination after hearing medical evidence.

Answer 116

A

No plea is taken.

Court will have to hold a trial with jury to determine whether D committed act (i.e. AR of offence, but not MR) and so the ‘trial preparation’ stage of the hearing will need to take place.

Answer 117

A

absolute discharge
supervision order; or
Hospital order

Answer 118

A

TRIAL DATE - if not already been set, trial date will be set at PTPH taking into account the likely estimate of the length of the trial and witness availability.
PROSECUTION EVIDENCE - prosecution will have to confirm if it has served all of its evidence or, if not, which is still left and when it will be served.
EXPERT EVIDENCE - if prosecution or defence intend to rely on expert evidence, directions will be given for service and for seeking agreement between experts.
WITNESS REQUIREMENTS - Defence must inform prosecution and set out on the form those prosecution witnesses they require to attend court to give evidence, as well as estimating how long it will take to question each witness. Defence must also give details of any defence witnesses it intends to call.

Answer 119

A

Special measures. Directions will apply for any special measures (such as live link and screens) sought by witnesses.
Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses.
Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application.
Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial.
Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear.
Defence statement. The defence must serve a defence statement at stage 2 which sets out the defence case.
Disclosure. If there are issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal with this.
Defendant’s interview. A timetable will apply for the prosecution and defence to agree an edited interview record for use at trial.
Hearsay. Directions will apply on the service of applications to rely on hearsay evidence.
Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will be made (e.g. at or before trial) and on the service of any documents in support, such as skeleton arguments.

At the end of the hearing the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial (although this may only become apparent at some later stage). Where a party fails to comply with any directions, they may be required to come to court and explain their failure to do so. The expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.

Answer 120

A

used - i.e. relied upon at trial; or
unused - i.e. not relied upon at trial

Answer 121

A

Used material is the material the prosecution will rely upon at trial to prove its case against a defendant. Used material consists of the case papers and other material that forms part of the evidence in the case, so it will include such items as:

statements from the prosecution witnesses
the defendant’s record of taped interview
other documentary exhibits such as plans and diagrams that are relevant to proving the case.

It is from these materials that defendants will know what the cases against them are.

Answer 122

A

Unused material is material that is not being relied upon by the prosecution. Unused material will include items such as:

statements from witnesses that the prosecution is not relying upon at trial to prove its case
records of previous convictions of prosecution witnesses
disciplinary findings against police officers.

Answer 123

A

Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.

The defendant may choose to present that material in defence at trial.

Answer 124

A

The general scheme of disclosure falls into four stages:

(1) the investigation stage- the duty to record and retain material during the investigation;

(2) the initial duty of disclosure on the prosecution;

(3) defence disclosure; and

(4) the continuing duty on the prosecution to keep disclosure under review.

Answer 125

A

Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Answer 126

A

Every investigation will have:

an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
an investigator- namely any police officer conducting the investigation; and
a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

In routine cases all these functions may be carried out by the same person, although in complex cases the roles will be individually assigned.

The investigator- must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be ‘fair and objective’.
Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.

Answer 127

A

crime reports
records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender
witness statements (and drafts if they differ from the final version)
exhibits
interview records
experts’ reports and communications between the police and experts for the purposes of criminal proceedings
records of first descriptions of suspects and any material casting doubt on the reliability of a witness.

In addition, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession.

Answer 128

A

The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.

Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.

In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material.

Answer 129

A

The Disclosure Code of Practice

Answer 130

A

In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.

Answer 131

A

In magistrates’ court cases where a Not Guilty plea is anticipated, the unused material is listed on a streamlined disclosure certificate.

Answer 132

A

In cases involving sensitive material (ie material the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.

Answer 133

A

Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.

This will include ensuring that all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure can be made in accordance with the test set out on the next page.

It is worth noting that the disclosure officer should exercise judgement and be directed by the prosecutor as to what is likely to be the most relevant and important material for disclosure.

Answer 134

A

The initial duty of disclosure is contained in the Criminal Procedure and Investigations Act (CPIA) 1996 s 3:

‘s 3(1) The prosecutor must:

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or

(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’

The duty of disclosure relates to ‘prosecution material’ – this is defined in s.3(2) as material:

‘(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or

(b) which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’

(See s.3(2) and s.7A(6) CPIA.)

Answer 135

A

OBJECTIVE.

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

Answer 136

A

prosecutors should consider, amongst other things:

(a) the use that might be made of the material in cross-examination;

(b) its capacity to support submissions that could lead to:

(i) the exclusion of evidence;

(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;

(iii) a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR.

(c) its capacity to suggest an explanation or partial explanation of the accused’s actions;

(d) the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant’s mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).

The A-G’s Guidelines go on to state that it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.

As such, when considering if unused material must be disclosed, prosecutors must take into account all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case.

Answer 137

A

No - need not be disclosed as unused material because it does not satisfy the disclosure test.

Answer 138

A

The prosecution are in the driving seat at the initial disclosure stage - the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure and must explain what it was doing and what it would not be doing at this stage, ideally in the form of a “Disclosure Management Document”;

The prosecution must encourage dialogue with the defence and engage promptly with them – the defence had then to engage with the prosecution and assist the court in fulfilling its duty of furthering the overriding objective;

The law is prescriptive of the result, not the method of disclosure – at the initial disclosure stage the prosecution should formulate a disclosure strategy, then canvass that strategy with both the court and the defence and should use technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized;

The disclosure process should be subject to robust case management by the judge – the court was entitled and obliged to give orders and directions to address disclosure failings with which it was confronted;

Flexibility is critical – disclosure was not a “box-ticking” exercise, and the constant aim was to make progress.

Answer 139

A

P will serve IDPC (user material) no later than BEGINNING OF DAY OF FIRST HEARING in accordance with CrimPR Part 8.

Answer 140

A

The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:

(1) on plea;

(2) on venue for trial (for either-way offences);

(3) for the purposes of case management;

(4) for the purposes of sentencing (including committal for sentence for either-way offences).

Answer 141

A

Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:

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

However, even when this statutory duty has not arisen, a responsible prosecutor has to be alive to the need for advance disclosure of material which the prosecutor recognises should be disclosed at this early stage in the interests of justice and fairness, such as which might assist the defence with the early preparation of their case or at a bail hearing; this is known as the common law duty of disclosure.

Answer 142

A

CPIA s12 provides for statutory time limits for prosecution initial disclosure to be set by regulation but none has yet been made. Default position under SPIA s13 is that the prosecutor must act ‘AS SOON AS IS REASONABLY PRACTICABLE’ once initial duty of disclosure arises

Answer 143

A

if there is any further prosecution evidence still to be served the court will give a date by which this must be done.
if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed.

In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.

Answer 144

A

If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged. At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.

Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, this does not bring to an end the prosecution’s duty in this regard because the prosecution is under a continuing duty to review disclosure throughout the criminal proceedings. Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates’ court) to provide a defence statement which sets out the accused’s defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.

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