Criminal Practice

Question 1

When can a detained person have their affects seized?

Answer 1

• Person affects can be seized if custody officer has reasonably grounds for believing they are evidence (s54(3) PACE); or if the custody officer believes the suspect may use the items to:
  o Assist an escape
  o Hurt themselves or someone else
  o Cause damage to property
  o Interfere with evidence

Question 2

If there is insufficient evidence to charge immediately, the suspect should be released either on bail or without bail. Unless?

Answer 2

o The custody officer has reasonable grounds to believe it is necessary to detain suspect to secure or preserve evidence relating to an offence for which they are under arrest; or
o It is necessary to obtain evidence by questioning (s37 (2) PACE)
If grounds are no longer relevant, must be released.

Question 3

What are the Code C conditions for detention?

Answer 3

o Cell ventilated, heated and cleaned;
o Clean and sanitary bedding;
o Toilet and washing facilities;
o 2 light meals and a main meal in 24 hour period. Drinks at meal times and upon reasonable request;
o Brief outdoor exercise daily (if practicable); and
o Should be visited in cells every hour.

If CO considers suspect injured, or mental, must get medical help as soon as reasonably practicable – CODE C.

Question 4

What are a suspect’s rights when detained that the custody officer must inform them of (Code C)?

Answer 4

o Right to have someone informed of arrest (s56);
o Right to consult solicitor privately at any time (& free independent legal advice id available) (s58) – as soon as practicable on request;
o Right to consult Codes of Practice;
o Must inform suspect of solicitors arrival even if being interviewed at the time;
o Must be asked if suspect would like to see solicitor even if declined;
o Can’t do/say anything to dissuade getting legal advice;

Question 5

When can legal advice be delayed?

Answer 5

Indictable offence, delayed max 36 hours, authorisation by a superintendent - this can be given verbally but must be followed up in writing as soon as reasonably practicable.

Grounds:
if officer has reasonable grounds for believing exercising right will:
o Interference or harm to evidence connected with indictable offence, or interference or physical injury to other persons;
o Alerting of offers suspected of offence but not arrested; or
o Hinder recover of any property obtained as a result of the offence (s58(8).

Question 6

When can the right to have someone informed of arrest be delayed?

Answer 6

Inspector, indictable offence (& either way). 36 hours
- Oral authorisation but followed up in writing as soon as practicable
- The police officer who authorises the delay may do so only if they have reasonable grounds for believing that telling the named person of the arrest will:
o lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons;
o lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
o hinder the recovery of any property obtained as a result of such an offence (s 56(5))

Question 7

Detention time limit?

Answer 7

24 hours from relevant time (arrest? arrive at station. Voluntary? time of arrest. Answering street bail? arrive at station).

Question 8

When can the detention time limit be extended?

Answer 8

• Extend detention by 12 hours (36 total), Superintendent and reasonable grounds for believing:
  o Necessary to detain without charge to secure or preserve evidence related to offence (or by questioning);
  o Indictable offence (inc. either way); and
  o Investigation carried out diligently and expeditiously.
• Extend further? Need warrant of further detention from Mag, up to max 36 hours (total 72 hours).
• Grounds for Mag to grant warrant, if they consider there are reasonable grounds for believing further detention is justified. Only justified if:
  o the suspect’s detention without charge is necessary to secure or preserve evidence relating to an offence for which they are under arrest, or to obtain such evidence by questioning them; and
  o the investigation is being conducted diligently and expeditiously (s 43(4)).
• Same as superintendent’s grounds
• Court can extend again by 36 hours up to 96 hours (4 days) after relevant time. Same grounds as above i.e it is justified.

Question 9

Detention reviews - how carries them out and how often?

Answer 9

• If review not carried out, detention is unlawful and is tort of false imprisonment (Roberts v Chief Constable 1999)
• Review carried out by inspector (not involved in investigation) – review officer
• 6 hours after first authorisation, 9 hours after

Question 10

What is the solicitor’s role at the police station?

Answer 10

to protect and advance client’s legal rights

Question 11

How must audibly recorded interviews take place and when should they not?

Answer 11

• Para 11.1A Code C: interviews must be carried out under caution
• Para 11.18(b) Code C: Generally suspect shouldn’t be interviewed if:
  o Appear unable to appreciate significance of interview; or
  o Appear unable to understand what is happening due to drugs, drink, illness, ailment etc. Exceptions if matter of urgency.
• Suspect should not be interviewed until after received legal advice if requested. Exception:
  o Legal advice delayed up to 36 hours by Superintendent;
  o Awaiting arrival of solicitor causes “unreasonable delay to the process of investigation” (Code C);
   Amended caution for the above 2: ‘You do not have to say anything, but anything you do say may be given in evidence.’ No adverse inferences can be drawn.
  o Can’t contact solicitor, or has denied coming, and suspect denies getting a different solicitor;
  o Asks for legal advice and then changes mind. Can press on if:
   Inspector enquires about reasons for changing mind, reasonable efforts to tell solicitor and to find out their expected arrival time;
   Suspect’s decision and reasons for changing mind are recorded in custody record;
   Suspect signs entry in custody record confirming they want to carry on with interview;
   Inspector considers it proper for the interview to proceed and gives authorisation in writing.
   When interview starts and suspect is reminder of their right to legal advice, the following is recorded in the custody record:
• Detainee changed mind and the reasons
• Authority for interview has been given
• If solicitor arrives before interview over, suspect will be told promptly and break will happen if wants to speak to solicitor. And that suspect can ask for solicitor again at any time.

Question 12

What must the police do at the start of an interview?

Answer 12

1. Caution
2. After caution given, police officer must remind suspect they are entitled to free and independent legal advice.
3. Officer must then but “any significant statements or silences said before interview” to the suspect and give them a chance to confirm, deny or add anything. Significant statement = capable of being used as evidence against suspect.

Don’t put significant statement or silent to suspect? Could be ruled inadmissible under s78 PACE at trial.

Question 13

Breaks and meals during interview?

Answer 13

• Interview over 24 hours, need 8 hours of continuous rest
• Breaks at meal times and refreshment breaks every 2 hours
• 2 small meals and one big meal. Drinks at meals or upon reasonable request

Question 14

When does the interview end?

Answer 14

• CODE C: When investigation offer is satisfied all questions have been put to the suspect to obtain accurate and reliable info, and the suspect has had a chance to give an innocent explanation, and this has been tested; or
• IO reasonably believes enough evidence for a realistic prospect of conviction, or if it is a detained suspect, the decision is the Custody Officer’s.

Question 15

What is the solicitor’s role in an interview?

Answer 15

• Take an active role
• Can intervene to ask for clarity, challenge improper Qs, or want to give legal advice
• Can’t answer Qs for client or write down answers. ”Unacceptable conduct” and could get chucked out.

Question 16

When should a solicitor interject in an interview?

Answer 16

o The solicitor is unhappy about the seating arrangements for the interview;
o The police are acting in an oppressive manner;
o The police are asking inappropriate questions because they are:
 irrelevant questions
 making a statement/asserting facts
 misrepresenting the law
 misrepresenting the strength of the case against the client
 ‘upgrading’ a response from the client/putting words in the client’s mouth/making assumptions
 hypothetical/speculative questions.
o The police make threats/give legal advice on the consequences of silence.
o The police offer inducements;
o There is reference to a client’s previous convictions;
o New information is introduced that was not disclosed earlier;
o The police ask the client if they would be prepared to take part in further investigative procedures before the solicitor has been able to give the client advice on this;
o The solicitor is concerned about the client’s behaviour or conduct;
o The client is making comments that may have adverse consequences later in the case;
o The police provide an inaccurate summary by the interviewing officer; and
o There is already sufficient evidence to charge

Question 17

What PACE Code governs ID procedures?

Answer 17

Code D

Question 18

What can the police do if they don’t know the ID of a suspect?

Answer 18

• If police don’t know ID of suspect, can take witness to neighbourhood and try point them out
• If suspect is known, use ID procedure
• Code D: police must keep record of suspect has first described by witness – copy of this must be given to suspect or solicitor before ID procedure (useful if discrepancies between description and actual appearance)

Question 19

When must an ID procedure be held?

Answer 19

• Two occasions:
  o Witness has identified or purported to identify a suspect; or
  o Witness thinks they can ID suspect but it is disputed by suspect
• In above cases, para 3.12 of Code D states ID procedure shall be held unless not practicable or serves no useful purpose in proving/disproving suspect was involved in offence
• Not useful:
  o Suspect is known to witness
  o Suspect admits being at scene and his account doesn’t contradict witness
• R v Harris 2003: same school, not been in same class, 2 years ago, accused was 14. Accused disputed ID = ID procedure should have been held
• H v DPP 2003: known victim for 18 months and assault was 7 mins long = no need for procedure
• Hold ID procedure if identified witness in street some time later (test reliability)
• Code D: procedure may be held if officer thinks it would be useful

Question 20

According to Code D, which ID procedure should be used?

Answer 20

• What should be used? Code D para 3.16, video used, unless:
  o Video not practicable;
  o Parade is more practicable and suitable than video; or
  o Investigation officer considers group ID is ore suitable than video or parade, and officer consider it practicable to arrange.
• Decision made by IO and ID officer

Question 21

What is the procedure if a witness is shown photos?

Answer 21

• Retain first description before showing photos – Code D
• Must show at least 12 photos, as soon as positive ID made no other witnesses shown photos – Code D
• Inform suspect or solicitor if witness doing ID procedure has seen photos
• If goes to trial, witness can’t say they identified suspect from photos first [Charles v The Queen 2007]

Question 22

What is the Video ID procedure?

Answer 22

• 8 images of other people of “so far as possible resemble the suspect in age, general appearance and position in life” (Code D), or 12 other people if 2 suspects. All of them in same position or carrying out same movements
• Suspect/solicitor see images first, can object (e.g if don’t look similar). Police must remove grounds of objection if practicable
• Identifying mark i.e scar, tattoo, hair, can be concealed but if witness after seeing video wants to see unconcealed video then let them
• Suspect will not be present
• One witness at a time, can playback or freeze as many times as needed.

Question 23

What can witnesses not do during a video ID procedure?

Answer 23

o Be reminded of photos they have seen
o Talk to each other about case
o Overhear other witnesses
o See videos before procedure

Question 24

What is the ID parade procedure and what can witnesses not do?

Answer 24

• Sees suspect in line of other people who resemble suspect
• 8 other people or 12 others if 2 suspects (far as possible resemble age, height, general appearance and position in life) – same as video
• Features can be concealed like video
• Witness can’t
  o Communicate with each other before parade
  o Be reminded of photos they have seen or descriptions given
  o See suspect before parade
  o See any member of parade
• Can request them to speak or do move but must try identify on appearance alone first, police must remind witness participants have only been chosen based on looks
• If person chosen based on speech, will be admissible at trial but judge will give very strong warning to jury
• Photo or video of ID must be taken to avoid disputes

Question 25

What is the Group ID procedure?

Answer 25

• Witness sees suspect in informal group
• Can be done with consent or covertly
• When selecting location police must reasonably expect to see someone of similar appearance. Much less strict requirement than video and parade
• If done covertly, must go to a place suspect is likely to be at a given time e.g leaving work

Question 26

Who is in charge of ID procedures?

Answer 26

• Identification officer – rank of inspector not involved in investigation
• Must make sure procedure complies with Code D
• Must be in uniform and be present throughout

Question 27

What must the ID office explain to the suspect before a procedure is arranged?

Answer 27

o Purpose of ID procedure;
o Entitlement to free legal advice;
o Procedure to be followed and allowed to have solicitor or friend present;
o If consent refused, this may be given in evidence at trial or covert procedure used or other arrangement like confrontation;
o If changes appearance can be used as evidence in trial and other procedure may be used;
o If any photos, composite sketches were shown to witnesses before knew of suspect’s identity; and
o That suspect/solicitor will be provided with first descriptions of suspects appearance.

Question 28

What are the 4 choices for officer after detention at police station?

Answer 28

• Custody officer’s choice to decide what to do
• 4 choices:
  o Charge (on bail or in custody)
  o Release (NFA or under investigation)
  o Release without charge but on bail whilst police make further enquiries
  o Alternative to charge

Question 29

What is a simple caution?

Answer 29

• Although criminal records are kept of cautions, a simple caution is not the same as a criminal conviction. If a defendant who has received a caution is later convicted of a separate offence, the caution may be mentioned to the court when the court is considering what sentence to pass
• Usually given by inspector
• Can give to adults as well as youths

Question 30

What are the conditions for a simple caution?

Answer 30

• 3 conditions must be satisfied:
  o (a) sufficient evidence must have been collected to have justified a prosecution;
  o (b) there must be clear and reliable evidence of a voluntary admission by the offender that they have committed the offence;
  o (c) the offender must agree to being cautioned, having been made aware that the caution might be raised in court were they to be convicted of a later offence.
• Section 17(2) of the Criminal Justice and Courts Act 2015 restricts the use of simple cautions for indictable-only offences – Superintendent needs to determine there are exceptional circumstances- and CPS must agree
• In addition, under s 17(3), a defendant must not be given a simple caution for an either-way offence that has been specified by the Secretary of State unless a police officer of at least the rank of inspector determines that there are exceptional circumstances relating to the offender or the offence.
• A defendant must not usually be given a simple caution if in the two years before the offence was committed the defendant has been convicted of, or cautioned for, a similar offence.

Question 31

What is a conditional caution?

Answer 31

Forms part of your criminal record, formal admission of guilt, conditions attached, if conditions breached can be convicted for the original offence.

Question 32

When can a conditional caution be given?

Answer 32

• Under s 22 of the CJA 2003, a conditional caution can be given to a person aged 18 or over, provided that the following five requirements are satisfied:
  o Evidence offender committed offence
  o Prosecutor or authorised person determine sufficient evidence and CC should be given
  o Offender admits guilt
  o Effect of CC must be explained, warn that not complying with conditions may mean they are prosecuted for original offence
  o Must sign doc containing details of offence, admission and consent to CC

CPS decides on CC

Question 33

What are the disadvantages of a conditional caution?

Answer 33

• Solicitor must advice of the negatives of a CC:
  o Admission of guilt and will be on criminal record
  o Will lose opportunity of receiving caution on subsequent occasion
  o Disclosable to employers
  o If sexual offence will be on sex offenders register
  o Police can retain fingerprints and ID data (min 5 years)

Question 33

What PACE code governs vulnerable suspects?

Answer 33

Pace Code C, and if ID procedures carried out and forensic evidence gathered, Code D

Question 33

What should the appropriate adult do, and what can’t they do?

Answer 33

o Active role ensuring suspect understands what is happening and why
o Make sure suspect understands rights
o Advise, assist and support especially when interviewed
o Observe whether police correct conduct and respecting suspects rights
o Assist with communication
- NOT giving legal advice and not protected by legal privilege (Code C)
- Can ask for solicitor on behalf of suspect but cant force them to see them (Code C)
- Rights should be explained to juvenile in front of AA
- Not role to help the police
- Interject in interview if suspect doesn’t understand

Question 33

Who is considered a vulnerable suspect?

Answer 33

• Under 18 (between 10 – 17). Code C – police should treat anyone who looks U18 as juvenile until evidence of the contrary;
• Mental health condition or disorder. Code C – if suspect mentally unwell treat as such until evidence to the contrary;
• Cannot speak English
• Deaf, blind or unable to speak
• Para 3.20A Code C – girl U18 must be under care of woman whilst detained

Question 33

What must a solicitor ensure happens at the start of an interview of a vulnerable suspect?

Answer 33

• Must be cautioned in front of AA
• Not interviewed or asked to sign written statement without AA
• Officer must inform AA of their role to advise, observe officer’s conduct and help communicate

Question 33

Who needs to be informed of a juvenile’s arrest?

Answer 33

• Code C – Custody Officer, if practicable, must find out person responsible for child’s welfare
• Could be parent, guardian, if in local authority organisation care then the person appointed
• Must be informed as soon as practicable of arrest, and why
• THIS CANNOT BE DELAYED
• Child has court order or organisation has stat responsibility? Reasonable steps must also be taken to notify that person or organisation. The person notified is known as the ‘responsible officer’ – usually from Youth Offending Team

Question 33

What is the hierarchy of appropriate adults and who cannot be an AA?

Answer 33

• Hierarchy of who to get:
  o 1. Parent/guardian
  o 2. Social worker
  o 3. Another responsible adult not connected with police e.g aunt
• NOT solicitor
• NOT connected to police
• NOT an interested party in offence e.g victim
• NOT a person suspect previously made omissions prior to attending station
• NOT estranged parent if juvenile objects

Question 33

Who can remove the appropriate adult from the interview?

Answer 33

Superintendent, or if one is not available, an inspector, not connected with investigation. If AA removed, ensure there is another one.

Question 34

Who can consent for juveniles when police intend to carry out ID procedures and collect samples (Code D)?

Answer 34

• Code D, if any procedure requires consent the following conditions apply:
  o Juvenile 14 or over? Consent is needed from juvenile and parents/guardian;
  o Juvenile under 14? Consent is only needed from parents/guardian; and
  o If suspect has mental health condition then consent must be given in front of AA.

Question 35

When can a juvenile be kept at the police station instead of local authority accommodation?

Answer 35

• Usually kept in care of local authority before first appearance in youth Court. Two exceptions for when juveniles can be kept in police station:
  o It is impractical to move suspect to local authority accommodation; or
  o Suspect is over 12, no secure local authority available and keeping them in normal local authority accommodation would not be adequate to protect public from serious harm from the (s38(6) PACE).
• What does not count as impractical (Code C)
  o Juvenile’s behaviour;
  o Nature of offence.

Question 36

If a juvenile is kept at the police station, what controls must be put in place?

Answer 36

• If kept at police station, separate from adults and do not keep in cell unless not practicable to supervise unless in cell.

Question 37

Who decides out of Court disposals for juveniles?

Answer 37

• The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 decides out of court disposals for U18
• Indictable only offences decided by CPS
• First time summary and either-way by the police
• Second and subsequent offences joint decision by police and Youth Offending Team

Question 38

What are the 3 out of court disposals for youths? What are the conditions of these disposals?

Answer 38

1. Community resolution (not part of criminal record)
2. Youth cautions:
   - S66ZA Crime and Disorder Act (CDA) 1998 sets out when a juvenile can be given a youth caution:
   o Sufficient evidence to charge;
   o Offender admits guilt; and
   o Police do not consider prosecution or condition caution appropriate i.e it is not in interest of public.
   - Take into account seriousness of offence
   - Youth caution given to someone aged 17 or under must be given in presence of AA
3. Youth conditional cautions:
   - - S48 Criminal Justice and Immigration Act 2008 which inserted s66g into the CDA 1998
   - Requirements for youth conditional caution:
   o Must have enough evidence for realistic prospect of conviction (not charge like with Youth Cautions);
   o Offence admits guilt;
   o The effect of a youth conditional caution is explained to the offender and it is explained that failing to comply with the conditions could mean the offender is prosecuted for the original offence (if the offender is aged 16 or under this explanation and warning must be given in front of AA);
   o Sign document setting out details of offence, admitting guilt, consenting to YCC and details of conditions attached.
   - Conditions must be for rehabilitation, reparation or punishment
   - Conditions must be capable of completion in 16 weeks for summary only
   - If either-way or indictable may be longer, but no longer than 20 weeks

Question 39

What are the key aims of the government programme Criminal Justice: Simple, Speedy, Summary

Answer 39

• Presumption that plea entered at the first hearing
• For guilty pleas, sentencing same day unless need pre-sentence report
• Not guilt pleas, trial listed for 6 – 8 weeks
• CPS provide sufficient information at first hearing to ensure it is effective
• Applications for adjournment? Consider need for expedition – summary trials should be speedy

Question 40

Indictable ONLY offenes?

Answer 40

• Murder
• Manslaughter
• GBH/wounding with intent
• Rape
• Robbery
• Aggravated burglary
• Blackmail
• Kidnap
• Conspiracy

Question 41

Either-way offences?

Answer 41

• Theft
• Fraud
• Most forms of burglary
• Handling stolen goods
• Going equipped to steal
• GBH/wounding (no intent)
• ABH
• Sexual assault
• Affray
• Threats to kill
• Criminal damage
• Dangerous driving
• Possession of an offensive weapon
• Possession / possession with intent to supply
• Supply of controlled drugs

Question 42

Low value shop theft and criminal damage.

Answer 42

• Shop lifting of less than £200 aggregate is treated as summary offence. If plead not guilty, defendant can chose trial in CC
• 6 month custody in mag subject to change
• Adult pleads guilty then cannot be committed to CC
• Crim damage, treated as summary if less than £5,000 – unless caused by fire

Question 43

Summary offences?

Answer 43

• Common Assault
• Ss4 – 5 Public Order Act 1984
• Taking a vehicle without consent
• Most road traffic offences

Question 44

Interests of Justice test for representation order? (Mag)

Answer 44

• Serious damage to reputation or lose liberty / livelihood (custodial sentence or refused bail – maybe suspended sentence – lose job if plead guilty – reputational damage if no previous convictions / minor, position of standing in community e.g pastor – dishonesty offences if no previous convictions)
• Substantial point of law (pros evidence in dispute, defendant wishes to adduce evidence CPS argue is inadmissible, adverse inferences, admit hearsay evidence, confession excluded argument, bad character adduction)
• Individual may be unable to understand proceedings or state own case (bad English, mentally disabled, age, otherwise vulnerable)
• If it involves tracing witnesses, cross examination, expert evidence (e.g cross examining police officer about PACE Code breaches… need legal expertise, expert evidence generally)
• Interests of another person that they be represented (i.e sexual assault victim won’t want to be cross-examined by the accused)

Question 45

What is covered by a Representation Order?

Answer 45

• For summary or either way will cover all work done by solicitor in Mag
• May be extended to cover an appeal
• If Mag decline jurisdiction for either-way, or accused elects CC, will automatically be extended
• Rep order for indictment will cover Mag and Crown
• Can appeal interests of justice in 2 ways: amend CRM14 and resubmit or request an appeal
• At end of case, solicitor claims costs incurred under rep order from LAA

Question 45

Means test for representation order (Mag)

Answer 45

• Auto satisfy if on welfare benefits:
  o Income support
  o Job seeker’s
  o Guaranteed state pension credit
  o Income-based employment
  o Support allowance
  o Universal credit
• or if under 18
• If don’t auto satisfy, will need to provide evidence
• Form CRM15 – initial means test, only considers income & expenses but not capital
• The full means test calculates applicant’s disposable income, the following is deducted from the applicant’s gross annual income:
  o a) tax and national insurance;
  o (b) annual housing costs;
  o (c) annual childcare costs;
  o (d) annual maintenance to former partners and any children; and
  o (e) an adjusted annual living allowance.
• No right to appeal on means
• If cannot afford defence, can apply for legal aid on grounds of hardship (CMR16)
• Legal aid either free or not available in Mag (no contribution to defence costs)

Question 46

Process for pleading guilty in Mag for summary offence?

Answer 46

1. Give plea
2. CPS will tell the magistrates the facts of the case and hand in defendant’s crim record (if they have one)
3. If represented, the solicitor will give plea in mitigation
4. Sentence or adjourn if need pre-sentence report (or if facts disputed by defendant and may have a Newton Hearing)
5. If adjourned – consider bail

Question 47

Process for pleading not guilty in Mag for summary offence?

Answer 47

1. Give plea
2. Fix date for trial
3. Issue case management directions
4. Consider bail

Question 48

Process for pleading guilty for either-way offence?

Answer 48

1. Give plea
2. Magistrates considers jurisdiction
3. If keep case, either sentence or adjourn for pre-sentence report(consider bail); or
4. If don’t keep, adjourn so sentencing hearing at CC can take place

Question 49

Process for pleading not guilty for either-way offence?

Answer 49

1. Give plea
2. Magistrates consider jurisdiction (plea before venue and allocation procedure) – considered in Ch 6
3. If don’t keep case, adjourn for trial at CC
4. If do keep case, D decides if he wants summary trial or indictment
5. If adjourned then consider bail

Question 50

Indictment only process in Mag?

Answer 50

• Sent from Mag court straight to CC for either trial or sentence (s51(1) CDA 1998
• Consider bail or remand in custody

Question 51

What does Part 8 CrimPR say on if CPS try to rely on a document the D has not seen?

Answer 51

Defendant must first be given sufficient time to consider

Question 52

What does IDPC include for offence charged immediately before first hearing in Mag court?

Answer 52

1. Summary of the circumstances of offence; and
2. Criminal record.

Question 53

What does IDPC include for offence in all other cases other than charged immediately before first hearing in Mag court?

Answer 53

1. Summary of circumstances of the offence
2. Account given by defendant in interview, whether in summary or another doc
3. Any written WS or exhibit prosecutor considers material to plea or allocation
4. Defendant’s criminal record; and
5. Victim impact statement (if available).

Question 54

What does IDPC also when released on bail after charge and a guilty plea is not anticipated?

Answer 54

1. Statement and exhibits for plea or initial case management inc CCTV and Streamlined forensic Report
2. Indication of medical or other expert evidence likely to adduce
3. Information as to special measures, bad character or hearsay

Question 55

What advice should the solicitor give re the plea and trial venue - eitherway.

Answer 55

• Discuss each WS and add points to client’s written statement
• Listen to interview to check transcript is accurate
• Inform client of strength of Prosecution’s case, will affect plea
• Do we need further evidence e.g in light of prosecution evidence can client recall identity of any witnesses
• Client’s plea is his decision but advise on strength of case and reduced sentence for early plea
• If either-way offence, advise on allocation

Question 56

Factors in favour of Mag and CC?

Answer 56

Factors in Favour of CC
- Higher chance of acquittal, jury more sympathetic
- Better procedure for challenging admissibility of evidence – jury leaves room and have a voir dire
- Mag would decide on evidence although try to deal with admissibility of evidence at pre-trial hearings with a different Mags
- More time to prepare

Factors in Favour of Mag
- Less daunting for inexperienced offender – less formal
- Limiting sentencing powers (but can be committed to CC for sentence)
- Quicker (relevant if denied bail or if concerned about employment)
- If lose, will likely have to contribute to CPS costs. These are cheaper in Mag
- Don’t have to contribute to defence costs if LAA
- No obligation to serve defence statement

Question 57

Process for Defendant indicating plea in either-way offence?

Answer 57

• Charge read out by legal advisor and asked if received IDPC
• Asked to indicate plea but do not have to – if say guilty it is as if pleaded before the magistrates
• If plead guilty, CPS will outline facts of case
• Defendant solicitor give plea in mitigation
• Mag decide if sentencing powers are enough
• 6 months for one offence max custody – 12 for 2
• Sentence straight away or adjourn for pre-sentence report if powers are enough (or for Newton hearing)
• Consider bail
• Powers insufficient? Commit to CC for sentence pursuant to s 3 of the Powers of Criminal Courts (Sentencing) Act 2000
• If committed to CC for sentencing, after pleading guilty at PBVH, bail position will usually stay the same (even if anticipate a custodial sentence)
• If been in custody before PBVH, will probably stay in custody [R v Rafferty 1999]

Question 58

When must mag send Defendant to CC - either way offence?

Answer 58

Ss19-20 and s 22A Magistrates Courts Act 1980
- If a defendant gives a not guilty plea for an either-way offence, the magistrates must send the case to the CC in the following circumstances:
o They have been sent to the crown court for a trial for a related offence;
o An adult, charged jointly, has been sent to the crown court for trial for a related offence; and
o A youth defendant, charged jointly or charged with a similar offence, has been sent to the crown court for trial for a related offence.

Question 59

Factors court considers for allocation for either-way offence.

Answer 59

1. Prosecution give facts to the Court and criminal record of Defendant
2. Magistrates consider:
   a. Submissions by both parties
   b. If sentencing power would be adequate
   c. Allocation Guideline by the Sentencing Council – either-way offences should be tried summarily unless court’s sentencing powers are likely to not be enough
   d. Consider aggregate sentencing powers for all offences together if charges could be joined in same indictment or arise out of same circumstances
   e. If Court considers trial on indictment is more suitable, Defendant sent to CC
   f. If stay summarily, Court to explain D can chose indictment and may be sentenced in CC regardless
   g. Defendant can request indication of sentence – cannot give custodial sentence unless indicated, however, indication not binding (NOT LIKE GOODYEAR).- No appeal on this basis.
   h. Court MAY give indication (can’t unless asked) court should ask if Defendant wants to change indication of plea
   i. If change to guilty, court will be prevented from giving custodial sentence if not indicated
   j. If do not change plea – not binding
   k. If Court doesn’t give indication of sentence, or Defendant doesn’t want to change indication of plea, Court then asks if Defendant consents to summary trial
   l. If consents – summary trial begins
   m. Prosecution (ONLY) can make an application before summary trial begins to move to CC. Court only grants if satisfied sentencing powers not enough
   n. If Defendant does not consent – send to CC
   If one co-defendant elects CC then all Defendants go to CC regardless of their decision on venue

Question 60

Allocation for multiple offences with different pleas?

Answer 60

• If multiple offences with different pleas, if the not guilty plea sent to CC for trial, Mag can either sentence guilty plea or send it to CC for sentencing
• If both stay in Mag, court may sentence guilty plea straight away or adjourn sentence until end of trial

Question 61

When are either-way offences sent straight to CC without allocation.

Answer 61

• Complex fraud cases (notice given by DPP). Notice given to court
• Cases involving children (assault, threat of injury, child cruelty, certain sexual offences, kidnapping, false imprisonment and child abduction) where notice served. Notice given to court
• Related to indictment only or one of the above and same D is sent to CC, must also send either-way that is related
• As above but in respect of another D being sent to CC

Question 62

How long can a Defendant be remanded in custody before conviction?

Answer 62

• Cannot be remanded for more than 8 CLEAR days at a time in Mag
• In Magistrates court where there are successive remands, need to be brought before the court every 4th remand – provided Defendant has consented and has a legal rep
• Court can remand in custody for up to 28 days if:
  o Previously remanded for same offence;
  o Defendant is before the Court; and
  o A date is set for the D to be remanded to, in which the next stage of the proceedings will happen.

Question 63

What is the custody time limit for a remand and when can this be extended?

Answer 63

• Summary only = 56 days before trial
• Either-way = 70 days before trial (unless the allocation hearing takes place within 56 days, then the custody time limit is reduced to 56 days)
• Prosecution can apply to extend custody limit, must shown:
  o On the BALANCE OF PROBABILITIES that there is good and sufficient cause to do this; and
  o That it has acted with due diligence and expedition. (Prosecution of Offences Act 1985, s 22)
• Application can be made orally or in writing, need written notice of intention served on court and Defendant 2 days before hearing
• Defendant can appeal decision in Crown Court
• CPS can appeal refusal in Crown Court

Question 64

Where are Defendants kept when on remand?

Answer 64

• Prison or remand centre
• Can be remanded for up to 3 days in police station for enquiries re related offences i.e for interviewing – usually the case if suspected involvement in other matters
• Rights at station are the same as if arrested first time

Question 65

How long can the a Defendant be remanded:

1. Pre conviction;
2. After case committed to CC; and
3. After conviction waiting for sentence.

Answer 65

Remand on Bail
- Any amount of time before trial subject to consent pre conviction
Remand after Case Committed to CC
- Committed to the Crown Court for sentence, or whose case is sent to the Crown Court for trial, may be remanded in custody or on bail until the case comes before the Crown Court.
Remands after Conviction (Awaiting Sentence)
- In custody? 3 weeks successive
- On bail? 4 weeks successive

Question 66

When does the presumption in favour of bail apply and when does it not?

Answer 66

• S4 Bail Act 1976:
  o (a) all defendants prior to conviction;
  o (b) defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing (see Chapter 11) – not if committed to CC for sentencing; and
  o (c) defendants who are appearing before the court for breach of a community sentence.
• The presumption in favour of bail does not apply to defendants:
  o (a) who have been committed to the Crown Court for sentence (see Chapter 6); or
  o (b) who are appealing against conviction or sentence (see Chapter 12)
• Presumption in favour of bail does not apply to most heinous crimes (only in exceptional circumstances), if charged with one of the below or previously convicted of one of the below:
  o (a) murder
  o (b) attempted murder
  o (c) manslaughter
  o (d) rape
  o (e) attempted rape
  o (f) a number of other serious sexual offences

Question 67

What is the procedure when a murderer applies for bail?

Answer 67

• Murderer applies for bail? Only Crown Court judge can grant
• Mag must transfer to CC in custody, CC must then make a decision in 48 hours
• Bail may not be granted, in these circumstances, unless the court is of the opinion that there is “no significant risk of the defendant committing, whilst on bail, an offence likely to cause physical or mental injury to another.”

Question 68

What are the grounds for not granting bail for indictable only and either way offences?

Answer 68

• Paras 2 – 7 Sch1 of the Bail Act 1976
  Indictable Only & Either Way
• Need not be granted bail if Court are satisfied there are substantial grounds for believing if D released on bail they would:
  o Commit further offences;
  o Fail to surrender; or
  o Interfere with witnesses or obstruct justice.
• Need not be granted bail if satisfied the Defendant should be in custody for their own protection, or if a young person, for their won welfare
• Need not be granted bail where court is satisfied it has not been practicable to obtain sufficient information to make a decision required by this part
• The defendant need not be granted bail where they have been released on bail, in relation to these proceedings, or in connection, and have been arrested in pursuance of section 7
• If murderer, the Court must be satisfied there is no significant risk the defendant will not commit an offence that will likely cause physical or mental injury to any person other than the defendant
• Substantial grounds at para 2(1) most common – HIGH threshold (not “may” do these things)

Question 69

What are the factors to consider for not granting bail for indictable only and either way offences? Para 9 factors.

Answer 69

• Factors to consider (4)
  1. Associations, community ties, character and background of D (likely S grounds for believing will commit further offences – particularly if commit same types of offence before) (if witness known to D then S grounds for interfering e.g domestic assault) (community ties absconding);
  2. Previous record for grants of bail (fail to surrender);
  3. Nature & seriousness of offence & likely sentence (likely S grounds to fail to surrender); and
  4. Strength of evidence against D.

Question 70

What are the factors to consider for not granting bail for summary only offences?

Answer 70

• Similar but not identical grounds
• Bail may only be refused on one or more:
  o Failure to surrender (if failed to previously surrender)
  o Commission of further offences (if the offence was committed on bail)
  o Fear of commission of offences that are likely to cause physical or mental injury to another
  o Defendant’s own protection (or if youth – welfare)
  o If the defendant is already serving custody
  o Fear of failure to surrender, commission of offences, interference with witnesses or obstruction of justice (if the defendant has been arrested for breach of bail in respect of the instant offence); and
  o Lack of sufficient info.

Question 71

What is the no real prospect of conviction restriction?

Answer 71

• In the following circumstances a Magistrates court will not be able to remand D in Court before case dealt with:
  o Attained age of 18;
  o Not convicted of offence in those proceedings; and
  o Appears to the Court there is no real prospect of custodial sentence.

Question 72

What is the non-imprisonable offence rules for not granting bail?

Answer 72

• Rare, only if:
  o Granted bail in previous proceedings, failed to surrender, court believes will do so again;
  o Custody for own protection or welfare if U18
  o Currently serving separate custodial sentence
  o the defendant was granted bail at an earlier hearing in the same proceedings, but has been arrested either for failing to answer his bail or for breaking any conditions of his bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the defendant would fail to surrender to custody, commit an offence or interfere with witnesses or otherwise obstruct the course of justice

Question 73

What can the Court use conditional bail to do?

Answer 73

• Court can use to:
  o (a) prevent the defendant from absconding;
  o (b) prevent the defendant committing a further offence whilst on bail;
  o (c) prevent the defendant interfering with witnesses or obstructing the course of justice;
  o (d) ensure that the defendant makes himself available for the purpose of obtaining medical or other reports;
  o (e) ensure that the defendant keeps an appointment with his solicitor; or
  o (f) ensure the defendant’s own protection or, in the case of a defendant aged under 18, for his own welfare or in his own interests

Question 74

What are some common bail conditions?

Answer 74

• Sureties (absconding)
• Security (absconding)
• Reporting to station (absconding & committing offences)
• Specific residence (absconding & committing offences)
• Curfew (committing offences)
• Non-communication with P witnesses (interference & committing offences)
• Restriction on entering specified areas (witness & offences)
• Surrender of passport – absconding

Question 75

What is the procedure if CPS object to bail.

Answer 75

• CPS representative must, as soon as practicable, provide the defendant’s solicitor, and the court, with all of the information in its possession which is material to what the court must decide (CrimPR, r 14.5(2))
• CPS state objection & apply to Court for remand in custody
• D then makes application for bail
• Mag hear evidence
• Record of Mag decision made, copy given to D, if bail refused or subject to conditions reasons must be recorded & given to D (Certificate of Full Argument)

Question 76

What happens if D’s bail application is denied? Can it make further applications?

Answer 76

• If Defendant in custody, Mag duty to consider bail at any subsequent hearing
• Can make 1 full further application on same grounds
• After this, only bail app on new legal or factual argument
• If transferred to CC applications must be made there
• Can appeal to CC if have certificate of full argument 9usually make 2 full bail apps in Mag for tactical reasons first)

Question 77

What is the procedure if the D wants to appeal a refusal to grant bail?

Answer 77

• Notice of Application as soon as practiceable after Mag decision
• Send to CC and Mag Court and serve on CPS
• CPS oppose? Must notify CC and the Defence at once of reasons why
• Unless otherwise directed by CC, appeal should be heard as soon as practicable not later than the business day after it was served. CC can vary this
• Judge will need the following docs:
  o Notice of application
  o Certificate of full argument
  o Previous convictions

Question 78

Can the CPS appeal the granting of bail, if so, what is the procedure?

Answer 78

• Can appeal to CC chambers if imprisonable offence:
  o Oral notice at end of hearing bail granted
  o Confirmed in writing and served 2 hours after telling the court of decision to appeal
  o CC hear appeal as soon as practicable not more than 2 business days after notice served
• Defendant remanded in custody until appeal heard – power only to be used judiciously and responsibly – only in cases of grave concern

Question 79

What happens if the D absconds or breaches bail?

Answer 79

• Fail to surrender? Mag will issue warrant of arrest (Bail Act)
• Warrant either backed with bail, or more commonly, not. If not backed with bail, kept in police custody until brought before Mag
• If arrested on Friday, special remand Court on Saturday. If on Sunday or late Sat, kept until Monday
• If bailed by police pre Mag hearing, when brought before court, it is CPS decision they should be charged with failing to surrender under ss6(1) or (2) of Bail Act
• If D already appeared before court and court granted bail, charge is decided by court

Question 80

What are the s(6) Bail Act offences?

Answer 80

• S6(1) if Defendant fails to surrender to custody without reasonable cause, will be guilty of absconding
• S6(2) if Defendant did have reasonable cause, will still be guilty under s6(2) unless surrendered to custody as soon as it was practicable
• Can be charged immediately or at end of case depending of facts but should be as soon as reasonably practicable

Question 81

What happens if the D breaches bail conditions?

Answer 81

• Not offence
• May be remanded in custody
• S7(3) BA – police officer can arrest person bailed to attend court (police bail or court bail) if officer reasonably believes:
  o Is not likely to surrender to bail; or
  o Has broken, or is likely to breach, bail conditions.
• Once arrested, detained in police custody and brought before Mag within 24 hours. Mag then decides if remanded in custody, bailed or conditions.

Question 82

When are case management directions given by the Court in Mag?

Answer 82

Summary - at the same time as plea. Either way - after plea before allocation hearing.

Often called the case management hearing or the pre-trial review.

Question 83

How long do you have to complete standard directions in Mag?

Answer 83

Standard - 8 weeks. Expert evidence - 14 weeks.

Form = Magistrates Court Trial Preparation Form.

Question 84

How to secure witness summons?

Answer 84

From Mag Court! - For CC and Mag Part 17 of CrimPR apply
2 part test if Court will issue summons if:

1. Witness can give MATERIAL EVIDENCE; and
2. Interests of Justice to issue

Solicitor should ask in writing if witness will attend. If no/negative answer, then summon.

Question 85

What is the Criminal Procedures and Investigations Act Notice obligation on the Defendant and when is it due?

Answer 85

28 days after CPS satisfy s3 CIPA (unused materials) the s6c CIPA Notice is due.

• S 6C of the Criminal Procedure and Investigations Act 1996 (CIPA) states a D must serve on CPS a notice setting out:
  o Names;
  o Addresses; and
  o DOB
  of any witnesses they intend to call as witnesses

Technically so CPS can carry out crim record checks but there is no property in witnesses so could interview.

Question 86

Whats happens if D doesn’t issue s6c Criminal Investigations & Procedures Act 1996 (CPIA) Notice?

Answer 86

Adverse inferences drawn under s11 CPIA

Question 87

Must the Defendant serve witness statements on CPS?

Answer 87

Not unless they are expert evidence intended to be relied on at trial. Expert reports must be disclosed before trial if the expert is to be called.

Question 88

What is a s9 Criminal Justice Act 1967 witness statement?

Answer 88

Used when evidence is not in dispute, usually by CPS but any party can use.

• Statement will be admissible at trial without calling witness if:
  o Signed and dated;
  o Contains declaration: “This statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true”;
  o Copy served on all other parties before hearing; and
  o No other party has objected in 7
  days.

Need to be signed, dated and SoT otherwise not valid WS

Question 89

Must the Defendant serve a s9 CJA witness statement on CPS?

Answer 89

Yes - usually there is no obligation for D to serve a witness statement on CPS but there is if D intends to rely on s9 CJA to not call the witness but still rely on the statement.

Question 90

What must a D solicitor ensure if CPS serve a s9 CJA witness statement (Mag)?

Answer 90

That they object in 7 days!

Question 91

What does documentary evidence (e.g photos and plans) need to be admissible at trial? (Mag)

Answer 91

Must be verified by statement of truth in WS from person who prepared the plans or took photos

Question 92

For summary only & either way offences (mag court) when will the evidence CPS seek to rely on at trial be disclosed?

Answer 92

Initial details of Pros case (IDPC).

Question 93

What is the test for undisclosed materials in Mag? What notice must be given if there are none? When does disclosure duty and and when should unused materials be disclosed ?

Answer 93

• Unused material disclosed as part of s3 CJA 1967:
  o Disclose any material not previously disclosed and which might reasonable be considered capable of undermining prosecution case or assisting case of accused; or
  o Give to the accused a written statement that there is no material of the above description.

Ongoing duty of disclosure.

Disclose as soon as reasonably practicable after not guilty plea.

Question 94

When a D is charge with indictment only offence, when must Court send them to CC for another eight way or summary only offence they have been charged with?

Answer 94

s51(1) Crime & Disorder Act:
- Summary or either way offence appears to the Court to be related to indictment offence; and
- for summary offence it is punishable with imprisonment or obligatory/discretionary disqualification from driving

Question 95

What are the disclosure duties in the CC ?

Answer 95

Just as Mag, CPS must serve all evidence it seeks to rely on at trial.

For unused material, retain and disclose if not guilty plea and satisfies s3 Criminal Investigation & Procedure Act test.

Case management directions will give time limit.

CPS usually sends D a schedule of non-sensitive material and copies of items that satosfy s3.

Question 96

Examples of unused material in CC?

Answer 96

o records of the first description of a suspect given to the police by a potential eyewitness if that description differs from that of the defendant;
o (b) any information provided by the defendant which indicates an innocent explanation for the offence;
o (c) material casting doubt on the reliability of a witness (e.g previous convictions);
o (d) material casting doubt on the reliability of a confession; and
o (e) any statements from witnesses which appear to support the defendant’s account

Question 97

What is the purpose of the sending hearing in the Mag Court pursuant to s51 of the Crime and Disorder Act 1998?

Answer 97

• Purpose of the hearing is to determine whether an offence triable only on indictment is charged and whether there are related offences which should also be sent to the Crown Court
• Send to CC, set date for pre trial preparation hearing or prelim hearing if necessary
• Will remand on bail or custody
• Unless prelim hearing needed, Mag will set standard case directions which must be completed by PTPH

Question 98

What notice will the Mag give for the sending hearing?

Answer 98

• The magistrates will give the defendant a notice specifying the offence(s) for which they have been sent for trial and the Crown Court at which they are to be tried. A copy of the notice will also be sent to the relevant Crown Court (CDA 1998, s 51D)

Question 99

When is a Defendant sent to CC for either-way offence, and also charge with a summary only offence, also sent to the CC for the summary offence?

Answer 99

s40(1) CJA 1988 - if one of following offences and founded on same facts or a series of offences of similar character:
- common assault
- Taking a conveyance without consent
- Driving whilst disqualified
- Criminal damage.

In addition to the above, if the magistrates send a defendant for trial for one or more eitherway offences, they may also send the defendant for trial in relation to any summary-only
offence with which they are also charged if the summary-only offence:
(a) is punishable with imprisonment or disqualification from driving; and
(b) appears to the court to be related to the either-way offence (CDA 1998, s 51).

Second bit same as indictable only!

Question 100

If the defendant, on conviction for the either-way offence in CC, pleads guilty to the summary-only offence, who can sentence? What about if D pleads not guilty to the summary offence?

Answer 100

The CC can sentence them but only have powers of Mag.

If D pleads not guilty, must send back to Mag for trial.

Question 101

Usually for indictable only offence, Mag will send the Defendant straight to CC and set a date for the pre-trial prep hearing & set standard directions. Sometimes, instead, the Mag will set a date for a preliminary hearing instead (no directions). Why?

Answer 101

• Prelim hearing will take place for indictment only offence if:
  o (a) there are case management issues which the Crown Court needs to resolve;
  o (b) the trial is likely to exceed four weeks;
  o (c) it is desirable to set an early trial date;
  o (d) the defendant is under 18 years of age; or
  o (e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing

Question 102

When must a preliminary hearing take place in the CC?

Answer 102

Within 10 business days of being sent to CC from Mag.

Question 103

If there is no prelim hearing in the CC, when must the pre trial prep hearing take place?

Answer 103

Within 20 business days after being sent to the CC.

Question 104

What does the Pre-Trial Prep hearing entail?

Answer 104

The Defendant can give plea, if it is not guilty then the judge will give further case management directions for trial.

Question 105

What is the Arraignment in CC that takes place at the PTPH?

Answer 105

Its at the start of PTPH, each charge will be put to the defendant (the indictment) who will give its plea to each count. If plead guilty to some, but not others, jury will not be told about the guilty pleas.

May do deal with CPS to plead guilty to certain charges.

Question 106

What happens if D pleads guilty at PTPH in CC?

Answer 106

• Either sentence now
• Or may adjourn for presentence report i.e medical report or probation service report
• If D disputes factual background, may hold NEWTON HEARING
• If adjourned, remanded on bail or custody re second hearing or Newton Hearing

Question 107

What is a Goodyear indication (CC)and indication at plea before allocation (either-way)?

Answer 107

• Court of Appeal in R v Goodyear [2005] EWCA Crim 888 – judge can give indication at PTPH as to sentence (don’t have to)
• If plead guilty after indication – binding. If don’t then not.
• Goodyear indications are common

Different to indications at Mag- these happen when:
1. Plea before allocation & mag decides he has jursidiction
2. After Mag asks if D wants to stay in Mag D can ask for indication (don’t have to give it)
3. can only say whether the sentence would be a custodial or a non-custodial sentence -if plead guilty sentenced in line.
4. If don’t plead guilty then not binding.

No procedure for summary!

Question 108

Not guilty plea at the PTPH in CC? When will further directions be issued?

Answer 108

• Judge will need following info, if can’t give it, need further directions:
  o a summary of the issues in the case;
  o (b) details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial;
  o (c) whether the transcript(s) of the defendant’s police station interview(s) require(s) editing;
  o (d) whether a defence statement has been served and, if so, whether there is any issue as to the adequacy of the statement;
  o (e) whether the prosecution will be serving any additional evidence;
  o (f) whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution;
  o (g) whether any expert evidence is to be called and, if so, whether any additional directions are needed in respect of this;
  o (h) whether any further directions are necessary concerning hearsay or bad character evidence;
  o (i) whether special measures are required for any witnesses;
  o (j) any facts which can be formally admitted;
  o (k) any points of law or issues concerning the admissibility of evidence which are likely to arise at trial;
  o (l) dates of availability to attend trial of the witnesses and the advocates

Question 109

Following further directions at PTPH - CC (if needed) what happens?

Answer 109

• Will then fix date for trial or put on warned list
• If on warned list, court will contact D’s solicitor to let them know case has been listed for trial shortly before date trial starts

Question 110

Can a D change his plea in CC - when is he likely to do so?

Answer 110

• Can change at any time before verdict with leave of Court (apply in writing as soon as practicable. Similar in Mag).
• Usually if submission of no case to answer. If unsuccessful may change plea
• May change plea to guilty if judge rules on point or law or admissibility of evidence which wanted to rely

Question 111

What authority governs the disclosure obligations of both parties in either Court?

Answer 111

Disclosure obligations of the parties in either Court are contained in Criminal Investigations & Procedures Act 1996, supplemented by “Judicial Protocol on the Disclosure of Unused Material in Criminal Cases and Attorney-General’s Guidelines on Disclosure” along with “National Disclosure Improvement Plan” produced by police and CPS

Question 112

When can a D request specific disclosure ?

Answer 112

• If after receiving s3 unused materials disclosure, D feels as if something is missing, can apply to court for specific disclosure under s8(2) CPIA 1996. A defence statement must have been served.
• Rare for someone to chose to submit defence statement in Mag. Have to in CC.

Question 113

When can disclosure of s3 CPIA unused materials be withheld?

Answer 113

PUBLIC INTEREST IMMUNITY- If these satisfy s3 test, can only withhold for public interest immunity. Decision for the Court r v Ward 1993. CPS must make APPLICATION to Court (“public interest application”). Will often be made ex parte (without notice).
- Usually when drafting defence statement, solicitor will ask if SCHEDULE OF SENSITIVE MATERIALS has been prepared and if public interest application has been made.

CPS apply for PII, in D statement ask if sch of sensitive ms or app made

Question 114

Magistrates: when is Defence Statement due (if D wishes to submit one) and when must D confirm if it wishes to call witnesses?

Answer 114

1. s3 CIPA complied with (or serves notice that there is no such material)
2. Not obliged to issue defence statement but if do in 14 days after receiving initial disclosure
3. Details of defence witnesses due at same time.

D can apply to extend

Question 115

CC: when is Defence Statement due.

What happens if there are 2 or more accused?

Answer 115

1. s3 CIPA complied with (or serves notice that there is no such material)
2. Not obliged to issue defence statement but if do in 28 days after receiving initial disclosure
3. Details of defence witnesses due at same time.

D can apply to Court to extend.

2 or more co-accused? S5a CIPA 1996 allows the court to make an order that a copy of the defence statement made by each defendant is to be served on the other defendants in the case.

Question 116

What is the content of the Defence Statement (S60 Criminal Justice and Immigration Act 2008)

Answer 116

• (a) sets out the nature of the defence, including any particular defences on which the defendant intends to rely (for example, alibi or self-defence);
• (b) indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue;
• (c) sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence;
• (d) indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely for this purpose; and
• (e) in the case of an alibi defence, provides the name, address and date of birth of any alibi witness, or as many of these details as are known to the defendant.

Continuing duty to update defence if details change.

Question 117

What adverse inferences can be drawn, and under what authority, in relation to the Defence Statement?

Answer 117

• If there are any ‘faults’ in disclosure given by the defence, the court may draw an adverse inference from this when determining the defendant’s guilt (CPIA 1996, s 11).
• These faults include:
  o (a) failing to provide a defence statement at all;
  o (b) late service of the defence statement;
  o (c) serving a defence statement that is incomplete;
  o (d) serving a defence statement which is not consistent with the defence put forward at trial; and
  o (e) failing to update a defence statement.
• If any of these faults occurs the court or, with leave, any other party (such as the prosecution or any co-accused) may make such comments as appear appropriate, and the court or jury may draw such inferences as appear proper when deciding whether the defendant is guilty.

Question 118

What is the Prosecution under a duty to do after the submission of the Defence Statement?

Answer 118

CPS must review its unused disclosure and disclose anything that (in light of the Defence Statement) undermines CPS’ case or assists D’s case – s7a CPIA 1996.

This is the benefit of issuing one!!

Question 119

Can a Defendant apply for specific disclosure of unused material (failure for CPS to comply with continuing duty of disclosure)?

Answer 119

• What happens of D wants to apply for specific disclosure?:
  o Can only do so after Defence Statement has been issued;
  o s8(a) CPIA 1996 can apply if CPS has failed to comply with its continuing duty of disclosure in light of matters contained in DS;
  o Must set out specific material in DS;
  o The TEST: defendant has REASONABLE CAUSE to believe that there is prosecution material which should have been, but has not been, disclosed;
  o Procedure when making application – Part 15 CrimPR

Question 120

When is a submission of no case to answer given?

Answer 120

End of pros case

Question 121

When can Pros give closing speech?

Answer 121

D represented or D adduced evidence that wasn’t his own regardless of representation

Question 122

Does the opening speech at trial form part of evidence for Mag to decide?

Answer 122

No, sets scene, remind Mag what needs to be proven and that Pros has burden of proof, summarise evidence and what witnesses being called

Question 123

When does a witness not have to affirm or give oath?

Answer 123

If under 14

Question 124

What is the test for submission of no case to answer? VERY IMPORTANT

Answer 124

R V Gailbraith (think girl breath)
1. Pros failed to put forward essential element of alleged offence; or
2. Evident put forward so discredited (during cross examination) or unreliable no REASONABLE tribunal could surely CONVICT.

Question 125

What adverse inferences can be drawn under s35 Criminal Justice and Public Order Act

Answer 125

Defendant failing to give verbal witness evidence at his trial. If the P adduced evidence that calls for an explanation, and one isn’t given, inferences can be drawn that D had no answer or no answer that would stand up

Question 126

Does the Defendant have opening or closing speech (Mag)

Answer 126

Can chose - usually chose closing

Question 127

What does D’s closing speech contain? (mag)

Answer 127

Not evidence, short and to point, remind Pros has burden of proof, entitled to equittal unless sure of guilt, factual weaknesses, evidential issues, Turnbull warning

Question 128

How many magistrates?

Answer 128

Usually 3

Question 129

If a sentence is going to be given at trial, what does the solicitor do?

Answer 129

Give plea in mitigation

Question 130

What is the jury and judges role?

Answer 130

Jury, decide matters of fact and guilt
Judge, decide disputes on points of law, direct jury as to points of law

Question 131

How to change plea in CC?

Answer 131

1. apply in writing
2. As soon as practicable after becomeing aware of grounds

Question 132

What 2 things must evidence be?

Answer 132

• Evidence must be 2 things:
  o Relevant to facts in issue of case; and
  o Admissible.
• If evidence is both, can be either circumstantial (which guilt may be inferred) or direct evidence of guilt.

Question 133

When does D have evidential burden and legal burden of proof?

Answer 133

• Legal burden is the Prosecution – beyond reasonable doubt
• Legal burden will fall on D if raising defence or insanity or duress.
• D pleading above defences must prove the facts on balance of probs
• D that raises specific offence (self-defence, alibi) does not have a legal burden of proof but does have an evidential burden i.e they must raise the evidence but need not prove it.

Question 134

What discretion does s78 PACE give Court

Answer 134

• S78 PACE 1984 – gives court discretion to exclude evidence if “admission of such evidence would have such an adverse effect on the fairness of the proceedings the Court ought to not admit it”. Discussed further below.
• In terms of disputed visual evidence, s78 is relevant to breaches of PACE or Code D when holding an identification procedure.
• If court decline to use discretion, undermine identification evidence in cross-examination and make representations as to the turnbull guidelines.

Question 135

When are turnbull guidlines used?

Answer 135

• R v Turnbull 1977 – when someone gives evidence for CPS & visually identifies the D, and Defendant disputes ID. In such cases, the Turnbull Guidelines apply.
• When has CPS’ witness “identified” D?:
  o Picked them out informally;
  o Identifies at formal ID procedure; or
  o Claims to recognise them as someone formally known to them.
• The above are turnbull witnesses.
• Turnbull guidelines will only apply if the D disputes the ID.
• If description of witness matches suspect, but witness doesn’t pick them out in ID procedure, no direct visual ID evidence and therefore no turnbull guidlines

Question 136

What are the turnbull guidelines / how are they applied?

Answer 136

• Trial Judge assess quality of evidences and look at circumstances of original sighting:
  o How long did they see him;
  o What was the lighting like;
  o Conditions – was it raining, was the view obstructed;
  o How much of his face could been seen – only partly?
  o How far away was he standing, was he next to the D or far away;
  o Was the D already known to him (recognition) or was this the first time seeing witness;
  o Does the first description of the witness closely resemble D.
• Good quality ID evidence?
• Judge will give Turnball Warning explaining special need for caution as easy for honest witness to be mistaken. Referring jury to the above factors and tell them to take account and examine original sighting.
• If ID evidence poor but supported by another factor, Judge give Turnbull Warning similar to above i.e warning of dangers of ID evidence, special need for caution, draw attention to weaknesses of the ID evidence.
• Judge usually warn on dangers of convicting on ID alone and tell jury to look for other supporting evidence – jury will be directed to what other evidence may amount to supporting evidence.
• Examples:
  o Finger prints / DNA at crime scene
  o Confession by Defendant
  o Theft? Stolen property found at D’s home
  o Adverse inferences drawn from D’s silence when questioned at station

If the judge considers the identification evidence to be of poor quality, and it is not supported by any other prosecution evidence, the judge should stop the trial at the end of the prosecution case and direct the jury to acquit the defendant. This will normally follow a submission of no case to answer being made by the defendant’s advocate.

Question 137

When can’t inferences from silence be drawn?

Answer 137

• Can’t draw inferences if didn’t have opportunity to consult solicitor s58 Youth Justice & Crim Evidence Act 1999) – absolute right to remain silent. Caution before interview should reflect this

Question 138

Inferences from silence - what is s34 Criminal justice & Public Order Act

Answer 138

• S34 allows the court or jury to draw an adverse inference from a defendant’s silence when the defendant was being questioned or charged at the police station.
• If Q’d under caution, didn’t mention fact relied on in defence
• On being charged (or officially formed may be prosecuted) failed to mention fact reasonably expected to mention.
• Not just no comment interview – even if answer all questions, of rely on something at trial not said at station then inferences under s34 can be drawn.
• S34(2a) – can’t draw inferences if not allowed opportunity to consult solicitor

MUST BE INTERVIEWED UNDER CAUTION, must be reasonabel toe xpect them to mention fact

o If statement isn’t given until trial, can’t infer recent fabricated under s34 but can infer D was not confident about defence to expose this to investigation by police.

o Where a defendant explained his reason for silence as being their reliance on legal advice, the ultimate question for the court or jury under s 34 was whether the facts relied on at trial were facts which the defendant could reasonably have been expected to mention in police interview.
o Not reasonably expected to be mentioned? No inferences.

Following the Beckles and Howell cases, the jury will now be directed by the trial judge that adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that the defendant genuinely and reasonably relied on the legal advice to remain silent.

Priv waived when reasons are given

Question 139

When may a lawyer advise a client to remain silent?

Answer 139

o Not enough disclosure (if not enough meaningful disclosure cannot advise client properly – good reason for silence – R v Argent 1997; R v Noble 1997)
o Nature of the case (v complex, events from long time ago may be sensible to remain silent – R v Howell (2003);
o Personal circumstances of the client (ill health, mental, vulnerable, v tired, shocked, intoxicated – R v Howell 2003).
o Just because solicitor advised this doesn’t stop adverse inferences, however, must be given appropriate weight at trial – Condron UK (2000)

Question 140

Inferences from silence - what is s36 Criminal justice & Public Order Act

Answer 140

• S36 allowed to draw adverse inferences if failed to account for presence of an object, substance or mark when interviewed by the police.
• Four things need to happen:
  o Person is arrested and on him, in his clothes or shoes,, in his general possession, or in any place in which he is at during his arrest, there is any object, substance or mark, or any mark on any such object
  o That a constable investigation reasonably believes the presence of such may be attributable to the person’s commission of an offence
  o Abd the constable informs the person arrested that he believes this to be so and asks him to account for the presence of the object, substance or mark
  o And the person fails to do so.
• S34 only applies if raise fact at trial, s36 is raised irrespective
• Inference: a case is that the defendant had no explanation for the presence of the object, substance or mark, or no explanation that would have stood up to police questioning.
• D must have been given a special caution – not needed for s34!:
  o Told what the offence under investigation is;
  o What fact the suspect is being asked to account for;
  o That the officer believes this fact was due to suspect committing offence in question
  o That a court may draw adverse inferences from failure to comply with request
  o That a record is being made of interview and may be given in evidence in trial
  Pace Code C – 10.11

Question 141

Inferences from silence - what is s37 Criminal justice & Public Order Act

Answer 141

• S37 inferences drawn when D failed to account, when being interviewed, for his presence at a place at / or about the time offence committed.
• Similar to factors above:
  o Person arrested at place at/or about time the offence was committed;
  o Police reasonable believes his presence can be attributed to the offence
  o Person asked to account for his presence
  o Person fails to account for offence, Court may draw inferences from failing to account.
• Irrespective of defence at trial, like s36
• MUST BE GIVEN SPECIAL CAUTION LIKE s36
• The inference which is likely to be drawn in such circumstances is that the defendant has no explanation for their presence at that particular place at or about the time the offence was committed, or no explanation that would have stood up to police questioning

Question 142

Inferences from silence - what is s35 Criminal justice & Public Order Act

Answer 142

• Defendant not obliged to give evidence at trial, can remain silent (CEA 1898) and just argue CPS has failed to prove guilty beyond reasonable doubt
• As not raising any facts, no inferences can be drawn under s34
• if the prosecution has raised issues which call for an explanation from the defendant, should the defendant then fail to give evidence, the court will be entitled to infer from that failure that the defendant has either no explanation, or no explanation that will stand up to cross-examination
• Court has a discretion under s35(1)(b) Criminal Justice and Public Order Act 1994), this is unlike the other sections which do not have a discretion.
• The court’s discretion not to direct adverse inference is drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.
• This exception will be applied strictly (see case below).

R v Friend (1997)
o 14 year old boy, on trial for murder, IQ of a 9 year old. No evidence given at trial.
o Court of Appeal held that although the trial judge had a discretion under s 35(1)(b) to direct that no adverse inference be drawn, this was not one of those where the exception applied.
o Court said type of circumstances would be: evidence triggering epileptic seizure, or schizophrenic testifying that would cause a florid state.
R v Friend (No 2) (1997)
o Second appeal, decision quashed.
o New expert evidence showed Friend suffered from ADHD – unlikely to have been able to effectively participate.

Question 143

What is hearsay evidence?

Answer 143

• A hearsay statement has two elements
  o s114(1) CJA 2003 – any representation (even if made in document or photo) that is not made in oral evidence at the trial (but is relied upon at trial); and
  o The purpose of representation appears to court to make someone believe the statement – s 115 (3):
  o R v Knight 2007 – 14 year old girl sexually assaulted, aunt allowed to read entries from diary that detailed offences. Not hearsay as girl did not intend for anyone to read the diary. Outside scope of 115.
• Includes representations in photos, records etc not just statements

Question 144

What are the 4 grounds for admitting hearsay evidence

Answer 144

• Section 114 CJA 2003, statement not made in oral evidence is admissible as evidence only if:
  o Statutory exceptions (in CJA and otherwise);
  o Common law (preserved by section 118 - confession evidence and res gastea);
  o All parties to proceedings agree
  o Court is satisfied interests of justice to admit evidence - catch all.

Question 145

Hearsay Admissible under Statutory Provisions – s114(1)(a)

Answer 145

1. Witness is unavailable – s116 CJA 2003
2. Business & other documents – s117 CJA 2003
3. Previous inconsistent statements of a witness – s119 CJA 2003
4. Previous consistent statements of a witness – s120 CJA 2003
5. Statements for a witness which are not in dispute – CJA 1967 s9; and
6. Formal admissions – s10 CJA 1967

Question 146

Witness is unavailable – s116 CJA 2003? 3 conditions and sub conditions.

Answer 146

o Any statement not made in oral evidence is admissible if:
 It is first hand hearsay (would be admissible in trial if given in oral evidence);
 The person who made the statement is identified to the court’s satisfaction; and
 One of the five conditions is met.
o 5 conditions:
 (a)Person is dead;
 (b) Unfit to be witness due to physical or mental condition;
 (c) Not in UK and not reasonably practicable to secure attendance;
 (d) Person can not be located and all steps taken that are reasonably practicable to carry out have been taken;
 (e) Not attending due to fear and have LEAVE FROM COURT to submit WS as evidence.
o S116(2)(e), court will only give leave if it is in interests of justice taking into account risk of unfairness, how difficult it would be to challenge the statement and the fact special measures direction could have been given.

(For e, need leave for court and for court to be satisfied it’s in the interest of justice)

Question 147

S117 CJA – Business and docs prepared for criminal proceedings

Answer 147

o S117 states that in criminal proceedings a statement contained in a document is admissible as evidence of the matter stated if:
 Oral evidence given in proceedings would be admissible as evidence of the matter;
 Requirements of subsection 2 (below) are met;
 Requirements of subsection 5 are satisfied for documents prepared for purpose of criminal proceedings (below).
Business Documents:
o S117 (2) requires:
 Document made or received by person in course of trade, business, occupation (paid or unpaid);
 Person who supplied info in the WS must have had (or reasonably supposed to have had) personal knowledge of the matters dealt with; and
 All people document passed through was in course of trade, business paid or unpaid.

o S117 business docs – first hand and multiple hearsay admissible if only passed through people in course of business
o Usually used for business records

Statements prepared for use in criminal proceedings:

o S117(5) – Statements prepared for use in criminal proceedings:
 If prepared for pending or contemplated criminal proceedings, will be admissible only if s117(5) conditions ALSO satisfied:
* Factors in 116(2) are met i.e dead, can’t be located etc; or
* Witness cannot be reasonably expected to have any recollection of thr matters dealt with in statement (regard to length of time).

Question 148

Hearsay Admissible under Preserved Common Law Exception – s114(1)(b)

Answer 148

• S118(1) of CJA 2003 has a few common law exceptions against hearsay evidence reserved, the most important being:
  o (a) Evidence of confession or a mixed statement;
  o (b) Evidence admitted as part of Res Gestae.

Question 149

Evidence of confession or a mixed statement; (hearsay)?

Answer 149

o Pre CJA 2003, common law exception that evidence D had made a confession was admissible as exception to rule excluding hearsay evidence
o Codified in PACE 1984 s76(1)
o Subsequently preserved in 118(1) of CJA 2003
o VERY IMPORTANT

Question 150

Evidence admitted as part of Res Gestae.

Answer 150

o Common law principle of evidence being admitted as part of res gestate means any statement made at the time of event will be admissible as the spontaneity of the statement shows it has not been concocted

o R v Andrews 1987 – man fatally stabbed named his 2 attackers soon after he was attacked. It was admissible as hearsay evidence under the res gestae principle. Lord Ackner set out the following criteria for the admission of res gestae hearsay evidence (known as Ackner criteria):

Test: Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.

** court must decide that concoction or distortion can be disregarded
 Unusual/dramatic event with instinctual reaction (not time for reasoned reflection)
 Closely related to event, event still controlling mind of victim
 any Special features for distortion - court must be satisfied that concoction or distortion can be disregarded
 Only relying on fallibility of human recollection – fact for jury for admissibility

Question 151

Hearsay Admissible by Agreement – s114(1)(c)

Answer 151

• If all parties in case agree, any hearsay evidence may be admissible

Question 152

Hearsay Admissible in the Interests of Justice – s114(1)(d) - think note of car reg

Answer 152

• Think of this as the “catch all”, allowing the Court to admit evidence that would not otherwise be admissible
• Court has VERY WIDE discretion for interests of justice
• Court must have regard to factors in 114(2):
  o (a) Probative value of statement in relation to a matter in issue or how valuable it is in understanding other evidence in case;
  o (b) What other evidence has been or can be given on the matter/evidence mentioned above;
  o (c) How important the matter/evidence mentioned above is in case as a whole;
  o (d) Circumstances in which statement was made;
  o (e) How reliable the maker appears to be;
  o (f) How reliable the evidence of the making of the statement appears to me;
  o (g) Can oral evidence of matter be given? If not, why?;
  o (h) Difficulty in challenging the statement;
  o (i) What extent would difficulty challenging statement prejudice party facing it
• Maher v DPP 2006: someone saw road accident, left note giving reg number, partner saw note called police, police made record of reg, note lost. The record was hearsay evidence, admitted under interests of justice under 114(1)(d). Nothing to suggest not in interests of justice, evidence substantial and reliable.

Question 153

What grounds of hearsay apply to part 20 i.e must give notice

Answer 153

o (a) interest of justice – s114(1)(d);
o Witness unavailable – s116;
o Evidence is multiple hearsay – s121; or
o Evidence is s117 written witness statement for use in criminal proceedings.

• This means the common law grounds do not need to give notice i.e confession or res gataez

Question 154

What is confession evidence?

Answer 154

• S82(1) PACE – any statement, wholly or partly, adverse to the person who made it (to authority, or otherwise, words or otherwise)
• Only needs to be in anyway detrimental

Question 155

What is 76(1) PACE

Answer 155

• S76(1) PACE:
  o In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
• Admissible at trial to prove truth of its contents (i.e prove D’s guilty)
• MIXED STATEMENT: sometimes statement favourable to D and detrimental. Both parts of statement will be admissible under s76(1)

Question 156

Can evience be given by co accused

Answer 156

• Evidence given by co-defendant at trial is admissible in evidence against the co-accused
• If co-defendant pleaded guilty at earlier hearing, can give evidence for CPS against other co-defendant (as no longer being tried together)
• However, at common law, a pre-trial confession can only be used against the co-defendant who made confession. Supported by wording of s76(1)

Question 157

What are grounds of cahllenging admissibility under s76 PACE

Answer 157

• If did make statement, try exclude under s76(2). 2 grounds:
  o (a) oppression;
  (b) anything said or done made confession unreliable.
  If oppression or unreliable, CPS must prove beyond reasonable doubt confession was not obtained through oppression or unreliable (even if court thinks confession is true).

Opression: torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’- s76(8)
o In R v Paris 1993 (example of oppression) – victim bullied and hectored into confession. Court of Appeal said that, other than actual physical violence, it would find it hard to think of a more hostile and intimidating approach adopted by interviewing officers

Unreliability: o More common
o Don’t need deliberate misconduct of police
o Usually breach of PACE Code C

If the circumstances at the time could lead to an unreliable confession it must be excluded regardless of whether it is true or false. He court will look at anything said or done to the accused in the circumstances existing at the time including those surrounding detention and interrogation. An example could be failure by the police to identify a particular vulnerability of the suspect due to an existing medical condition or substance misuse. Inducements made by the police to the suspects regarding bail or a lesser charge could also render a confession unreliable.

Question 158

Can D Rely on Co Defendant Confession?

Answer 158

• S76(1) – yes
• S76(2) – if co-defendant says obtained by oppression or unreliable, court must exclude evidence unless court satisfied by D on balance of probs not obtained that way.
• Not this is a lower standard of proof than Pros would need to prove if it was his own confession he was trying to exclude for oppression/reliability

Question 159

Challenging Admissibility under s78 Pace

Answer 159

• S76 = only confession evidence did make but due to oppression or unreliable. Duty of court to exclude unless proved beyond reasonable doubt.
• S78 – general DISCRETION to exclude prosecution evidence if “the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted”. But can include confession evidence.
• S78 used if deny making confession, or admits making confession but that it is untrue. Not just confession. S76 only confession.

Must be signficiant and substantial breaches

o E.g if made outside police station then denies
o Likely to be excluded if made outside police station and Code C provisions breach:
 Not making accurate record of statement
 Failing to give D opportunity to view record and sign as accurate, or to dispute accuracy
 Failing to put admission/confession to D at start of interview – need to confirm or deny on record.

Question 160

If confession excluded are the facts discovered still admissible

Answer 160

CONFESSION EXCLUDED THE FACTS DISCOVERED AS A RESULT ARE STILL ADMISSABLE JUST DON’T SAY CAME FROM CONFESSION. i.e recover axe from confession.

Question 161

What are the 7 Gateways s101(1) Criminal Justice Act 2003

Answer 161

Admitting evidence of D’s bad character!

a. Agreement by all parties in case;
b. Evidence adduced by D in answer given or in response to question asked and intended to elicit;
c. Important explanatory evidence – ONLY CPS CAN USE THIS (if test can be established Court has now power under CJA to stop. Only s78 PACE);
d. Relevant to important matter in issue between CPS & Defendant – ONLY CPS CAN USE (Court has power to stop under 101(3) i.e unjust on fairness of proceedings. Not discretionary);
e. Probative value in relation to important matter in issue between defendant & co-defendant (if test can be established Court has now power under CJA to stop. Only s78 PACE);
f. Evidence to correct false impression D gave of his character; and
g. D attacked someone else’s character.

• Cannot prove guilt on own – like adverse inferences – must adduce other evidence to substantiate case, and have case to answer, before bad character taken into account

Question 162

Gateway (b) – adduce own bad character

Answer 162

• Only have minor convictions
• Pleaded guilty last time, now not guilty, show they accept their guilt when needed
• R v Paton (2007) – tools found in boot suggested kidnapping, adduce own bad character to show they were used for a previous burglary not kidnapping

Question 163

Gateway (c) – important explanatory evidence

Answer 163

• ONLY PROS CAN USE
• Only in limited circumstances:
  o Without it, court would find it impossible/difficult to understand case;
  o Value of evidence for understanding case must be substantial and not trivial. S102 CJA
• If evidence clearly understandable without, should not be admitted – case law.
• R v Campbell (2005) – man murdered and kidnapped 15 year old niece. CPS alleged D was infatuated with niece, partly sexual, adduced evidence of child porn on computer. Necessary to explain offence.
• If CPS can establish test under gateway, Court cannot prevent admission under CJA – no discretion. However do have discretion under s78 for unfairness.

Question 164

Gateway (d) – probative value for matters in dispute with CPS & D

Answer 164

• ONLY PROS CAN USE
• Most common one use by CPS
• Important issues include:
  o (a) D has the propensity to commit offences of the kind charged (except where having propensity makes it no more likely he is guilty; and
  o (b) D’s propensity to be untruthful (except where not suggested untruthful). S103(1) CJA 2003

Question 165

Gateway d - Propensity to commit offence of the kind charged (A)

Answer 165

Previous convictions of same kind, must show court establishing propensity makes it more likely he committed offence. Test for this:
 Convicted of offence of same description as one charged (same on indictment); or
 Convicted of offence of same category as one charge. (U16 sexual offences, theft offences)
Section does not apply if court thinks so much time has passed since conviction, or for ANY OTHER REASON, it would be UNJUST to be applied s 103(3) – similar to s78 but NOT DISCRETIONARY.
o R v Brima (2006) – other offences not of same category or description may be adduced under gateway (d) if similar factual matrix. In this case, previous assault and robbery with knife was admissible for murder where he stabbed victim.

Hanson guidelines

Question 166

What are the R v Hanson guidelines

Answer 166

o Guidelines for adducing evidence of D’s previous convictions to show propensity to commit offences of kind which charged.
 (i) do the previous convictions show a propensity to commit offences?
 (ii) if so, does the propensity make it more likely D committed the offences?
 (iii) if so, is it just to rely on previous convictions having regard to the overriding principle the proceedings must be fair? – Catch all
o Must answer yes to all. Consider
 Offences relied upon by CPS to show propensity (i) above, may go beyond offences of same description and category – think R v Brima;
 Fewer number of convictions, harder to show propensity, i.e only 1 previous conviction of same description or category it is unlikely to be enough unless tendency towards unusual behaviour i.e fire starting, sexual abuse of kids.
o To remember Hanson:
 Convictions show propensity?
 Propensity make it more likely committed current offence?
 Just to rely on convictions, think fairness of proceedings?
o R v Bennabou – Rape isn’t always considered unusual behaviour for Hanson. Sometimes

Question 167

Gateway d - Propensity to be untruthful (B)

Answer 167

Propensity to be untruthful (B)
Only allowed if suggested D’s case is in anyway untruthful – s103(1)(b). CPS may also place before the court evidence of a defendant’s previous convictions to show that the defendant has a propensity to be untruthful and therefore that evidence given by the defendant at trial may lack credibility.

R v HANSON (important)
- Previous convictions will not be admissible to some propensity to be untruthful unless:
o Manner in which previous offence was committed shows propensity i.e made false representations – not enough to be a dishonesty offence needs to have been untruthful, think perjury, fraud by false representation, active deception. Theft not enough.= unless actively sought to mislead
o Plead not guilty, tried, testified but was not believed, convicted – i.e raised defence of alibi, not believed, convicted.

Question 168

Excluding evidence under gateway (d) - s101(3)

Answer 168

o Court MUST NOT (not discretion) admit if the evidence would have such an effect on the fairness of proceedings the court ought to not adduce it.
o Similar to s78 but not discretionary, if court thinks unjust then cannot adduce.
o When are Courts most likely to use powers under s101(3):
 (a) Nature of previous conviction mean jury are likely to convict on these alone rather than other evidence (think v bad conviction) or Where previous evidence more prejudicial than probative – see R v Bennabou;
 (b) Where CPS trying to adduce evidence when case is week – see R v Hanson;
 (C) when D’s previous convictions are spent – not technically precluded from bad character under Rehab of Offenders Act, likely court will consider power to be excluded under 101(3). Think – length of time.
Absolute discharge None
Conditional discharge None
Fine 1 year
Community order 1 year
Custody up to 6 months 2 years
Custody 6 – 30 months 4 years
Custody 30 months – 4 years 7 years
Over 4 years Never spent

Question 169

Gateway (e) – substantial probative value re important matter in issue between defendant and co-defendant

Answer 169

• Co-d will want to admit evidence to show other D as propensity to commit crimes of same kind, or to be untruthful, thereby showing they did not do it.
  Propensity to commit crimes of same kind
  o Must be relevant to matter in dispute (more than marginal or trivial)
  o R v Edwards (2005) – jointly charged with wounding with intent, both said not involved in violence, one had previous violent offences, allowed to be adduced as had probative value substantially, as both claimed weren’t involved in violence.
  Propensity to be untruthful
  o only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence – i.e cut throat defence, both blame eachother.
  o Adduce evidence to co-d is less credible as lied before
  o Untruthful offences, false representation fraud, perjury etc. Also convicted at trial, testifying not believed, convicted. Same as 101(d).
• If co-d can establish test then no power under CJA to prevent admission – still have s78.

Question 170

Gateway (f) – correct false impression given by defendant

Answer 170

• ONLY PROS
• ‘if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant’
• Test CJA 2003, s105(2);
  o Made by D in proceedings e.g in witness box or in defence statement;
  o Made by D when questioned under caution in station;
  o Made by a defendant witness;
  o Made by witness questioned by defendant, intending to elicit it;
  o Made by person out of court but D adduces it.
• I.e at station said, I didn’t punch that man I would never, I’m a good Christian. Can then adduce previous convictions.
• No power under CJA to exclude, s78 still applies.

Question 171

Gateway (g) – attack on someone else’s character

Answer 171

• ONLY PROS
• Can include attack on the character of a person who is dead, or a person whom the CPS does not intend to call to give evidence.
• Can be at station, in trial, in defence statement
• Evidence attacking another person’s character is evidence to the effect that the other person has (s106(2):
  o Committed offence (different or same); or
  o Behaved reprehensibly.
• Although the courts are likely to find that a defendant who makes an emphatic denial of guilt has not attacked the character of another, it is likely that the courts will give a very wide interpretation to this gateway
• R v Ball – rape offence, called victim slag, raised previous convictions. Saying victim fabricated events not enough
• R v Williams – sexual offences, claimed officers set him up, allowed to adduce bad character. If said account untrue, not enough, but to say they conspired then it is.
  Excluding evidence under (g)
  o Like (d), must exclude under s101(3) if would have such an adverse effect on proceedings ought not to admit it.

Question 172

Adducing bad character evidence of someone who is not D

Answer 172

• ONLY PROS
• Can include attack on the character of a person who is dead, or a person whom the CPS does not intend to call to give evidence.
• Can be at station, in trial, in defence statement
• Evidence attacking another person’s character is evidence to the effect that the other person has (s106(2):
  o Committed offence (different or same); or
  o Behaved reprehensibly.
• Although the courts are likely to find that a defendant who makes an emphatic denial of guilt has not attacked the character of another, it is likely that the courts will give a very wide interpretation to this gateway
• R v Ball – rape offence, called victim slag, raised previous convictions. Saying victim fabricated events not enough
• R v Williams – sexual offences, claimed officers set him up, allowed to adduce bad character. If said account untrue, not enough, but to say they conspired then it is.
  Excluding evidence under (g)
  o Like (d), must exclude under s101(3) if would have such an adverse effect on proceedings ought not to admit it.

Leave of Court required if not D

Question 173

s78 PACE

Answer 173

• court has a discretion to exclude improperly or unfairly obtained prosecution evidence if it appears to the Court admission of evidence would have such an adverse effect on fairness of proceedings court could not admit it.
• Discretion
• Usually used when something unreliable about evidence which police obtained and unfair to allow CPS to use it
• If relevant to charge, and way in which it was obtained does not cast doubt on reliability, s78 unlikely to be used i.e breach of pace code alone not enough – needs to effect reliability of evidence
• Breaches of PACE or Codes of Practice must be SIGNIFICANT AND SUBSTANTIAL – R v Keenan 1990
• Common examples of prosecution evidence which a defendant may seek to persuade a court to exclude under s 78 are:
  o (a) evidence obtained following an illegal search
  o (b) identification evidence
  o (c) confession evidence
  o (d) evidence obtained from the use of covert listening and surveillance devices and (e) evidence obtained in ‘undercover’ police operations

Question 174

“Entrapment” – Abuse of Process

Answer 174

• Entrapment by police isn’t a thing but falls under scope of s78, invite court to exercise power on basis of abuse of process to allow CPS to continue
• Case of R v Loosley 2000 – officers incited man to supply heroin. Evidence excluded. Proceedings stayed on abuse of process.
• Abuse of Process guidelines from R v Loosley:
  o Nature of investigation – more intrusive harder should be scrutinised;
  o Nature of offence – some offences can only be cracked covertly i.e drug trafficking
  o Nature of police involvement – how behaved, how persistent, were they a normal customer or did they badger
  o D’s crim record – evidence of recent similar involvement?
  o Level and extend of supervision of undercover officers.

Question 175

Steps of a trial in Mag?

Answer 175

1. Opening speech by Prosecution
2. Prosecution witnesses:
   a. Evidence in chief by Pros;
   b. Cross examination by D; and
   c. Pros may re-examine.
3. Possible submission of no case to answer
4. Defendant witnesses, D will go first:
   a. Evidence in chief by D;
   b. Cross examination by P; and
   c. D may re-examine.
5. Pros may give closing speech only if D represented or if D adduced evidence, other than his own, regardless of rep
6. D closing speech
7. Retire for verdict
8. Verdict
9. Sentence or adjourn for pre-sentence report, or formally discharged

Question 176

What should be included in opening speech?

Answer 176

• Opening speech: set scene – facts, substantive law, what needs to be proved by CPS, remind of burden of proof, online CPS case, who going to call, summarise evidence
• Pros witnesses: take oath or affirm, complainant goes first, s9 CJA statements read out. Transcript of interview or recording

Question 177

Mag - when is voir doir held?

What is the Prosecution evidential burden?

Answer 177

• Arguments on admissibility of bad character, confession evidence, s78 etc may hold a voir doir i.e trial within a trial (just on admissibility of evidence). If allowed, defendant can still attempt to undermine the reliability or cogency of the evidence). Mag – sometimes will try deal with admissibility before trial otherwise Mag will be hearing the evidence (at pre-trial hearing)
• Pros evidential burden: present sufficient evidence to the court to justify a finding of guilt

Question 178

What are the tests for no case to answer?

Answer 178

R V Gailbraith (think girl breath)
1. Pros failed to put forward essential element of alleged offence; or
2. Evident put forward so discredited (during cross examination) or unreliable no REASONABLE tribunal could surely CONVICT.

TEST: R v Sardar (Gailbraith and no case to answer):
1. If there is direct evidence capable of proving the charge, then there will always be a case to answer, no matter how weak or tenuous this appears;
2. If circumstantial, only be no case to answer where the evidence is not capable in law of supporting a conviction. In this case, D was in possession of info about terrorism, bomb making equipment, fingerprints on other similar IEDs. Found to have a case to answer. If after all circumstantial evidence still could not reach a conclusion of guilt beyond a reasonable doubt, or exclude other hypotheses consistent with innocence, then the prosecution will not have discharged their evidential burden.

Question 179

Must a D give evidence at own trial? When will they be called?

Answer 179

• If giving specific defence like alibi or self defence will need to give evidence to discharge evidential burden (s 35 of the CJPOA 1994, a defendant who fails to give evidence on their own behalf at trial is likely to find that the court will draw an adverse inference from such failure.)
• If a defendant is to give evidence on their own behalf, they must be called first before any other witnesses for the defence (unless the court ‘otherwise directs’ (PACE 1984, s 79))

Question 180

Mag: when can P make a closing speech? When can you appeal conviction or sentence in Mag?

Answer 180

• Mag trial: D always make closing speech and P can if D is represented or has adduced evidence other than his own regardless of representation. D always remind Mag that P has burden of proof. Magistrates should be told that the defendant is entitled to an acquittal unless they are sure that the defendant is guilty. If P relied on witness evidence then D give Turnbull warning
• A defendant who has been found guilty following a trial in the magistrates’ court has the right to appeal against the conviction and/or sentence to the Crown Court.

Question 181

What do the judge and jury do in a CC trial?

Answer 181

• The judge will resolve any disputes that arise over points of law during the course of a trial, and will direct jury as to relevant law
• Jury decides FACT
• Judge will sum up the evidence for the jury
• The defendant must apply, in writing, as soon as practicable after becoming aware of the grounds for making such an application to change a plea of guilty (eg if the defendant had misunderstood the prosecution case). A very similar procedure applies to changing plea in the magistrates’ court (r 24.10)

Question 182

Steps of a trial in CC?

Answer 182

1. Jury sworn in (empanelled) – over 18, resided in UK for 5 years, names on electoral roll for local area. Who can’t be – if suffer from mental health disorder, if on bail in crim proceedings or previous convictions and served custodial sentence. Arraignment (enter not guilty please) usually at the PTPH, if not then arraignment take place before jury empanelled.
2. P give opening speech (legal offences on the indictment, outline of evidence and explanation as to burden and standard of proof)
3. Prosecution witnesses:
   a. Evidence in chief by Pros (start with the complainant);
   b. Cross examination by D; and
   c. Pros may re-examine.
4. If any dispute as to admissibility of evidence then may have a voir doir (no jury). Usual for D to notify P about any evidence which it seeks to challenge. May be dealt with at a pre-trial hearing or maybe at trial at a voir doir. If evidence is admitted then D can still undermine reliability sand cogency at cross-examination or re-examination of witnesses.
5. No case to answer (Gailbraith). If successful jury must deliver not guilty verdict. If unsuccessful D may be allowed to change plea (e.g if admitted guilt to solicitor).
6. Defence – D counsel can give opening speech if D is calling witness who is not him. Defendant is first witness called.
7. P give closing speech
8. D give closing speech
9. Judge give summing up (important as appeals often judge misdirecting jury):
   a. Directions on the law;
   i. Burden and standard of proof;
   ii. Legal requirements of the defence; and
   iii. Any other issues of law and evidence e.g Turnbull Warning (disputed ID evidence) or direction of adverse inferences s34-37 CJPOA 1994
   b. Summary of evidence.
10. Jury retire to consider verdict, decide unanimously – 11:1 or 10:2 will ne accepted if after 2 HOURS AND 10 MINS unanimity is not possible. If lengthy or complex judge likely to wait longer. If any jury retired then ratio reflects this. If can’t decide in REASONABLE TIME judge will discharge the jury and P likely to request a retrial.
11. If D not guilty, will be discharged and free to go. If D’s case not funded by representation order the judge may order that their legal costs be paid by state
12. If guilty, sentence or adjourn for pre-sentence report. Consider bail. No presumption in favour of bail if convicted in CC.

Question 183

Modes of address in Court

Answer 183

• Magistrates: usually Sir, Madam, sometimes your worship
• District judge: Sir or Madam
• Crown Court: Your Honour
• Advocate: ‘my friend’
• Barrister: ‘my learned friend’
• Bow to judge or magistrates as entering or leaving court, stand up always
• Criminal advocates stand when addressing the Court if it is an open Court. Advocate may remain seated when:
  o Representing juvenile in youth court
  o D appears by video link
  o Witness appears by secure link (usually due to special measure)
  o Police officers giving evidence via video link as located far from Court
  o Where advocate has requested to appear over videolink
  o Making bail appeal before a judge in chambers in CC.
• No food and electronic devices off or on silent. Offence of contempt of court to take photos, video etc

Question 184

Purpose ofcross-examination and consequences if done wrong?

Answer 184

• Purpose of cross examination:
  o Party examining putting their case to witness;
  o Undermining the credibility of the witness evidence; and
  o Obtaining favourable evidence from the witness.
• If do not put D’s version of events to witness (for example that they were acting in self defence) then D not entitled to enter the witness box and say acting in self-D
• Re-examination should only be on matters arisen in cross-examination, only open questions

Question 185

General rule re competency in crim proceedings? Exceptions to competency?

Answer 185

General rule: At every stage in crim proceedings all person are (whatever their age) competent to give evidence – s53 Youth and Criminal Evidence Act 1999.

Exceptions to competency (TEST):
- S53 – not competent if it appears to the Court the witness is not able to:
a. Understand the questions put to him; and
b. Give answer to them which can be understood.
- The two classes of witness who fall under this are children and those with defective intelligence.
- For children not about age but only on if intelligible testimony. R v Baker: witness aged for and a half.
- If under 14 cannot be sworn. IF over 14: if ‘he has sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking the oath’ and this will be presumed to be the case unless there is evidence to show the contrary.

Question 186

General rule re compellability and exceptions?

Answer 186

Generally all competent witnesses are compellable (I,e by witness summons) and if refuse then held in contempt of court

Exceptions:

Witness for the Crown
1. Accused is not competent witness for the Crown (cannot call one co-accused to testify against another). Four exceptions where Crown can call co-accused:
a. Attorney-General can file a notice abandoning the prosecution (called a nolle prosequi)
b. May be order for separate trials, first can testify at second but not the other way around
c. Co-accused may be formally acquitted
d. Accused may plead guilty then give evidence for Crown (usually desirable to be sentenced first before giving evidence)
Witness for co-accused
1. A co-accused is competent to be a witness for co accused but not compellable;
Witness for own defence
1. Competent but not compellable but s35 adverse inferences may be drawn;
Spouse of accused
Dealt with by s80 of PACE
For Crown – only compellable for specified offences, there are two types of specified offences:
1. Where the offence charged involves an assault on or injury or threat of injury to the spouse or a person who was under 16; or
2. Where the charge is a sexual offence, or such an attempted offence involving a person under l6 or aiding and abetting such offences.
For accused
1. Spouse is compellable
For co-accused
1. Only compellable for the two types of specified offences (see above); however
2. If spouses are co-accused then never compellable (unless spouses are no longer married at the date of the trial).

Question 187

Who can apply for special measures? What are special measures? Can D use special measures?

Answer 187

• The following witness can apply for special measured under ss16 and 17 of the Youth Justice and Court Act 1999:
  o Children under 18;
  o Physical or mental disorder likely to affect their evidence
  o Evidence likely to be affected by their fear or distress at giving evidence
  o Complainants in sexual offences (AUTO CONSIDERED ELIGBLE)
  o Witnesses in specified gun and knife crimes
• If witness fearful can apply for leave to have statement read out. This means no cross-examination so must first look at special measures order
• Special measures:
  o Screens to ensure witness doesn’t see defendant
  o Give evidence outside Court by tele-link, allowing witness supporter to accompany witness whilst giving evidence
  o Clearing people from Court room so evidence can be given in private
  o In CC barristers and judge removing wigs and gowns
  o Allowing witness to be examined in chief before trial and a video shown at trial
  o Allowing witness to be cross examined and re-examined before trial and a video shown
  o Allowing approved intermediary (e.g interpreter or speech therapist) to communicate
  o Allowing witness to use communication aids e.g sign language or hearing loop
  SPECIAL MEASURES WARNING: s32 YJCA 1999 obliges judge to warn jury that the fact special measures have been used should not prejudice them against the defendant or give rise to a suggestion that the defendant has behaved improperly towards witness.
  Although a defendant is not eligible to take advantage of these special measure provisions, s 33A of the 1999 Act allows a defendant whose ability to participate effectively as a witness in court is compromised by reason of their mental disorder, impaired intellectual ability or social functioning, to give evidence by video link

Question 188

Solicitor’s duty to the Court?

Answer 188

• Act in client’s best interest
• Ensure P discharges the onus to prove guilt (even if D confirms guilt)
• Overriding duty not to mislead court
• Confidentiality (don’t tell court why not acting – “professional reasons”)
• DO NOT COACH DEFENDANT OR OTHER WITNESSES but can let them read through statement (can’t refer to statement when giving evidence)

Question 189

5 purposes of sentencing?

Answer 189

• Sentencing code, part of Sentencing Act 2020 (came into effect December 2020). Consolidates existing law
• Court sentencing anyone over aged 18 must have regard to the five purposes of sentencing:
  1. Punishment of offenders;
  2. Reducing crime;
  3. Rehabilitation of offenders;
  4. Protection of public; and
  5. Reparation to victims of crime.
• Also must consider if there is a fixed sentence by law e.g murder is life, statutory minimum or if the offender is a “dangerous offender”
• Cort has a duty to follow sentencing guidelines
• Sentencing guidelines are updated by the Sentencing Council

Question 190

Culpability and ahrm when sentencing?

Answer 190

Culpability
Four levels:
1. Intention;
2. Recklessness (appreciates some harm would be caused but goes ahead not giving thought to consequences even though risk would be obvious to most people);
3. Knowledge of specific risks but intender did not intend to cause the harm that results; and
4. Negligence.
Harm
Can either be to individuals or community, types of harm include:
1. Physical injury;
2. Sexual violation;
3. Financial loss;
4. Damage to health; and
5. Psychological distress.

• Prevalence: in exceptional circumstances court may treat an offence more seriously than elsewhere if type of offence is prevalent in the area and court has evidence these offences are causing harm to the community.

Question 191

4 statutory aggraavting factors?

Answer 191

o Previous convictions - the court must treat any previous convictions as an aggravating
factor if, having regard to the nature of the previous conviction and the time that has
elapsed since the conviction, the court considers it reasonable to do so. Consider if committed recently and if same type of offence;
o Offences committed whilst on bail;
o Racial or religious aggravation; and
o Hostility based on sexual orientation or disability.

Question 192

Aggravating and mitigating factors court may take into account

Answer 192

Aggravating Factors Court MAY Take into Account
1. Offences planned or premediated;
2. Offenders operating in groups or gangs;
3. Deliberate targeting of vulnerable groups;
4. Under influence of drink or drugs;
5. Use of weapon;
6. Deliberate violence or damage to prop (beyond that required of offence);
7. Abuse of position of trust;
8. Offences against those in public sector or providing a service to the public;
9. Property offences = high value (inc sentimental value) of property to victim; and
10. Failure to respond to previous sentences.

Mitigating Factors Court MAY Take into Account
1. Acted on impulse;
2. Greater degree of provoking than normal;
3. Suffered from mental or physical disability;
4. Particularly young or old (i.e young offender led estray by others);
5. Played minor role in offence;
6. Motivated by genuine fear; and
7. Made attempts to make reparations to victim.

Question 193

Reductions in sentence for guilty plea?

Answer 193

Reduction in Sentence for Guilty Plea
- S73 SA, Court must take into account the proceedings stage when entered guilty plea and circumstances plea was given
- ‘Reduction in Sentence for a Guilty Plea’ Definitive Guideline applies to all defendants aged 18 or over and to all cases, regardless of the date of the offence(s). Applied in Mag & CC
- Reduction not dependant on if the offender has remorse or strength of the case

1. 1/3 discount if guilty plea indicated at “first stage of proceedings” unless it would have been unreasonable for the D to indicate a guilty plea at first hearing. First stage includes:
   a. Guilty plea at the first hearing in mag court;
   b. Guilty plea at first hearing in mag court where the case is then committed for sentence at CC;
   c. Guilty plea at mag court to indictment only offence, followed by guilty plea at first hearing in CC.
2. 1/4 discount if guilty plea at the pre-trial preparation hearing;
3. 1/10 if guilty plea on first day of trial (“at the door of the Court”);
4. 1/10 may be reduced to 0 if during course of trial.

Question 194

R v Hodgin Lee Test for plea indication? Totality principle?

Answer 194

TEST IN R v Hodgin Lee 2020: Where at the Mag Court it is not procedurally possible for a D to enter a guilty plea, there must be an unequivocal indication of the D’s intention to plead guilty in order to get the 1/3 discount. Stating you “may plead guilty” is not enough.

• Totality principle: Court takes into account the relevant offence and any other associated offences which includes offences they are to be sentenced for at the same time or sentences the D has asked the Court to take into account. Totality of offences will need to be considered when looking at the custody threshold.
• Police will give D a list of additional offences which they are under investigation for and may be charged. D can ask court to take some or all of these into account. Should be of a similar nature to, or less serious than the current offence. In practice may add nothing or very little to the sentence. Wipes slate clean.

Question 195

Sentencing guideline steps?

Answer 195

1. **Determining offence category which helps to find the starting point:
   a. Cat 1 – greater harm and enhanced culpability;
   b. Cat 2 – greater harm or enhanced culpability;
   c. Cat 3 – lesser harm and lower culpability.
2. **Shaping the provisional sentence by reference to aggravating and mitigating factors. Factors are considered together to give a holistic view;
3. Consider factors which indicate a reduction in sentence such as assisting the prosecution (e.g defendant assisted the police in relation to other matters). Not very common in practice;
4. **Reduction in sentence for guilty plea (e.g 1/3 at first hearing);
5. Imposing extended sentence (dangerous offender);
6. Totality principle;
7. Compensation and other ancillary orders (court has duty to consider if offender should pay compensation etc)
8. **Giving reasons – s52 SA obliges Court to give reasons.
   Steps 1,2,4,8 and most important in practice

Steps 1,2,4,8 and most important in practice

Question 196

Current and consecutive offences?

Answer 196

• Applies to 2 or more custodial sentences for difference offences
• Concurrent = custodia terms are served at the same time
• Consecutive = one starts after another finishes
• Generally consecutive sentences are not imposed where matters of fact arise out of the same incident i.e did wounding and theft occur at the same time re same victim
• If different circumstances but court is applying the totality principle then may be concurrent

Question 197

Pre-sentence report before plea?

Answer 197

• Where adult D is pleading guilty, advocate can ask that the probation service prepare a pre-sentence report before first hearing
• If probating service decides to product it, Court will decide whether to use it
• D legal rep will only as probation service to produce a report before plea if D will plea guilty to all offences charged on the full prosecution facts and D will cooperate with the probation service to prepare the report.
• Legal representative must be satisfied that:
  o D is likely to be sentenced in the Mag Court;
  o Offence is serious enough for a community order and a pre-sentence report is likely to be necessary.
• Pre-sentence report does not provide indication and Court can still use other sentences
• Court decides whether to consider the pre-sentence report before plea
• Court may proceed to sentence without the sentence report
• S30 SA 2020 states the sentencing court MUST obtain and consider a pre-sentence report before forming an opinion on:
  o If custody threshold has been passes and how long the custodia sentence should be; and
  o Whether threshold imposing a community sentence has been passed and the requirements that should be imposed on the D under a generic community order.
• Re s30, a Court is NOT required to obtain a pre-sentence report from probation service if it considers unnecessary. I.e because the seriousness of the offence or the court already has a recent report for that offender.
• S30 sounds obligatory but the above requirement means it is not
• Section 30(4) also provides that if a court imposes either a custodial or community sentence before first obtaining or considering such a report, this will not invalidate any resulting sentence

Question 198

Plea in mitigation?

Answer 198

• Usually just speech by advocate but can call character witnesses or introducing character letters
• D will have opportunity for plea in mitigation before sentencing court considers and imposes sentence
• Plea will:
  o Minimise the impact of aggravating factors;
  o Emphasise importance of mitigation factors
  o Consider any personal mitigation
• Relevant factors for personal mitigation:
  o Age of D (e.g D is young);
  o Health of D – just saying D only did it because he was drunk is more likely an aggravating factor, but if D is an alcoholic may be used to suggest the Court gives a sentence designed to help D overcome the addiction;
• Cooperation with police/early guilty plea – has the D assisted police with enquiries and named others , made prompt confession to police;
• Voluntary compensation (D voluntarily makes good the damage, particularly if D is poor);
• Remorse (evidence of true remorse but mere apology made to Court unlikely to do anything. If D is drug addict and stole, but has taken steps to get into treatment then this may help);
• Character – if other convictions try and distinguish the convictions from the facts of this case and explain the circumstances of the previous offences e.g was a drug addict then but not now. If have no previous convictions then emphasise this. Good if there is a specific one off reason for current offence.

In R v Seed; R v Stark [2007] EWCA Crim 254, the Court of Appeal held that the absence of previous convictions was important mitigation that might make a custodial sentence inappropriate, even if the custody threshold had been crossed.
- D has good supportive family who will help him stay out of trouble? Say this
- If D had troubled family background then refer to this in mitigation (especially if young)
- Plea should give a suggested sentence

Question 199

Cusotdy threshold and custody length tests (s230 and s231 of Sentencing Act)

Answer 199

• Custodial sentence:
  o Most offences allow court to have discretion as to if a custodial sentence is given and the length of the sentence. But some cases have statutory minimum or murder has mandatory life sentence
  o If Court has discretion they must apply the custody threshold test at s230 of SA 2020, see below.
  S230 Custody Threshold Test: The Court must not pass a custodial sentence unless it is of the opinion that the offence or the combination of the offence and associated offences was so serious that neither a fine alone nor a community sentence can be justified.
• In R v Seed; R v Start 2007, it was held that if the custody threshold had only just been passed a guilty plea or strong personal mitigation might make a non-custodial sentence more appropriate.
• S230(4) custody threshold tets does not apply when D has not expressed a willingness not to take part in a community sentence
• If custody threshold met, and the Court wants to impose custodia sentence, must determine the length of the sentence using s31(2) SA
  S231(2) SA Custodial Length Test: custody sentence must be for the shortest term (not exceeding the permitted max) that in the opinion of the court is commensurate with the seriousness of the offence, or the combination of offences.
• Mag Court: max six months imprisonment for 1 offence
• Mag Court: max 12 months for two or more either-way offences by 2 consecutive 6 month sentences for each either-way offence
• Crown Court: Judges in the Crown Court have the power to sentence a defendant to a term of imprisonment up to the maximum permitted for that offence
• Offenders between 19-21 will go to a Young Offender Institution instead of prison

Question 200

What custodia sentences must adult and juvenile offenders have?

Answer 200

o Auto life imprisonment
o Discretionary life
o Extended sentence of imprisonment

Question 201

Early release?

Answer 201

• Adults who get a custody sentence of up to 2 years for an offence committed after 1 February 2015 will be auto release at the halfway point
• Will be on licence in community up to the remainder of their sentence
• Must have a period of post sentence supervision for a period of 12 months starting the day they leave custody
• Over 2 years? Probs released halfway unless they are a offender of particular concern. These offenders they must apply for parole and can be released at any point after half way up until end of sentence
• Offenders of particular concern – terrorism, child sex offences etc

Question 202

When can a sentence be suspendd, how long for, what if it is breached?

Answer 202

• Rather than imposing immediate custody, a sentencing court may sometimes order the
• sentence to be suspended
• Sentence must be at least 14 days no more than 2 years, or 12 months for Mag
• May be suspended for at least 6 months but no more than 2 years – called the operational period
• Custody threshold must have been met
• Example re single mother whose disabled child will have to go into care
• Court may require D to comply with some requirements. If they do this, the supervision period must end no later than the end of the operational period
• Suspended sentence will be imposed if the requirements during the supervision period have not been met on if during the operational period any further crimes are committed
• If a defendant is found either to be in breach of a requirement or to have committed a further offence during the operational period, if the suspended sentence was imposed by the magistrates’ court, they may be dealt with for the breach either by the magistrates’ court or by the Crown Court. If the suspended sentence was imposed by the Crown Court, any breach may generally be dealt with only by the Crown Court.
• A Court dealing with a D who has breaches a suspended sentence must:
  o Order the custodial sentence originally suspended to take effect unaltered;
  o Take effect but shorter or substitute a lesser custodial sentence;
  o Amend original order and impose more onerous community requirements
  o Amend original order by extending the operational or supervision period
• The court must give OG sentence or lesser sentence unless the court consider it unjust to do in view of circumstances
• If A or B, sentences run consecutively
• If don’t give immediate effect to the suspended custodial sentence it can impose fine of up to £2,500
• Generally, the court will activate a suspended sentence and order it to run consecutively with any additional sentence imposed for the new offence.

Question 203

s2404 test for community order threshold? Menu of options?

Answer 203

S204(2) for generic community order threshold:
The Court must not make a generic community order unless it is of the opinion that:
(a) The offence; or
(b) The combination of offences
Was serious enough to warrant the making of such order.
- Menu of options for community order:
o Unpaid work – between 40 and 300 hours within 12 month period (most common);
o Activity requirement – such as finding work, make reparations to victim;
o Programme requirement – e.g anger management, sex offence or substance misuse;
o Prohibited activity requirement;
o Curfew requirement – will be tagged;
o Exclusion requirement – prohibits entering a place e.g city centre, particular place like a pub not exceeding 2 years
o Residence requirement – must live at particular place as specified in order
o Mental health treatment requirement;
o Drug rehab requirement – will need to submit samples;
o Alcohol treatment requirement;
o Supervision requirement – attend appointments with the Probation Service up to 3 years;
o Attendance centre requirements – between 12 and 36 hours, offender must be over 25
o Foreign travel prohibition requirement

Question 204

Breach of community order?

Answer 204

• Breach of community order first time without reasonable excuse: at first will get a warning from the probation service
• If breach again in following 12 months, without reasonable excuse, officer will report to the court and the offender will be required to appear before the Court. The Court must (if satisfied):
  o Amend order to make requirements more onerous e.g increasing unpaid work;
  o Revoke order and resentence (but without taking into account custody threshold)
  o If offender has wilfully and persistently failed to comply with order, Court may revoke and impose a custodial sentence. Even if original offence not punishable by custody.
• If commit further offences during community order, the magistrates may either allow the original generic community order to continue, or, if it is in the interests of justice having regard to the
  circumstances that have arisen since the original order was made, they may:
  o Revoke the order (will be done if giving custodial sentence for new offence); or
  o Revoke or and resentence for original offence as if just convicted. Court must have regard to the extent the offender has complied with the community order.

Question 205

Appeals from Mag to CC

Answer 205

• If an offender pleads guilty in the Mag court they can appeal against their sentence in the crown court
• If plead not guilty in Mag can appeal against conviction and sentence
• Appeal heard by recorder or circuit judge who will sit with an even number of magistrates – normally 2 but up to 4.
• Appeal on sentence basis: EXCESSIVE SENTENCE
• Appeal on conviction: incorrect point of law or fact
• Should be full rehearing of issues for both
• CPS has not right of appeal; for acquittal or sentence but can appeal on point of law to High Court by way of case stated

Question 206

procedure to appeal from Mag to CC and CC’s power?

Answer 206

• File notice to appeal to the magistrates and to CPS NOT MORE THAN 15 BUSINESS DAYS (21 DAYS) FROM THE MAGISTRATES PASSING SENTENCE OR THE DATE SENTENCE WAS DEFERRED TO
• Mag will send to CC
• If appeal sent after 15 business days, CC judge has discretion to extend time limit
• Representation order – current rep order will cover advice in prepping notice of appeal, but new rep order needed for the appeal
• Mag may grant bail pending appeal but not presumption in favour

CC may:
1. Confirm;
2. Reverse; or
3. Vary
The decision.
- If appealing against a sentence then it may be increased
- Any decision or order made by a CC following an appeal can be appealed to the HIGH COURT by way of case stated on a point of law, or on an argument that the CC has exceeded it jurisdiction. Either the defendant or CPS can appeal by way of case stated.

Question 207

Appeals to High Court by way of case stated

Answer 207

• CPS or D can appeal from a decision by the mag to QBD High Court if:
  o The decision is wrong if law; or
  o The magistrates have acted outside of jurisdiction.
• Arguments often are: magistrate misread, misunderstood or misapplied the law; Mag decided to hear case when they didn’t have jurisdiction; Mag made errors in deciding the admissibility of evidence; Magistrates make a mistake in their decision following a submission of no case to answer.
• Must apply in 21 DAYS OF THE DECISION to the Magistrate’s Court (write to clerk)
• Magistrates will then prepare a statement of case for the High Court to decide
• CPS & D will get to comment on the statement of case before it goes
• Once agreed, the party must lodge the statement of case with the High Court and give notice to the otherside that this has been done
• Hearing will be heard in the Divisional Court of the QBD normally by 3 judges
• No witness evidence, confined to legal arguments based on the agreed facts
• Divisional Court can reverse, vary or affirm the decision or remit the case back to the Magistrates with an order to acquit or to convict the defendant, or remit the case back to a different bench of magistrates if it needs to be reheard
• CPS OR D CAN APPEAL A DECISION BY HIGH COURT TO SUPREME COURT, on point of law only and the High Court must certify it to be a point of law of GENERAL PUBLIC IMPORTANCE. Either HC or Supreme Court must grant leave to appeal.
  NOTE: CPS only appeal is by way of case stated. However, for D appealing straight to the Crown Court is a much more effective, and quicker, way of appealing (Brett v DPP 2009). This is because by way of case stated it is likely the case will be reheard by the Magistrates after quite a long time.

Question 208

Challenging Mag decision with Judicial Review?

Answer 208

• Not strictly an appeal but is a method of challenging the Mag’s decision
• Application for judicial review can be made by the CPS or by D if:
  o If Mag had no power to make a decision (acted ultra vires); or
  o Magistrates have breached the rules of natural justice (i.e right to a fair hearing or acted beyond their powers).
• Outcome will be either an order from the Divisional Court quashing the decision or compelling the mag court to act (or not to act) in a certain way.
• Not usual route for CPS or D to take!

Question 209

Appeals from CC by D?

Answer 209

Rights of appeal from the Crown Court to the Court of Appeal:
1. Appeal from conviction if the Court of Appeal grants leave to appeal, or the trial judge grants a certificate that the case is fit for appeal;
2. Appeal against the sentence if either the Court of Appeal grants leave to appeal, or the judge who passes sentence grants a certificate to say the case is fit for appeal against sentence.

Question 209

D appealing conviction in CC grounds and common reasons?

Answer 209

1. Court of Appeal consider the verdict to be “unsafe”, in all other cases it must dismiss the appeal;
2. CoA may allow the appeal and quash conviction if it is satisfied the defendant did commit an offence but there has been an abuse of process. Small number of cases. Example: bugging.

• Point 1 means even if there was a mistake or error in trial, if the CoA considers even if the mistake had not been made the correct and only reasonable verdict would have been one of guilty, then it must dismiss the appeal.
• R v Boyle and Ford [2006] EWCA Crim 2101, two co-defendants were convicted of murder. There was significant DNA and other forensic evidence against them. The trial judge misdirected the jury as to the drawing of adverse inferences under s 34 of the Criminal Justice and Public Order Act 1994. The Court of Appeal held that the misdirection did not render the conviction unsafe because there was other compelling evidence against the defendants.
• Common factors of appeal:
  o Trial judge failing to correctly direct the jury (e.g burden and standard of proof, substantive law, that it is for jury to determine what the facts of the case are although the judge will remind the jury of prominent feature of evidence when summing up but ti is jurys responsibility to judge the evidence and decide the relevant facts, that jury should return unanimous vote [and judge will notify when time has come to accept majority], jury’s power to convict the D of any lesser offence which there was evidence to support);
  o Trial judge wrongfully excluded or admitted evidence (e.g disputed confession evidence/previous convictions, wrongfully excluded hearsay);
  o Trial judge failed to administer the correct warnings to the jury (e.g Turnbull warning, corroboration warning when D alleges that a witness has a purpose of his own to serve in giving evidence against D, proper direction to jury for adverse inferences from D’s silence, proper direction to jury re previous convictions);
  o Inappropriate interventions by trial judge;
  o A failure by trial judge to sum up correctly (e.g not dealing with essential points of D’s case; identify inconsistencies in the prosecutions case; summarise the evidence the jury may rely on to convict; tell jury when special measures used don’t assume D has done something bad);
  o Fresh evidence – even if trial conducted properly the D can argue conviction is unsafe if fresh evidence comes to light which CASTS DOUBT UPON HIS GUILT. Fresh evidence will not in itself render a conviction unsafe. The issue for the Court of Appeal is whether the fresh evidence is such that, had it been placed before the jury, the verdict might have been different.

Question 210

Procedure to appeal conviction from CC and CoA powers?

Answer 210

Only rarely ask trial judge for certificate of fitness for appeal, usually get permission direct from CoA.
1. Within 28 DAYS OF THE CONVICTION – NOT THE SENTENCE – D serve appeal notice and GROUNDS OF APPEAL on registrar of Criminal Appeals at the CoA;
2. Registrar will obtain transcript of trial and will pass to judge to decide if permission granted (filtering stage). If permission granted, single judge will grant D public funding for hearing. If appeal is completely without merit, single judge can (when dismissing the appeal, make a direction for loss of time under s29 CAA 1968. This means any time D spends awaiting outcome of appeal won’t count towards sentence. Tries to deter appeal without merit. Time spent before conviction will still count. If accept the views of the singe judge, then won’t lose anytime;
3. Hearing will take place before 3 judges in the Court of Appeal. Will hear oral arguments from the parties, and may also hear fresh evidence if the evidence (TEST):
a. Appears to be credible;
b. Would have been admissible at the defendant’s trial and
c. There is a reasonable explanation for the failure to adduce the evidence at trial
Powers of the Court of Appeal
1. Quash the conviction and acquit D (e.g if new evidence comes to light that would have acquitted D);
2. Quash the conviction and order a retrial )e.g unsafe verdict due to judge’s summing up);
3. Allow parts of appeal and dismiss others (e.g appealing against conviction for multiple offences);
4. Find D guilty of alternative offence; or
5. Dismiss.
COA MUST DISMISS UNLESS IT CONSIDERS THE CONVICTION UNSAFE. If it does, then it must decide if a retrial should be ordered – CoA can order a retrial where it appears to the Court that THE INTERESTS OF JUSTIC SO REQUIRE it. Usually will order retrial unless new evidence, unless retrial would be unfair to the defendant.

Question 211

Procedure to appeal sentence from CC and CoA powers?

Answer 211

• Same procedure as conviction
• Grounds: sentence is wrong or excessive – state why in draft grounds of appeal
• If leave is granted then appeal will be considered by 2 or 3 judge panel
• Confined to legal submissions on appropriate sentence or range
• Appeal will only be success if:

1. Sentence passed is wrong in law (e.g if judge did not have power to pass);
2. Sentence wrong in principle (e.g custodial sentence but not serious enough);
3. Judge adopted wrong approach (e.g judge increased sentence because D pleaded not guilty [guidelines start from assumption D convicted following not guilty]; judge failed to give appropriate not guilty plea discount; judge should have held a Newton hearing before determining facts; Judge failed to take account or give sufficient credit for any relevant offence or offender mitigation put forward by D);
4. Co-defendants – unjustified disparity in sentences (especially if equally culpable);
5. SENTENCE PASSED IS MANIFESTLY EXCESSIVE – most common ground i.e gone beyond upper limit of range. CoA will not reduce sentence simply because it would have imposed a lower sentence within the range.

• May confirm sentence
• May quash sentence and replace with alternative sentence or order as it thinks appropriate
• CoA CANNOT INCREASE THE SENTENCE IMPOSED BY THE JUDGE IN THE CROWN COURT (can increase in Mag)
• Loss of time direction can be made if appeal without merit

Question 212

Prosecution appeals from CC

Answer 212

No power for CPS to appeal if D acquitted by jury following CC trial. However, can apply to the Court of Appeal re rulings by trial judge either before or during trial which:
1. Effectively terminate the trial (termination rulings); or
2. Significantly weaken the prosecution case (evidential rulings).
Not of much importance.
3. CPS can appeal if the ATTORNEY-GENERAL considers CC has passed sentence which is UNDULY LENIENT. Attorney general can refer case to CoA if the offence is an offence triable only on indictment or is a specified either-way offence and the Court of Appeal has given permission. [If the referral is successful, the Court of Appeal will quash the sentence passed in the Crown Court and pass the sentence it considers appropriate. Any sentence imposed by the Court of Appeal must be a sentence that could have been passed in the Crown Court].

Question 213

CPS applications for retrial

Answer 213

• Double jeopardy (same D can never be tried twice) pre CJA 2003
• S75 CJA 2003 allows a retrial following the acquittal of a defendant for the following offences:
  o Murder and attempted murder;
  o Manslaughter;
  o Kidnapping;
  o A number of sexual offences (inc rape, attempted rate, assault by penetration);
  o Class a drug offences such as unlawful importation and production; and
  o Arson endangering life or property.
• CPS will only quash conviction and order retrial where CPS can satisfy the following 2 fold test.
  Evidential Test
  Must be NEW and COMPELLING evidence of defendant’s guilt. Not evidence adduced during trial. To be ‘compelling’, this evidence must be reliable, substantial and highly probative of the case against the defendant.
  Interests of Justice Test
  CoA should have particular, but not exclusive, regard to the following factors:
  1. Whether existing circumstances makes a fair trial unlikely;
  2. Length of time since the offence was allegedly committed;
  3. Whether it was likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or the prosecution to act with due diligence and expedition; and
  4. Whether since the earlier proceedings the police or prosecution have failed to act with due diligence or expedition.
  R v Dunlop – acquitted but in prison for something else admitted to inmate he committed murder. Also wrote letters to others admitting. D argued not in interests of justice has he made those confessions thinking he couldn’t be retried. Retried and entered guilty plea.

Question 214

Overriding aim of youth justice?

Answer 214

Aim of youth justice: Prevent offending by children and young persons. All those involved in youth justice must have regard to this overriding principle. Youth court must also have regard to the welfare of juveniles.

Question 215

Role of youth offending team and parents / guardians?

Answer 215

Youth Offending Team
- YOT coordinate the provision of youth justice services in a local area
- Member of YOT will attend each sitting of couth court (usually member of Probation Service who has received training in dealing with youth justice matters)
- YOT will assist the Court with:
o Investigating and confirming personal circumstances and previous convictions of juveniles;
o Providing support for juveniles who are granted bail;
o Preparing pre-sentence reports; and
o Administering non-custodial sentence imposed by youth court.
Parents/Guardians
- Youth UNDER 16 must be accompanied by parent or guardian during each stage of proceedings (unless Court is satisfied it would be unreasonable to require attendance)
- Juveniles 16 and 17 – Court has discretion whether to make order for attendance
- Court will want to hear parent/guardian views and for them to take an active role – may direct questions to them

Question 216

Reporting restrictions and role of legal rep in youth court?

Answer 216

Reporting Restrictions
- Only following usually allowed to attend a hearing in youth court:
o District judge/youth justices
o Court staff
o Juvenile and parents
o CPS rep
o Juvenile’ solicitor
o A representative from YOT
o Members of the press
- Press cannot report details of juveniles (or any other childs) ID inc name, address or school, or any other details likely to lead to ID of juvenile or another child
- These reporting restrictions on juveniles auto end when they are 18
- S78 Criminal Justice and Courts Act 15 allows for a lifelong reporting restriction for victims and witnesses under 18 during the proceedings
- S49 Children and Young Persons Act – allows Court to lift these restrictions to avoid injustice following restriction. Only use to name and shame juveniles if doing so has REAL BENEFIT TO COMMUNITY e.g making the public aware of the identity of a prolific offender. This power though should not be used as an ‘extra’ punishment imposed on the juvenile
Legal Reps
- Most observe the overriding aim to reduce youth offending
- Rep order made in same way as adults re interest of justice . However, legal aid agency must take into account the age of juvenile
- Juveniles auto meet the means criteria.

Question 217

Jurisdiction of youth Court?

Answer 217

• Youth Court is part of Mag Court
• Court will be in front of district judges or Youth Justices
• Defendants between 10 – 17 – conclusive presumption that children under 10 cannot be guilty of criminal offence
• Children = 10 – 13
• Juveniles = 14 – 17
• Juveniles at the police station are suspects that are, or APPEAR to be, under 18. Juvenile in youth court generally refers to defendants who ARE under 18 notwithstanding the above
• PERSISTENT YOUNG OFFENDERS = juveniles sentenced on three separate occasions for a recordable offence – a recordable offence is an offence that that a juvenile May receive a custodial sentence for.
• Persistent young offenders will have their case expedited so it is dealt with ASAP

Question 218

Differences with adult court and age

Answer 218

Differences with Adult Court
- Layout less formal – everyone sitting at same level rather than docked
- Straight forward language encouraged
- Solicitors remain seated when addressing the Court
- Juveniles spoken to/referred to by first name
- Witnesses ‘promise’ rather than ‘swear’ – if under 14 then unsworn evidence
- Magistrates receive special training to be a Youth Justice
- Some of the terminology in the youth court also differs from that in the adult magistrates’ court. For example, there will be a ‘finding of guilt’ rather than a conviction, and the court will make an ‘order upon a finding of guilt’ rather than give a sentence
- Same standard directions for parties pre trial – only exception is if juvenile is a PYO (expedited)
- Same procedure for trial
Age
- If aged 17 when charged but turns 18 prior to first appearance then no jurisdiction must go to adult mag
- If convicted, subject to full range of sentencing powers
- If a juvenile makes his first appearance in the youth court before their 18th birthday, but becomes 18 whilst the case is ongoing, the youth court may either remit the case to the adult magistrates’ court or retain the case
- If retains case, full range of sentencing powers

Question 219

Determining modes of trial for youths

Answer 219

Starting point – most trials of juveniles should be in the Youth Court. FIVE EXCEPTIONS where they must be sent to an adult Magistrates Court of Crown Court:
1. Homicide offences (murder or manslaughter) must be sent to CC;
2. Firearm offences if the juvenile has attained the age of 16 at the time of the alleged offence – sent to CC;
3. Grave crimes (these are crimes that an offender aged 21 years or over may obtain a custodial sentence of 14 YEARS OR MORE (e.g robbery, rap, assault by penetration, s18 GBH), together with a number of sexual offences including sexual assault) – Youth Court MAY accept jurisdiction involving a grave crime, or send such case to the CC. Should only send grave crime if max sentencing powers of 24 MONTHS DETENTION AND TRAINING ORDER not sufficient and long term detention more appropriate (would CC have real possibility of imposing long term custodial sentence?);
4. Specified offence – MAY be sent to CC if they can be properly regarded as a DANGEROUS OFFENDER (if it appears the criteria would be met for auto life sentence, discretionary life sentence or extended sentence, likely to be sent to CC). Dangerous offender = posing a significant risk to members of the public of serious harm by committing further specified offences. ‘Serious harm’ means death or serious personal injury, whether physical or psychological.
5. Charged jointly with adult:
a. Adult’s case dealt with in CC – juvenile May also be sent to CC but only if NECESSARY IN THE INTERESTS OF JUSTICE
b. Adult’s case dealt with by Magistrates Court - adult and juvenile will be tried together in the adult magistrates’ court. If the juvenile is convicted, the magistrates will normally remit their case to the youth court for sentence unless they propose to deal with the matter by way of a fine or a discharge, in which case they will usually sentence the juvenile themselves

• If Court MAY send to CC i.e grave crimes, dangerous offender, adult’s case dealt with in CC, there will be a plea before allocation hearing like with either way offences.
• Juvenile indicates plea. If guilty – sentence or send to CC if the powers of 24 months detention and training order inadequate
• If not guilty, similar plea before allocation procedure. Youth Court can only decline jurisdiction if they believe their sentencing powers is inadequate
• NO RIGHT OF ELECTION like with either way offences

Question 220

Bail in youth court?

Answer 220

Bail
Under Bail Act 1976, youth court can remand a juvenile:
1. On bail (with or without conditions);
2. Into local authority accommodation; or
3. If 17 years old, in custody.
Refusal of Bail
- If Bail refused can be remanded in local authority accommodation or youth detention accommodation depending on the age of the juvenile

Question 221

Refusal of bail (and local authority v youth detention centre)

Answer 221

Local Authority Accommodation
- Accommodation provided by local authority
- Can include return home but under care of local authority
- 10 – 11 year olds can only go here NOT youth detention
- If turn 12 during remand, may be sent to youth detention if below conditions apply
Youth Detention Centre
Four conditions needed for remand at youth detention centre.
Starting point is the presumption that children between the ages of 12 – 17 will be remanded in local authority (17 can be in custody and 10 & 11 must be in local authority). Conditions to be in youth detention (must satisfy all four):
1. Must be 12 – 17;
2. Juvenile must usually have legal representation;
3. Violent or sexual offence which an adult could receive 14 years for (grave offences) which child is VERY LIKELY to receive custodial sentence for OR child will have RECENT AND SIGNIFICANT history of absconding whilst remanded to local authority or youth detention OR a RECENT AND
SIGNIFICANT HISTORY of committing imprisonable offences whilst on bail or remand to local
authority accommodation or youth detention accommodation;
4. Court believes it is necessary to protect the public from death or serious personal injury (psychological or physical) OR to prevent the commission of further imprisonable offences and that risk cant be managed in the community satisfactorily.

Question 222

Sentencing in youth court

Answer 222

Sentencing
- Court must have regard to the overriding aim of preventing youth offending
- Must always obtain pre-sentence report from Youth Offending Team – either adjourn sentencing hearing or ask YOT member to present in Court to prepare a STAND DOWN report s case doesn’t need to be adjourned
Sentencing Guidelines
1. When sentencing children or young people a court must have regard to:
a. the principal aim of the youth justice system (to prevent offending by children and young people); and
b. the welfare of the child or young person.
2. Should be last resort – only if offence is SO SERIOUS THAT NO OTHER SANCTION IS APPROPRIATE
3. Restorative justice – want them to take responsibility rather than punish
4. Important to think about factors that diminish culpability because they have not fully matured, are they acting impulsively, peer pressure etc emotional and developmental age is very important
5. Expectation that children and young people will be dealt with less severely than adults. Any mental health problems and learning difficulties should be taken into account;
6. The court should also consider any aggravating or mitigating factors that may increase or reduce the overall seriousness of the offence. If any of these factors are included in the definition of the committed offence they should not be taken into account when considering the relative seriousness of the offence before the court.