Criminal - part 1 complete

Question 1

What are the three classes of offence?

Answer 1

(a) ‘indictable offence’ means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way;
(b) ‘summary offence’ means an offence which, if committed by an adult, is triable only summarily;
(c) ‘offence triable either way’ means an offence, other than an offence triable on indictment only by virtue of [s. 40] of the Criminal Justice Act 1988 which, if committed by an adult, is triable either on indictment or summarily;

Question 2

How many crown courts are there? and where does a trial take place?

Answer 2

The Crown Court is regarded as a single court. It follows that, although the Crown Court sits in many different locations and a case will normally be tried at a location near where the offence allegedly occurred, the trial may take place at any location of the Crown Court. The choice of location will depend on the nature of the offence charged (offences are divided into three classes, determining the level of judge who should preside), the convenience of the parties, the desirability of expediting the trial and any directions given by the presiding judge of the relevant circuit as to the locations to which the magistrates’ courts in the area of the circuit should normally send cases for trial.

Question 3

What judges will you find in the Crown Court?

Answer 3

-any High Court Judge
-any circuit judge, recorder, qualifying judge advocate or District Judge (Magistrates’ Courts); or
-a judge of the High Court, circuit judge, recorder or qualifying judge advocate sitting with not more than four justices of the peace,
and any such persons when exercising the jurisdiction of the Crown Court shall be judges of the Crown Court.

There are thus three principal categories of Crown Court judge, namely High Court judges, circuit judges and recorders. All proceedings in the Crown Court must be heard before a single professional judge of the court except where there is provision for justices to sit with such a judge.

Question 4

Where do appeals from Mags court go?

Answer 4

A person convicted by a magistrates’ court may, if he or she pleaded not guilty, appeal to the Crown Court against conviction and/or sentence; if the person pleaded guilty, he or she may appeal only against sentence (MCA 1980, s. 108, and see D29.2 et seq.).

Question 5

Who is the judge in the magistrates court? Does it always need to be the same judge?

Answer 5

Magistrates’ courts consist of justices of the peace. The great majority of justices are unpaid lay men or women; a minority are salaried district judges (magistrates’ courts) who are legally qualified. The bulk of the criminal jurisdiction of magistrates’ courts has to be exercised by a court consisting of at least two lay justices sitting in open court. However, district judges almost invariably sit alone.

Where proceedings fall into a number of distinct stages (as when a magistrates’ court, after convicting an offender and imposing a fine, subsequently takes steps to enforce payment of the fine), the court for the later stage need not be constituted by the same justices as constituted the court on the first occasion, so long as both magistrates’ courts are acting in the same local justice area.

Question 6

What offences can the mags court try?

Answer 6

a magistrates’ court has jurisdiction to try any summary offence and (subject to the mode of trial procedure) any offence which is triable either way, irrespective of where the offence was committed.
If the accused is convicted of a summary offence, the court may sentence the accused to anything up to the maximum penalty provided for by the statute creating the offence.
A magistrates’ court may try an either-way offence allegedly committed by an adult if
(a) the offence is not so serious that the court’s powers of punishment in the event of conviction would be inadequate, and
(b) the accused agrees; in the event of conviction, the court may impose a penalty of anything up to six months’ imprisonment and/or an unlimited fine.

A youth court is a form of magistrates’ court and has jurisdiction to try children or young people for any offence (other than homicide and certain firearms offences), whether indictable or summary, although in certain circumstances the court may choose instead to send the child or young person to the Crown Court for trial (MCA 1980, s. 24).

Question 7

How do you appeal a decision made by Court of appeal?

Answer 7

only if the Court of Appeal or the Supreme Court itself considers that the appeal involves a point of law of general public importance which should be considered by the Supreme Court.
The Court of Appeal must certify that.
An application to the Court of Appeal for leave to appeal to the Supreme Court must be made by the party seeking to appeal no more than 28 days after the decision, or the date on which the court gives the reasons for its decision, whichever is later. Time begins to run on the day of the decision and not the day following the decision.

Where the Court of Appeal is of the view that the prospective appeal raises no point of law of public importance, it may decide so on the papers. A refusal to allow oral submissions will not amount to a violation of a person’s rights under the ECHR. A refusal by the Court of Appeal to certify a question cannot be appealed.

If the Court of Appeal certifies a question but leave to appeal to the Supreme Court is refused, the party may apply for leave to the Supreme Court within 28 days of the day on which the Court of Appeal gives reasons for its refusal of leave.

If the Court of Appeal decides an appeal on one ground but leaves others undecided and the Supreme Court hears the appeal of that decision, the Supreme Court may either rule on those grounds as if it were the Court of Appeal or may remit them back to the Court of Appeal for its decision.

Question 8

How do you apply for a representation order (Legal aid)?

Answer 8

Fill in a form and submit to LAA. If no, appeal to mags.

The Crown Court has very limited power to grant a representation order and may do so only on oral application under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013 No. 614).

Question 9

What is the test for granting legal aid?

Answer 9

The decision whether or not to grant a representation order is to be determined by a two-stage test, incorporating a merits test ‘according to the interests of justice’ and an assessment of means.

In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account—

(a) whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation,
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c) whether the individual may be unable to understand the proceedings or to state his or her own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
(e) whether it is in the interests of another person that the individual be represented.

It is not enough that the offence carries a custodial sentence: the court must consider whether a custodial sentence might be imposed in the particular case. The LAA pays particular regard to sentencing guidelines and a defendant’s list of previous convictions.

Question 10

Whats the overriding objective?

Answer 10

(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes—
(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.
(1) Each participant, in the conduct of each case, must—
(a) prepare and conduct the case in accordance with the overriding objective;
(b) comply with these Rules, practice directions and directions made by the court; and

(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.

(1) The court must further the overriding objective in particular when—
(a) exercising any power given to it by legislation (including these Rules);
(b) applying any practice direction; or
(c) interpreting any rule or practice direction.

Question 11

What is case management?

Answer 11

Active, hands on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge’s duty.

Once the issue has been identified, in a case of any substance at all, the judge should consider whether to direct a timetable to cover pre-trial steps, and eventually the conduct of the trial itself, not rigid, nor immutable, and fully recognising that during the trial at any rate the unexpected must be treated as normal, and making due allowance for it in the interests of justice.

To enable the trial judge to manage the case in a way which is fair to every participant, pre-trial, the potential problems, as well as the possible areas for time saving, should be canvassed. In short, a sensible informed discussion about the future management of the case and the most convenient way to present the evidence, whether disputed or not, and where appropriate, with admissions by one or other or both sides, should enable the judge to make a fully informed analysis of the future timetable, and the proper conduct of the trial. The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues. When trial judges act in accordance with these principles, the directions they give, and where appropriate, the timetables they prescribe in the exercise of their case management responsibilities, will be supported in this Court.

Question 12

What is case management?

Answer 12

• early identification of the issues,
• needs of witnesses,
• achieving certainty about what is to be done, by whom and when,
• the setting of a procedural timetable
• compliance with directions,
• discourage delay, promote cooperation and
• avoid unnecessary hearings and,
• as to the evidence, to ensure that, whether disputed or not, it is presented in the shortest and clearest way.
• issues in the case should be identified in writing and to determine the order they are decided in.

Question 13

How do the parties assist with case management?

Answer 13

each of the parties, and the court, to appoint a case progression officer at the commencement of proceedings, and to inform the other participants of how to contact that person.
The case progression officer is thereafter responsible for progressing the case, ensuring that party’s compliance with court directions, and alerting other parties to anything which may interfere with the smooth progress of the case.

For cases that are contested and which are to proceed in the magistrates’ court the parties are required to complete the Preparation for Effective Trial (PET) form.

For cases that are to be sent to the Crown Court the Better Case Management (BCM) form is completed on sending, and the Plea and Trial Preparation Hearing (PTPH) form at that hearing at the Crown Court.

The respective forms are intended to promote engaged hearings properly to plan the further stages of the case, a standardised approach to case preparation, and to minimise the need for further hearings.

Question 14

How are written admissions dealt with?

Answer 14

Ordinarily, written admissions should be put before the jury, provided at least that they are relevant to an issue before the jury and do not contain any material which should not go before the jury.

In court, a formal admission may be made by counsel or a solicitor orally. Whatever the manner of making a formal admission, it should be such that what has been admitted should appear clearly on the shorthand note. It is also important that the jury are clear as to what has been formally admitted.

Formal admissions made with the benefit of advice are an important and cogent part of the evidence in a trial. If it is sought to resile from them, leave to withdraw them is unlikely to be given without cogent evidence from the accused and advisers that the admissions were made by reason of mistake or misunderstanding.

Question 15

Whats the general rule for admissibility of evidence?

Answer 15

subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded. As to the former, however, evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it.

Question 16

Evidence of good character for a prosecution witness

Answer 16

(1) Generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.
(2) However, evidence is admissible if it is relevant to an issue in the trial.
(3) The category of issues to which evidence of disposition may be relevant is not closed.
(4) If the evidence is admitted because ‘issue-relevant’, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.

Question 17

What is circumstantial evidence?

Answer 17

Circumstantial evidence is evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred. It does not necessarily follow that the weight to be attached to circumstantial evidence will be less than that to be attached to direct evidence.

However, although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to cast suspicion on another. For this reason, it has been said that: ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’. Nonetheless, there is no requirement, in cases in which the prosecution’s case is based on circumstantial evidence, that the judge direct the jury to acquit unless they are sure that the facts proved are not only consistent with guilt but also inconsistent with any other reasonable conclusion.

Question 18

What is real evidence?

Answer 18

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. Little if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue. In some cases the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony.

Question 19

What is a view in evidence?

Answer 19

The term ‘view’ is used to describe both an inspection out of court of some material object which it is inconvenient or impossible to bring to court and an inspection of the locus in quo.

A view should not take place after the summing-up. A view should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer. In the case of magistrates, as a general rule a visit to the locus in quo should take place before the conclusion of the evidence and in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident or any feature not previously noticed by the parties which impresses the magistrates. The presence of the accused is important because he or she may be able to point out some important matter of which the legal adviser is ignorant or about which the magistrates are making a mistake.

a judge must produce ground rules for a view, after discussion with the advocates. The ground rules should contain details of what the jury should be shown, and in what order, and who will be permitted to speak and what will be said; and they should make provision for the jury to ask questions.

Question 20

Who is tribunal or law and fact in mags court?

Answer 20

In the case of proceedings presided over by lay justices, the justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the justice’s legal adviser. In theory, district judges (magistrates’ courts) are in the same position as lay justices. In practice, however, the district judge will be the more experienced lawyer, so that the occasions for asking for advice will be quite rare.

Question 21

What is S78?

Answer 21

PROSECUTION EVIDENCE!!!

In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

applications to exclude evidence under the section should be made before the evidence is adduced.

… the decision of a judge whether or not to exclude evidence under section 78 of the 1984 Act is made as a result of the exercise by him of a discretion based upon the particular circumstances of the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the proceedings.

Question 22

Whats the legal burden and what is the standard for discharge?

Answer 22

The legal burden is a burden of proof, i.e. a burden imposed on a party to prove a fact or facts in issue. In some cases the legal burden in relation to some of the facts in issue will be on one party, and the legal burden in relation to another (or others) will be on the other party. For example, if insanity is raised by way of defence, the legal burden on that issue is on the defence, whereas the legal burden on the other facts in issue is on the prosecution.
Any statutory provision imposing a legal burden on the accused may be open to challenge on the basis of incompatibility with Article 6(2) of the ECHR.

The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. If the legal burden is borne by the accused, the standard required is proof on a balance of probabilities. The question whether a party has discharged a legal burden is decided by the tribunal of fact, whether jury or magistrates, at the end of the trial after all the evidence has been presented.

Question 23

When does the prosecution not bear the legal burden?

Answer 23

The general rule is that the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt, there are only 3 exceptions:

(a) insanity;
(b) express statutory exceptions; and
(c) implied statutory exceptions.

Question 24

Who proves self defence?

Answer 24

Although the prosecution are not obliged to give evidence in chief to rebut a suggestion of self-defence before the issue is raised, once there is sufficient evidence to leave the issue before the jury, it is for the prosecution to disprove it beyond reasonable doubt. There may be evidence of self-defence even if the defence of the accused is one of alibi.

Question 25

Who proved duress?

Answer 25

Duress The Crown are not called upon to anticipate a defence of duress and disprove it in advance, but if the accused places before the court such material as makes duress a live issue, fit and proper to be left to the jury, it is for the Crown to disprove that defence in such a manner as to leave in the jury’s mind no reasonable doubt that the accused cannot be absolved on the grounds of the alleged compulsion.

Question 26

Who proves alibi?

Answer 26

Alibi Although there is no general rule of law that in every case where alibi is raised the judge must specifically direct the jury, quite apart from the general direction on burden and standard of proof, that it is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction if there is a danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defence to establish it. It is a common and good practice to give such a specific and additional direction in any event; and ideally it should be given it was held that a special direction is necessary if the nature of the alibi is that the accused was at a specific place elsewhere, raising the question why the accused did not call witnesses in support, but is unnecessary if the evidence amounts to little more than a denial that the accused committed the crime.

Question 27

How should a judge sum up?

Answer 27

It is the duty of the judge in the summing-up to make it clear to the jury what standard of proof the prosecution are required to meet. It is not a matter of some precise formula or particular form of words being used; what matters is the effect of the summing-up. If a judge fails to give a direction, it is no answer that jurors know about ‘beyond reasonable doubt’ or that the standard was stressed by the advocates in their speeches.

Although the law requires no particular formula, judges are wise, as a general rule, to adopt one. The time-honoured formula was that the jury must be satisfied beyond reasonable doubt, but the favoured phrase is that before the jury can return a verdict of guilty, they must be sure that the accused is guilty.

Question 28

What are the purposes of sentencing?

Answer 28

(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, and
(e) the making of reparation by offenders to persons affected by their offences.

Question 29

What are the 10 steps the court considers when sentencing?

Answer 29

STEP 1 Reaching a provisional sentence

STEP 2 Aggravating and mitigating factors

STEP 3 Consider any factors which indicate a reduction for assistance to the prosecution

STEP 4 Reduction for guilty pleas

STEP 5 Dangerousness

STEP 6 Special custodial sentence for certain offenders

STEP 7 Totality principle

STEP 8 Compensation and ancillary orders

STEP 9 Reasons

STEP 10 Consideration for time spent on bail (tagged

Question 30

Can a summary offence appear on an indictment?

Answer 30

certain specified summary offences can appear on an indictment if they are linked to an indictable offence for which the accused has been sent to the Crown Court for trial. Those offences include common assault; taking a motor vehicle without consent; driving whilst disqualified; and criminal damage where the value of the damage does not exceed L5,000.
OR a jury can find someone guilty of a summary offence by way of alternative verdict.

the judge would be able to deal with the summary offence as if he or she were a magistrate (following the procedure that would be adopted in the magistrates’ court).

Question 31

How do you determine the class of an offence?

Answer 31

An offence is triable either way if either :

(a) it is listed in the MCA 1980, sch. 1 or
(b) the enactment creating the offence (where the offence is a statutory one) specifies one penalty on summary conviction and a different (invariably greater) penalty on conviction on indictment.
c) Common-law offences (i.e. offences not created by statute) are all indictable offences and are triable only on indictment unless listed in the MCA 1980, sch. 1.

Question 32

??

Answer 32

Committal for Sentence
D3.15

Various statutory provisions enable magistrates’ courts to commit an offender to the Crown Court to be sentenced. These are described fully at D23.29 et seq.

Question 33

When can the crown court grant bail?

Answer 33

As well as being able to grant bail during the course of a trial on indictment or other proceedings before it, the Crown Court has jurisdiction, inter alia, to grant bail to a person:

(a) who has been sent to it in custody for trial or sentence; (b) who is appealing to it from a magistrates’ court following the imposition of a custodial sentence by the justices;
(c) who is appealing from it to the Court of Appeal and has been granted a certificate that the case is fit for appeal; or
(d) who has been remanded in custody by a magistrates’ court following an argued bail application.

Question 34

When do the magistrates court send people to crown court?

Answer 34

Where a magistrates’ court has convicted an adult of an either-way offence, it may commit the offender to the Crown Court for sentence if the court considers its powers of punishment to be inadequate.

A magistrates’ court may send someone accused of an indictable offence (whether triable only on indictment or triable either way) for trial in the Crown Court no matter where the offence was allegedly committed.

A youth court is a form of magistrates’ court and has jurisdiction to try children or young people for any offence (other than homicide and certain firearms offences), whether indictable or summary, although in certain circumstances the court may choose instead to send the child or young person to the Crown Court for trial.

Question 35

How does the crown court decide on representation orders (legal aid?)

Answer 35

Regulation 6 states that a representation order may only be granted in proceedings:

(a) which are described in the LASPO 2012, s. 14(g) (contempt in the face of the court);
(b) which arise out of an alleged failure to comply with an order of the Crown Court and it appears to the court that there is no time to instruct a provider; or
(c) where the individual is brought before the court under the Senior Courts Act 1981, s. 81, in pursuance of a Crown Court warrant.

There is no means test for these applications. Any other order of the Crown Court will be invalid (Criminal Legal Aid (General) Regulations 2013, reg. 3). The Crown Court may consider appeals against the refusal of a representation order in those situations where the interests of justice merits test is not automatically met.

Question 36

What happens when a party fails to comply with rules, directions and time limits?

Answer 36

where the Court of Appeal was concerned with whether the trial judge had correctly rejected the attempt by one accused to adduce evidence of the previous bad character of the other at a late stage — so late as to be in breach of the time-limit for service of a notice of an application to adduce such evidence.

The Court observed that the trial judge was entitled to exclude such evidence where he concluded that D1 was deliberately manipulating the process so as to prevent D2 from dealing with the evidence properly. It would be rare for a judge to exclude evidence of substantial probative value just because the time-limits had not been complied with, but it would be proper to do so where such exclusion was the only means to ensure fairness.

The obligation on ‘participants’ does not just relate to their own compliance with the Rules. They are also expected to notify the court and all parties ‘at once … of any significant failure’ of compliance by others.

If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a document or to apply for an adjournment may properly be refused.

Question 37

What is the evidential burden?

Answer 37

The Evidential Burden The evidential burden is not a burden of proof but the burden of adducing evidence or ‘the duty of passing the judge’, in other words the burden imposed on a party to adduce sufficient evidence on a fact or facts in issue to satisfy the judge that such issue or issues should be left before the tribunal of fact. In some cases, the evidential burden on some of the facts in issue will be on one party and the evidential burden on another (or others) will be on the other party. Very often a party bearing the legal burden on an issue also bears the evidential burden on that issue. However, in the case of many defences (including, for example, self-defence), the evidential burden in relation to the defence is on the accused and the legal burden in relation to the defence is on the prosecution.

Question 38

What are the disclosure time limits?

Answer 38

The crown must serve its evidence within 28 days of the not guilty plea and comply with their initial duty of disclosure. At the same time, it must serve notice of any intention to deduce a defendants bad character or hearsay evidence. The defence must serve a defence statement within 14 days and notify the crown and the court that a witness is required to attend court to give live evidence within 7 days. Similarly, within 7 days the defence must indicate if any application of bad character is being opposed.
Within 14 days, the defence must give notice of any intention of introducing hearsay evidence or bad character of prosecution witness and serve any statements of its own where a witness is not being called to give live evidence.
Any point of law must be identified with skeleton arguments and authorities at least 21 days before trial and both parties have to serve a certificate of readiness 7 days before trial.