Criminal Litigation & Advocacy Flashcards

Question

What is the police caution under Code E?

Answer 1

- You do not have to say anything. - But it may harm your defence if you do not mention when questioned something which you later rely on in court. - Anything you do say may be given in evidence. Break down into the 3 cautions and explain the relevance to each to your client – client doesn’t have to speak to the police due to self-incrimination Must have a defence for this to work

Answer 2

The Criminal Justice and Public Order Act (CJPO) 1994 provides an opportunity for the prosecution to comment on failure to answer questions, and also permits the court to draw adverse inferences from that failure in certain circumstances. Detailed provisions for inferences to be drawn from:- - Refusal to mention facts when questioned or charged (section 34) - Silence at trial (section 35) - Failure to account for objects substances or marks (section 36) - Failure to account for presence at a particular place (section 37) Overall effect of sections is to place pressure on the suspect to:- - Co-operate with Police investigations and disclose defences at the earliest opportunity - At Trial to submit to cross examination by the prosecution.

Answer 3

- Function of the provision is not to draw a general inference of guilt from silence, but specifically to target cases of late (and particularly ambush) defences. This provision must therefore make allowances for the personal characteristics of the suspect, e.g. age and mental capacity and the extent of the suspect’s knowledge of the case against him. It is for the Jury or Magistrates to decide what is a ‘proper inference.’ The Judge has the power in appropriate circumstances to direct a Jury not to draw inferences. Case example: R v Argent [1997] 2 Cr App R 27

Answer 4

- Suspect must have been arrested. - Provisions go further than section 34 and are concerned with facts which point to the suspect’s involvement in the offence rather than with defences. The provisions are restrictively drawn: - Section 36 is concerned with the state of the suspect at the time of his arrest (and therefore not at any other relevant time). - Section 37 is concerned with the suspect’s location at the time of arrest and applies only when he is found at the location of the crime at or about the relevant time (and not therefore where he is arrested elsewhere) The suspect’s failure or refusal to account for one or more of the specified matters may form the basis for “such inferences as appear proper”, provided that it has first been made clear to him that the object, substance or mark or his presence has given rise to a reasonable suspicion of participation in an offence and that a failure to answer questions may give rise to inferences being drawn in court. This is called the special warning. S.34, 36 and 37 may overlap.

Answer 5

3. Anything you do say may be given in evidence – a suspect’s account in interview will form part of the evidence in the case but adverse inferences cannot be the sole reason for finding a defendant guilty.

Answer 6

* Inform that an offence has been committed and the police are investigating with a view to ensuring that the perpetrator is brought to justice it is part of the process of collecting evidence, particularly in view of the fact that the suspect’s answers to police questions or indeed silence is evidence that may be adduced during any trial process

Answer 7

* The key question for the defence solicitor is whether to advise the client to answer police questions, remain silent or submit a prepared statement. Before obtaining instructions from the client and then advising the client on his/her options in interview it is necessary to assess the weight of the police case as it stands prior to interview. First of all, the representative needs to view the custody record re: client property, police searches, forensics, client admissions and drug tests. The representative will then invite the investigation officer to disclose the evidence they have:

Answer 8

Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it (see paragraphs 3.4(a) and 10.3), in order to allow for the effective exercise of the rights of the defence. However, whilst the information must always be sufficient for the person to understand the nature of any offence (see Note 11ZA), this does not require the disclosure of details at a time which might prejudice the criminal investigation. The decision about what needs to be disclosed for the purpose of this requirement therefore rests with the investigating officer who has sufficient knowledge of the case to make that decision

Answer 9

o Is there an admission or partial admission? o Is there a denial? o Does the client account suggest an available defence? Is there a potential for adverse inferences to be drawn at trial under: o S34 CJPOA 1994 o S36 CJPOA 1994 o S37 CJPOA 1994 During your consultation you will also be assessing your client’s ability to deal with psychological pressure as this will have a bearing on what to advise your client to do in interview.

Answer 10

* Speaking in interview – answering police questions * No Comment interview * The Prepared Statement

Answer 11

1. The interview will be audibly recorded – note the 3rd part of the caution. 2. Alongside the investigating officers, the solicitor will be present in the interview to protect the client’s interests, and will intervene in the interview when necessary if the solicitor considers that the police questioning is in any way inappropriate. Examples of which include the following: - Oppressive/irrelevant/unclear or speculative questioning - Using threats or inducements 3. The interview may be stopped at any time if the client requires further legal advice from the solicitor. The client should be told that he can ask for the interview to be stopped for this purpose, or the solicitor may intervene of their own volition to suggest that the interview be stopped so they can give further advice to the client as per s58 PACE 1984. 4. Advice on how to manage the interview when it starts, depending on which option the client has chosen to follow.

Answer 12

Eye Witness Identification is known to be inherently unreliable and so safeguards are required at the pre-trial stage (PACE 1984, Code D) and trial stages (Turnbull guidelines) to ensure evidence is gathered in a fair and reliable manner and treated with caution. Irregularity in the identification procedure – may give rise to an application to exclude evidence under S78 PACE 1984.

Answer 13

- Video Identification (VIPER) - Annex A - Identification Parade – Annex B - Group Identification – Annex C - Confrontation by a witness – Annex D

Answer 14

A parade must be held when a witness has identified or believes they can identify the suspect and the suspect denies being the person the witness claims to have seen. However, a parade will not need to be held if the suspect is already well known to the witness who claims to have seen them commit the crime.

Answer 15

1. The first group being ‘known and available suspects’ (that is available to take part in ID procedures). In this case the police may at their discretion choose either: a video ID procedure, ID parade or group identification. 2. The second group are known but not available (would include a suspect who refused to co-operate). Police may use a covert video. Only as a last result should they proceed to a confrontation. 3. The third group are suspects who are not yet known in such cases the police may take witnesses to carry out a ‘street identification’. There are detailed provisions as to how this can be done

Answer 16

- Solicitors should advise their clients as to whether he/she should take part in an Identification procedure. - The suspect has a right to an identification procedure if identification is an issue and it is practicable to hold one. - The solicitor must obtain and check a copy of the original description given by an identifying witness before any procedure takes place. - The solicitor must check that there is no possibility of witness contamination during an Identification Procedure.

Answer 17

After interview the police and/or CPS may determine that further investigation is required before a charging decision can be made i.e. witnesses to be contacted, CCTV to be obtained, alibis to be checked etc. s 45 of the Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) has amended S34(5) PACE 1984 in relation to pre-charge bail. The default position now assumes a presumption in favour of pre-charge bail unlike the presumption against bail introduced by the Policing and Crime Act 2017. A custody officer may release on bail a person if they are satisfied that releasing the person on bail is necessary and proportionate in all the circumstances. The custody officer can grant pre charge bail (with or without conditions) for a 3 month period. This can be extended by an inspector for a further 3 months and then for another 3 months by a superintendent. Any further periods of bail after this time must be granted by the Magistrates court.

Answer 18

- Where the custody officer has determined that there is sufficient evidence to charge but the final decision rests with the CPS the defendant can either be detained in custody or released on unconditional or conditional bail under S37(7)(a) pending the decision to charge. - The suspect is under an obligation to surrender to police bail on the appointed date and time. - Conditions can be attached to bail under S37 PACE 1984 if it is necessary to prevent that person from failing to surrender to custody, committing an offence on bail whilst on bail, or interfering with witnesses/obstruction of justice or for his own welfare (S3A Bail Act 1976).

Answer 19

 At the conclusion of the investigation stage, the suspect must be cautioned, receive a Fixed Penalty, charged thus commencing court proceedings, or released without charge: o Charge and Remand in custody – consider proportionality o Charge and release on bail to court o Unconditional release o Caution/ reprimand/ warning o Fixed Penalty

Answer 20

Cautions A caution can be given when there is sufficient evidence for a conviction and it is not considered to be in the public interest to institute criminal proceedings. Additionally, the offender must admit guilt and consent to a caution in order for one to be given. - A formal caution may be given by, or on the instructions of, a senior police officer. - Cautions are traditionally used for first time offenders. A caution may be conditional.

Answer 21

- A conditional caution may be appropriate if there is sufficient evidence for a conviction but it is in the interests of the offender, the victim and the community to require the offender to comply with specified conditions aimed at rehabilitation, reparation and punishment. Some examples of specified conditions might include: - Attendance at a drug rehabilitation course - Repairing damage caused - Paying compensation

Answer 22

The Criminal Justice Act 2003 transferred the responsibility for charging from the police to the CPS in the majority of cases. The Procedure where the Police make the decision to prosecute: - Under the DPP’s Guidance on Charging (2013) the police may charge the suspect with any summary only offence and certain either way offences subject to the exclusions outlined in the guidance. Alternatively, the police will pass the case papers to the CPS for it to determine what the appropriate charge should be

Answer 23

- Once the defendant has been charged the custody officer then has to decide whether the defendant should be released on bail or remanded in custody pending his first appearance before the Magistrates court. - The statutory provision governing the bail decision is Section 38 PACE 1984. - Where a person arrested for an offence otherwise than under a warrant endorsed for bail is charged with an offence, the custody officer shall, subject to section 25 of the Criminal Justice and Public Order Act 1994, order his release from police detention, either on bail or without bail

Answer 24

i. his name or address cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by him as his name or address is his real name or address; ii. the custody officer has reasonable grounds for believing that the person arrested will fail to appear in court to answer to bail; iii. in the case of a person arrested for an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from committing an offence; a. in a case where a sample may be taken from the person under section 63B below, the custody officer has reasonable grounds for believing that the detention of the person is necessary to enable the sample to be taken from him; iv. in the case of a person arrested for an offence which is not an imprisonable offence, the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from causing physical injury to any other person or from causing loss of or damage to property; v. the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary to prevent him from interfering with the administration of justice or with the investigation of offences or of a particular offence; or vi. the custody officer has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection;

Answer 25

Common conditions include: - Residence at a specified address - Reporting to a police station - Curfew - Non-contact with named witnesses - Exclusion from named/defined area The client may: Make a request to a custody officer at the Police Station that imposed the conditions to have a condition varied or apply to the local Magistrates’ Court to vary the condition.

Answer 26

- Conditions as to residence in a bail hostel - Conditions as to drug assessment and treatment

Answer 27

The full code test - Prior to charge both Crown Prosecutors and the police have to ask themselves the following two questions when they are making their decisions: 1. Is there enough evidence against the defendant? (the evidential test) 2. Is it in the public interest for the CPS to bring the case to court? (the public interest test)

Answer 28

There must be enough evidence to provide a 'realistic prospect of conviction' against the defendant. A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates, properly directed according to the law, is more likely than not to convict the defendant of the alleged charge. This is a separate test from the one that the criminal courts must apply. A jury or magistrates' court should only convict the defendant if they are sure that he or she is guilty. If there is not a realistic prospect of conviction, the case must not go ahead, no matter how important or serious it may be. If there is a realistic prospect of conviction, the Crown Prosecutor will ask the next question

Answer 29

It has never been the rule in this country that every criminal offence must automatically be prosecuted. For this reason, in each case, the Crown Prosecutor must consider the public interest in going on with a prosecution and balance factors for and against prosecution carefully and fairly before coming to a decision. A prosecution will usually take place unless the public interest factors against prosecution clearly outweigh those in favour of prosecution. - The public interest factors that can affect the decision to prosecute will vary from case to case. Broadly speaking, the more serious the alleged offence, the more likely it will be that a prosecution will be needed in the public interest. - On the other hand a prosecution is less likely to be needed if, for example, a court would be likely to fix a minimal or token penalty or the loss or harm connected with the offence was minor and the result of a single incident.

Answer 30

The court may be required to consider a case where the police have refused bail, although bail will be considered/mentioned at each hearing before a Magistrates Court. Such cases are held in the Remand court as it will have a secure dock facility. The defendant on remand is still expected to enter a plea based on the available Initial Details of the Prosecution Case (IDPC) which will be handed to the defence at court.

Answer 31

Bail Act 1976

Answer 32

- Notwithstanding the general presumption to grant bail, a court can withhold bail if one of the statutory grounds under the Bail Act 1976 exist. The Bail Act 1976 draws a distinction between grounds for refusing bail in relation to an indictable, imprisonable offence, a summary only imprisonable offence and a non imprisonable offence. If bail is refused, it is the court's duty to consider bail, at each subsequent hearing while the defendant remains in custody. The defence solicitor can make 2 applications for bail using any arguments as to fact or law. However, at any subsequent hearing the court need not hear argument as to why bail should be granted unless the solicitor can raise a new legal or factual argument as to why bail should be granted. Where bail is refused after an application the Magistrates must issue a full argument certificate. Application can then be made to a Judge in the Crown Court.

Answer 33

Bail may be granted to a person previously convicted of murder, manslaughter or rape (or attempted murder or rape) and now charged with one of those offences only if the police or the court is satisfied there are exceptional circumstances to justify doing so. This creates a presumption against bail.

Answer 34

General right to bail of accused persons and others 1) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act Grounds for refusing bail to a defendant charged with an indictable (includes either-way) imprisonable offence (Schedule 1 Part 1 Bail Act 1976)

Answer 35

Fail to Surrender to Custody: Para. 2.1 Commit an Offence on Bail: Para. 2.1 Obstruct the Course of Justice: Para. 2.1 Risk of Causing Injury or Fear: Substantial grounds for believing the defendant would cause physical/mental injury or fear to an associated person if released on bail. Para. 2(2ZA) Indictable Offence While on Bail: Offence is indictable or triable either way. Defendant was on bail during the offence. Onus on defence to justify bail. Para. 2A Protection or Welfare of Defendant: Remand for own protection or welfare (child/young person). Para. 3 Serving Prisoner: Defendant is a serving prisoner not due for release. Para. 4 Insufficient Information: Court lacks sufficient information to decide on bail. Para. 5 Previous Absconding or Bail Breach: Defendant previously arrested for absconding or breaching bail. Para. 6 Positive Drug Test: Restrictions if defendant tested positive for Class A drug and charged with related offence. Paras. 6A-6C Murder Cases: Special provisions apply. Para. 6ZA Adjourned for Report: Impractical to make enquiries without defendant in custody. Para. 7

Answer 36

S90 of and Schedule 11 to LASPO 2012 made extensive amendments to the Bail Act 1976. - These restrictions are designed to remove the option of a remand in custody in most circumstances where there is no real prospect of the defendant being imprisoned if convicted; even when taking all the relevant circumstances, such as the defendant’s previous convictions, into account (Para 1A of Schedule 1 Part 1 Bail Act 1976). These changes apply to adult defendants who have not yet been convicted. - This new restriction only applies to the 3 main exceptions to bail in para 2.1. (failure to surrender/commission of further offences or interfering with witnesses) para 2A (refusal of bail where the defendant appears to have committed an indictable/either way offence whilst on bail) and para 6 (refusal of bail for breaching bail or failing to surrender to bail).

Answer 37

- The nature and seriousness of the current offence(s) and likely method of disposal - The defendant's character, antecedents, associations and community ties - The defendant's previous conduct in relation to bail. This may include earlier absconding, offending or breach of conditions, or matters arising in the present proceedings. Offences on bail are also aggravating features for sentencing. - The strength of the case (not relevant after conviction) - Any other matters that appear to be relevant

Answer 38

Prosecution's Stance: Oppose bail Agree to bail with conditions Agree to unconditional bail Defence Advocate's Role: Canvas CPS’s view and negotiate bail conditions before the hearing Confirm unopposed unconditional bail with CPS to the court Bench's Decision: Not bound by CPS’s suggestion but likely to follow if CPS agrees to bail Conditions Imposed: Defence should take client instructions if CPS proposes conditions If client accepts conditions, court considers if they are necessary and proportionate Full Legal Argument: Required if CPS opposes bail or client objects to conditions CPS presents objections first, defence responds Suggest conditions to address prosecution’s objections if unconditional bail is not appropriate Court's Decision: Decides on granting bail and imposing conditions after hearing arguments Reasons for withholding or granting conditional bail must be announced in open court

Answer 39

The length of a remand in custody varies with the circumstances. - The first remand cannot be for more than eight clear days, to allow for the second mandatory bail application. - Thereafter and before conviction a magistrates court will remand for 28 days unless there is a good reason for the defendant to be returned to court earlier for the next stage of the proceedings. - Once a case is sent to the Crown Court the remand continues (subject to the custody time limits). The defendant will not be produced until the case is listed. Custody Time Limits – previous lectures

Answer 40

1) Where a magistrates' court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a judge of the Crown Court against the granting of bail. The Code for Crown Prosecutors provides that appeals should only be made in cases of “grave concern”. The CPS also have the right to appeal to the High Court against the decision of a Crown court judge to grant bail to a person charged with or convicted of an imprisonable offence (sch.11 LASPO 2012)

Answer 41

1) If a person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody he shall be guilty of an offence. 2) If a person who— a. has been released on bail in criminal proceedings, and b. having reasonable cause therefore, has failed to surrender to custody, fails to surrender to custody at the appointed place as soon after the appointed time as is reasonably practicable he shall be guilty of an offence. 7) A person who is convicted summarily of an offence under subsection (1) or (2) above and is not committed to the Crown Court for sentence shall be liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding level 5 on the standard scale or to both and a person who is so committed for sentence or is dealt with as for such a contempt shall be liable to imprisonment for a term not exceeding 12 months or to a fine or to both.

Answer 42

- Application may be made to the court to vary conditions. This will apply to conditions imposed by a custody officer and/or the court on a previous occasion. - Application may be made at the next hearing or listed separately. The CPS should be put on notice of any application to vary bail. 24 hours is normal practice.

Answer 43

3) A person who has been released on bail in criminal proceedings and is under a duty to surrender into the custody of a court may be arrested without warrant by a constable: a. if the constable has reasonable grounds for believing that that person is not likely to surrender to custody; b. if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or c. in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety. Breach of a condition is not a further offence (unlike failure to surrender) but the court will reconsider the question of bail.

Answer 44

There are two courts in which a criminal case can be tried: Cases can be tried in either the Magistrates (summary trial) or in the Crown court (trial on indictment). In either-way offences a decision must be reached as to which court should conduct the trial. The decision is based on: 1. The requirements of the 2016 Allocation guideline (the presumption is that all cases should be tried summarily) 2. The statutory factors under s.19 MCA 1980 (such as reference to the defendant’s previous convictions) 3. Relevant sentencing guidelines 4. Prosecution and defence submissions

Answer 45

To indicate he would plead guilty: - The Court will deem this to be an actual plea. The court may either move to sentence him or if it feels that its powers of sentence are inadequate the court may commit him to the Crown Court for sentence; either remanding the Defendant in custody or releasing him on bail. - If the Defendant was on bail before committal for sentence he would normally be released on bail. To indicate that his plea would be one of not guilty: - The court will move to an Allocation hearing. Not to make any indication at all: - The court will move to an Allocation hearing.

Answer 46

Sentencing Council’s Allocation Guideline: Magistrates consider this guideline and representations from prosecution and defence. Decision Basis: Adequacy of court’s sentencing powers and seriousness of the offence; Section 19 Magistrates Court Act 1980 factors apply. Declining Jurisdiction: Case sent to Crown Court under S51 Crime and Disorder Act 1998 if magistrates decline jurisdiction or defendant chooses trial by jury. Accepting Summary Jurisdiction: Magistrates can commit for sentence if their powers are insufficient or if 'dangerousness' provisions apply. Defendant’s Right to Election: Defendant decides on summary trial or trial by jury if magistrates accept summary jurisdiction. Indication of Non-Custodial Sentence: Defendant may seek an indication from magistrates on non-custodial sentence before choosing venue; court not bound to give indication. Reconsideration of Plea: Defendant asked to reconsider plea if indication is given. Custodial Sentence: Court cannot impose custodial sentence unless it was indicated after a guilty plea

Answer 47

In favour of Magistrates Court: - Speed - Informality - Stress – lessened - Powers of sentence – lessened, albeit power to commit for sentence - Geography - Defence disclosure not required - Costs - a trial in the Magistrates court is far cheaper than in the Crown court. - Publicity – usually less in the lower courts. In favour of Crown Court : - Acquittal rate – higher - The procedure for dealing with complex issues of law and evidence - Time delay If the case is to proceed to the Crown Court the defendant’s next appearance will be before the Crown Court at a Plea and Trial preparation hearing. If the Magistrates accept jurisdiction and the defendant does not elect Crown Court trial the case will be adjourned to a trial date that will be set forthwith

Answer 48

“The general rule at common law is that the prosecution must establish the guilt of the defendant beyond reasonable doubt”

Answer 49

all elements of the offence: - The actus reus and mens rea Mens rea – usually explored in interview - Where the defendant is pleading not guilty and is not putting forward a defence, the defence has neither a legal nor an evidential burden to prove anything.

Answer 50

 In most cases the burden of proof is on the prosecution but in some cases it falls on the defence. This usually happens when the information required is in the defendant’s exclusive knowledge or control. e.g defences such as insanity and diminished responsibility So, the defence standard in criminal matters is on the balance of probabilities.

Answer 51

 Prosecution beyond reasonable doubt – any doubt should lead to an acquittal.  Defence – balance of probabilities This is justified on the basis that the consequences of conviction and punishment are so severe that the state prefers to run the risk of acquitting those who may have committed crimes rather than convicting the innocent. Plus, the state has greater resources compared to the individual

Answer 52

* The prosecution or defence will discharge its legal burden by putting evidence before the court to support its version of the facts and interpretation of the law. * The prosecution are required to satisfy the court that all elements of the alleged offence are made out by adducing sufficient evidence. Evidence may be: - Oral testimony - Documentary evidence - Real evidence

Answer 53

If the defendant pleads not guilty but does not put forward a defence, the defence may cross examine the witnesses to instigate reasonable doubt in the mind of the jury about the accused’s guilt. However, where the defendant raises an affirmative defence such as self-defence or duress, it has an evidential burden to put forward some evidence in support of the defence before the court. Thereafter the prosecution has the legal burden to disprove the defendant’s defence

Answer 54

There are two basic requirements which need to be satisfied if the jury or the magistrates are to take a piece of evidence into account in deciding what the facts of the case are: a. Evidence must be relevant to the facts in issue in the case. b. Evidence must be admissible. This means that the rules which comprise the law of evidence must permit such evidence to be used in a criminal trial. Evidence that is both relevant and admissible may be either direct evidence of a defendant’s guilt, or circumstantial evidence from which a defendant’s guilt may be inferred

Answer 55

A witness is competent if he can lawfully be called to give evidence and compellable if he can be ordered to give evidence even if he is unwilling to do so. - A witness can give evidence of fact, i.e. of anything perceived by his or her own senses, unless they are called as an expert in which case their opinion is required. - Evidence is usually given on oath, unless the witness is under 14. Note there is no minimum age for competency. R. v Powell (Michael John) [2006] EWCA Crim 3

Answer 56

1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence. 2) Subsection (1) has effect subject to subsections (3) and (4). 3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to- a) understand questions put to him as a witness, and b) give answers to them which can be understood. 4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).

Answer 57

(2) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable to give evidence on behalf of that person. (2A) In any proceedings the spouse or civil partner of a person charged in the proceedings shall, subject to subsection (4) below, be compellable-- a) to give evidence on behalf of any other person charged in the proceedings but only in respect of any specified offence with which that other person is charged; or b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings. R V Pearce [2002] 1 W.L.R. 1553 clarified that this provision does not extend to cohabitants.

Answer 58

(3) In relation to the spouse or civil partner of a person charged in any proceedings, an offence is a specified offence for the purposes of subsection (2A) above if-- a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16; b) it is a sexual offence alleged to have been committed in respect of a person who was at the material time under that age; or c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.

Answer 59

 Documents form part of the evidence because of the information they contain Examples: - Official documents such as birth certificates, contracts - Phone records, bank statements, emails, text messages, correspondence, medical reports, expert reports - Can include photographs or recordings (audio and/or visual such as 999 calls or CCTV) OR - The statement of a witness standing in place of them giving live evidence - Hearsay – rules on admission

Answer 60

Real evidence is usually some material object, the existence, condition or value of which is in issue or relevant to an issue, produced in court for inspection by the tribunal of fact.

Answer 61

 Evidence of a fact is not admissible unless that fact is relevant, i.e. it is directly or indirectly logically probative of a fact in issue.  If evidence is admissible, it may be used unless it is excluded by a mandatory rule or is excluded under some statutory provision or by the court exercising a discretion.

Answer 62

- Expert Evidence - Hearsay Evidence - Bad Character Evidence

Answer 63

1. Improperly Obtained Evidence o A confession obtained in breach of the safeguards under PACE. o Evidence obtained after an unlawful search/surveillance o Evidence obtained by entrapment – usually involving undercover police officers inducing a person to commit an offence that the person would otherwise have been unlikely to commit. 2. Opinion Evidence o The general rule is that opinion evidence is inadmissible – “he was up to no good”. This is a matter for the jury to determine based on the facts. o Expert evidence is opinion evidence but is admissible if the experts give an opinion that goes beyond the ordinary competence of the court e.g ballistics, forensics, accident investigation etc. reference to competence will be decided by the court. 3. Evidence where the prejudicial effect outweighs probative value o The prejudicial effect of bad character/hearsay

Answer 64

A witness may refuse to answer a question in court by relying on: - The privilege against self incrimination Or - Legal professional privilege In all other cases a refusal by a witness to answer questions may result in a penalty for contempt of court, including imprisonment

Answer 65

- This is a right enjoyed by all UK citizens. - The right to silence in the police station and at trial. - If a defendant has chosen to give evidence on oath in support of his defence, he cannot refuse to answer questions in cross examination on the ground it would self- incriminate him as to the offence charged. - However, no witness need answer any question/produce documents or items at trial which would expose him to the possibility of future prosecution

Answer 66

- Legal advice privilege (confidential communications between lawyers and their clients made for the purpose of seeking or giving legal advice). - Litigation privilege (confidential communications between lawyers and their clients, or the lawyer or client and a third party, which come into existence for the dominant purpose of being used in connection with actual or pending litigation). - The policy rationale behind this is that clients should be able to openly discuss their cases with their solicitors without being compelled to disclose the contents of those discussions in court.

Answer 67

- The police are subject to duties under the Code of Practice issued under Section 23 of the Criminal Procedure and Investigations Act (CPIA) 1996. - They have a duty to record and retain all material relevant to the investigation and the appointed ‘disclosure officer’ will undertake responsibility for disclosure and will be required to certify that he/she has followed the Code of Practice. He/she must draw up a schedule of unused material which is forwarded to the CPS. - The duties relating to disclosure remain on the police rather than the prosecutor throughout the procedure because although it is the prosecutor who will review the evidence it is the police who in reality control the material available to the prosecutor. - Sensitive material may be withheld.

Answer 68

Advance disclosure of evidence to be used against the defence at trial. Disclosure of unused material – material they have collected and retained but are not using at trial. Expert evidence

Answer 69

Disclosure of the Prosecution Case is essential to a fair trial under Article 6 A party to the proceedings must have the possibility to familiarise itself with the evidence before the court hearing, as well as the possibility to comment on its existence, contents and authenticity in an appropriate form and within an appropriate time. The right of access to the case file is not absolute. In some cases, it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest such as national security or the need to protect witnesses or safeguard police methods of investigation of crime. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6

Answer 70

- There are different rules as to when the prosecution must disclose the evidence they propose to use at trial depending upon whether the trial will take place in the Magistrates or Crown court. - The defence is entitled to know the case against them before they enter a plea.

Answer 71

Section 3 of the CPIA1996 (as amended) provides: s 3 Initial duty of prosecutor to disclose (1) The prosecutor must-- * disclose to the accused any prosecution material which has not previously been disclosed to the accused, and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused

Answer 72

- Any material casting doubt upon the accuracy of any prosecution evidence. - Any material which may point to another person, whether charged or not (including a co-accused) having involvement in the commission of the offence. - Any material which may cast doubt upon the reliability of a confession. - Any material that might go to the credibility of a prosecution witness. - Any material that might support a defence that is either raised by the defence or apparent from the prosecution papers. - Any material which may have a bearing on the admissibility of any prosecution evidence

Answer 73

- Requirement to serve details of any witnesses the defence will call in support of the defendant. - Requirement to give a defence statement setting out the general nature of the defence – ie alibi or self-defence - (Not mandatory in Magistrates court) - Comply with rules relating to expert evidence

Answer 74

- Credibility – who should the jury believe? - The defence may wish to show that they are a person of good character so should be believed. - The defence may wish to challenge the credibility of a prosecution witness by showing that they have convictions for dishonesty. - The defence might wish to bring evidence that a co-accused has committed similar offences in the past to support a suggestion that it was the co-accused who committed the offence. - The prosecution may wish to bring evidence that the defendant has committed similar offences in the past to support the suggestion that he committed the current offence – propensity. This would enable them to put his character before the jury as part of the prosecution case.

Answer 75

Character evidence is used to establish credibility, allowing the jury to determine who should be believed. The defense may present evidence of good character to support the defendant's credibility or challenge the credibility of prosecution witnesses by revealing their past convictions.

Answer 76

R v Vye established that judges must provide directions regarding the relevance of a defendant's good character to their credibility and likelihood of committing the charged offense, particularly when the defendant has testified or made pre-trial statements.

Answer 77

'Bad character' evidence refers to evidence of a person's misconduct, excluding evidence related to the alleged facts of the offense or misconduct connected to the investigation or prosecution of that offense.

Answer 78

'Misconduct' is defined as the commission of an offense or other reprehensible behavior, which can include actions like excessive drinking or drug use, and membership in a violent gang.

Answer 79

Evidence of bad character for non-defendants can only be presented with court permission and must meet one of three specific conditions, typically related to the credibility of a witness.

Answer 80

A defendant with no criminal convictions is entitled to a good character direction, which means the judge must inform the jury of the relevance of the defendant's good character to their credibility and the likelihood of committing the offense.

Answer 81

The defense may use character evidence to challenge the credibility of prosecution witnesses by presenting evidence of their past convictions for dishonesty or other misconduct.

Answer 82

Identifying evidence that relates to the alleged facts is crucial because such evidence is not subject to the statutory regime of gateways and safeguards provided by the Act, meaning it can be presented without the same restrictions as bad character evidence.

Answer 83

The defense may present evidence that a co-accused has committed similar offenses in the past to suggest that the co-accused, rather than the defendant, committed the current offense.

Answer 84

The Vye ruling changed the common law to require mandatory directions about the relevance of good character to credibility and propensity in every case where the judge concludes that the defendant is entitled to be treated as a person of good character.

Answer 85

Evidence of a non-defendant's bad character is admissible if it is important explanatory evidence, has substantial probative value related to a matter in issue, or if all parties agree to its admissibility.

Answer 86

Important explanatory evidence is defined as evidence that is essential for the court or jury to properly understand other evidence in the case, and its value for understanding the case as a whole is substantial.

Answer 87

Substantial probative value is defined as evidence that is significant in relation to an important matter in issue in the proceedings, which can include evidence that challenges a witness's credibility or supports the defendant's claims.

Answer 88

Yes, if all parties to the proceedings agree, evidence of a non-defendant's bad character will always be admissible.

Answer 89

In the example, John is charged with arson, and Paul testifies about John's actions on the day of the offence. Paul's background as a resident with a criminal record is relevant but does not require full disclosure of his record.

Answer 90

Generally, evidence of a defendant's bad character is inadmissible, except for certain restricted common law and statutory exceptions.

Answer 91

A defendant can use a non-defendant's previous convictions to argue that the witness is lying, has fabricated evidence, or has a propensity for the type of offence charged.

Answer 92

A witness's criminal record can affect their credibility and may support the defendant's claims, especially if the witness has convictions related to the nature of the alleged offence.

Answer 93

The inclusionary approach allows relevant evidence of a defendant's previous convictions and misconduct to be admissible, but it can be excluded if it adversely affects the fairness of the proceedings.

Answer 94

Section 101 outlines the circumstances under which evidence of a defendant's bad character can be admitted in criminal proceedings, emphasizing that such evidence alone cannot prove guilt.

Answer 95

Evidence of a defendant's bad character is admissible if all parties agree, if the defendant introduces it, if it is important explanatory evidence, if it is relevant to an important matter in issue, if it has substantial probative value, if it corrects a false impression, or if the defendant attacks another's character.

Answer 96

Gateway (a) permits the admission of a defendant's bad character evidence if all parties to the proceedings agree that it is admissible.

Answer 97

Yes, under Gateway (b), a defendant can introduce evidence of their own bad character, particularly if they want to clarify their previous convictions.

Answer 98

Under Gateway (c), only the prosecution can introduce evidence of a defendant's bad character, and it is typically used in limited circumstances as important explanatory evidence.

Answer 99

An 'important matter' is defined as a matter of substantial importance in the context of the case as a whole, relevant to the issues between the defendant and the prosecution.

Answer 100

Section 103 states that important matters in issue include whether the defendant has a propensity to commit offenses of the kind charged, except when such propensity does not make it more likely that the defendant is guilty.

Answer 101

The purpose is to prevent the jury or magistrates from assuming the defendant has extensive previous convictions if they do not present evidence of their good character.

Answer 102

While relevant evidence of bad character can be admitted, it may be excluded if it negatively impacts the fairness of the trial.

Answer 103

Propensity refers to a defendant's tendency or inclination to commit offenses of a certain kind, which can be established through prior convictions.

Answer 104

A defendant's propensity can be established by evidence of prior convictions for offenses of the same description or category as the one charged.

Answer 105

Offenses are of the same description if the written charge or indictment for each offense is stated in the same terms.

Answer 106

Offenses are categorized based on specific classifications, such as sexual offenses against children under 16 and various theft-related offenses.

Answer 107

The theft category includes theft, robbery, burglary, aggravated burglary, taking a vehicle without authority, aggravated vehicle taking, handling stolen goods, going equipped for stealing, making off without payment, and attempts or aiding in these offenses.

Answer 108

The R v Hanson case highlighted the importance of evaluating whether prior convictions genuinely indicate a propensity to commit the charged offense and whether their admission would be unjust or unfair.

Answer 109

1. Does the history of conviction(s) establish a propensity to commit offenses of the kind charged? 2. Does that propensity make it more likely that the defendant committed the offense charged? 3. Is it unjust to rely on the conviction(s) of the same description or category?

Answer 110

Using prior convictions can strengthen a prosecution's case but may also raise concerns about fairness and prejudice against the defendant.

Answer 111

The Court of Appeal suggested that these convictions, while within the theft category, did not necessarily demonstrate a propensity to commit burglary without additional pertinent information.

Answer 112

The Court of Appeal indicated that the robbery conviction might have been prejudicial and could adversely affect the fairness of the proceedings, but the applicant had numerous relevant convictions for burglary and theft that were admissible.

Answer 113

The fewer the number of convictions, the weaker the evidence of propensity is likely to be.

Answer 114

A single previous conviction may show propensity if it reveals a tendency to unusual behavior or if its circumstances demonstrate probative force related to the offence charged.

Answer 115

Unusual behavior refers to actions that are not typical or expected, such as child sexual abuse or fire setting, which can indicate a propensity.

Answer 116

Circumstances demonstrating probative force are not limited to those sharing striking similarity; significant features in the modus operandi can show propensity even if the offences are not identical.

Answer 117

The Court indicated that admitting a 20-year-old conviction for possession of a firearm was plainly wrong when the defendant was accused of a related offence.

Answer 118

While older convictions may generally be less likely to demonstrate propensity, they can still satisfy the requirement if they reveal uniqueness or a signature behavior.

Answer 119

Convictions for specific offences where a lie was told, such as fraud or perjury, or where the defendant pleaded not guilty but was convicted, may indicate a propensity to be untruthful.

Answer 120

A plea of not guilty, combined with evidence that the jury disbelieved the defendant's account, can show a propensity for untruthfulness.

Answer 121

The court must not admit evidence if it would adversely affect the fairness of the proceedings, especially if the evidence is relevant to an important matter in issue or if the defendant has attacked another person's character.

Answer 122

Arguments may include whether the convictions are more prejudicial than probative and if there is a risk of conviction based solely on previous convictions due to their nature or extent.

Answer 123

Offences of dishonesty, such as theft, generally do not show a propensity to be untruthful unless specific circumstances indicate otherwise.

Answer 124

Spent convictions are those that, after a certain period, are treated as if they never occurred for most legal purposes, allowing individuals to move on without the stigma of past offenses.

Answer 125

The rehabilitation period for custodial sentences between 6 and 30 months is 4 years from the date of release.

Answer 126

A rehabilitated person is someone whose conviction has become spent, meaning they are legally treated as if they have not been convicted of that offense.

Answer 127

Individuals with spent convictions are generally not required to disclose these convictions on job applications, as they are treated as if they never occurred.

Answer 128

Section 4(1) states that a rehabilitated person shall be treated as if they have not committed or been convicted of the offense related to their spent conviction.

Answer 129

Previous convictions, including spent convictions, can be referenced during criminal proceedings, particularly in bad character applications under the Criminal Justice Act 2003.

Answer 130

Gateway e allows one defendant to admit evidence of another defendant's bad character if it has substantial probative value regarding an important matter in issue.

Answer 131

Under Gateway f, only the prosecution can introduce evidence of a defendant's bad character to correct a false impression given by the defendant.

Answer 132

A defendant is responsible for making a false impression if they make an assertion that misleads the court, whether through their own testimony, statements, or through witnesses they call.

Answer 133

Gateway g allows the prosecution to introduce evidence of a defendant's previous convictions if the defendant has attacked another person's character.

Answer 134

An attack on another person’s character can include alleging that a prosecution witness committed an offense, claiming a witness has a bias or grudge, asserting that police acted improperly, or cross-examining a witness about their previous convictions.

Answer 135

The procedure requires the CPS to give notice to the court and other parties if they wish to introduce evidence of the defendant’s bad character. For non-defendants, an application must be made to the court for permission, and a prescribed form must be used.

Answer 136

A defendant can oppose the introduction of bad character evidence by applying to the court for exclusion of such evidence, with notice sent to the court and other parties.

Answer 137

Bad character applications are usually conducted in pre-trial hearings to prevent prejudice to the adjudicating body during the trial.

Answer 138

The guidelines state that prosecution applications to introduce bad character evidence should not be routine, must be carefully balanced, and that each previous conviction should be examined individually rather than collectively.

Answer 139

Yes, prosecution applications should be justified based on the facts of the case and should not be made as a matter of routine.

Answer 140

The defense should refer to Article 6 when opposing the introduction of the defendant's character or any other person's character before the jury.

Answer 141

An application to introduce bad character evidence of a non-defendant must be accompanied by a prescribed form and a copy of the relevant previous convictions.

Answer 142

Article 6 is significant as it relates to the right to a fair trial, which the defense should reference when opposing the introduction of character evidence.

Answer 143

The court assesses fairness by considering the strength of the evidence against the defendant and ensuring that admitting previous convictions does not unfairly prejudice the jury.

Answer 144

 It is an important part of the role of the defence lawyer to test the evidence against the client.  The court is generally required to decide who is telling the truth and, as we have noted, evidence on disputed facts is usually given by a witness live in court who is examined and then cross examined.  If the disputed fact is included in a written statement, rather than during live testimony, the defence cannot test that evidence by cross examination.  There may be a strong argument that this breaches the defendant’s right to a fair trial under article 6.  Thus the general rule is that hearsay evidence is inadmissible. It is known as second hand evidence and is inferior to live testimony.

Answer 145

Definition: S114 CJA 2003 1. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated in it (so long as it falls into one of the exceptions in s114). A ‘statement’ is defined in s 115(2) as ‘any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form’. The purpose, or one of the purposes, of the person making the statement must appear to the court to have been to cause another person to believe that the matter is as stated, or to cause another person to act (or a machine to operate) on the basis that the matter, is as stated (CJA 2003, s 115(3)). There are two parts to the definition: 1) A statement not made during live testimony, 2) ‘in order to prove the truth of the matter stated in it”

Answer 146

Hearsay evidence will be admissible if it falls within one of four categories. Section 114 of the CJA 2003 states: A. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if— a. any provision of this Chapter or any other statutory provision makes it admissible, b. any rule of law preserved by section 118 makes it admissible, c. all parties to the proceedings agree to it being admissible, or d. the court is satisfied that it is in the interests of justice for it to be admissible.

Answer 147

a) cases where a witness in unavailable – CJA 2003, s 116; b) business and other documents – CJA 2003, s 117 ; c) previous inconsistent statements of a witness – CJA 2003, s 119; d) previous consistent statements by a witness – CJA 2003, s 120; e) reports prepared by experts (if leave of the court is obtained) – CJA 1988, s 30; f) evidence of a confession made by the defendant – PACE 1984, s 76(1); g) evidence raised by a defendant of a confession made by a co-accused – PACE 1984, s 76A(1); h) statements from a witness which are not in dispute – CJA 1967, s 9; and i) formal admissions – CJA 1967, s 10.

Answer 148

1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if— a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter (ie, the statement must be ‘first-hand hearsay’), b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and c) any of the five conditions mentioned in subsection (2) is satisfied. The conditions referred to in s 116(2)(a)–(e) are that: a. the relevant person is dead; b. the relevant person is unfit to be a witness because of his bodily or mental condition; c. the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance; d. the relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken; e. through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Answer 149

Reason 1 – the witness is dead or unfit Reason 2 – the witness is (a) outside the UK and (b) it is not reasonably practicable to secure his attendance Reason 3 – all reasonable steps have been taken to find the witness, but they cannot be found Reason 4 – the witness does not give evidence through fear

Answer 150

Section 117 of the CJA 2003 provides: (1) In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if— a) oral evidence given in the proceedings would be evidence of that matter, b) the requirements of subsection (2) are satisfied, and c) the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be. The requirements of s 117(2) are that: a) the document (or the part of it containing the statement) must have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; b) the person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and c) each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. The practical effect of s 117 is to make both ‘first-hand’ and ‘multiple’ hearsay in certain documents admissible in evidence. Section 117 will commonly be used to ensure the admissibility in evidence of business records.

Answer 151

a) any of the five conditions mentioned in s 116(2) is satisfied (the unavailable witness); or b) the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances). Can the court refuse to admit a statement under s 117? The court retains a discretionary power to make a direction that a statement shall not be admitted under s 117 (CJA 2003, s 117(6)). The court may make such a direction if it is satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of: a) its contents; b) the source of the information contained in it; c) the way in which or the circumstances in which the information was supplied or received; or d) the way in which or the circumstances in which the document concerned was created or received (CJA 2003, s 117(7)).

Answer 152

- A written statement may be used in evidence where it is in the correct form and there is no objection by the other party. - It is used to admit uncontroversial evidence. - To be admitted under S9 the statement must be signed by the maker and contain a declaration that it is true to the best of his knowledge and belief - A copy must be served on the other party before the hearing and the other party must not object to its use - Generally used to admit evidence that is not disputed, but might be used as hearsay evidence.

Answer 153

(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section. A confession is hearsay evidence – it is a statement made outside of court tendered by the prosecution in order to prove that the defendant committed the offence.

Answer 154

- The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded

Answer 155

Hearsay admissible by agreement – S114(1)(c) = If all the parties in the case agree, any form of hearsay evidence may be admissible in evidence. Hearsay admissible in the interests of justice – S114(1)(d) = In deciding whether to admit hearsay evidence under s 114(1)(d), the court must have regard to the factors in s 114(2): a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; b) what other evidence has been, or can be, given on the matter or evidence mentioned in para (a) c) how important the matter or evidence mentioned in para (a) is in the context of the case as a whole; d) the circumstances in which the statement was made; e) how reliable the maker of the statement appears to be; f) how reliable the evidence of the making of the statement appears to be; g) whether oral evidence of the matter stated can be given and, if not, why not; h) the amount of difficulty involved in challenging the statement; and i) the extent to which that difficulty would be likely to prejudice the party facing it. In assessing these factors, the court will need to have regard to the defendant’s right to a fair trial enshrined in Article 6 of the ECHR

Answer 156

If hearsay evidence is admitted by the court, the maker of the statement will not be in attendance at court to give oral evidence. This will deprive the other party of the opportunity to cross-examine the maker of the statement in an attempt to undermine that person’s credibility as a witness. Thus contravening Article 6 especially 6(3)(d). S124 of the CJA 2003 permits the following evidence to be admissible: a) any evidence which (if the witness had given oral evidence) would have been admissible as relevant to his credibility as a witness; and b) with the leave of the court, any evidence which (if the witness had given oral evidence) could have been put to him in cross-examination as relevant to his credibility as a witness (for example, evidence that the witness had previous convictions for offences where he had been untruthful, such as perjury). S126(2) provides that nothing in the CJA 2003 concerning the admissibility of hearsay evidence prejudices the court’s overriding general power to exclude evidence under s78 of PACE 1984.

Answer 157

The procedural rules to be followed should a party seek to rely on hearsay evidence at trial (or to challenge the admissibility of hearsay evidence on which another party seeks to rely) are contained in Part 20 of the CrimPR. These rules do not, however, apply in all cases when a party wishes to use hearsay evidence at trial. The rules in Part 20 only apply to cases where: a) it is in the interests of justice for the hearsay evidence to be admissible (s114(1)(d)); b) the witness is unavailable to attend court (s 116); c) the evidence is multiple hearsay (s 121); or d) either the prosecution or the defence rely on s 117(1) for the admission of a written witness statement prepared for use in criminal proceedings Thus the rules in Part 20 will not apply if the prosecution call the interviewing officer to repeat the confession made by the defendant when he gives evidence at trial. A party wishing to adduce hearsay evidence to which Part 20 applies, or to oppose another party’s application to introduce such evidence, must give notice of its intention to do this both to the court and to the other parties in the case (CrimPR, r 20.2). Notice must be given using a set of prescribed forms. Time limits are applicable.

Answer 158

 Defence opposition to a prosecution hearsay application is based either on the suggestion that the prosecution cannot establish the ground for its admission or, more likely that its admission would lead to an unfair trial. If the CPS adduce the relevant evidence to discharge their burden in proving the ground under the relevant criteria under the CJA 2003. The defence would then need to raise the question of the defendant’s right to a fair trial under Article 6 of the Convention in arguing that the statement should not be admitted. Further, S126(2) CJA 2003 – S78 PACE 1984 discretion preserved under the Act (probative value of the hearsay evidence is outweighed by the prejudicial effect) should also be raised. The defence need to clarify in each individual case why there is a real need to cross-examine the witness and thus why they would not agree to the evidence being read under S9 CJA 1967. The court should be remined of the principles emanating from relevant case-law such as Al-Khawaja (2011), Horncastle (2009) and Riat, Doran, Wilson, Claire, Bennet [2012].(Manual 18.14). Although it has been determined that hearsay evidence does not automatically infringe a defendant’s right to a fair trial. The courts should be concerned with establishing whether there is a good reason for the witness’s non availability and ensure sufficient counterbalancing measures including the existence of strong procedural safeguards to ensure a fair and proper assessment of the reliability of the evidence before it is admitted as hearsay.

Answer 159

The prosecutor should draw the court’s attention to the following: - the relevant sentencing guidelines or guideline cases - any aggravating or mitigating factors - any other sentencing provisions or ancillary orders - any victim impact statement or CCTV - any evidence of the impact the offending has had on the community if relevant

Answer 160

Any court dealing with an offender in respect of an offence must have regard to the following purposes of sentencing: a) the punishment of offenders b) the reduction of crime (including its reduction by deterrence) c) the reform and rehabilitation of offenders d) the protection of the public e) the making of reparation by offenders to persons affected by their offences No reference to which is more important than the other

Answer 161

The fundamental principle is that a sentence should not be more severe than the offence warrants. The statutory aggravating factors are contained in Ss 63-67 Sentencing Act 2020: * (63) The offender’s culpability in committing the offence and harm caused * (64) An offence committed on bail is an aggravating factor * (65) Previous convictions are an aggravating factor * (66) Racial/religious/ disability/sexual orientation/transgender aggravation * (67) Committed against an emergency worker In addition to statutory aggravating factors, the court will consider any offence specific aggravating and mitigating factors of the offence itself with reference to the applicable sentencing guideline.

Answer 162

Section 73 Sentencing Act 2020: the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and the circumstances in which this indication was given Sentencing Council guidance regarding credit: - Guilty plea at the earliest opportunity = one third - Guilty plea after trial date has been set = one quarter - Guilty plea on the date of trial = one tenth The Approach: * Stage 1: Determine the appropriate sentence for the offence(s) in accordance with any offence sentencing guidelines. * Stage 2: Determine the level of reduction for a guilty plea in accordance with this guideline. * Stage 3: State the amount of that reduction. * Stage 4: Apply the reduction to the appropriate sentence. * Stage 5: Follow any further steps in the offence guideline to determine the final sentence.

Answer 163

Pre-sentence reports: Section 30 Sentencing Act 2020 - The court must order a PSR unless the offender is over 18 and the court is of the view such a report would be unnecessary. - Full PSR - Fast delivery reports or specific sentencing reports - Probation officers have no duty of confidentiality Other Reports: - Medical and psychiatric reports - Victim Impact Statements – Statement made by the victim detailing the effect the offence has had on them. - CCTV – if the offence was caught on camera, then it is highly likely that the court will view the same. - Taking other offences into consideration (TICs) – offences that the defendant is not convicted of but has made an admission to which the defendant asks the court to take into consideration. The defendant receives a higher sentence but he cannot be later prosecuted for those offences.

Answer 164

The sentencing Council

Answer 165

- Sentencing decisions formed by the Court of Appeal are used to inform sentencing in the Crown court. The SC has now formulated a number of guidelines but if there are no definitive guidelines then the COA decisions still apply. There is a useful compendium of such COA decisions on the SC website

Answer 166

- The Magistrates Court Sentencing Guidelines have been a settled feature of magistrates' courts for many years. This is the most extensive set of guidelines produced by the Council and covers most of the offences regularly coming before the magistrates' courts, which require decisions on allocation or on sentence. - The guidelines also contain explanatory material that sets out a common approach to more general issues. - For the first time, there is a statutory obligation on every court to have regard to these guidelines in a relevant case and to give reasons when imposing a sentence outside the relevant range.

Answer 167

General Guideline: Overarching Principles (2019)

Answer 168

1. Crown Court * May impose any penalty up to the maximum prescribed by law for the offence. 2. Magistrates Court * Maximum sentence for each offence. * Single Summary offence: 6 months or less as statute prescribes * Single Either way offence: 12 months or less as statute prescribes * Maximum aggregate for 2 or more offences. * All Summary offences: 6 months in total * 2 x Either way offence: 12 months in total * Summary offence/s plus * 1 x Either way offence: 12 months in total * 2 x or more Either way offences: 12 months in total 3. Committal for sentence: * Following plea before venue procedure - Section 18 Sentencing Act 2020 * Following summary trial – Section 14 Sentencing Act 2020

Answer 169

 Has the custody threshold been passed? - Section 230 Sentencing Act  Is it unavoidable that a sentence of imprisonment be imposed?  What is the shortest term commensurate with the seriousness of the offence?  Can the sentence be suspended?

Answer 170

- Time spent on remand awaiting trial automatically counts towards sentence and time spent on bail subject to an electronically monitored curfew of 9 hours or more may count as time served by the offender as part of the sentence, but the court must make a direction to this effect. This is calculated and applied administratively by the prison authorities

Answer 171

- In some cases, the length of a custodial sentence is fixed by law and the court does not have a discretion as to whether a custodial term should be imposed or not. Those convicted of Murder will receive a mandatory sentence of life imprisonment.

Answer 172

- Apply to certain offences whereby the court is required to impose the minimum statutory term unless it would be unjust to do so - Example: Third domestic burglary attracts a minimum sentence of 3 years.

Answer 173

Section 286 - 305 Sentencing Act 2020 1. If the court imposes a term of imprisonment of between 14 days and 2 years (subject to the magistrates’ courts sentencing powers), it may suspend the sentence for between 6 months and 2 years (the ‘operational period).The time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months. 2. Where the court imposes 2 or more sentences to be served consecutively, the court may suspend the sentence where the aggregate of the terms is between 14 days and 2 years (subject to the magistrates’ courts sentencing powers). 3. When the court suspends a sentence, it may impose one or more requirements for the offender to undertake in the community. The requirements are identical to those available for community orders. 4. A custodial sentence that is suspended should be for the same term that would have applied if the sentence was to be served immediately.

Answer 174

Section 200-220 Sentencing Act 2020 Magistrates and Crown Courts may impose Community Sentences. Community orders can fulfil all of the purposes of sentencing. In particular, they can have the effect of restricting the offender’s liberty while providing punishment in the community, rehabilitation for the offender, and/or ensuring that the offender engages in reparative activities. - A community order must not be imposed unless the offence is ‘serious enough to warrant such a sentence’ (Section 204 Sentencing Act 2020). - Where an offender is being sentenced for a non-imprisonable offence, there is no power to make a community order. - Sentencers must consider all available disposals at the time of sentence; even where the threshold for a community sentence has been passed, a fine or discharge may be an appropriate penalty. - The court must ensure that the restriction on the offender’s liberty is commensurate with the seriousness of the offence and that the requirements imposed are the most suitable for the offender. - Sentences should not necessarily escalate from one community order range to the next on each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s) (which will take into account any previous convictions). - Save in exceptional circumstances at least one requirement must be imposed for the purpose of punishment and/or a fine imposed in addition to the community order. It is a matter for the court to decide which requirements amount to a punishment in each case

Answer 175

 An unpaid work requirement  A rehabilitation activity requirement  A programme requirement  A prohibited activity requirement  A curfew requirement  An exclusion requirement  A foreign travel requirement  A mental health treatment requirement  A drug rehabilitation requirement  An alcohol treatment requirement  An alcohol abstinence and monitoring requirement  An attendance centre requirement

Answer 176

1. Nature - Absolute - Conditional 2. When appropriate 3. Term

Answer 177

1. Nature 2. When appropriate Most common penalty in Magistrates Court, not so common in the Crown Court. Level should be pitched to punish but not to demoralise. 3. Amount * Court must have regard to the seriousness of the offence and then may adjust the fine actually imposed by having regard to the defendant's means (so far as it is known to the court). * Where a custodial sentence is to be imposed the offender should not have outstanding financial obligations hanging over him on release. * Binding Over: Section 376-378 Sentencing Act 2020 1) Nature 2) When appropriate

Answer 178

The court may also impose ancillary orders on a defendant convicted of a criminal offence. The most common types are set out below 1) Prosecution Costs 2) Compensation Orders: Section 133-146 Sentencing Act 2020 3) Confiscation Orders: Section 152-161Sentencing Act 2020 4) Forfeiture Orders 5) Victim Surcharge 6) Criminal Behaviour Order 7) Restraining