Criminal litigation

Question 1

How soon after arrest must suspect be taken to police station?

Answer 1

A suspect is taken to police state as soon after arrest as possible.

Question 2

Custody officer def.

Answer 2

Custody officer: authorize detention and maintains a custody record. Authorizes a search of the detained if necessary. May seize and retain items, but personal items and clothing can only be seized if the custody officer believes they are evidence.

Question 3

When can a suspect be detained, charged or released (upon arrival at police station)

Answer 3

A suspect may be detained if the custody officer believes that there is “sufficient evidence” to charge the defendant with the offence. Custody officer asks the detaining officer for details about the arrest and reasons.

If there is enough evidence, the defendant should be charged immediately.

If there is not enough evidence, the defendant should be released with or without bail, unless:
1. The custody officer has reasonable grounds to believe that detention is necessary to secure evidence, and/or
It is necessary to obtain such evidence by questioning.
2. If any of these grounds seize to apply the custody officer must immediately release the defendant.

Question 4

Detention conditions

Answer 4

Conditions for detention: adequate cell (heated, lit, clean, ventilated), sanitary bedding, toilet and washing facilities, at least 2 meals and one main meal every 24 hours + drinks upon request, outdoor exercise and visits in cell every hour. Clinical attention if injured.

Question 5

Rights of a suspect being detained by the police for questioning

Answer 5

Rights of a suspect being detained by the police for questioning:
right to legal advice
right to have someone informed of arrest
reviews and detention time limits under PACE 1984, Code C.

Question 6

A suspects right to legal advice when being detained by the police for questioning. explain.

Answer 6

Before questioning, the suspect must be informed about their rights which may be enforced at any time:
1. Have someone informed about the arrest
2. Consult a solicitor privately
3. Consult the Code of Practice
4. Informed about the offence and any further they are arrested for whilst in custody and why they have been detained or arrested.

If not privately paid, the police must call Defence Solicitor Call Centre DSCC, even if the defendant has asked for a named solicitor. Phone advice through DSCC is free, but call to names solicitor might be charged the defendant.

If attendance is required, the solicitor is informed and the suspect is informed upon the solicitor’s arrival at the station.

Defendant must be asked whether they would like legal advice even if they have previously declined.

A police officer should never dissuade anyone from obtaining legal advice.

Question 7

Can right to legal advice when being detained be delayed and on what grounds?

Answer 7

Right to solicitor should not be delayed and if delayed it must be confirmed in writing. May only be delayed of detention officer believes that legal advice would:
1. Interfere or harm evidence or infer or physically injure other persons
2. Alert other suspects
3. Hinder recovery of property obtained by the offence

The fact that a solicitor may hinder a client from answering questions is never an adequate reason to delay legal council.

Question 8

A suspects right to have someone informed about the arrest when being detained by the police for questioning. When can it be delayed, by whom and for how long?

Answer 8

If delayed it must be authorized by an inspector or higher and the defendant is detained for indictable offence (either way offence or indictable only offence).

Delay can be max 36 hours and must be confirmed in writing. The police must have reasonable grounds that telling another person would:
1. Interfere or harm evidence or infer or physically injure other persons
2. Alert other suspects
3. Hinder recovery of property obtained by the offence

Question 9

Max detention time before charged under PACE 1984, Code C?

Answer 9

.Max detention time before charge is 24 hours from “relevant time”:

Volunteer: The time of arrest if a person attended the police station voluntary

Street bail: Arrival at the police station if the person attends the police station to answer “street bail”

Arrested: Arrival at the police station when the suspect has been arrested away from the police station.

Max time can be extended to 36 hours by a superintendent or above if there are reasonable grounds that:
1. Detention is necessary to secure or preserve evidence or obtain such evidence by questioning
2. Offence is indictable offence (either-way or indictable only)
3. Investigation is carried out diligently and expeditiously

By obtaining a detention from the magistrates court, the detention can be extended for another 36 hours, in total 72 hours. May be granted if the magistrate court finds there are reasonable grounds and:
1. Detention is necessary to secure or preserve evidence or obtain such evidence by questioning
2. Investigation is carried out diligently and expeditiously

Exceptional cases police can apply to magistrates court for further extension. Can never be longer than 72 hours or end later than 96 hours after the “relevant time”.

After detention ends, the suspect must either be charged or released.

Question 10

What is a detention review and how regularly must they be undertaken?

Answer 10

Periodic reviews to ensure that grounds for detention are present. Must be undertaken by at least an inspector and no later than 6 hours after the custody officer first authorizes detention. Second review must be done no later than 9 hours after first review and then intervals are on 9 hours.

Question 11

What is voluntary questioning?

Answer 11

If the police do not have evidence to detain, they can ask the suspect to attend voluntary questioning. No obligation, and the suspect can leave at any time. Legal counsel generally advises to attend and a friend or solicitor may be present. Can lead to detention if sufficient grounds are found.

Question 12

When must an identification process be held?

Answer 12

1. When a witness has identified or purported to identify a suspect
2. When a witness think they can or there is a reasonable chance they can identify a suspect

It is not necessary to hold an identification process if:
1. The suspect admits being at the scene of the crime and their account does not contradict witness statements
2. It is not disputed that the suspect is known to the witness.
R v Harris: not enough to have gone to school with the suspect two years ago
H v DPP: enough to have known the aggressor for 18 months and the assault had lasted for 7 minutes.

Question 13

Different types of identification procedures + who decides which to use? Should solicitor advice a suspect to attend?

Answer 13

Decision of which to use is made by investigating offer + identification officer (inspector or more senior). Investigating officer is not involved in identification to ensure that this does not influence the investigation.

Types:
1. video
2. identification parades
3. group identification
4. confrontation by witness

Legal advice:
advice to agree to identification and warn that a less satisfactory method will be used if refusal + refusal may be used as evidence.

Question 14

Video identification: procedure + solicitors advice

Answer 14

Video: primary choice unless not practical, parade group is more suitable.

Photo can be used if the witness described the suspect before seeing the photo + is shown at least 12 photos + then takes part in another identification procedure.

Shown images of suspect + at least 8 (12 of there are two suspects) others resembling suspect

Suspect + solicitor must see video + be able to object before it is shown to witnesses. Unusual features should be concealed in video. If a suspect refuses to be part of a video, other alternatives may be used.

Before seeing the video, a witness must not speak to or overhear other witnesses, see images from the video, photos of suspect or have indications of his identity

Solicitor: solicitor must obtain first description of suspect by witness, review video to ensure that all people resemble the suspect or object. Solicitors must check that witnesses are segregated and may ask witnesses whether they have discussed with anyone.

Question 15

Identification parade - process + legal advice that should be given by solicitor

Answer 15

Identification parade
In line with at least 8 resembling people

Solicitor: tell clients where to stand + not to speak or draw attention to oneself. Check that the others resemble clients and that the witnesses are segregated. Ensure that the investigating officer does not take part and that there is no contamination. If there are concerns, a written note should be made by an identification officer.

Question 16

Group identification - process

Answer 16

Group identification
Witness sees the suspect in an informal group of people. Some people in the group must be broadly similar to the suspect, but the requirements of likeness are not as strict as for video or identification parade.

Question 17

Confrontation by witness - process

Answer 17

Confrontation by witness
Face-to-face. Last resort and in presence of a solicitor when the suspect has refused other options.

Question 18

Procedure for identification. When is it held?

Answer 18

Suspect is normally released or released on bail and must return for identification

Before identification procedure, the investigation officer must explain to the suspect:
1. Purpose
2. Free legal advice
3. Procedure
4. Refusal to participate may be used as evidence at trial and police may partially proceed without consent
5. If suspect has altered appearance it may be used as evidence
6. Whether suspect has been showed photos or drawn images
7. Provide details of the witness description of suspect

Question 19

Procedure to be followed by solicitor if there is a breach of PACE 1984, Code D during the identification process

Answer 19

If there is a breach of code D e.g. identification should have been held but was not, the solicitor must represent this to the investigative officer and ensure that it is recorded.
SOlicitor must keep a written record of the process and any objections must be recorded by the identification officer.

Question 20

How must a solicitor obtain information upon arrival at the police station?

Answer 20

Solicitors may obtain information upon arrival at the police station from the custody officer and their records, investigating officer and the client.

Custody officer: basic information regarding detention

Custody records: alleged offences, time detention was authorized + reason, clients comments, fingerprints, identification procedure, interview, disabilities, illness, items found during search, detail of detention reviews

Investigating officer: disclosure (facts + evidence, but not required to disclose information that could prejudice criminal investigation), statements/silence and proposed next steps

Solicitors must speak to clients and obtain information, advise clients on legal rights and tell them that information they tell them is confidential. Should ask about detailed of the offence, next steps and prepare the client for interview, including:
1. advice on whether or not to answer questions,
2. prepare witness statement on the clients behalf if the client gives not comments and hand it to the police so that their defence is on record,
3. advice client on how interview is conducted + what role solicitor plays

Question 21

During an interview at the police station - what are the client’s options on how to reply?

Answer 21

1. Answer questions . If client admits guilt it could be ok to answer questions as the police could decide it’s a matter of caution and not an offence (if no previous convictions)
   - avoid self-incrimination, including coming across as angry or confused
   - if the police have not made a full disclosure, it is dangerous for the defendant to answer questions as they could underbuild the case.
2. Reply “no comment” + give info by answering questions makes his story clear, especially + if there is a defence such as self-defence, alibi etc.
3. Silence
   + no self-incrimination
   - silence could have an adverse effect if the suspect is later charged. If he fails to give details that later become known, it does not play in suspects favour

4.Written statement: Reply “No comment” in the interview, but either during or before being charged, hand a written statement to police setting out facts the client will rely on in their defence. Statement will be read out during or after the interview, but prior to the client being charged.
+ if not adequate disclosure it’s a way of controlling the statement and no risk of ambushing the client.
+ the client can deny involvement and the police may not have sufficient evidence
+ the client may be unfit to be interviewed or perform badly
+ facts are complex or the client does not have a viable defence even if he did not commit offence, or has other personal reasons for remaining silent
- selective silence is generally not advised - something to hide.

Is solicitor is unsure about the client’s story, they may take a written statement that is solely kept on their file to see whether the client changes their story/avoid confusion at a later stag

Question 22

Which clients are “vulnerable clients” and how must these be aided at police station.

Answer 22

1. Juveniles (between 10-17) - custody officer must inform the person responsible for the juveniles welfare
2. Suspects suffering from mental health disorder
3. Death, blind or unable to speak - someone that takes interest in their welfare must be present o help check any documents
4. Cannot speak or understand english - Interpreter must be obtained

Question 23

What is an appropriate adult?

Answer 23

Person attending police station to assist a juvenile: parent, guarding, local authority or other family. A solicitor or someone employed by the police is never an appropriate adult.

Must ensure that the juvenile understand the situation

Question 24

What must be considered by solicitor during interview of juvenile?

Answer 24

Solicitor: Ensure that the juvenile understands e.g. question in an interview.

During interview:
Caution and not normally interviewed in absence of appropriate adult

Officers may remind appropriate adults of their role or obtain another.

Question 25

What must be taken into account when conducting identification procedure with vulnerable clients?

Answer 25

Consent from juvenile 14 + and parents to identification
If juvenile is under 14, consent must be obtained from parents

If suffering from mental illness, consent must be given in presence of the appropriate adult

Question 26

What must be taken into account when charging a juvenile? alternative to charge?

Answer 26

A juvenile can only be kept in custody after charge if it is impractical to move suspect to secure local authorities accommodation (restricting freedom) or the juvenile is 12+ and secure local accommodation is not adequate to protect public from harm

Alternatives to charge for juvenile:
Community resolution
Youth caution
Youth conditional caution

Question 27

What is PACE 1984?

Answer 27

PACE: police and criminal evidence act

Question 28

Procedure for interviewing a suspect under PACE 1984 what must the interview comply with and when can the suspect be interviewed without having received legal advice?

Answer 28

Interview must comply with code C and E. Suspect should not be interviewed if he is unable to appreciate the significance of answering questions or understand what is happening (e.g. because of drugs, illness etc.

Suspect should not be interviewed before receiving legal advice, except if:
1. Police may delay legal advice for up to 36 hours under s. 58(8)
2. Awaiting arrival of solicitor would cause unreasonable delay
3. Solicitor cannot be contacted or has declined
4. Suspect has changed their mind about legal advice, an inspector or more senior has spoken to the suspect, it’s documented in custody records and the suspect has confirmed in writing. This must also be repeated at the beginning of the interview. The suspect may at any time change his mind.

Question 29

4 steps an investigating officer can take to preserve evidence whilst the suspect is detained

Answer 29

Interview is one of 4 steps an investigating officer can take to preserve evidence whilst the suspect is detained:
1. Recorded interview
2. Identification procedure
3. Fingerprints
4. Samples

Question 30

Interview of suspect at police station: what must the police do before the interview starts and consequences if it is not done.

Answer 30

When the interview starts the police officer must ask whether the suspect confirms or denies any “significant” (appears capable as evidence) statements or silence given in the presence of a police officer before the interview starts. If this was not done, content of the statement might be inadmissible at trial.

Question 31

Interview of suspect at police station: solicitors role and tasks.

Answer 31

Solicitors usually make an opening statement to explain their role during the interview.

Solicitor should sit next to the client. Solicitors may intervene to improper questioning, behaviour, misrepresentation of law or the strength of the case, police putting words in clients mouth, speculative questions or to advise clients.

Solicitors may not write down replies to questions for the client to read out. A solicitor may be removed if a superintendent assesses their conduct is such that the police cannot properly question the suspect.

Question 32

Restrictions to interviewers conduct during interview of suspect at police station

Answer 32

Interviews cannot use oppression: shout, threatening gestures, lean towards suspects face, stand over or behind suspect, threaten to detain suspect indefinitely.

Question 33

Suspects rights during interview at the police station

Answer 33

During interviews, suspects must be given at least 8 hours rest every 24 hours and short breaks every 2 hours.

Question 34

Can a person that has been charged or informed whey might be prosecuted for an offence be interviewed by the police?

Answer 34

No further questions can be asked except:
1. necessary to prevent har or loss to other person or the public
2. necessary to clear up ambiguity in a previous answer or statement
3. It is in the interest of justice for the suspect

Staying silent in an interview after charge will not be used at trial and the suspect must be reminded about right to legal advice

Question 35

What must a solicitor do if a client admits guilt at the police station?

Answer 35

If the client admits guilt, the solicitor must inform that it cannot represent the client in an interview where the client then denies committing the offence.

Question 36

Can a solicitor represent 2+ clients at the police station and if so, what must be done?

Answer 36

A solicitor being asked to represent 2+ suspects at the police station if there is a potential conflict of interest. Solicitor should gather information from the investigative officer and first talk to the suspect that first requested their assistance. If a solicitor chooses to represent both he must be aware that conflict may arise.

If a solicitor represents several clients they cannot disclose information from one client to another. If the first client has authorized that the solicitor may pass on information and the clients stories align (no tries to use the solicitor to mislead the court, the solicitor can pass on the information.
It’s rarely in the clients best interest to share information with other solicitors representing other suspects in the same case.

Question 37

What information must solicitors disclose to clients and what can the not disclose?

Answer 37

The solicitor is obliged to disclose to their client all information that they have except:
1. if there is a risk of national security or to prevent a crime,
2. client gives informed and written consent,
3. there is a risk of physical or mental harm to client or others if info is disclosed or information was in a privileged doc you obtained by a mistake.

Question 38

Can a solicitor withdraw acting for a suspect?

Answer 38

A solicitor can withdraw from acting for a suspect and must inform client + that the client has free legal advice from another solicitor, ensure client confidentiality and inform custody officer.

Question 39

After/during investigations, the police may do what with the suspect?

Answer 39

After/during investigations, the police may:
1. Suspects may be released without charge during investigation on NFA (no further action).
2. Release on pre-charge bail
3. charge

Question 40

What is pre-charge bail + conditions and time limits

Answer 40

In Policing and Criminal Act 2017 there is a presumption against pre-charge bail. The presumption does not apply if:

1. Case is admitted to CPS (crown prosecution service) for a charging decision (custody officer can release on bail), or
2. Custody officer is satisfied that bail is necessary and proportionate given the circumstances + officer ranked inspector or higher authorizes bail.

Maximum last 28 days from the day after the suspect was arrested. Can last up to 3 months if authorized by superintendent or above.

Suspect likely to be released under investigation (RUI) if investigation is likely to take longer than 28 days. When released without bail, the suspect may be rearrested.

(The police, crime, sentencing and courts act 2022, which removed the presumption against pre-charge bail only entered into force in October 2023, e.g. after the cut off date for the SQE. Therefore not relevant.)

Question 41

What are the polices options when a suspect re-attends the police station after a pre-charge bail? consequences for not attending.

Answer 41

When re-attending police station (answering bail) the police may:
Release without charge
Extend further investigative powers e.g. re-interview.
Release on further bail (max 28 days)
Charge the suspect

If the suspect fails to answer bail they might be arrested without warrant. Technically a criminal offence, but is rarely charged.

Question 42

When can the police charge a suspect and when must this be done by CPS?

Answer 42

Police has limited powers, but includes:
1. summary only offences irrespective of anticipated plea
2. retail shoplifting or retail theft suitable for sentencing in the Magistrates court
3. any either way offence where guilty plea is anticipated + suitable for sentencing in the Magistrates court

For all other cases, the CPS must decide whether to charge.

Question 43

What may the police do with suspects after charge?

Answer 43

1. Keep person in police custody until they are brought for the Magistrate’s court or release them, and
2. If released on bail with or without conditions.

Question 44

When can police decline to release a charged on bail?

Answer 44

Bail may be declined if the custody officer has reasonable grounds to:
1. name or address of provide by suspect and it cannot be confirmed
2. Suspect will fail to appear in court
3. Necessary to prevent another offence
4. Necessary for samples
5. Prevent them from causing injury or loss of damage
6. Prevent interference with administration of justice
7. Detention is necessary for their own protection.

A custody officer does not have the power to grant a defendant charged with murder bail.

Question 45

What is a remand + types of remand.

Answer 45

Remand: an adjournment where the court wants to ensure that the defendant attends the next hearing.

Defendants can be adjourned through:
custody
conditional bail or
unconditional bail.

Remand can happen before conviction, on bail prior to conviction or after conviction.

Question 46

Conditions for remanding a suspect prior to conviction

Answer 46

Remand on bail: prior to conviction a defendant may be remanded at any time subject to the defendants consent.

Remand after the case is sent to the Crown Court: may be remanded in custody or bail until the case comes up for the crown court.

Question 47

Remand before conviction - conditions and time limits

Answer 47

Before conviction, the basic rule is that a defendant cannot be remanded in custody for more than 8 days at a time. If the case is still in the magistrates court and there are successive remands, the defendant must be put in front of court on every fourth remand provided they have consented to it and have legal representation.

May be extended to 28 days if:
1. Previously remanded in custody for the same offence, and
2. They are before the court, and
3. It can set a date to remand them to on which it expects the next stage of proceedings to take place.

Question 48

Remand after conviction: time limits.

Answer 48

Remand after conviction: may be remanded in custody before sentencing for successive periods of no more than 3 weeks.

On bail it may be successive periods for no more than 4 weeks.

Question 49

What is the max time in custody before a case is heard by the Magistrates court?

Answer 49

Maximum time in custody before the case is heard for the magistrate court is:

EITHER WAY
70 days for either-way offence
56 days for either-way offence if the allocation hearing takes place within 56 days

SUMMARY ONLY
56 days summary-only

Prosecution can apply to court (written or oral) for custody time to be extended but most show that there is a good cause and it has acted with due diligence and expedition.
Must be served no less than 2 days before the hearing in the magistrates court and defendant released on bail once the extension is over.

Magistrate can extend police custody with 3 days if necessary to enquire about offences other than the one the defendant is charged for. Has the same rights as someone detained prior to charge or arrested (e.g. free legal advice).

Where is the charged kept in custody? in prison or remand center.

Question 50

When can conditional bail be imposed?

Answer 50

Conditions may be imposed only if necessary to:
Prevent absconding (å rømme)
Prevent suspect from failing to surrender to custody
Prevent another offense whilst on bail
Prevent interference with witnesses and evidence
Available for medical or other reports
Ensuring that appointment with solicitor is met
For the suspects own protection

Question 51

Name possible conditions for conditional bail

Answer 51

Conditions may be to:
Reside at specific address: to overcome absconding and committing offences on bail
Not to speak to witnesses: to overcome committing offences on bail and interfering with witnesses
Not to enter an area: to overcome committing offences on bail and interfering with witnesses
Curfew: to overcome permitting offences on bail
Sureties: to overcome absconding. Surety: a person that enters into a recognisance of money and if bail is broken has to answer to the court why the money should not be paid. Unlikely to be accepted from someone with a criminal record, lives far away from defendant or has poor economy
Security: to overcome absconding by depositing a sum
Report to the police station on a regular basis to overcome absconding and committing offences on bail
Attend appointment at solicitor pr the probation service: ensures that case is not delayed
Surrender passport: overcome absconding
If bail before charge, the suspect may ask the custody officer or apply to the Magistrates court to change conditions for bail.

Question 52

What is the procedure when applying for bail after the CPS have objected?

Answer 52

If the CPS objects to bail, the following procedure is followed:
CPS provides court + defence solicitor with all information that is material for the court’s decision

CPS outlines why it objects to bail, including previous convictions

Defendant’s solicitor makes application for bail
Magistrate court may hear evidence from others in support of the defendant’s bail application

Magistrate court decides whether to grant bail or keep the defendant in custody and a record of decision is made.

If bail is not granted after charge, the defendant must appear for the Magistrate Court as soon as possible and normally the next day (except for bank holidays and Sundays).

Question 53

There is a presumption that bail will be granted to the following defendants + when does the presumption NOT apply

Answer 53

1. All defendants before conviction
2. Defendants who have been convicted if there case has been adjourned for the court to obtain reports before sentencing
3. Defendants that have breached community sentence

The presumption of bail does not apply:
1. Committed to sentencing at the crown court
2. Appealing against conviction or sentence
3. More serious crimes: murder, manslaughter, rape or attempts of the same, serious sexual offences.
4. For murder, the case must be transferred to crown court which must decide on bail within 48 hours.

Question 54

When is the Magistrate court not able to keep the defendant in custody before the case is dealt with?

Answer 54

Defendant is18+, not convicted for offence in the proceedings and no real prospects of sentencing to a custodial (forvaring) sentence.

Question 55

There is a presumption that all defendants will be granted bail before conviction. What are the substantial grounds that can rebut the presumption for either-way and indictment offences?

Answer 55

The court does not have to grant bail before charge in indictment and either-way offence (with imprisonment) if the court believes the defendant would:
1. fail to surrender to custody,
2. commit offence on bail, or
3. interfere with witnesses or obstruct course of justice

The above are the three most common reasons and there is a high threshold for them to be met. To assess whether not these substantial grounds exists, the court takes into account factors like:
1. Nature and seriousness of offence
2. Defendants character, associations and community ties
3. Previous record in terms of bail grants
4. Strength of evidence

The court will then assess whether these grounds can be removed by imposing conditions (i.e. conditional bail). If no conditions are appropriate, bail will be refused and defendant remain in custody.

Question 56

There is a presumption that all defendants will be granted bail before conviction. What are the substantial grounds that can rebut the presumption for summary only offences?

Answer 56

The court does not have to grant bail before charge in indictment and either-way offence (with imprisonment) if the court believes the defendant would:
1. fail to surrender to custody,
2. commit offence on bail, or
3. interfere with witnesses or obstruct course of justice
4. Fear of offence that is likely to injure another
5. Defendants own protection
6. Defendant serving custody
7. Fear of failure to surrender, commit offence, interfere with witness or justice
8. Lack of information

The above are the three most common reasons and there is a high threshold for them to be met. To assess whether not these substantial grounds exists, the court takes into account factors like:
1. Nature and seriousness of offence
2. Defendants character, associations and community ties
3. Previous record in terms of bail grants
4. Strength of evidence

The court will then assess whether these grounds can be removed by imposing conditions (i.e. conditional bail). If no conditions are appropriate, bail will be refused and defendant remain in custody. Very rare that defendant is not granted bail in non-imprisonment cases.

Question 57

If bail is refused, can a defendant apply again?

Answer 57

Even if bail is refused, the magistrate court is under a duty to consider it in subsequent hearings if the defendant still is in custody.

The defendant will make a full bail application for the first hearing and is allowed another full bail application after the first one was refused, but for subsequent hearing he will only make an application setting out new facts or legal arguments

Question 58

Appeal procedure for defendant if bail is refused. Where to appeal, what papers must be delivered

Answer 58

Refusal from magistrates court can be appealed to the Crown court after the magistrate court have issued a “certificate of full argument”. Solicitors usually wait until magistrates court to hear a full bail application twice before an appeal.

To appeal: notice of application is completed and sent to crown court, magistrate court and CPS at least 24 hours before hearing. The appeal will be heard before a crown court judge in chamber within a few days which considers: 1. notice of application,
2. certificate of full argument and
3. record of defendants previous convictions.

Question 59

Appeal procedure of CPS if bail is granted. for what offences can they appeal?

Answer 59

The CPS may also appeal a grant of bail if the defendant is charged with an imprisonable offence.

Deadlines:
- Oral notice is given by the prosecutor at the hearing bail was granted
- Confirmation in writing is served the court no more than 2 hours after the oral notice of appeal

The crown court must hear the matter no later than 2 days after the appeal notice was served.

Question 60

breach of bail - consequences

Answer 60

Police may arrest if the suspect is unlikely to surrender to custody, that the person has breached or will breach bail.
Breach of bail conditions is not in itself a criminal offence. Can lead to review of bail and remand in custody.

Question 61

Absconding definition + consequences

Answer 61

Absconding: failing to surrender at the next hearing.

Magistrate court issues a warrant of their arrest and the warrant is either backed by bail (is released back on bail after arrest) or not (kept in custody until next hearing.

Defendant arrested on a Friday: special hearing on Saturday.

Defendants arrested on Saturday must wait until monday.

Whether the defendant is charged with failing to surrender to custody is up to the CPS. If the defendant already has appeared before the court and the court grants bail, it is up to the court to charge the defendant with failure to surrender to custody.

Question 62

Name possible offences for absconding under the Bail Act 1976

Answer 62

Two possible offences from Bail Act 1976:
1. Failure to surrender without reasonable cause
- May be sentenced immediately or adjourned to substantive proceedings.
- Even if the magistrate court does not impose a penalty, they may refuse bail or grant bail with stringent conditions

2. Failure to surrender with reasonable cause will not be liable if they surrendered as soon as it was reasonably practicable for them to do so. (e.g. in hospital after an accident).
   - Police officers have power to arrest a person on bail if they believe there is a risk that the person will not surrender to bail or has broken/likely to break bail conditions.

Question 63

Can a person on bail be arrested?

Answer 63

Police officers have power to arrest a person on bail if they believe there is a risk that the person will not surrender to bail or has broken/likely to break bail conditions.

Question 64

When is the first hearing in the Magistrates Court after the suspect is charged?

Answer 64

First hearing in Magistrates court is normally 1-2 weeks after the suspect was charged.

If the police refuse bail, the suspect is kept in police custody and the hearing should be as soon as possible and no later than the first sitting of the court after the charge (normally 24 hours as the court sits on Saturdays but not Sundays).

Question 65

How can offences be classified?

Answer 65

Intent or trialability

Question 66

List offences classified by intent

Answer 66

Offences of basic intent: committed intentionally or recklessly. When basic intent applies, the defendant cannot rely on the defence that they were voluntarily intoxicated.

Offences of specific intent: can only be committed intentionally, e.g. murder and theft. The defendant may rely on the defence that they were voluntarily intoxicated in certain circumstances.

Ulterior intent: required mens rea goes beyond the actus reus and the prosecution has to establish an “extra” element e.g. to not only enter a building without permission, but to also have the intention to steal. Hence the prosecution must also prove consequences beyond the actus reus e.g. burglary.

Question 67

List offences classified by trialability

Answer 67

Triable only indictment
Most serious criminal offences e.g. murder, manslaughter, grievous bodily harm, robbery, aggravated burglary, conspiracy
Tried in crown court

Triable either way
OBS where act refers to only “indictable offence” it includes both offences triable only be indictment and offences triable either way.

Tried in magistrates or crown court. Will first be heard at magistrates court and if the defendant pleads not guilty the magistrate decides whether to send the case to the crown court

If the magistrate keeps the case, the defendant can choose trial by judge and jury in the crown court or consent to summary trial

Low value shoplifting of less than 200 GBP are treated as summary only unless an adult defendant pleads not guilty - then they will still be able to pick crown court. If the defendant pleads guilty, it cannot be transferred.
Criminal damage for less than 5000 GBP will be treated as summary only unless caused by fire.

Question 68

Conditions for public funding

Answer 68

Advice at the police station is free. Duty solicitor scheme: in Magistrate court where solicitors are pro rata members.

Representation order: criminal legal aid in the Magistrates court. Must satisfy 2 tests:

1. Interest of justice test: Defendant must show that it is in the interest of justice (ECHR art 6) that they receive public funding, and
   Would they lose livelihood or suffer damage to reputation,
   Substantial question of law
   Unable to understand proceedings
   Tracing, interviewing or expert cross-examination of witness
   It is in the interest of another individual that the witness is represented
2. Means test: That their financial means are so that they cannot cover the cost themselves.
   No means test needed if the applicant is on income support or similar, and for applicants under 18.
   For means test, applicant must inform: annual income, tax and national insurance, annual housing costs, annual childcare costs, annual maintenance, adjusted annual living allowance

If the defendant has failed the means test for magistrate court and the case is sent to the crown court, funding doesn’t start until he passes the eligibility test of the Crown Court.

To apply for representation order, solicitor must send in Form CRM14 (interest of justice test) and Form CRM 15 (means test)

Question 69

CJSSS

Answer 69

CJSSS: Criminal justice: simple, speedy, summary (from 2007 to speed up proceedings for magistrates court. Key principles:
Plea at first hearing is presumed
Guilty pleas: sentence same day
Not guilty pleas: trial date within 6-8 weeks
CPS should provide sufficient information at first hearing to ensure effective hearing

Question 70

What factors determine where a hearing will be held and what kind of hearing it is?

Answer 70

What happens is determined by e.g.:
Classification of offence (indictment, either-way or summary)
How the defendant pleas in an either-way offence (if guilty, only triable by magistrate)
Level of detail from CPS of the prosecution case. Should make sufficient disclosure so that the defendant can enter into a plea
Securing public or private funding

Question 71

Summary offences - what happens depending on what the defendant pleads?

Answer 71

Usually required to enter a plea (guilty or not guilty)

A guilty plea case may be handled by magistrates court on the same day as the hearing. If the defendant disputes the fact the hearing may be adjourned.

If defendant pleads not guilty the judge will set a date for the trial and issue case management directions

Question 72

Either-way offences - what happens depending on what the defendant pleads?

Answer 72

Either-way offences
Guilty plea: Magistrate have to decide whether to sentence or to commit the case to crown court if the magistrates sentencing powers are not sufficient
Not guilty: Magistrate has to decide whether to hear the case or send it to the Crown Court. An allocation hearing will take place where the defendant pleads not-guilty, to allocate a case in either Magistrates or Crown court.

Question 73

Indictments - what happens depending on what the defendant pleads?

Answer 73

Indictments
Sent straight to Crown Court. Case is always adjourned and it is up to the Magistrate court to decide whether defendant should be released on bail or remain in custody

Question 74

Role of defence solicitor before hearing

Answer 74

Obtain funding from the LAA (unless privately covered)
Obtain details about prosecutions case from the CPS
Statement from client
Advice on strength of the prosecution’s evidence and the plea the client should enter
If either-way offence, advice client on which court to choose
Make an application for bail where necessary

Question 75

What is Initial details of the prosecution’s case: IDPC, what does it include and when must a solicitor ask for it?

Answer 75

Initial details of the prosecution’s case: IDPC. Includes:
Where the defendant has been in police custody and charged immediately before first hearing in Magistrates
Court: details of offence and criminal record

In all other cases: summary of offence, details from defendant in interview, written witness statements, criminal record and victim impact statement.

If a guilty plea is not expected, the list shall include: summary of circumstances of offence, statements and exhibits incl. CCTV, medical or expert evidence, info about special measures, bad character or hearsay.

The Defendant’s lawyer should see all IDPC after the client is charged to advise the client on the strength of the case. Defendant is entitled to receive IDPV for summary and either-way offences. Defence solicitors must contact CPS before the first hearing to ask for IDPC in digital format.

Question 76

What must the solicitor do if the client has admitted guilt but intends to plea not guilty?

Answer 76

If a client has told the solicitor he’s guilty but intends to plead not-guilty, the solicitor must advise the client that the solicitors duty to not mislead the court trumps his duty to act in the clients best interest.

OBS: He may still represent the client, but his actions during the hearing will be limited.

The solicitor may still make a submission of no case, as this would not be to mislead the court.

If this was unsuccessful and the client had to enter the witness box to give evidence the solicitor knew was false, the solicitor would have to stop acting for the defendant. The solicitor still owes a duty of care to the client and would normally withdraw “for professional reasons”.

Question 77

Procedure on defendant indication plea (either-way offences) in magistrates court

Answer 77

Charge is read out loud and legal advisor tells defendant to indicate how they plead (no obligation to indicate a plea)

Indicating guilty plea: treated as tried summarily and convicted. CPS outlines facts and previous convictions.

Defendant’s solicitor pleas in mitigation for defendant

Magistrate decides whether sentencing power is sufficient (max 12 months) or whether the case must be referred to Crown court. Assessment based on seriousness of the offense, guideline for sentencing and any aggravating or mitigating factors.

If sent to crown court: defendant remains in custody or bail - normally not altered from the position before the guilty plea (on bail before plea, usually on bail after plea).

Magistrate may either sentence straight away or adjourned case for a pre-sentence report
- Magistrate must decide whether a “Newton hearing” is necessary
- If case is adjourned: defendant released on bail or remain in custod

Question 78

What is a newton hearing?

Answer 78

Newton hearings: defendant that pleads guilty but disputes facts from CPS, the court must accept the defendants version or allow both the defendant and CPS to call evidence for the factual version, as long as the fact can influence sentencing. Hearing is called Newton hearing.

Question 79

What instructions must solicitors get form clients after receiving IDPC?

Answer 79

After solicitor has received IDPC they will have to take further instructions from client:
Clients response to the prosecution’s case incl. the prosecution’s witnesses
Strength of the prosecution’s case
Whether it’s necessary to obtain further evidence
If an either-way offence and the client has pleaded not guilty, whether the case should be tried for the magistrates court or before a judge and jury in the crown court.

Question 80

Why advice a client to choose the crown court?

Answer 80

Statistically better chance of acquittal after a jury trial,
better procedures for challenging admissibility of prosecution’s evidence (jury are asked to leave and a mini-trial to decide admissibility is held where only the judge decides vs. magistrates court where the magistrates themselves rules in admissibility),

More time to prepare the case for trial

Question 81

Why advice a client to choose the magistrates court?

Answer 81

Limited sentencing power: For either-way offences, magistrates were permitted to sentence up to 12 months (an increase on the previous limit of six months). However, only a year later, from 30 March 2023, magistrates’ sentencing powers reverted to six months again. Now the Magistrates sentencing powers are limited to 6 months for any offence, but MAY be extended to 12 months in aggregate if dealing with 2+ wither-way offences.

Magistrates court can impose an unlimited amount of fines.

If details emerges during trial, the magistrate can at any time refer case to crown court to ensure stricter sentencing.

Speed and stress (trial takes place sooner, convenient if client is in custody and denied bail or has other reasons to rush). Less stressful and less formal.

Costs the defendant has to pay to CPS in case of convictions are higher in Crown court than magistrates court
Defence costs: If granted legal aid in magistrate court, the defendant does not have to contribute towards his defence costs. In the crown court, the defendant is subject to a financial eligibility test.

If the defendant pleads not guilty in the crown court he must serve the crown court and prosecution with a defence statement setting out the defendants case. There is no obligation to hand in a defence statement in the magistrates court.

Question 82

If a defendant pleads not plead guilty to an either-way offence - when must the magistrate court transfer the case to the crown court?

Answer 82

If the defendant does not plead guilty to an either-way offence the magistrate court shall transfer the case to the crown court if:
1. The defendant is sent to Crown court for trial for a related offence

2. Defendant is charged jointly with another adult defendant who is sent to the Crown court for a related offence
3. Defendant is charged jointly or with a related either-way offence with a youth that is sent to the crown court for trial

Question 83

Explain the different steps in the allocation procedure between Magistrates court and the crown court

Answer 83

Allocation:
1. Prosecution informs court about facts and previous convictions

2. Court takes into consideration: representations regarding allocation from the prosecution, whether proposed sentence is adequate, Allocation guideline, sentencing power
3. If the court decides the case should be decided by summary trial, the court must explain to the defendant: the case appears suitable for summary trial but the defendant can decide indictment and if they choose summary trial and are convicted, they might be transferred to the Crown Court for sentencing.
4. Defendants may request an indication for sentencing. The court cannot impose a custodial sentence unless this has been indicated (but indication is not binding). Indication of a custodial sentence does not prevent court from giving a non-custodial
5. If the defendant indicates a guilty plea, they are tried as if they had pleaded guilty and summarily. If the defendant does not change guilty plea, the indication of a sentence is not binding on a court.
6. If the defendant consents to summary trial, the court shall continue to summary trial. The prosecution is allowed to make an application before a summary trial begins, asking the court for the case to be moved to the Crown court for indictment.
7. If the suspect is charged with offence triable on indictment, the magistrate sends the case directly to the crown court.

Question 84

When can an either-way offence be sent straight to the Crown Court without allocations. 50A Crime and Disorder Act 1998?

Answer 84

In the following circumstances can an either-way offence be sent straight to the Crown Court:

1. In serious or complex fraud cases where notice has been given by CPP that the evidence is enough to put the person on trial.
2. Where a notice, in certain cases involving children, has been served. Notice includes that the evidence is sufficient to put the person on trial and that a child is called as a witness.
3. An either-way offence related to an offence triable only on indictment
4. An either-way offence related to an offence triable only on indictment where another defendant is sent to the Crown court.

Question 85

What happens if there are several suspects and one of the chooses Crown court?

Answer 85

If there are several suspects and one of the chooses Crown court, all of the defendants will be sent to the crown court for a joint trial

Question 86

What happens if there are several suspects and they plead differently in the Magistrates court?

Answer 86

If the defendant pleads differently to different offences, and one of them is not guilty, the magistrate court will arrange an allocation hearing in respect of the offence.

If the magistrate accepts jurisdiction, it can sentence the defendant immediately for offences it has pleaded guilty to or adjourn sentence until the end of trial for the no guilty plea.

If the case is sent to crown court, the offence the defendant has pleaded not guilty to will be sent to crown court and the magistrate court has a choice to also send the guilty pleas or decide these themselves.

Question 87

Magistrates’ court case management directions - what are the next steps after a defendant pleads not guilty and the MC has jurisdiction?

Answer 87

Defendant has pleaded not guilty to a summary offence or an either-way offence where the magistrate court has jurisdiction.

Magistrate court sets a date for trial and gives directions. Case management directions are usually given at the same hearing that the defendant pleads in.

Question 88

Timeline for preparing a case in the MC (Magistrates’ court case management directions)

Answer 88

Time: usually 8 weeks to prepare case, 14 if expert evidence.

Question 89

How are witness summons obtained from MC and when must CPS be given notice about witnesses?

Answer 89

Obtain witness summons from magistrate court to ensure that the witnesses attend the hearing. Issued if the court thinks the witness can give material evidence.

Defendants must serve CPS with notice about witnesses and CPS may interview these. There is no requirement to serve statements to the CPS (in comparison to civil cases, where the sides must exchange witness statements). Exception: expert witnesses

Question 90

When is a witness statement admissible in the MC?

Answer 90

A witness statement is admissible provided that it is: signed, dated, contains declaration that it is given based on best knowledge and belief. A copy must have been served before the hearing and there has been no objections within 7 days.

Question 91

What are offences triable on indictment and what is the procedure in terms of allocation and hearings?

Answer 91

Must be sent to crown court if: triable on indictment, either-way or summary offences that appear related to offences triable on indictment and summary only offences punishable by imprisonment or involving disqualification of driving.

After a hearing in magistrates court (to determine whether offence is triable on indictment and whether there are related offences), the case is sent to the crown court.

Date is set for the plea and trial preparation hearing PTPH at the crown court

Question 92

What is the procedure after an either-way offence is sent to the crown court? can the defendant be tried for other offences in the crown court as well?

Answer 92

Sent to crown court if the defendant pleads not guilty in magistrates court and elects trial by judge and jury in the crown court. The defendant may be tried for other offences on the same facts in the crown court, including summary only offences (common assault, criminal damage or driving whilst disqualified)

Summary offences punishable by imprisonment or disqualification of driving, are related to an either-way offence.

Question 93

When does the Crown court arrange for a preliminary hearing?

Answer 93

In limited circumstances, a preliminary hearing takes place at the crown court 10 days after the case is sent from the magistrates court, if
1. Case management issues
2. Trial exceeds 4 weeks
3. Early trial date is desirable
4. Defendant is under 18
5. A guilty plea at a preliminary hearing is likely

Question 94

When is a first hearing in the crown court if it does not arrange a preliminary hearing? what is the hearing called?

Answer 94

If a preliminary hearing is not required, the first hearing in the crown court is the plea and trial preparation hearing PTPH 20 business days after sending, where plea is entered and the court gives directions.

Question 95

What is the arraignment?

Answer 95

Arraignment: counts on indictment are put to the defendant at the start of the PTPH in the crown court and the defendant has to plead guilty/not guilty. If the defendant only pleads guilty to some to some accounts but not to others, a jury shall not be told about this.

Question 96

What does ‘Lie on the court file’ mean?

Answer 96

‘Lie on the court file’: a defendant might plead guilty to some/the more serious accounts during the PTPH at the crown court, so that the CPS decides that the evidence for the remaining offences is not enough to go through with the case. These may be reopened at a later date.

Question 97

That happens if the defendant pleads guilt during PTPH at the crown court?

Answer 97

Pleads guilty: If the defendant pleads guilt during the PTPH at the crown court, the judge can either
1. decide the case then and there, or
2. adjourn the sentence for preparation of the pre-sentencing reports.

If the defendant pleads guilty but disputes a witness statement, a Newton hearing may be held to determine the factual basis for the defendant’s sentencing.

Question 98

Can the judge give the defendant an indication of sentence during PTPH?

Answer 98

Judge may give the defendant an indication of sentence if they were to plead guilty at the plea and trial preparation hearing PTPH.

Question 99

That happens if the defendant pleads not guilt during PTPH at the crown court? what are the next steps?

Answer 99

If the defendant pleads not guilty, the crown court will decide whether further directions (other than those given by magistrate court upon transfer) are necessary based on: summary of the issue, number if witnesses, whether transcript from e.g. interview at the police station require editing and whether the defendant’s statement has been served, additional evidence, hearsay evidence, availability to attend trial etc.
Trial date is set and case placed on “warn list” (cases awaiting trial list)

Question 100

Disclosure in Crown Court - who ahs a duty to disclose and what material myst be disclosed?

Answer 100

Sml. to magistrate court, CPS must serve defendants with all evidence that they will rely on. CPS has an ongoing duty to disclose evidence when it comes in their hands after the initial disclosure. The evidence not relied on is “unused material”. Unused material must be disclosed if it might reasonably be considered that it undermines the case.

Types of material that require disclosure is:
First description of suspect from witness if they differ from defendant
Information indicating an innocent explanation
Info casting doubt on reliability of witness of a confession
Witness statements in support of defendants case
Defence can ask CPS to disclose “missing” documents if disclosure seems incomplete. If UPS does not comply, the defence can apply to court for specific disclosure if the defendant has made a defence statement.

Question 101

What reasons can the CPS give for holding back evidence?

Answer 101

Prosecution may withhold evidence for “public interest immunity”. CPS must apply to the court ex partes and the court decides whether the evidence is encompassed by the exemption.

Excluded evidence includes:
Matters of national security
Identity of police informants or undercover officers
Revealing techniques or methods
Info about child witnesses

Question 102

What next steps should be taken in the Crown Court after CPS discloses their evidence?

Answer 102

After the CPS disclosure, the defence must provide a defence case statement if the defendant pleaded not guilty in the magistrates court within 10 days after CPS’ disclosure of any unused material.

In the crown court it may be extended to 20 days after service of unused material. Defence statements are rarely served in the magistrates court but are compulsory in the crown court. In crown court a defendant may be met with adverse effects if the defence statement is provided too late, incomplete or not at all.

Question 103

What does the defence statement need to include and how is it verified?

Answer 103

Defence statement should be approved by defendant and content:
Nature of defence (e.g self-defence)
Facts that will be issued and relied on
Points of law and admissible evidence
If alibi is the defence, contact information to the alibi must be provided
After the defence statement is served, UPS must review all unused material and determine whether more should be used.

Question 104

Standard of proof - criminal cases

Answer 104

Standard of proof: beyond reasonable doubt.

Question 105

Who carries the evidential burden of proof

Answer 105

Evidential burden of proof is usually carried by the prosecution i.a. The defendant does not have to prove innocence, except for specific defence e.g. self.defence. The prosecution will then have to prove beyond any reasonable doubt that the excuse does not apply.

Question 106

Who carries the legal burden of proof

Answer 106

Legal burden of proof is usually carried by the prosecutor but may fall on defence if e.g. the defendant pleads not guilty due to duress of insanity.

Question 107

When can the court exclude Visual identification evidence? when can it be challenged by the defendant?

Answer 107

Visual identification evidence: evidence from eye witnesses.

Court has discretion to exclude evidence from the prosecution if it has such an “adverse effect on fairness of proceedings that the court ought not to admit it” PACE 1984 s. 78

Can be challenged by the defendant if methods for obtaining the evidence breach PACE 1984 or codes of practice.

Code D of the code of practice e.g. images in video identification procedure do not resemble the defendant, witnesses are not segregated or the police failed to hold identification procedure when this should have been held.
Defence would challenge admissibility under code D and then ask the court to use discretion under PACE 1984 s. 78.

Question 108

What is the Turnbull guidance?

Answer 108

Specific guidelines that apply if a witness (turnbull witness) for CPS identifies the defendant and the defendant disputes this.

Visual identification includes formal identification, informal identification and a witness claiming to recognise the defendant as someone he has known. If the witness only gives a description of the person committing the crime, but there is no direct evidence that it was the defendant, the Turnbull Guidelines do not apply.

The turnbull guidelines sets out conditions to help assess the quality of the identification evidence and includes:
Length of observation
Distance
Lighting
Conditions e.g. weather
How much of the suspects face did the witness see
Whether it is someone known to the victim
Original description matches the defendant and any discrepancies

Question 109

What is a Turnbull warning?

Answer 109

Turnbull warning: judge should warn jury that it is easy to make an honest mistake as a witness and that the quality of the identification evidence should be assessed. The same is given if the evidence is of poor quality but supported by supporting evidence e.g. fingerprints.

If the evidence is of poor quality and not supported the judge should ask the jury to acquit the defendant.
In the magistrates court, the defendant’s solicitor must address the turnbull guidelines as the judge rules on both fact and law. If the evidence is poor, the defence should make a submission for no case to answer at the end of the prosecution’s case.

Question 110

When can a defendants silence be given adverse effects under Criminal Justice and Public Order Act 1994 s. 34?

Answer 110

The “right to silence”. The court can draw adverse effects from silence, except for silence when the defendant has not yet been able to speak to a solicitor.

Interference under s. 34: Court or jury may draw adverse effects from silence when the defendant is questioned at the police station, before or upon being charged and the fact that was not mentioned is later on being used at trial.

Conditions that must be satisfied before adverse effects are drawn:
Interview was under caution
defendant failed to mention facts later relied on during trial

Failed to mention facts that occurred before the defendant was charged

In the interview where the defendant failed to inform about fact, the fact had to be whether or by whom the alleged offence was committed

The fact had to be one that the defendant reasonably could have expected to mention.

A court will not be able to draw adverse effects if the facts are set out in a witness statement prepared by the solicitor and later relied on during trial.

A solicitor may ask a suspect to remain silent if: the police has not disclosed meaningful documents, the case is complex and happened a long time ago, the suspect has personal circumstances e.g. ill health, mental disorder, excessively tired, in shock, intoxicated.

Silence given as legal advice may not prevent the court from giving it adverse effects. The judge will instruct the jury to not put an adverse effect on silence as long as the defendant’s reliance on legal advice to stay silent was genuine and reasonable.

A defendant mentioning that he remained silent due to legal advice does not automatically waive privilege. Once the defendant at trial explains why he was given this evidence, it is enough to waive the privilege and the defendant can be cross-examined about anything that has to do with that legal advice.

Question 111

When can a defendants silence be given adverse effects under Criminal Justice and Public Order Act 1994 s. 36?

Answer 111

Interference under s. 36
The defendant failed to account for an object, sustenance or mark in an interview with the police. Similar to s. 34, but s. 34 requires that the fact is later on relied on during trial, whilst 36 does not. 36 only applies if an officer requests information about an object, sustenance or mark (special caution)

Question 112

When can a defendants silence be given adverse effects under Criminal Justice and Public Order Act 1994 s. 37?

Answer 112

Interference under s. 37
The defendant failed to account for presence at a place or at the time the alleged offence took place and someone investigating the offence reasonably believes that the presence at the given time and place may attribute to his participation in the commission of the offence.
37 only applies if an officer requests information about the time and place (special caution)
Interference under s. 35
A defendant is not obliged to give evidence on his own behalf, but if he doesn’t do so it might have adverse effects. For example if the defendant does not explain points put forth by the prosecution.
A court has discretion to direct that an adverse effect shall not be drawn.

Question 113

When can a defendants silence be given adverse effects under Criminal Justice and Public Order Act 1994 s. 38?

Answer 113

Interference under s. 38
Prevents a defendant from being convicted solely based on adverse inference drawn from silence.

Question 114

What are the grounds for admitting hearsay evidence and what is the procedure for admitting it?

Answer 114

Definition: a statement, not made in oral evidence, that is relied on in the matter. Includes something a witness has told another person, overheard, been told, statement being read out instead of witness attending trial. A written witness statement is hearsay evidence if the witness is unable to attend court.

Exceptions to statements outside of court that are not hearsay: CCTV, photos, audio recordings and other “real” evidence

Statutory exceptions to the hearsay rule:

CJA 1967 s. 9: written witness statement can be read out in court if: signed by maker, contains a declaration of truth, served on opposing party and within 7 days of service the opposing party has not objected. The court has no power to overrule an objection.

CJA 2003 s. 114 states 4 exceptions:
It comes within one of the categories of admissible evidence in CJA 2003 to other statutes
It falls under a common law rule
The parties agree to the evidence admitted
The court is satisfied that it is in the interest of justice to admit the evidence

CJA 2003 s. 114: a written witness statement is admissible where:
the person could have given oral evidence, is identifiable to the courts satisfaction, the person have requisite capability at the time the statement was made.

The person must have been unable to attend hearing due to death, unfit bodily or mental condition, outside of the UK and not reasonably practical to attend hearing, through fear

CJA 2003 s. 117: business documents are admissible as hearsay evidence as long as they are created or received in the course of trade and the person supplying them had reasonable knowledge of the matters dealt with in the documents.

CJA 2003 s. 118 and common law Res Gestae: a statement made by a person so “emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”. E.g. a man fatally stabbed to death naming his two attackers before he died was admissible. Res Gestae statements can be admissible even when the witness is available.

Procedure for admitting hearsay evidence: give notice to the other party, which will be given a deadline by the court to adduce hearsay evidence. The other party must apply to court to be able to cross-examine a witness’ hearsay evidence.

Question 115

What is confession evidence, when is it admissible and how can it be challenged?

Answer 115

Definition: statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in person or otherwise.

Admissibility: admissible to prove truth of content, hence also an exemption from hearsay evidence. Evidence given by a co-accused that implicates the defendant will be admissible against the defendant.

Confession evidence may be admitted where:
The parties agree
The court decides that it is in the interest of justice to allow the confession evidence
It is a previous inconsistent statement
It is a previous consistent statement if it is used to (i) rebut an allegation of fabrication, (ii) as a result of cross-examination on a memory-refreshing doc, and (iii) witness confirms that they have made the statement and it is truthful

Challenging admissibility ss. 76 and 78 PACE 1984 my argue either:
- Did not make confession at all (mistake or fabricated)
- Should not be admitted as evidence because it was obtained by oppression (torture, inhumane treatment) or it is unreliable (denying refreshments, offer lesser sentence to confess, misrepresentation of the prosecutions case, suspect was not in a fit state (alcohol, mental illness, not represented by solictor), threats).

The court can dismiss a confession if the defendant argues that the police were in breach of PACe and the breach was significant and substantial ( R v Keenan).

Magistrate court procedure: may hold a voir dire (separate hearing to rule on admissibility).

Crown court procedure: determined by trial judge. In an interview, the interviewing officer will give evidence. If inadmissible, the jury will not hear about it.

A defendant can use a co-defendants confession as evidence, unless it was inadmissible c.f. Below.

Question 116

What is character evidence, when is it admissible?

Answer 116

Definition of bad character: evidence of, or disposition towards misconduct. Does not itself prove guilt.

the 7 gateways s. 101(1) Criminal Justice Act 2003. Bad character evidence is admissible if + how the court can regulate admissability:

A All parties agree. The evidence is admissible, subject to the general discretion to exclude evidence.

B Adduced (anføre/påberopt) by the defendant or given in answer to a question asked by him in cross-examination. The evidence is admissible, subject to the general discretion to exclude evidence.

C Important explanatory evidence. The evidence is admissible, subject to the general discretion to exclude evidence.

D Relevant to important matter. The court may exclude the evidence if it would be unjust to admit it due to the passage of time or any other reason. The evidence is admissible unless it would have such an adverse effect on the fairness of proceedings the court ought to admit it.
Whether the defendant has a propensity to commit an offence of any kind. Includes evidence of previous convictions as long as they are of the same description and category.
Golden rule: courts do not presume someone’s past convictions mean they are guilty of the current charge.
Whether the defendant has a propensity to be untruthful. Includes evidence of previous convictions as long as they show that the defendant made a false representation or pleaded not guilty to a crime he was committed for.

E Substantive probative value. The evidence is admissible, subject to the general discretion to exclude evidence. Can be used by a defendant against other defendants to show that the other defendant has a propensity to be untruthful or commit the kind of offence they are both tried for. Cannot be used by CPS.

F Corrects a false impression. The evidence is admissible, subject to the general discretion to exclude evidence. The defendant may withdraw the assertion.

G The defendant has attacked another person’s character. The evidence is admissible unless it would have such an adverse effect on the fairness of proceedings the court ought to admit it. Can someone dead or not intended be called by CPS. CPA can then bring in evidence about previous convictions.

Question 117

What are the 3 gateways s. 100(1) Criminal Justice Act 2003 (NY 2023)?

Answer 117

the 3 gateways s. 100(1) Criminal Justice Act 2003 (NY 2023).

Bad Character Evidence — Defence-Barrister.co.uk

Bad character evidence about others than the defendant (e.g. witness) is admissible if:
1. Important explanatory evidence
2. Substantial probative value in the matter
3. All parties agree to the evidence being admissible

Question 118

What is the procedure for admitting bad character evidence?

Answer 118

CPS must give notice to the court and the defendant. Any objection must be sent to the court and the other party.
court’s powers to exclude bad character evidence

The court cannot exclude bad character evidence under D and G

A, B, C, E and F are automatically admissible

ref. above to 7 gateways s. 101(1) Criminal Justice Act 2003

Question 119

How can evidence be excluded by the court?

Answer 119

scope and application of s. 78 PACE and the right to a fair trial.

The court has discretion under s. 78 to not allow evidence that could have an adverse effect on the fairness of the proceedings that the court ought not to admit. E.g. something unreliable about police evidence.

If evidence is obtained in breach of PACE 1984 it should only be admissible if it is significant and substantial (R v Keenan)
Evidence obtained by entrapment (lokke i felle) is admissible, but the court can be asked to exercise its common law powers and disallow the process.

Question 120

Overview of stages of a criminal trial in the MC

Answer 120

Trail at the magistrates court
Opening speech CPS: facts, substantive law, summary witnesses
(Vior dire if the defendant objects to evidence e.g. confession. Magistrate rules, as opposed to in crown court where the jury does not attend voir dire).

Prosecution witnesses: witnesses under 14 do not take oaths. First victim is likely the victim. Prosecution may read statements from witnesses that have not been called. Summary of defendant’s interview at the police station may be read.

(submission of no case by defence). Should be made if the CPS has failed to provide evidence for an essential part of the alleged offence or the evidence was discredited in cross-examination and no court could convict on it.

Defence witnesses (defendant first). Give evidence of defence e.g. self-defence.

CPS closing speech. Has recently got the right to have a closing speech but is usually only exercised in complex cases.

Defence closing speech. Should refer back to the opening statement and comment on shortfalls.

Magistrate retired to consider the verdict. Usually 3 magistrates, deciding on majority.

Magistrate delivers verdict

If guilty: sentenced or adjourn sentence

Question 121

Trial at the Crown Court - order of events

Answer 121

Split between judge and jury (12 members of the public). Jury decides on disputed facts and whether the defendant is guilty. Judge will resolve issues of law. If the jury finds the defendant guilty, the judge is responsible for sentencing.
If the defendant changes plea from guilty to not guilty it must be done in writing and as soon as possible.

Order of events:
Jury is sworn/empanelled (12 between 18-75). Informed about not guilty please, but not about guilty pleas.

CPS opening speech

CPS witnesses, starting with victim
(Voir dire without jury)

(Defendant makes submission of no case, assessed by judge without jury subject to the Galbraith test (In short the test is that a case should not be left to the jury where there is no or no sufficient evidence). If successful, the jury returns and is instructed to give a verdict of not guilty. Defendant is given a chance to plead, which it could do if e.g. it has admitted guilt to solicitor.

Defence opening speech (only if more witnesses than the defendant)

Witnesses, starting with the defendant.

CPS closing speech
Defence closing speech

Judge sums up case (evidence + law) for jury, which retires. Common appeal ground is that the judge has erred in summoning up law or evidence.

Jury decides unanimously, but 10:2 is accepted after 2 hours + 10 min. If no judgment has been reached within reasonable time, the jury will be discharged and CPS request a new jury.
If a defendant is found not guilty, their legal costs are usually covered by the state.
If guilty, the judge will sentence the defendant immediately or adjourn. If adjourned, the defendant is either kept in custody or bail.

Question 122

How many jurers in crown court?

Answer 122

jury (12 members of the public).

Question 123

How do jurers decide case?

Answer 123

Jury decides unanimously, but 10:2 is accepted after 2 hours + 10 min. If no judgment has been reached within reasonable time, the jury will be discharged and CPS request a new jury.

If a defendant is found not guilty, their legal costs are usually covered by the state.

If guilty, the judge will sentence the defendant immediately or adjourn. If adjourned, the defendant is either kept in custody or bail.

Question 124

How to address judges, counterparty

Answer 124

Magistrates: Your worship or sir/madam
Crown court judge: Your Honour

Counterparty:
my learned friend (barrister) or
my friend (solicitor)

Bow to judge + magistrates upon their entry

Usually required to stand when addressing the court unless: youth court, defendant, advocate or witness appears on video link, making a bail appeal for the judge in chambers.
To take photos or audio is an offence.

Question 125

What is compellability and who can be compelled as a witness?

Answer 125

Compellability: witnesses can be compelled to testify by using a witness summons. All persons that have competence are compellable.

Exceptions:
The accused or any co-accused are not a competence witness for the CPS, except for co-accused: attorney general files a formal notice abandoning the prosecution, order is made for separate trials, an accused is acquitted, plead guilty and give evidence against co-accused.

Defendant is competent but not compellable to give evidence for himself.

Spouse of accused can be called by CPS or co-accused if the offence involves an injury/charge to the spouse or a sexual offence.

A spouse is compellable by the accused.
Accused or co-accused spouses are never compellable.

Question 126

When can more leading questions be asked?

Answer 126

Examination-in-chief (including re-examination): allow witness to tell own story, not ask leading questions (suggests answer)
Cross-examination: may ask more leading questions.

Question 127

Which witnesses can ask for special assistance and what measures can be taken?

Answer 127

Those who may ask for measures:
Under 18
Mental or physical disorder
Witnessing affects stress
Sexual offences
Witnesses of gun and knife crimes

Measures:
Screens
Witness on video
Clearing court before witnessing
Remove wigs and gowns
Video record witness statement and cross examination
Interpreter or therapist
Sign language, hearing loop etc.

Question 128

Who prepares the sentencing guidelines + what steps do they include?

Answer 128

Prepared by the sentencing council (8 judicial and 6 non-judicial members).

Mostly followed by courts unless it would be contrary to justice. Require an assessment of culpability and harm to the victim.

Sentencing guidelines - steps:
Determining offence category
1. Greater harm + enhanced culpability
2. Either greater harm or enhanced culpability
3. Lesser harm + lower level of culpability

Shaping sentence using mitigating and aggravating factors (below)

Consider factors that will reduce sentence

Factors for extending sentence

Totality principle, including that overall sentence is

proportionate

Compensation and other ancillary orders

Giving reasons

Question 129

What does the court take into account when sentencing in criminal cases?

Answer 129

Sentencing guidelines + the principles from the Criminal Justice Act 2003

Question 130

What are the principles from the Criminal Justice Act 2003?

Answer 130

In addition to the assessments from the sentencing guidelines, the court must take into account the principles from the Criminal Justice Act 2003 when sentencing:
Punishment of offenders
Reduction of crime
Reform and rehabilitation
Protection of the public
Making good to victims

Question 131

What is prevalence?

Answer 131

Prevalence: similar offences should be treated in a similar way. May make exceptions where e.g a typical offence is more prevalent in a given area.

Question 132

Explain the totality principle

Answer 132

Totality principle: shall be sentenced to all offences at the same time.

Question 133

What is a Pre-sentence report?

Answer 133

Pre-sentence report before plea: legal representative can ask for a pre-sentence report from the Probation Service if the client pleads guilty at the first hearing in the Magistrate court-

Question 134

How does the court determine seriousness + aggravating and mitigating factors

Answer 134

Principle of seriousness: the court must consider the offender’s culpability and any harm which the offence caused, was intended to cause or might foreseeably have caused.

Culpability: intention, recklessness, knowledge about risks or negligence

Harm: physical, psychological, sexual, financial, damage to health

Seriousness - statutory aggravating factors (court obliged to treat offence in a more serious way):
Previous convictions
Offences committed on bail
Racial or religious aggravation
Hostility based on sexual orientation or disability
Seriousness - other aggravating factors (court obliged to treat offence in a more serious way):
Offence was planned
Groups or gangs
Vulnerable people are targeted
Under influence of drugs or alcohol
Weapons
Abuse of trust
Against a public servant
High value property (including sentimental value)
Failure to respond to previous sentence

Seriousness - mitigating factors (court obliged to treat offence in a less serious way):
Impulse
Great degree of provocation
Mental illness or disability
Young or old
Held minor role
Motivated by genuine fear
Attempts to make reparation to victim
Guilty plea: ⅓ discount of the plea can at “first stage proceedings”: first hearing in magistrate court.

Question 135

What is a concurrent sentence?

Answer 135

Concurrent sentence: custodial terms are deemed to be served at the same time

Question 136

What is a custodial sentence?

Answer 136

Consecutive sentences: one custodial sentence will start after another. Not usually imposed.

Question 137

What is the mitigation stage in the sentencing process?

Answer 137

Penultimate stage in the sentencing process, where the defendant (legal rep) is allowed to present mitigation before sentencing.

Mitigation is usually divided into 4 parts:

1. Likely sentence: persuade to have a less severe sentence as a starting point
2. The offence: minimize impact of aggravating factors and emphasize the importance of mitigating factors
3. The offender: mitigating factors such as age, health, cooperation with the police, voluntary compensation for damage, remorse, character, family and low risk for re-offending.
4. Suggested sentence: realistic for what the court should impose.

Question 138

What is a custodial sentence?

Answer 138

custodial sentences (forvaring): usually a mandatory sentence or mandatory minimum term of imprisonment.

Offence must be so serious that neither a fine nor community sentence can justify the offence. Magistrates sentencing power is max 6 months for a summary offence and 12 months for an either-way offence (regardless of number of offences).

‘Dangerous offenders’ receive either automatic life imprisonment, discretionary life imprisonment or an extended sentence of imprisonment
Early release 1/2 through sentence is normal

Question 139

Suspended sentence - what is it?

Answer 139

suspended sentences: custodial (forvaring) sentence of between 14 days - 2 years (max 12 months in magistrates court). Can be suspended for 6 months - 2 years.

Suspended period = operating period. Offender is likely ordered to comply with certain requirements for a supervision period. If a suspended sentence is breach the custodial sentence will take effect immediately

Question 140

What are community orders + examples

Answer 140

community orders:
Can be made if the court has the impression that the offence or a combination of the offences was serious enough.
Options:
Unpaid work 40-300 hours in 12 months
Activity e.g. repairing damage
Prohibited activity requirement
Curfew
Exclusion from places
Residence as a specific place
Mental health treatment
Drug rehabilitation
Alcohol treatment
Supervision
Attendance center
Foreign travel prohibition

Question 141

What is the magistrate courts maximum sentencing powers?

Answer 141

Magistrates sentencing power is max 6 months for a summary offence and 12 months for an either-way offence (regardless of number of offences).

Question 142

Explain appeal procedure against a conviction/sentence, incl. what can defendent or CPS appeal over, deadline, and judge to hear to appeal

Answer 142

Pleaded guilty in magistrate court can appeal to crown court regarding sentence

Pleaded not guilty in magistrates court can appeal to crown court regarding resulting conviction or sentence

Appeal against conviction: made errors in law or facts.
Crown court will have a full rehearing of the case. New witnesses can be called and new points of law raised

Appeal against sentence: can appeal to Crown court which will have a full re-hearing.

Appeal is usually heard by a recorder or circuit judge who sits with an even number of magistrates

CPS cannot appeal sentence or acquittal, but can appeal over facts of law to the High court.

Deadline: defendant must file notice with CPS and court within 15 business days from the magistrate passes the sentence. The crown court does not have power to extend the deadline.

Question 143

If a case is appealed to the crown court, what can the crown court do=

Answer 143

powers of the Crown Court: may confirm, vary or reverse the sentence.

Question 144

Who can appeal from the crown court and where to appeal?

Answer 144

Appeal from the Crown court can be made to the High court by both CPS and the defendant based on a point of law or that the crown court has exceeded its jurisdiction.

Question 145

Procedure for appeal to high court on case stated, including deadline.

Answer 145

CPS or defendant can appeal a decision from the magistrates court to the Kings bench in the high court if:

Wrong in law

Outside of jurisdiction

Must appeal within 21 days after the decision was made by the magistrate court

Appeal hearing will be held in the divisional court of the King’s bench division, normally heard by 3 judges. No evidence is given by witnesses and the hearing is confined to legal arguments based on agreed facts. Divisional court has powers to reverse, affirm or vary the sentence.
Both CPS and the defendant can apply to the Supreme court on decisions from the High court over points of law that have a general public importance. Either the high court or the Supreme court must grant leave to appeal.

Question 146

What is the procedure if a defendant appeals against conviction to the court of appeal?

Answer 146

Defendants appeal against conviction
The Court of appeal grants leave to appeal or the trial judge grants a certificate that it’s fit for appeal. Appeal must be allowed if the Court of Appeal considers conviction “unsafe” e.g. errors.

Common grounds of appeal include: failure of judge to direct jury, judge wrongfully admitted or excluded evidence, failed to administer correct warning to the court, inappropriate intervention by the trial judge
Failure by the trial judge when summing up the case
Fresh evidence
Procedure: defendant must serve appeal notice within 28 days of the conviction (not sentence). The Court of Appeal has a 3-judge panel.

Powers of appeal court: acquit defendant, order a retrial, allow part of appeal and dismiss other parts, find defendant guilty of alternative offence, dismiss appeal.

Question 147

What is the procedure if a defendant appeals against sentence to the court of appeal?

Answer 147

Defendants appeal against sentence
Successful if:
Error in law
Error in principle (e.g. judge passed a custodial sentence for a minor crime)
Wrong approach when sentencing
Disparity in sentencing of co-defendants
Sentence is manifestly extensive
Powers of appeal court: confirm or quash sentence from the crown court.

Question 148

What is the Youth Offering Team YOT?

Answer 148

Youth Offering Team YOT must coordinate youth justice services in their area and attend sittings in the youth court.

YOT assists with:
Investigations, confirming circumstances and previous convictions
Support youth granted bail
Prepare pre-sentence reports
Administer non-custodial sentences

Question 149

What is the procedure if CPS appeals against sentence to the court of appeal?

Answer 149

No right to appeal acquittal in crown court by a jury.

Has a right to appeal in the court of appeal when ruling is made by judge if ruling either effectively terminates trial (termination ruling) or significantly weakens the prosecution’s case ( evidential ruling)

CPS has a right to appeal to the court of appeal if the attorney general considers crown court sentence to be “unduly lenient”.

CPS can ask for a retrial under s. 57 CJA 2003 if the defendant is acquitted for:
Murder, attempted murder or manslaughter
Kidnapping
Sexual offences
Various offences for class A drugs
Arson endangering life or property
CPS must fulfill the evidential test and the interest of justice test.

Evidential test: there is new and compelling evidence of the defendant’s guilt.

Interest of justice test: court must take into account a fair trial is likely, time since offence was committed, new evidence, CPS or police has failed to act with due diligence or expedition.

Question 150

How young must a youth be to be accompanies by a parent/guardian in youth court and who can attend the hearing?

Answer 150

Juveniles under 16 must be accompanied by parent or guardian during each stage in the court process. Juvenile 16-17 court has discretion to require attendance from parents.

People allowed to attend hearings in youth court:
District judge/youth justice
Court staff
Juvenile + parent/guardian
CPS representative
Juveniles solicitor (all juvenile under 18 are automatically eligible regardless of means)
YOT representative
Press

Question 151

Youth court jurisdiction

Answer 151

Part of magistrate court and involves defendants between 10-17 (subject to criminal law as adults). Children: 10-13, Young people: 14-17. Witnesses under 14 give unsworn evidence. Court does not have jurisdiction if the defendant was 17 at the time he was charged, but 18 prior to the first appearance in court.

Differences from magistrate court is that juvenile court is less formal.

Question 152

When must a case be sent from youth court to magistrates or crown court?

Answer 152

5 circumstances when case must be sent from youth court to magistrates or crown court:

1. Murder, attempted murder or manslaughter must be sent to crown court
2. Firearms offences
3. Grave crimes: offences that have a minimum 14-year imprisonment sentence for adults (robbery, rape, sexual offence). the Youth courts sentencing limit is 24 months, but the crown court can impose longer sentences.
4. Specified offences (violence or sexual) where if found guilty he could be categorized as a “dangerous offender” must be sent to crown court.
5. Jointly charged with adult for indictable offence and it is in the interest of justice that they are tried together.

Question 153

What happens in terms of allocation in court if a youth is jointly charged with an adult?

Answer 153

youths (under 18) jointly charged with adult: adult case is dealt with in crown court and the juvenile case may also be referred to crown court if it is necessary in the interest of justice. If the adult case is dealt with in the magistrates court, the juvenile case will be tried together with the adult case.

Question 154

How does the youth court sentence?

Answer 154

Youth court usually always obtain a pre-sentencing report
sentencing:

role of the Sentencing Children and Young People – definitive guidelines
Overarching principles:
The court must have regards to the principal aim of the youth justice system and the welfare of the child or younger person
The seriousness of offence
Custodial sentence is last resort
Factors diminishing culpability
Should be given opportunity to change behavior
Key elements for determining sentence:
Aim of youth justice system
Welfare of young children and adults
Age
Seriousness
Likelihood of further offences
Extent of harm likely to result in further offences

Max sentence is 24 months.

Question 155

What is a referral order and what kind of orders can youth court impose?

Answer 155

Referral orders must be made for a juvenile (under 18) that pleads guilty to an offence with possible custodial sentence and who has never previously been convicted, unless the court proposes a custodial sentence or discharge. Referral order refers youth to a YOT youth referral panel with a member of YOT and two community volunteers. The panel agrees a youth offender contract with the offender for 12 months.

Detention and training orders are the only type of custodial sentence that the youth court has the power to impose.
For crimes so serious that neither fines nor community service is fitting.
- Cannot be imposed on juveniles between 10-11 and only persistent young offenders between 12-14.
- An order is for a fixed period of up to 24 months.
- Before imposing, the court must have received a pre-sentence report from the YOT.
- Juvenile is held in detention for ½ of the period of the order and is under supervision of the YOT for the second half.

Youth rehabilitation orders: equivalent to generic community order for up to 3 years.
Youth court decisions can be appealed to the Magistrate court.

Question 156

Must a defendant witness at his own trial?

Answer 156

He will be a qualified witness and can witness, but he doesn’t have to. Adverse effects can be drawn from silence

Question 157

Appeal deadline from Magistrates court to the Crown court

Answer 157

15 business days from the date that the defendant was sentenced. Appeal is made by a hearing before a district judge and lay magistrates

The defendant can also appeal 15 business days after he was convicted and hence NOT wait to be sentenced.

Question 158

Sentencing powers of the magistrate court

Answer 158

Limited sentencing power: max 6 months imprisonment for an either-way offence (summary only offences are always maximum 6 months imprisonment) and max 12 for several offences. Magistrates court can impose an unlimited amount of fines.

Question 159

The Crown Court’s sentencing powers when hearing an appeal from the Magistrates court

Answer 159

THe Crown court can impose a new sentence, but only sentences that are within the Magistrates court’s sentencing powers. e.g. 6 months for summary only and MAX 12 months imprisonment if there are several offences.

Even if you have only appealed against your conviction (rather than appealing against both your conviction and sentence), if the appeal is dismissed the Crown Court also has the power to change the sentence. This means that the court can increase the sentence, potentially up to the maximum sentence that would have been available to the magistrates/District Judge at the original trial.

Question 160

Timelimit for when the prosecution of a summary only offence must commence in the Magistrates court

Answer 160

Within 6 months of the date of the commission of the alleged offence (when the alleged offence was commited)

Question 161

What must prosecution do before plea hearing in Magistrate court?

Answer 161

Serve initial disclosure.

The defendant can choose whether to serve a defence statement + details of any defence witnesses. If they choose to serve this, the deadline is 14 days after the initial disclosure.

Question 162

What must defence and prosecution do if the defendant pleads not guilt in the MC?

Answer 162

Prepare Preparation for Effective Trial Forms. The case is then adjourned for summary trial.

The prosecution will then have to serve the initial details of the prosecution case on the defendant (summary trials).
- If guilty plea is likely, it will include a statement that the prosecution understands that their disclosure duties have been complied with
- if not guilty plea is likey, the initial details of the prosecutions case must include a Streamline DIsclosure Certificate which includes unused materials for disclosure.

Question 163

When must the prosecution send the defence a “case sent bundle” before an indictable offence is triad at the Crown Court?

Answer 163

Within 50 days after the trial was sent to the Crown court (the person was sent for trial) if the defendant remains in custody and within 70 days where the defendant is on bail.

Question 164

Who can appeal to the Crown court and what can be appealed over?

Answer 164

The prosecution cannot appeal.

Defendant can appeal over their conviction and/or sentence. OBS if the defendant pleaded guilty in the Magistrate court, they can only appeal over the sentence.

Question 165

What does a notice of appeal to the Crown court contain and how does the crown court decide to let the case in?

Answer 165

The notice only needs to include whether the appeal is over the sentence or conviction.

THere is no filtering process in the Crown court and they must therefore allow the appeal

Question 166

How is an appeal heard in the Crown court - can new evidence be admitted? how many judges?

Answer 166

A complete rehearing of the case in the Crown Court where new evidence is allowed.

Min 2 and max 4 lay magistrates. Decides unanimously or by majority.

Question 167

Appeal from the crown court to the court of Appeal - procedure?

Answer 167

Right to appeal is not automatic and either the trial judge on the CC or Court of appeal must give consent (obtaining leave). If the trial judge has not certified the appeal, the appelant must apply to the Court of appeal within 28 days after the conviction OR sentence, by notice of appeal + draft grounds of appeal.

Question 168

What are the grounds of appeal from the crown court to the court of Appeal ?

Answer 168

Appeal over conviction: The ONLY ground of appeal is that the conviction is “unsafe”. Defendant can refer to legal or procedural errors during the trial. CoA will hear evidence from both sides before deciding.

Appeal over sentence: if the sentence was wrong in law, or wrong in principle or manifestly excessive.

Question 169

Appeal to the supreme court in criminal cases?

Answer 169

Must be allowed bu either CoA or SC + involve a point of law of general public or constitutional importance.

Question 170

Who can appeal by way of case stated and to where + what are the deadlines and procedure?

Answer 170

An appeal heard by the High Court (Divisional court)!

Either the prosecution of defendant can appeal over “case stated” , against a decision from the MC or CC.

The appeal is to challenge the conviction or any order, decision or ruling made by the court: wrong in law or excess of jurisdiction.

Applicant must within 21 days after the end of trial apply in writing to the magistrate that heard the case, requiring that they state the case for the High Court.

Wihtin a further 21 days, the magistrates legal advisor prepares a statement of case.

The full case is usually heard before 3 judges in the Divisional court. After an appeal by was of case is made, NO further appeal to CC is permitted. The only appeal option is to the Supreme Court over a “point of law”

Question 171

What are the prosecutions appeal-powers?

Answer 171

The prosecution CANNOT appeal an acquittal!!

Limited exception where the prosecution (with consent from the director for public prosecution) can apply to CoA over an acquittal for a qualifying offence (usually life imprisonment), for a retrial. the Crown Court still has the power to stop a trial if it considers it to be an abuse of process. e.g. the CoA could order retrial, which could be stopped by CC for abuse.

They can appeal over:
- to the CoA with the leave from CoA any sentence from the CC that the Attorney General believes is unduly lenient. Must appeal within 28 days of the date of sentence.

• Can appeal to CoA over a “terminating rule” made by a judge to an issue at trial, which cannot otherwise be appealed e.g. against a successful subsmission of “no case stated”.

In the application, the prosecution must agree that if (i) they fail to obtain leave from court or (ii) the appeal is abandoned, the defendant is automatically acquitted.

Question 172

How can a case be reopened?

Answer 172

Defendant can at any time ask Magistrates to set a conviction aside or vary/rescind sentence. if set aside, the case is reheard with new Magistrates.

Question 173

Can a criminal case be subject to judicial review?

Answer 173

Yes, the magistrates court is a “public body” and can exercise powers illegally, fail to follow correct procedure or act irrationally.

Application for leave is made to the High court, and hearing held at Divisional COurt of granted.

Question 174

How do you address judges + counterparts in criminal cases?

Answer 174

S, A , H: my lord/lady
District judge: Judge
Circuit + crown court (crown court judge can be circuit judge) : Your honour
Magistrate: your worship

Solicitor: friend
Barristor: my learned friend

Question 175

Good character evidence - admissibility

Answer 175

Evidence of good character: admissible. E.g. absence of criminal record. A defendant with no convictions is entitled to a good character directions as it is less likely that the defendant will have committed an offence.

Question 176

What is Res Gestae?

Answer 176

CJA 2003 s. 118 and common law Res Gestae: a statement made by a person so “emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”. E.g. a man fatally stabbed to death naming his two attackers before he died was admissible. Res Gestae statements can be admissible even when the witness is available.

Question 177

Entrapment evidence

Answer 177

Evidence obtained by entrapment (lokke i felle) is admissible, but the court can be asked to exercise its common law powers and disallow the process. The court should only exclude such evidence if it could be shown that the police caused the commission of the offence, and not just provided the defendant the chance to commit the offence.

Question 178

What happens if a person tried in youth court turns 18 before or during procedure?

Answer 178

Before proceedings start: Youth court no longer has jurisdiction and case is transferred to the Magistrates court or Crown Court if indictable, where defendant is treated as an adult.

After proceedings start: youth court can choose to retain and impose a youth sentence or send the case to the Magistrate court (can choose crown court) for adult trial.

Turns 18 between conviction and sentencing: may be remitted to MC for sentencing, but will receive a youth sentence. the order of remission cannot be appealed.

Question 179

What are the solicitors obligations to assist the court in terms of evidence prejudicing defence or authorities that may damage the clients case?

Answer 179

The solicitor is NOT under any duty to inform the court about factual evidence that could prejudice the defendants case.

the solicitor IS under a positive duty to inform the court about any presidence/authority that may damage the client’s case.

Question 180

Can a solicitor accept referral fees in criminal cases?

Answer 180

No, referral payments in criminal proceedings are contrary to the SRA Code of Conduct

Question 181

Can a convicted defendant that has appealed a case to CoA apply for bail before CoA has accepted appeal?

Answer 181

Yes, but the presumption in favour of appeal no longer applies