Criminal Litigation LG1

Question 1

Where are the rules governing the investigative stage of prosecution found?

Answer 1

The Police and Criminal Evidence Act 1984 (‘PACE’), and in the Codes of Practice issued thereunder.

Question 2

Which rules govern police powers to search a person or a vehicle without first making an arrest? (‘stop and search’)

Answer 2

Part 1 of PACE and Code A.

Question 3

Which rules govern powers of arrest by police, and other people?

Answer 3

Part 3 of PACE. (Code G gives further detail on police powers of arrest).

Question 4

What rules govern the issue and execution of search warrants to enable the police to enter premises and to seize and retain property (these warrants are normally issued by magistrates, but in the case of sensitive material will be issued by Crown Court judges)?

Answer 4

Part 2 of PACE and Code B

Question 5

What rules govern questioning of suspects detained by the police?

Answer 5

Part 5 of Pace and Code C (Code E deals with audio recording police interviews with suspects and Code F deals with video recording such interviews).

Question 6

Which rules govern detention of suspects by police, including the period of time they can be detained without charge.

Answer 6

Part 4 of PACE.

Question 7

What does section C10 govern?

Answer 7

When a caution must be given, and in what terms.

Question 8

Recite the terms of a caution.

Answer 8

“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.”

Question 9

When can a caution be given?

Answer 9

Roughly, once there are grounds to suspect a person of an offence, a caution must be administered before any further questions are asked.

Question 10

What statutory provision provides that adverse inferences are to be drawn if an accused, at trial relies on facts which should have been revealed to the police when he or she was being interviewed?

Answer 10

s 34 of the Criminal Justice and Public Order 1994.

Question 11

What does Code C11 govern?

Answer 11

The conduct of police interviews and requires accurate interview records to be kept.

Question 12

What does Code D govern?

Answer 12

Code D gives detailed guidance on the main methods used by the police to identify people in connection with the investigation of offences. Section D3 is of particular importance. This governs identification of suspects and lays down different rules depending on whether the suspect’s identity is unknown or whether the police already have a suspect.

Question 13

What are the two types of criminal court in England, and Wales?

Answer 13

The Magistrate’s court, and the Crown Court.

Question 14

What are the three possible classifications of a criminal offence, and where may each be tried?

Answer 14

• Summary offences: these are offences which can be tried only in a magistrates’ court;
• Indictable offences: there are two types of indictable offence, namely
• Offences which are ‘triable either way’ (offences which may be tried either in a magistrates’ court or in the Crown Court), and
• Offences which are ‘indictable-only’ (offences which can be tried only in the Crown Court).

Where an offence is triable either way, the procedure by which it is decided whether the case should be tried in a magistrates’ court or in the Crown Court is known as a ‘mode of trial’ hearing or an ‘allocation’ hearing.

Question 15

Which figures sit in a Magistrates’ Court?

Answer 15

The court will comprise either ‘lay justices’ or a District Judge (Magistrates’ Courts). Lay justices are members of the public who have gone through a selection and training process to enable them to sit as magistrates (or ‘justices of the peace’, as they are sometimes known); they will not be legally qualified. A District Judge, on the other hand, is legally qualified (as a barrister, solicitor or legal executive).

The court is assisted by a ‘clerk’ or (as they tend to be known now) ‘court legal adviser’, who will be legally qualified and will be able to advise the magistrates on points of law, procedure and evidence.

Question 16

When will a defendant be tried in a magistrates court, and when not?

Answer 16

The defendant’s first court appearance in a criminal case will always be in a magistrates’ court, but he or she will only be tried in the magistrates’ court if either:

(a) the offence is a ‘summary’ offence, or
(b) the offence is triable either way, and both the accused and the magistrates have agreed that the case should be tried ‘summarily’ (i.e. in a magistrates’ court).

Question 17

How are Justices and District Judges addressed?

Answer 17

‘Sir’, or ‘Madam’

Question 18

How many jurisdictions does the Crown Court exercise, and what are they?

Answer 18

3.

Firstly, it is a trial court. If an offence is triable only on indictment, or if the offence is triable either-way but the mode of trial/allocation hearing resulted in a decision that the case should be tried in the Crown Court, the trial will take place in the Crown Court. Usually the trial will take place before a judge and jury (although there are certain instances, for example where jury intimidation has taken place or is likely to take place, when the trial can take place in front of a judge sitting without a jury).

Secondly, the Crown Court deals with committals for sentence from magistrates’ courts. This occurs where a defendant pleads guilty to, or is found guilty of, an either-way offence in a magistrates’ court, but that court takes the view that its sentencing powers are insufficient. In such a case, the defendant is committed for sentence to the Crown Court, which has greater sentencing powers. When dealing with committals for sentence, the Crown Court comprises a judge sitting alone.

Thirdly, the Crown Court is an appellate court, hearing appeals (against conviction and/or sentence) from magistrates’ courts. When the Crown Court is exercising this jurisdiction, it comprises a judge and two lay justices.

Question 19

What kinds of Crown Court Judge are there?

Answer 19

• High Court judges, who deal only with very serious cases (addressed ‘my Lord’ or ‘my Lady’ and referred to ‘your Lordship’ or ‘your Ladyship’);
• Circuit judges (addressed as ‘your honour’); and
• Recorders, who are part-time judges (addressed as ‘your honour’).

Question 20

What are the procedural consequences of a summary offence?

Answer 20

 D appears in a magistrates’ court;

 D enters plea:

 “Guilty” > sentencing stage;

 “Not guilty” > trial (in magistrates’ court).

Question 21

What are the procedural consequences of an Either-Way offence?

Answer 21

 D appears in a magistrates’ court;

 There is a ‘Plea Before Venue’ hearing:

 “Guilty”: sentence is passed or D is committed to the Crown Court for sentence;

 “Not guilty” (or no indication of plea) > determination of mode of trial:-

 Mode of Trial/Allocation hearing:

 Decision in favour of summary trial > the case is sent to the Crown Court for trial and a Plea and Trial Preparation Hearing (‘PTPH’) takes place in the Crown Court;

 Decision in favour of summary trial > magistrates’ court trial.

Question 22

What are the procedural consequences of Indictable only offences?

Answer 22

 D appears in a magistrates’ court;

 Case sent to Crown Court;

 A PTPH takes place in the Crown Court.

Question 23

Where is the overriding objective of the Criminal Procedure Rules given, and what is it?

Answer 23

Rule 1.1(1) of the Criminal Procedure Rules says that the ‘overriding objective … is that criminal cases be dealt with justly’.

Question 24

What does dealing with a case ‘justly’ involve?

Answer 24

Rule 1.1(2)

(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account―
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.

Question 25

Which rule requires each participant, in the conduct of each criminal case, to prepare and conduct the case in accordance with the overriding objective?

Answer 25

Rule 1.2(1)(a)

Question 26

Which rules require active case management of the court, and define such management?

Answer 26

Rule 3.2(1) requires active case management by the court. Rule 3.2(2) says that active case management includes:

(a) the early identification of the real issues;
(b) the early identification of the needs of witnesses;
(c) achieving certainty as to what must be done, by whom, and when, in particular by the
early setting of a timetable for the progress of the case;
(d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the shortest and clearest way;
(f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case; and
(h) making use of technology.

The conduct of criminal trials (and appeals) is governed by rule 3.11. This provides that, in order to manage a trial (or appeal), the court:

(a) must establish, with the active assistance of the parties, what are the disputed issues;
(b) must consider setting a timetable that—
(i) takes account of those issues and of any timetable proposed by a party, and
(ii) may limit the duration of any stage of the hearing;
(c) may require a party to identify—
(i) which witnesses that party wants to give evidence in person,
(ii) the order in which that party wants those witnesses to give their evidence,
(iii) whether that party requires an order compelling the attendance of a witness,
(iv) what arrangements are desirable to facilitate the giving of evidence by a witness,
(v) what arrangements are desirable to facilitate the participation of any other person, including the defendant,
(vi) what written evidence that party intends to introduce,
(vii) what other material, if any, that person intends to make available to the court in the presentation of the case, and
(viii) whether that party intends to raise any point of law that could affect the conduct of the trial or appeal; and
(d) may limit—
(i) the examination, cross-examination or re-examination of a witness, and
(ii) the duration of any stage of the hearing.