Criminal Practice

Question 1

Where is a defendants first appearance always?

Answer 1

Magistrates’ court

Question 2

What are the key principles of CJSSS?

Answer 2

a) There is a common presumption that a plea will be entered at the first hearing

b) For guilty pleas which will be sentenced in the magistrates’ court it is expected that sentence should take place on the same day unless a more detailed pre-sentence report is required

c) For not guilty pleas, it is expected that the trial issues should be identified and a trial date fixed within six to eight weeks

d) The CPS should provide sufficient information at the first hearing to ensure the hearing is effective

Question 3

What happens when the magistrates elect to keep an either-way offence case?

Answer 3

The defendant has the right to elect trial by a judge and jury in the Crown Court or consent to a summary trial.

Question 4

What is ‘low-value shoplifting’?

Answer 4

An offence under s1 Theft Act where the value of the stolen goods does not exceed £200.

Treated as summary-only unless an adult defendant enters a plea of not guilty when they still be given opportunity to elect trial in the crown court.

Question 5

When is criminal damage treated as a summary offence?

Answer 5

When the value of property damaged is less than £5,000 unless the damage was caused by fire.

Question 6

What happens if a defendant can’t afford a defence?

Answer 6

The solicitor will normally make an application on their behalf for the client’s case to receive public funding from the Legal Aid Agency (LAA).

Question 7

How is payment for the work done by a solicitor at a police station claimed?

Answer 7

It will be claimed as a fixed fee under the Police Station Advice and Assistance Scheme.

There is just one fixed payment for every police station case regardless of how many attendances or time spent.

Non-solicitors can attend and charge for this work as long as they are accredited or probationary police station representatives, e.g. trainees.

Question 8

Where does the duty solicitor claim their costs in attending court?

Answer 8

From the LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme.

Question 9

What tests does a defendant need to satisfy in order to apply for criminal legal aid?

Answer 9

The interests of justice test - must be in the interests of justice to receive public funding to cover their legal representation

The means test - must demonstrate they cannot afford it by themselves.

Question 10

What factors are taken into account to decide whether a defendant’s free legal representation is in the interests of justice?

Answer 10

a) whether the individual would, if any matter arising in the proceedings is decided against them, be likely to lose their liberty or livelihood or suffer serious damage to their reputation;

b) whether the determination of any matter may involve consideration of a substantial question of law;

c) whether the individual may be unable to understand proceedings or state their own case;

d) whether the proceedings may involving the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual; and

e) whether it is in the interests of another person that the individual be represented.

Question 11

Who automatically satisfies the means test to receive criminal legal aid?

Answer 11

a) applicants who receive income support, income-based jobseeker’s allowance, guaranteed state pension credit, income-based employment and support allowance or universal credit; and

b) applicants who are under the age of 18.

Question 12

If a defendant qualifies for legal aid, do they need to pay anything?

Answer 12

In the magistrates’ court, the defendant is not required to contribute.

In the crown court, legal aid may also be available but subject to the defendant paying a contribution towards their legal aid costs.

Question 13

What does a representation order cover?

Answer 13

All work done by a solicitor in connection with the magistrates’ court proceedings and may be extended to cover an appeal to the Crown Court against conviction and/or sentence.

It will extend to cover proceedings in Crown Court if the magistrates decline jurisdiction or the defendant elects crown court trial.

Question 14

Is there a right of appeal for being denied legal aid?

Answer 14

There is no right of appeal for failing the means test.

A defendant may appeal against failing the interests of justice test by adding more details to their original Form CRM14 or by requesting an appeal.

Question 15

What happens in the magistrates court for an offence triable only on indictment?

Answer 15

The case will always have to be adjourned and so the magistrates need to determine whether the defendant should be released on bail or remanded in custody prior to the next hearing which will take place in the Crown Court.

Question 16

How does a defendant obtain IDPC?

Answer 16

The defence solicitor will either contact the CPS in advance of the first hearing with a unique reference number which will be on the charge sheet and the CPS will email the solicitor the IDPC via its Criminal Justice Secure Mail account, or the material will be accessed directly on the Common Platform.

If the solicitor only meets the client in court for the first time, they may have to call up CPS.

Question 17

What does IDPC include?

Answer 17

a) where the defendant was in police custody for the offence charged immediately before the first hearing in the magistrates’ court:
- a summary of the circumstances of the offence; and
- the defendant’s criminal record, if any

b) in all other cases:
- a summary of the circumstances of the offence;
- any account given by the defendant in interview, whether contained in that summary or in another document;
- any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial or to sentence;
- the defendant’s criminal record, if any
- if available, a victim impact statement

Question 18

What material should the prosecution make available before the first hearing?

Answer 18

a) a summary of the circumstances of the offence and any account given by the defendant in interview;

b) statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report;

c) an indication of any medical or other expert evidence that the prosecution is likely to adduce in relation to a victim or the defendant;

d) any information as to special measures, bad character or hearsay, where applicable

Question 19

What are the factors in favour of electing a trial in the Crown Court for an either way offence?

Answer 19

• Greater chance of acquittal
• Better procedure for challenging admissibility of prosecution evidence
• More time to prepare the case for trial

Question 19

What is a voir dire?

Answer 19

A mini-trial within the trial where the judge decides on the admissibility of evidence. The jury is asked to leave.

Question 20

The defendant has entered a not guilty plea to an either way offence. When should the court send the defendant to the Crown Court for trial?

Answer 20

a) the defendant is sent to the Crown Court for trial for a related offence

b) the defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence

c) the defendant is charged jointly, or charged with a related either-way offence, with a youth defendant who is sent to the Crown Court for trial.

In all other cases, the court must determine whether the offence appears more suitable for a summary trial or trial on indictment.

Question 20

What are the factors in favour of electing the magistrates’ court in the case of an either way offence?

Answer 20

• Limited sentencing powers (they can only impose up to 6 months’ imprisonment for an either way offence (12 for two or more) but they can commit the defendant to the Crown Court for sentence if needed)
• Speed and stress
• Prosecution costs
  Defendant’s are likely to be ordered to make a contribution towards the CPS
• Defence costs (magistrates’ - defendants don’t need to contribute)
• No obligation to serve defence statement

Question 21

What does the Allocation Guideline issued by the Sentencing Council say?

Answer 21

That either way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient.

The court should also assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case, including the defence.

Question 22

When may an either-way offence case be sent straight to the Crown Court?

Answer 22

a) where notice, in serious or complex fraud cases, has been given by the DPP under s51B of the CDA 1998 that the evidence reveals a case of such seriousness or complexity it should be taken over by the Crown Court

b) where notice, in certain cases involving children, has been served under s51C CDA 1998. It is where a child will be called as a witness and no prejudice should occur to the welfare of the child. This applies to assault, threat of injury, child cruelty etc.

c) related offences if the defendant has been sent also an offence triable only on indictment or under notice under ss51B&C

d) related offences of another defendant

Question 23

What are the three ways a defendant may be remanded?

Answer 23

a) remand in custody

b) remand on bails with conditions

c) remand on unconditional bail

Question 24

What is the basic rule for remands in custody?

Answer 24

A defendant may not be remanded in custody for more than eight clear days at a time.

If the defendant’s case is still in magistrates’ court, where there are successive remands in custody, the defendant needs to be brought before the court on every fourth remand, provided they have consented to this and have legal representation.

Question 25

When can the court remand a defendant in custody for up to 28 days?

Answer 25

a) it has previously remanded them in custody for the same offence;

b) they are before the court; and

c) it can set a date to remand them to on which it expects the next stage of the proceedings to take place.

Question 26

What is the custody time limit?

Answer 26

The overall maximum period of remand in custody in the magistrates’ court is 70 days before trial for an either way offence and 56 for summary only.

But if for an either way the allocation hearing takes place within 56 days, the custody time limit is reduced to 56 too.

Question 27

What does the prosecution need to show to increase the custody time limit?

Answer 27

Show on the balance of probabilities that there is good and sufficient cause to do this and it has acted with due diligence and expedition.

Question 28

Procedure for extending custody time limit?

Answer 28

The application may be made orally or in writing, although a written notice of intention must be served on the court and defendant not less than two days before the hearing in the magistrates’ court.

The defendant has the right of appeal to the crown court for extension. Also, CPS can appeal if application rejected.

Question 29

How long can a defendant be remanded post conviction?

Answer 29

Before sentence, they can be remanded in custody for successive periods of not more than three weeks.

If remanded on bail, this may be successive periods of not more than four weeks.

Question 30

Under the presumption in s4 Bail Act 1976, to which defendants will bail be granted?

Answer 30

a) all defendants prior to conviction

b) defendants who have been convicted if their case has been adjourned for the court to obtain reports before sentencing

c) defendants who are appearing before the court for breach of a community sentence

It does not apply to those:
- who have been committed to the Crown Court for sentence; or

• who are appealing against conviction or sentence

Also, presumption does not apply to serious specified offences:
- murder
- attempted murder
- manslaughter
- rape
- attempted rape
- a number of other serious sexual offences

Question 31

When can a defendant for murder go on bail?

Answer 31

Only by Crown Court.

Within 48 hours, CC decides if there is no significant risk of them committing an offence likely to cause physical or mental injury to another while on bail.

Question 32

Most common reason for bail not being granted (presumption rebutted)?

Answer 32

Substantial grounds for belief that the defendant would:

• fail to surrender to custody
• commit an offence
• interfere with a witness or otherwise obstruct the course of justice

High threshold.

Question 33

When may a defendant on a non-imprisonable offence be not granted bail?

Answer 33

a) was granted bail in previous proceedings but failed to answer to bail and court believes they would fail again

b) for own protection, or if under 18, for their own welfare

c) currently serving custodial sentence for separate offence

d) granted bail earlier in same proceedings but has been arrested either for failing to answer or for breaking conditions

Question 34

Why are conditions imposed on bail?

Answer 34

to:

• prevent absconding
• prevent the defendant from committing a further offence
• prevent interference with witness or obstructing course of justice
• ensure he is available for obtaining medical or other reports
• ensure they keep appt with solicitor
• ensure own protection and if under 18 welfare or in his own interests

Question 35

What are the most common conditions imposed on bail?

Answer 35

Sureties

Security

Reporting to a police station

Residence

Curfew

Non-communication with prosecution witnesses

Restriction on entering specified areas

Attending appointments with his solicitor or the Probation Service

Surrender of passport

Question 36

What are the two basic requirements which need to be satisfied if the jury or magistrates are to take a piece of evidence into account when deciding what the facts in issue are?

Answer 36

a) evidence must be relevant to the facts in issue in the case; and

b) evidence must be admissible.

Question 37

What is the standard of proof if the defendant bears the legal burden?

Answer 37

Proof on the balance of probabilities - lower standard. “More probable than not”.

Question 38

What does s78 PACE 1984 provide?

Answer 38

It provides the court with a discretion to exclude evidence upon which the prosecution seek to rely if ‘the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

Usually employed when the methods employed by the police to obtain evidence constitute a significant and substantial breach either of PACE 1984 or the Codes of Practice.

Question 39

What are the Turnbull guidelines?

Answer 39

A witness will identify the defendant as the person who committed the offence if:
a) the witness picks out the defendant informally; or
b) the witness identifies the defendant at a formal identification procedure at the police station; or
c) the witness claims to recognise the defendant as someone previously known to them.

Only applies if the defendant disputes the visual identification made by the witness.

If the witness only gives a description of who committed the crime but there is no direct evidence that it was the defendant, the guidelines won’t apply.

Question 40

What does s34 CJPOA 1994 allows?

Answer 40

It 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.

Question 41

What are the preconditions to drawing an adverse inference from silence?

Answer 41

a) the interview had to be an interview under caution;

b) the defendant had to fail to mention any fact later relied on in his defence at trial;

c) the failure to mention this fact had to occur before the defendant was charged;

d) the questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and

e) the fact which the defendant failed to mention had to be a fact which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned.

Question 42

Can an adverse inference from silence be avoided if you say it was because of legal advice?

Answer 42

Yes - sort of. But the court is likely to want to know the reasons for the solicitor’s advice. Once the defendant gives this information, legal privilege is said to be waived.

Question 43

What does s36 CJPOA allow?

Answer 43

It allows the court or jury to draw an adverse inference if, when interviewed by the police, the defendant failed to account for the presence of an object, substance or mark.

It operates irrespective of any defence put forward.

Question 44

When does s34 CJPOA operate?

Answer 44

It applies only if a defendant raises a fact at trial which they failed to mention at the police station.

Question 45

What does s37 CJPOA allows?

Answer 45

It allows the court to draw an adverse inference if, when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed.

Question 46

What are the 5 conditions of which one must be met for the hearsay of a witness unavailable to attend court will be admitted?

Answer 46

a) the relevant person is dead

b) the relevant person is unfit to be a witness because of his bodily or mental condition

c) the relevant person is outside the UK and it is not reasonably practicable to secure his attendance

d) the relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken

e) through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Question 47

When do the rules in Part 20 CrimPR apply?

Answer 47

a) it is in the interests of justice for the hearsay evidence to be admissible;

b) the witness is unavailable to attend court;

c) the evidence is multiple hearsay; or

d) either the prosecution or the defence rely on s117 for the admission of a written witness statement prepared for use in criminal proceedings

Significance of this is that if the hearsay evidence to be adduced at trial does not fall within one of the above sections, the party seeking to rely on that evidence will not need to serve on the other party notice of its intention to rely on such evidence.

Question 48

What does s76(1) PACE allow?

Answer 48

A confession made by a defendant prior to trial will be admissible in evidence at trial.

Question 49

What are the seven gateways for raising evidence of defendant’s bad character at trial?

Answer 49

a) all parties to the proceedings agree to the evidence being admissible

b) the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it

c) it is important explanatory evidence

d) it is relevant to an important matter in issue between the defendant and the prosecution

e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant

f) it is evidence to correct a false impression given by the defendant

g) the defendant has made an attack on another person’s character

Question 50

What do the case management directions consist of? Standard.

Answer 50

• Allow parties 8 weeks to prepare case for trial (or 14 weeks if expert evidence is required).

Question 51

When will the court issue a witness summons?

Answer 51

If it is satisfied that the witness can give material evidence in the proceedings and it is in the interests of justice for a summons to be issued.

Usually D’s solicitor will ask a potential witness to confirm in writing that they will attend court.

Question 52

What are the defence witness obligations?

Answer 52

Under s6C of CPIA, a defendant must serve on the CPS a notice setting out the names, addresses and dates of birth of any witnesses they intend to call to give evidence.
- nothing to stop CPS interviewing these witnesses
- should police want to interview, code of practice exists to govern these interviews.

Question 53

What is the time limit for notice of defence witness statements?

Answer 53

28 days from the date on which the CPS complies, or purports to comply, with s3 CPIA.

Failure to comply could result in inference.

No requirement for D to serve copies of witness statements. Exception is expert witnesses.

Question 54

When will a written statement from a witness be admissible at trial?

Answer 54

• it is signed and dated
• it contains a statement of truth
• a copy has been served before the hearing on the other parties in the case
• none of the other parties has objected within seven days

Question 55

Can photos or plans be used at trial?

Answer 55

Yes - if verified by a witness statement from person who prepared/took such document

Question 56

What happens with ‘unused material’?

Answer 56

The CPS is required to retain this and in the event of a defendant entering a not guilty plea, the CPS must disclose any such material to D if the material ‘might reasonably be considered capable of undermining the case for the prosecution…or of assisting the case for the accused’.

Question 57

When must defence statement be made?

Answer 57

Within 10 business days of the CPS making initial disclosure of any unused material it has. - magistrates

In Crown Court, the time period is extended to 20 business days.

if the case is complex and the time limits are insufficient, D may apply to court for a longer period.

Question 58

Does a defendant have to provide a defence statement?

Answer 58

Yes - in CC, adverse inference can be drawn if not provided.

Magistrates - serve defence statement only if they think CPS will be in a position to disclose additional unused material that may assist the defence case. Rare.

Question 59

What must the defence statement contain?

Answer 59

• nature of defence
• matters of fact which D takes issue with and why
• particulars of the matters of fact D intends to rely on
• any points of law that D wishes to take at trial and any legal authority on which D intends to rely for this purpose
• alibi? name, address, date of birth of any alibi witness, or as many of these details as are known to D

Question 60

What is the general practice re the signing of a defence statement?

Answer 60

Solicitor sign original statement which is served and D signs a copy which will be kept on solicitor’s file (to show consent)

Question 61

What faults in a defence statement can acourt draw an adverse inference from?

Answer 61

• failing to provide a defence statement at all
• late service of the defence statement
• serving a defence statement that is incomplete
• serving a defence statement which is not consistent with the defence put forward at trial
• failing to update a defence statement

Question 62

When will a submission of no case to answer be made by the defendant’s solicitor?

Answer 62

if either:

(a) the prosecution has failed to put forward evidence to prove an essential element of the alleged offence; or

(b) the evidence produced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal could safely convict on it.

Question 63

How can a defendant change their plea from guilty to not guilty?

Answer 63

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.

They must serve the application on the court officer and the prosecutor.

Must explain why it would be unjust to have guilty plea, any evidence/witnesses and whether legal professional privilege is waived.

Question 64

What are the exceptions to the general rule on competence?

Answer 64

If he is not a person who is able to:

(a) understand questions put to him as a witness; and

(b) give answers to them which can be understood.

Question 65

What are the exceptions to rule on compellability?

Answer 65

• The accused as a witness for the Crown
  BUT the CPS may be allowed to call a co-accused
• the spouse of the accused
  (only compellable by the crown in limited number of cases:
  a) where offence involves injury, threat, assault to spouse or someone under 16; or
  b) where it is a sexual offence/attempt against someone under 16 or aiding and abetting such offences)

Question 66

What must a court consider when sentencing?

Answer 66

s63 Sentencing Act 2020

a) the offender’s culpability in committing the offence, and

b) any harm which the offence
- caused
- was intended to cause, or
- might foreseeably have caused

Question 67

What are the four levels of culpability?

Answer 67

descending seriousness

• intention to cause harm, worse the harm intended - the greater the seriousness
• reckless
• knowledge of specific risks entailed but no intention to cause harm
• negligence

Question 68

What are the statutory aggravating factors re sentencing?

Answer 68

• previous convictions
• offences committed whilst on bail
• racial or religious aggravation
• hostility based on sexual orientation or disability

Question 69

Will sentence be reduced for guilty plea?

Answer 69

Yes - s73 SA 2020. applies to all defendants ages 18 or over and to all cases, regardless of date of offence.

the full one-third discount on sentence will only be available when indicated at first stage of proceedings:
- first hearing at magistrates, even if committed for sentence in crowcourt or sent to crown court (must plead guilty there too)

if after this, maximum reduction is one quarter, then decreased to one tenth if entered on first day of trial. reduced furhter if during trial.

Question 70

What happens re pre-sentence report?

Answer 70

Probation Service prepares and court decides whether to use it while sentencing.

D will only ask PS to prepare if D will:
- plead guilty to all offences on proseuctions facts
- agree to cooperate with report

Question 71

What is the custodial threshold?

Answer 71

The court must not pass a custodial sentence unless it is of the opinion that the offence or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.

Does not apply where an offender fails to express a willingness to take part in community service.

Question 72

When will a suspended sentence be imposed?

Answer 72

A custodial sentence of at least 14 days but no more than two years may be suspended for at least 6 months but not more than two years.

Question 73

What is the procedure of appeal?

Answer 73

D wishing to appeal from magistrates to CC - must file notice of appeal with both the magistrates and CPS not more than 15 business days from the magistrates passing sentence.

CC judge has discretionary power to extend 15 day period.

Separate representation order needed for appeal in CC.

Question 73

Will bail be granted pending appeal?

Answer 73

No presumption of bail.

If magistrates do not grant bail, the D may apply to CC for bail pending the hearing of the appeal.

Question 74

When can an appeal be made from magistrates to QBD High Court?

Answer 74

if:

a) the decision which has been made by the magistrates is wrong in law; or

b) the magistrates have acted outside their jurisdiction.

Question 75

What is the procedure for appeal by way of case stated?

Answer 75

must apply to magistrates’ court within 21 days of the relevant decision being made by the magistrates’ court.

normally done in writing to the clerk to the magistrates court.

must identify question of law party seeks for review.

Question 76

Can a party apply for judicial review instead of appeal?

Answer 76

Can be made if

• magistrates acted ultra vires
• magistrates breach rules of natural justice

Applicant will seek an order from Divisional Court either quashing the decision made in the magistrates’ court or compelling the magistrates’ court to act (or not act) in a certain way.

Question 77

When will CA allow appeal against conviction?

Answer 77

If they consider conviction to be unsafe. Otherwise, must dismiss appeal.