Criminal Practice

Question 1

Give ten examples of either-way offences

Answer 1

1. theft,
2. fraud,
3. most forms of burglary,
4. inflicting grievous bodily harm/wounding,
5. assault occasioning
   actual bodily harm,
6. sexual assault,
7. affray,
8. criminal damage,
9. dangerous driving,
10. possession/possession with intent to supply and supply of
    controlled drugs.

Question 2

What is the aggregate value for low-value shop theft?

Answer 2

£200

Question 3

Ashley wants to apply for criminal legal aid in the magistrates court. what are the requirements he must satisfy, and what factors are relevant?

Answer 3

1. the interests of justice test
2. the means test

In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account:
(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 arising in the proceedings may involve consideration of a substantial question of law;
(c) whether the individual may be unable to understand the proceedings or to state their own case;
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual; and
(e) whether it is in the interests of another person that the individual be represented.

The following defendants will receive criminal legal aid automatically without needing to satisfy the means test:
(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 4

What is deducted from the defendants’ gross annual income for the purposes of legal aid?

Answer 4

(a) tax and national insurance
(b) annual housing costs
(c) annual childcare costs
(d) annual maintenance to former partners and any children and
(e) an adjusted annual living allowance.

Question 5

Winston has failed to satisfy the means test. What can he do?

Answer 5

• Winston cannot appeal a failure to satisfy the means test. However, he can complete an application for review on the grounds of hardship (Form CRM16)

Question 6

Jude is acting for a first-time defendant charged with battery. Before the first hearing, Jude has not received any information regarding initial details of the prosecution case (IDPC), nor can he find any on the common platform. What should he do?

Answer 6

Jude may have to phone a centralised CPS
number on the day, and the CPS will then email the papers through to the solicitor there and then.

Question 7

where the defendant was in police custody for the offence charged immediately before
the first hearing in the magistrates’ court, IDPC includes:

Answer 7

(i) a summary of the circumstances of the offence; and
(ii) the defendant’s criminal record, if any

Question 8

In cases where the defendant was not in police custody for the offence immediately before the first hearing in the magistrates’ court, IDPC includes:

Answer 8

(i) a summary of the circumstances of the offence;
(ii) any account given by the defendant in interview, whether contained in that summary
or in another document;
(iii) 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;
(iv) the defendant’s criminal record, if any; and
(v) if available, a victim impact statement.

Question 9

Name three advantages of trial in the crown court

Answer 9

advantages
1. greater chance of acquittal
2. Better procedure for challenging admissibility of prosecution evidence (but NB most magistrates’ courts now attempt to determine issues of admissibility of evidence at pre-trial hearings rather than at the hearing itself.)
3. More time to prepare the case for trial

Question 10

Name four advantages of trial in the magistrates’ court

Answer 10

1. Limited sentencing powers (NB the magistrates retain the power to commit the defendant to the Crown Court for sentence)
2. Speed and stress
3. Costs
4. No obligation to serve defence statement

Question 11

a) Mahmood has been convicted of two counts of criminal damage. What is the maximum sentence he can receive in the magistrates court?

b) What if he enters an early guilty plea?

Answer 11

12 months

9 months (1/3 reduction)

Question 12

In what circumstances SHALL a magistrates court send the defendant to a crown court if they enter a not guilty plea for an either-way offence?

Answer 12

(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.

Question 13

Johan and Michael are charged with the same offence (theft). Johan wishes to be trialled in the crown court, but Michael wishes to be trialled in the Magistrates’ court. What happens?

Answer 13

both defendants will be sent to the crown court

Question 14

In what circumstances will an either-way offence be sent straight to the crown court?

Answer 14

a) Fraud notice: Notice is given by the DPP to the court that the evidence is sufficient to put a person
on trial for the offence, and the evidence reveals a case of fraud of such seriousness or complexity that the management of the case should without delay be taken over by the
Crown Court.
b) cases involving children witnesses notice: Notice is given to the court that the evidence is sufficient to put a person on trial for the offence, a child will be called as a witness and that for the purpose of avoiding any prejudice to the welfare of the child, the case should be taken over and proceed without delay by the Crown Court.
c) Related indictable offence: Where there is an either-way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which the same defendant is being sent to the Crown Court.
d) Joint defendant indictable offence: Where there is an either-way offence related to an offence triable only on indictment, or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which another defendant is being sent to the Crown Court

Question 15

What is the basic rule for remands in custody?

Answer 15

a defendant may not be remanded in custody for more than eight clear
days at a time. However, if the defendant’s case is still in the 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. In
addition, the court may remand a defendant in custody for up to 28 days if:
(a) it has previously remanded them in custody for the same offence; and
(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 16

What is the custody time limit for:
a) an either-way offence?
b) a summary offence?

Answer 16

a) 70 days
b) 56 days

(NB if the allocation hearing for an either-way offence takes place within 56 days, the time limit will be 56 days).

Question 17

The Prosecution wishes to extend the custody time limit. What must they do?

Answer 17

a) the prosecution will need to show on the balance of probabilities that there is good and sufficient cause to do this and that it has acted with due diligence
and expedition
b) a written notice of intention must be served on the court and the defendant not less than two days before the hearing in the magistrates’ court.

Question 18

Jeffrey has been charged with theft and has been remanded on bail. The police suspect Jeffrey of committing assault on a separate occasion. How long can the magistrates court remand Jeffrey to police custody for the purposes of making enquiries?

And when must he be released?

Answer 18

a) up to three days
b) as soon as the need to make enquiries has ceased

Question 18

Nadia has been convicted of assault.

How long can she be remanded in custody after the conviction but before sentence?

How long can she be remanded on bail?

Answer 18

a) three weeks

b) four weeks

Question 19

To whom does the presumption of bail not exist?

Answer 19

defendants:
(a) who have been committed to the Crown Court for sentence; or
(b) who are appealing against conviction or sentence
(c) defendants charged with specified serious offences:
- murder
- attempted murder
- manslaughter
- rape
- attempted rape
- a number of other serious sexual offences.

Question 19

To whom does the presumption of bail exist? (unless exceptions apply)

Answer 19

(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.

Question 19

a) Who can grant bail for someone charged with murder?
b) how long do they have to make a decision?
c) on what grounds can they grant bail?

Answer 19

a) only a crown court judge
b) 48 hours
c) only if 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 20

On what grounds can a court refuse bail for a summary or either-way offence?

Answer 20

If there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not) would:
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in
relation to himself or any other person.

Question 21

Name the nine different types of bail condition

Answer 21

1) surety
2) security
3) reporting to a police station
4) residence
5) curfew
6) non-communication with witnesses
7) restriction on entering specified areas
8) attending appointments (solicitor or probation service)
9) surrender of passport

Question 22

what is a ‘certificate of full argument’

Answer 22

If the magistrates refuse bail or grant bail subject to conditions, reasons for the refusal or reasons for the conditions must be recorded and a copy given to the defendant

Question 23

If bail is refused by the magistrates’ court, what rights of appeal does the defendant have?

Answer 23

1) at the first hearing after the hearing at which bail was refused, the solicitor can make any argument as to fact or law, including arguments already made
2) If refused, the only arguments that can be made at subsequent hearings must raise new points of fact or law

NB if the case has been allocated to the crown court, bail appeals must be made there

3) if refused, the defendant can appeal through a notice of application to the crown court as long as they provide:
(a) the notice of application;
(b) the ‘certificate of full argument’; and
(c) a record of the defendant’s previous convictions (if applicable).
NB: They must also notify the CPS and magistrates’ court of the appeal (notice of application) as soon as is practicable

Question 24

If the magistrates court grant bail to a defendant charged with an imprisonable offence, how can the CPS appeal and when?

Answer 24

a) Oral notice must be given by the prosecutor at the end of the hearing during which the court granted bail; and before the defendant is released from custody.
b) This notice must be confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal.
c) The Crown Court must hear the appeal as soon as possible and in any event not later than 2 business days after the appeal notice was served (and this takes place as a re-hearing).

Question 25

what happens if a defendant absconds?

Answer 25

The magistrates will issue a warrant for their arrest

If the warrant is not backed with bail, the police must
arrest the defendant and then keep them in police custody until they can be brought before the
court. The defendant will be brought before the magistrates’ court at the next hearing.

NB: if the defendant is arrested after the court has finished sitting on a Friday, then a
specially arranged remand court will be convened on the Saturday morning. No such courts
will sit on a Sunday,

Question 26

what offences may a defendant commit by absconding?

Answer 26

If the defendant fails without reasonable cause to surrender to custody, they will be guilty
of the offence of absconding, contrary to s 6(1) Bail Act 1976

If the defendant did have a reasonable cause for failing to surrender, they will still be guilty of an offence under s 6(2) unless they surrendered to custody as soon as it was
reasonably practicable for them to do so.

Question 27

What are the consequences of breaching bail conditions?

Answer 27

No criminal offence is committed - however they are likely to have their bail reviewed by the Magistrates court who may remand them in custody

NB: The police can arrest a person who has been bailed to attend court if they reasonably believe that the person:
(a) is not likely to surrender to bail; or
(b) has broken, or is likely to break, their bail conditions.

The magistrates will adopt a two-stage approach:
1) was there a breach?
2) should they be remanded in custody or on bail pending the next hearing?