Criminal slides part 5 Flashcards
1
Q
When is an either way offence tried in the mags court?
A
only where the defendant has not elected trial in the Crown Court and where the magistrates considered the case suitable for summary trial
2
Q
Who hears a trial in the mags court?
A
All summary trials take place before a ‘bench’ of at least two, but usually three, lay magistrates (also known as ‘justices of the peace’) or before a single District Judge.
3
Q
Who is the authorised court officer?
A
Previously referred to as the justices’ clerk, the court clerk or legal adviser.
The authorised court officer will provide assistance to justices of the peace with both the relevant law and procedure when required during the summary trial process. The authorised court officer takes no part in deciding upon the verdict in a summary trial. The authorised court officer must be present during a trial judged by a bench of lay magistrates but is not required to be present in a summary trial presided over by a District Judge.
4
Q
What are the procedural steps of a summary trial?
A
- Legal arguments- These usually take place before the prosecution opening speech.
- Prosecution opening speech- Prosecution summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute.
- Defence identify matters in issue- To help the District Judge/ Magistrates to understand the case and resolve any issue in it, the court may invite the defendant concisely to identify what is in issue.
- Prosecution evidence- Prosecution witnesses (examination in chief (XIC) by prosecution, cross-examination (XX) by defence, re-examination (Re-X) by prosecution); undisputed prosecution evidence introduced by reading Witness Statement and/ or by Written Admissions; reading Defendant’s Record of Interview (if any).
- Conclusion of the prosecution case.
- Submission of no case to answer- CrimPR r.24.3(3)(d). On the defendant’s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court to properly convict.
- Right to give evidence & adverse inferences- CrimPR r.24.3(3)(e). Defendant must be informed of:
- the right to give evidence, and
- the potential effect of not doing so at all, or of refusing to answer a question while doing so.
- Defence evidence- Defendant and/ or Defence Witnesses (XIC by defence, XX by prosecution, Re-X by defence); undisputed defence evidence introduced by reading Witness Statements and/ or by Written Admissions.
- Prosecution closing speech- Only where:
- the defendant is represented, or
- whether or not represented, the defendant has introduced evidence other than in person.
- Defence closing speech.
- Legal advice - To Magistrates from the authorised court officer, CrimPR r.24.14(2)(b).
- Magistrates/ district judge retire to consider verdict.
- Verdict- If guilty verdict, court must give sufficient reasons to explain decision, CrimPR r.24.3(5).
5
Q
What judges sit in the crown court?
A
Circuit judges
Recorders
High court judges
6
Q
What is the court clerk in the crown court?
A
It is worth noting at this stage that the court clerk in the Crown Court is not the same as the authorised court officer in the magistrates’ court. Although they both carry out some similar administrative functions, the Crown Court Clerk is not legally qualified and never gives legal advice. The Crown Court Clerk is responsible for many of the duties relating to selecting and taking verdicts from the jury and also for arraigning defendants.
7
Q
What are the procedural steps for a trial in the crown court?
A
- Legal arguments- These usually take place before the prosecution opening speech.
- Jury selection and swearing in the jury.
- Judge’s preliminary instructions to the jury.
- Prosecution opening speech- Prosecution summarise the prosecution case, concisely outlining the facts and the matters likely to be in dispute.
- Defence identify matters in issue- CrimPR 25.9(2)(c). To help the jury to understand the case and resolve any issue in it, the judge may invite the Defendant concisely to identify what is in issue or, if the defendant refuses, to give the jurors a copy of the defence statement.
- Prosecution evidence- Prosecution witnesses (XIC by prosecution, XX by defence, Re-X by prosecution); undisputed prosecution evidence introduced by reading Witness Statements and/or by Written Admissions; reading Defendant’s Record of Interview (if any).
- Conclusion of the prosecution case.
- Submission of no case to answer- CrimPR r.25.9(2)(e); R v Galbraith. On the defendant’s application or on its own initiative, the court may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict.
- Right to give evidence & adverse inferences- CrimPR r.25.9(2)(f). Judge must ask whether the defendant intends to give evidence and, if not, must satisfy itself that it has been explained to the defendant, that the defendant has the right to give evidence in person, but if the defendant fails to do so or refuses to answer a question while giving evidence, the court may draw such inferences as seem proper.
- Defence opening speech- CrimPR r.25.9(2)(g). The defendant may summarise the defence case, if the defendant intends to call at least one witness other than giving evidence in person about the facts of the case. In practice such speeches are rare outside of murders and serious lengthy trials.
- Defence evidence- Defendant and/ or Defence Witnesses (XIC by defence, XX by prosecution, Re-X by defence); undisputed defence evidence introduced by reading Witness Statements and/ or by Written Admissions.
- Legal discussions- Between judge and legal representatives.
- Prosecution closing speech- CrimPR r25.9(2)(j). Only where (i) the defendant is represented, or (ii) whether or not represented, the defendant has called at least one witness, other than the defendant in person, to give evidence about the facts of the case, or (iii) the court so permits.
- Defence closing speech.
- Judge’s summing up.
- Jury bailiffs sworn & jury retire.
- Potential further directions during retirement- Majority Direction (after 2hrs 10 mins).
- Verdict.
8
Q
What happens if a D is bailed to attend trial and doesn’t attend?
A
They commit an offence by failing to surrender and a warrant can be issued for the defendants arrest.
9
Q
Can the mags court try a defendant in their absence?
A
By s.11(1) MCA the court may try an absent defendant who is under 18 years of age and must try an absent defendant who is 18 or over unless it appears to the court to be contrary to the interests of justice to do so.
Section 11(2A) MCA provides that the court shall not proceed in the defendant’s absence if it considers that there is an acceptable reason for the defendant’s failure to appear, but the court need not enquire into the reasons for the accused’s failure to appear (s.11(6)).
10
Q
What happens if an absent defendant is convicted?
A
the court can proceed to sentence or adjourn to give the defendant notice to attend, MCA 1980 s.10(3).
11
Q
Can the crown court proceed in the defendants absence?
A
CrimPR r.25.2(1)(b) provides that the court must not proceed if the defendant is absent, unless the court is satisfied that:
• the defendant has waived the right to attend; and
• the trial will be fair despite the defendant’s absence.
A Crown Court trial is likely to proceed in the defendant’s absence where the defendant deliberately fails to attend.
12
Q
What does the crown court do if the defendant fails to attend?
A
A defendant on bail who fails to attend trial without reasonable cause not only commits an offence under s.6 Bail Act 1976 but also is liable to be arrested because the judge is likely to issue a warrant for the defendant’s arrest (known as a ‘bench warrant’).
13
Q
What factors does the crown court consider when deciding if it should proceed in the absence of a defendant?
A
- The nature and circumstances of the defendant’s behaviour in absenting from the trial or disrupting it and, in particular, whether the behaviour was voluntary and so plainly waived the right to be present;
- Whether an adjournment might resolve the matter by the defendant attending the proceedings at a later date, or by being caught or not disrupting the proceedings;
- The likely length of any such adjournment;
- Whether the defendant, despite being absent, wished to be represented at the hearing or has waived that right;
- The extent to which any representative would be able to receive instructions and present the case on the defendant’s behalf;
- The extent of the disadvantage to the defendant in not being able to give evidence having regard to the nature of the case;
- The risk of the jury reaching an improper conclusion about the absence of the defendant;
- The general public interest and, in particular, the interest of any victims or witnesses that a hearing should take place within a reasonable time of the events to which it relates;
- The effect of delay on the memories of witnesses;
- Where allegations against more than one defendant are joined and not all of them have failed to attend, the prospects of a fair hearing for those who are present.
14
Q
How does the court treat an unrepresented defendant?
A
The court will give the defendant as much assistance as possible.
This would include:
-explaining what happens at each stage
-asking a witness questions on behalf of the D
-Granting an adjournment to gain new representation (legal aid people),
15
Q
What can’t an unrepresented defendant do?
A
A defendant may not cross-examine in person a complainant in proceedings for a sexual offence, and may not cross-examine in person a child complainant or other child witnesses in proceedings for sexual offences and certain other offences. These offences are contained in s 35 Youth Justice and Criminal Evidence Act 1999.
In addition, the court has power to prevent cross-examination of a witness by an unrepresented defendant where satisfied it is appropriate in the circumstances of the case and would not be contrary to the interests of justice. In such cases an advocate will, if necessary in the interests of justice, be appointed to conduct the cross-examination on the defendant’s behalf.
16
Q
In a summary trial, when should legal arguments be addressed?
A
As soon as possible so if it turns out the prosecution doesn’t have a case, you aren’t wasting the courts time.
17
Q
What is a pre-trial ruling?
A
Decisions made by the judge/magistrates before the trial begins about the admissibility of evidence or a question of law.
18
Q
How long is a pre-trial ruling binding for?
A
until the case against the defendant is concluded, although it may be varied or discharged if the court considers it in the interests of justice to do so and the parties have been given an opportunity to be heard
19
Q
What are the conditions for a pre-trial ruling to be varied or discharged?
A
If there has been a material change of circumstances since the ruling was made.
20
Q
What will the prosecution say in their opening speech?
A
- Identify relevant law
- outline the facts
- Indicate matters likely to be in dispute
The mags can ask the defendant what they think the issues are in the case (especially if D doesn’t do a defence statement).
21
Q
What witnesses will the prosecution call to give evidence in a trial?
A
The prosecution witnesses that the defence want to question too. Otherwise, their statement can just be read out.
22
Q
What is the order of questioning?
A
1) Examination in chief
2) Cross examination
3) Re-examination
23
Q
What can you question a witness about in re-examination?
A
Any matters arising out of cross examination
24
Q
Can a witness watch a trial before they have given evidence?
A
No, only after.
25
What happens if a prosecutor believes their witness is not capable of belief?
They do not have to call the witness to give evidence. However, the defence can still call them to support their own case.
26
What kind of evidence is normally agreed and allowed to be read out?
I. doctors who have examined and noted injuries;
II. police officers who have attended the scene of an alleged crime and arrested the defendants and transported them to the police station;
III. Scenes of Crime Officers who attended crime scenes and took fingerprint lifts, photographs or recovered other evidence;
IV. witnesses, such as CCTV operators and shop workers, who took or passed to the police video evidence of an incident and can add nothing to what is on the video.
27
Can witness statements be edited?
It is open to the defence and prosecution to agree to edit a witness statement to avoid the need to call a witness. For example, if a witness statement includes a part which the defence consider prejudicial (and therefore do not want it read by the court) and the prosecution agrees not to rely on it (e.g. because it has no relevance to the issues in the trial) then the offending part can be edited and just the remaining portion relied upon. Editing statements is common practice in both the magistrates' and Crown Courts.
28
What is a written admission?
Where facts are agreed by all parties they can be written down and presented to the court as admissions pursuant to s.10 Criminal Justice Act 1967.
Sometimes, rather than relying upon witness statements, the prosecution and the defence will agree a series of admissions (agreed facts) to cover the salient matters contained in those statements.
Often admissions are used as a convenient way of setting out agreed evidence where reading out numerous witness statements would become monotonous and difficult to follow.
29
Under what circumstances are the courts likely to move immediately onto sentencing the defendant?
Where a defendant is charged with a single offence, they will either be sentenced immediately after they plead guilty or a guilty verdict is returned by the magistrates or jury.
30
For what reasons may a court adjourn the case and not immediately proceed to sentencing?
The court has insufficient time to deal with sentence immediately.
* The court requires further information in order to sentence the defendant.
* The court orders that a pre-sentence report be prepared by the Probation Service.
* One or both of the parties wishes to place further information before the court prior to sentence and the court consents to an adjournment.
31
Is it just the defence that can give a submission of no case to answer?
No, the court can do it on its own initiative.
32
Under what circumstances would the courts require a pre sentence report?
Reports are therefore usually constrained to circumstances in which the court needs specific information from the Probation Service such as the suitability for a particular form of sentence that involves their services, or the assessment of dangerousness.
33
What are the time limits for adjournment for sentencing in the mags court?
* for a defendant on bail, it's four weeks; or
* for a defendant in custody, it's three weeks.
Note, however, there is nothing to prevent the court from adjourning sentence more than once, and that post-conviction, there is no issue in respect of custody time limits.
34
Where will D be sentenced for an either-way offence under both circumstances D pleads guilty or not guilty?
-The defendant pleads guilty to an either-way offence in the magistrates' court- can be sentenced in the magistrates’ court but may commit for sentence to the Crown Court.
· The defendant pleads not guilty to an either-way offence in the magistrates' court and the matter stays in the magistrates' court for trial. At trial, the defendant is found guilty- can be sentenced in the magistrates’ court but may commit for sentence to the Crown Court.
-The defendant pleads not guilty to an either-way matter in the magistrates' court. The case is sent to the Crown Court for trial either because they decline jurisdiction or the defendant elects a trial in the Crown Court. At trial, the defendant is found guilty- once a matter has been sent to the Crown Court, it can't be sent back to the magistrates' for sentence. The defendant must be sentenced by the Crown Court.
35
Where there are multiple defendants there are mixed pleas when are the courts likely to deal with sentencing?
Where the pleas are mixed and there needs to be a trial, the court will likely wait until the conclusion of it to sentence any defendants who have pleaded guilty or been found guilty.
36
Where will the defendant be sentenced for summary only offence for both a guilty plea and not guilty plea?
The defendant pleads guilty to a summary only offence in the magistrates' court- can only be sentenced in the magistrates' court, can't be sent to the Crown Court for sentence.
The defendant pleads not guilty to a summary only offence in the magistrates' court and therefore has a trial in the magistrates' court. At trial they are found guilty- can only be sentenced in the magistrates' court, can't be sent to the Crown Court for sentence.
37
Where will D be sentenced for a either-way offence?
The defendant pleads guilty to an either-way offence in the magistrates' court- can be sentenced in the magistrates’ court but may commit for sentence to the Crown Court.
38
D charged for an indictable offence only where will he be sentenced?
The defendant is charged with an indictable only offence which is sent to the Crown Court. They plead guilty at their plea and trial preparation hearing in the Crown Court- once a matter has been sent to the Crown Court, it can't be sent back to the magistrates' for sentence. The defendant must be sentenced by the Crown Court.
· The defendant is charged with an indictable only offence which is sent to the Crown Court. They plead not guilty at their plea and case management hearing in the Crown Court and are subsequently found guilty at trial- once a matter has been sent to the Crown Court, it can't be sent back to the magistrates' for sentence. The defendant must be sentenced by the Crown Court.
39
What are the 3 Powers of Criminal Courts (Sentencing) Act (‘PCCSA’) 2000 ?
- Power to commit a defendant for sentence: An either-way matter or matters where the magistrates' court decides that its sentencing powers are insufficient.
- Power to commit a defendant for sentence: The defendant pleads guilty to an either-way offence but not guilty to an indictable offence(s) which is/are being sent to the Crown Court for trial and they want the defendant to be sentenced for all offences together
- Crown Court sentencing power: The Crown Court maximum if either (i) the magistrates' court indicated that they would have committed under s.3 anyway or (ii) the defendant is convicted of the related offence for which D is tried in the Crown Court. If neither, the magistrates' court maximum
40
How is an interview presented as evidence at court?
As a written record, however, it is rare that a transcript of the WHOLE interview will be shown to the court.
The prosecution and defence will agree an edited record with the relevant questions and answers.
If it was a "no comment" interview, a written admission will be given stating the defendant replied no comment to all questions.
41
When can the defence give a submission of no case to answer?
When the prosecution have closed their case.
42
Is it just the defence that can give a submission of no case t answer?
No, the court can do it on its own initiative.
43
Is the GOODYEAR indication binding?
The indication is binding on:
· the Judge who made it; and
· any other Judge for a reasonable period of time save for where:
o the Sentencing Guidelines for the offence are changed; or
o Court of Appeal case law alters the appropriate sentence in the case.
It is open for a Judge to say precisely how long that reasonable period of time would be.
On hearing an advance indication of sentence, the defendant can choose to either:
· Enter a guilty plea within the reasonable period of time and be sentenced to no more than the indication given by the Judge; or
· Reject the indication, maintain his not guilty plea and continue to trial.
44
What is the test for no case to answer? (Galbraith)
'(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case;
(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.
a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.
b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …'.
45
What is the procedure for a submission of no case to answer?
If there are two or more defendants making a submission of no case to answer, the legal representative for Defendant 1 will go first, followed by the legal representative for Defendant 2 etc.
The prosecutor has a right to respond.
Where the case is being heard by a bench of magistrates rather than a District Judge, the authorised court officer will then advise the magistrates on the law.
The magistrates will then retire to consider whether they accept the submissions or not. If they do not, they will return and say so and the trial will continue. They do not have to give reasons if they reject a submission of no case to answer. If they accept the submission of no case, they will return and acquit the defendant.
46
What is the order of cross examination if a defendant gives evidence and there is a co-defendant?
Defendant gives XIC,
Co-defendant cross examines defendant,
Prosecution cross examines defendant
Defendant re-examines.
47
How is evidence heard if there is more than one defendant?
Defendant 1 would give evidence, followed by Defendant 1’s witnesses, agreed statements and written admissions. Once Defendant 1's case was completed, Defendant 2's case would commence; Defendant 2 would give evidence, followed by Defendant 2’s witnesses, agreed statements and written admissions. Each defendant would close their case by their legal representative saying 'That is the case for [name of defendant]’.
48
What would happen in regards to sentencing in this scenario. Tim is charged with an offence of theft of £1million from his employer to which he pleads guilty?
The magistrates' court decides that this requires a sentence of more than six months' imprisonment and so commit him for sentence using s.3 PCCSA 2000 to the Crown Court.
He will be sentenced at the Crown Court and can face the Crown Court maximum for theft of seven years' imprisonment. The Crown Court are not limited to the magistrates' court sentencing powers in respect of this offence.
49
```
Arnold is charged with two offences of theft. He pleads guilty to both. Theft 1 was of £1 millon from his employer. Theft 2 was of a first class stamp from his employer. The magistrates' court decides that Theft 1 is outside of their sentencing powers, but Theft 2 is within their sentencing powers.
Please explain the two ways in which sentencing can take place
```
(a) Theft 1 is committed for sentence under s.3 PCCSA 2000 and the Crown Court will have the power to sentence up to their maximum for theft which is seven years' imprisonment. The Crown Court are not limited to the magistrates' court sentencing powers in respect of this offence.
(b) Theft 2 can't be committed for sentence under s.3 as the magistrates' court accept that their sentencing powers are sufficient. They have two choices: they can either sentence the defendant for this offence themselves and commit Theft 1 alone, or they can commit Theft 1 under s.3 PCCSA 2000 and Theft 2 under s.6 PCCSA 2000. If they select the latter then the Crown Court:
(i) Can sentence Arnold to up to seven years for Theft 1. The Crown Court are not limited to the magistrates' court sentencing powers in respect of this offence.
(ii) Are limited to the magistrates' court sentencing powers (six months) for Theft 2.
50
Who gives the first closing speech?
The prosecution after the close of the defence case.
51
When is the prosecution allowed to make a closing speech?
the prosecution is only entitled to make a closing speech according to CrimPR r.24.3(3)(h) where:
• the defendant is represented; or
• whether or not he is represented, the defendant has introduced evidence other than their own.
52
Is the defence always allowed to make a closing speech?
Yes.
53
If there is more than one defendant, what order do you hear closing speeches in?
In cases involving more than one defendant, defence speeches will follow one another, so Defendant 1's legal representative would make the first speech followed by Defendant 2's.
54
In the mags court, what happens directly before the mags retire to make their verdict?
The authorised court officer will advise them in open court on any matters of law that are required.
The prosecution and defence can make representations.
55
Should the decision by mags be unanimous?
Where there is disagreement amongst three lay magistrates the view of the majority prevails; however, if only two magistrates were able to hear the case and they are evenly divided, they must adjourn the case for a rehearing before a new bench.
56
If a mags court gives a guilty verdict, what do they need to say?
They need to say their reasons for this. This is so the defendant can understand their conviction.
57
Explain the case of R v Goodyear– Indications of sentence.
Prior to deciding whether or not to plead guilty to an offence it is open to a defendant to ask the court for an indication of the sentence D would receive in the event of proceeding to enter a guilty plea. The defendant can ask for such an indication either before the PTPH or at any stage of the proceedings before the jury return their verdict. This principle is named after the seminal case in which the rules for obtaining such an indication were considered at length, that of R v Goodyear.
58
In order for D to get an indication of sentencing what must d do ?
Before asking for an indication the defendant must:
a) Either accept the prosecution facts or a written basis of plea must be agreed by the parties and the court, and not require a Newton hearing (covered in another element). In other words, there must be a settled factual basis upon which the Judge is being asked to offer an indication of sentence; and
b) Give clear instructions to D’s Counsel that D wishes to ask for an advance indication of sentence.
The giving of an indication is discretionary and it remains the decision of the Judge whether to give one or not.
59
Can the judge decline to give indication of sentencing ?
If the Judge chooses not to give an indication they may say why they have elected not to and indicate if they would be willing to give an indication at a later stage in the proceedings and further indicate the circumstances in which, and when, the Judge would be prepared to respond to a further request for an indication, but they are under no obligation to do so.
60
If the judge gives a goodyear indication what features are required?
)It must be given in open court with all parties present. Reporting restrictions will be imposed to prevent a future jury from hearing about the defendant considering changing his plea to guilty in the event that he decides against it.
b)The indication takes the form of the Judge indicating that if the defendant changed their plea to guilty now or within a reasonable time (see (c) below), either:
I. That the same sentence or type of sentence would be passed irrespective of a guilty plea or guilty verdict post trial (eg ‘Whether you change your plea to guilty now or are found guilty after a trial, I will sentence you to a custodial sentence'); or
II. What the maximum sentence would be upon a guilty plea (eg 'if you change your plea to guilty now, I would sentence you to no more than three years imprisonment'). Where the sentence is likely to vary depending on whether the defendant enters a guilty plea now, or is found guilty after a trial the court should only proceed to give an indication of sentence upon a guilty plea. This is to avoid the situation where the defendant is being put under undue pressure to enter a guilty plea.
61
What are the common legal arguments that are dealt with just prior to the commencement of a jury trial in the crown court?
* applications relating to bad character;
* hearsay applications;
* applications to exclude evidence under s.76 or 78 PACE; and
* abuse of process applications.
62
What should not be included in a prosecutions opening speech in crown court?
Any complicated legal stuff and any evidence that may have issues of admissibility.
63
Can the judge call a witness in a crown court case?
Yes, the judge has a discretion to call witnesses whom neither the prosecution nor the defence choose to call; however, this power should be sparingly exercised and only when required in the interests of justice.
64
How does a judge direct a jury that there is no case to answer?
They will ask them to bring a verdict of not guilty.
65
Can the defence make an opening speech in crown court?
Yes, but only if one or more defence witnesses will be called.
66
After the defence close their case, what happens in crown court?
The jury are sent out while the judge irons out any legal questions and good character applications are made. The judge will then decide how they will direct the jury, invite the jury back and give their directions.
67
What are the two parts of a judges summing up?
The law and the facts.
| The judge will first deal with necessary legal directions and then move on to sum up the two cases.
68
What is a written route to verdict?
If it's super complicated, the judge can write down questions the jury need to answer so they can figure out if they think D is guilty or not guilty.
69
When the jury retire, what do they do if they have questions?
They cannot hear more evidence, but they can pass a note t the judge to ask a question.
The jury will then come in and hear the answer in open court.
70
What is a majority direction?
If jury still deliberating after 2 hours (2hrs and 10 mins), the judge can tell them a majority is ok.
71
What majority is accepted for a jury verdict?
10-2
11-1
10-1
9-1
72
What happens if a jury can't decide?
They are a hung jury and will be discharged.
The prosecution will have 7 days to consider if they want a retrial.
If the jury are unable to agree at a second trial the prosecution will usually offer no evidence which will result in a not guilty verdict being entered.
73
What happens at sentence hearing?
The four steps that comprise a sentencing hearing:
Step 1: On what basis is D being sentenced?
Step 2: Prosecution open facts, make submissions & applications
Step 3: Defence Mitigate
Step 4: Judge passes sentence
74
Step 1: On what basis is the defendant being sentenced?
| Use scenarios to explain this.
Scenario 1: The defendant entered a not guilty plea to the charge. The defendant contested the case, and at the conclusion of the trial the magistrates or jury returned a verdict of guilty
At the conclusion of the trial the court will either pass sentence immediately or adjourn for the production of a pre-sentence report.
Scenario 2: The defendant entered a guilty plea on a 'full facts basis' (ie D did not dispute the facts of the offence as set out by the prosecution)
The court will either sentence the defendant immediately or adjourn for the production of a pre-sentence report.
Scenario 3: The defendant entered a guilty plea but does not accept the facts as set out by the prosecution and seeks to challenge them whilst accepting that they are guilty of the offence as charged
This is much more complicated than the first two scenarios discussed on the previous page, and is far more common in practice than many would envisage.
This situation arises where the defendant accepts that D’s conduct amounted to the offence, but does not accept the entirety of the facts as alleged by the prosecution.
It is clearly then open to the defendant to plead guilty on this different factual basis, but this has procedural consequences as detailed on the following pages.
75
The defendant is charged with a single count of Assault Occasioning Actual Bodily Harm (s.47 Offences against the Person Act 1861). The prosecution alleges that he punched the complainant in the face twice. The complainant fell to the ground. The defendant is alleged to have kicked the complainant twice in the ribs whilst the complainant remained on the ground.
D accepts here that he caused ABH but based on his facts.
What three things can happen?
* enter a guilty plea, but on a written basis, the prosecution would indicate whether they viewed the basis as acceptable; if accepted
* the court will then proceed to consider whether this basis is an acceptable one; and
* the court will consider whether or not a Newton hearing is required.
76
How is a plea on a basis entered?
* The indictment/charge is read to the defendant. The defendant replies 'guilty' in the usual way. Defence Counsel would then address the court, indicating that this plea is being entered on a basis, and would hand the written basis up to the court.
* The indictment/charge is read to the defendant. The defendant replies 'guilty on a basis'. Defence Counsel would then hand the written basis up to the court.
77
What is a basis of plea?
When presented with a basis of plea the prosecution has a number of options, it can:
a) Accept the basis of plea as being correct. If so, the prosecutor should sign the document before it is handed up to the court.
b) Reject the basis of plea as being inconsistent with the evidence. If so, the prosecutor should refuse to sign the document.
c) Adopt the position that they are unable to agree or reject the basis as it contains matters outside of the prosecution's knowledge.
78
What is the test/questions the court will consider to determine whether a newton hearing is required?
The first question for the court is whether the basis of plea is absurd. If the court decides that it is absurd, then it can reject it out of hand and make no further enquiries and proceed to sentence the defendant on the prosecution version of the facts. If they do not deem it absurd, they move on to the next question.
The second question for the court is whether it will make a material difference to sentence if the court sentences on the defence version instead of the prosecution version?
* If it will not, then the court must sentence the defendant on the defence version of the facts.
* If it will make a material difference, then the court must hold a Newton hearing.
79
What happens at a Newton hearing?
n the magistrates' court, a Newton hearing presided over my magistrates or a District Judge much like a regular trial. In the Crown Court it takes place without a jury. This is one of the limited number of occasions where a Crown Court Judge acts as the arbiter of both law and fact.
A Newton hearing is an exception to the rule that where a defendant enters a guilty plea there is no 'trial' phase to the process.
80
He is alleged to have punched the complainant in the face twice.
The complainant fell to the ground.
The defendant is alleged to have kicked the complainant twice in the ribs whilst the complainant remained on the ground.
D states- I accept that I am guilty of assault. I punched the complainant twice in the face. I did not kick him. He kicked himself in the ribs. What is likely the courts would do here would they hold a newton hearing?
Here a judge is likely to conclude that the basis of plea is absurd and as such would proceed to sentence on the prosecution basis.
It's worth noting that in practice Judges are fairly reluctant to find a basis absurd, tending instead to follow one of the two alternatives below.
so likely to conclude it would not make any material difference.
81
What are the four steps that comprise a sentencing hearing:
Step 1: On what basis is D being sentenced?
Step 2: Prosecution open facts, make submissions & applications
Step 3: Defence Mitigate
Step 4: Judge passes sentence
82
What are the duties of a prosecutor extend to reminding the court of the following:
* Any previous convictions the court needs to be aware of (it is common to simply hand up a full document and then draw the attention of the court to the relevant entries)
* Any ancillary orders that the prosecution seeks (eg costs, compensation, restraining order)
* Any relevant sentencing guidelines
* Any general sentencing issues necessary to ensure that a lawful sentence is passed (eg the mandatory minimum sentence provisions)
* Any victim impact statement which has been produced.
83
What do you need to do if you want to rely on character evidence at a hearing?
If the defendant wishes to rely on character evidence D can do so by either written testimonials or live evidence.
If the defendant wants to rely on written character evidence D will need to obtain the agreement of the prosecution (this is not usually problematic), alternatively, a witness can be called to give oral evidence in the usual way, although this is incredibly rare.
84
What are the general duties of the defence and and legal representatives?
As with the prosecutor, the defence are under a general duty to ensure that a lawful sentence is passed.
Legal representatives must ensure that what they put forward is consistent with their instructions and their duties not to mislead the court.
85
Who has the power to impose this sentence of bind over?
Mags court and crown court
86
What is bind over?
A person can be bound over by a court to 'keep the peace' for a sum of money that they forfeit if they fail to do so. In appropriate cases, a bind over can also include the condition not to possess, use, or carry a firearm.
87
When can a bind over be imposed?
* Instead of trying a defendant. The prosecution can agree not to proceed to trial where the court indicates it will bind a defendant over instead. This is most commonly used in minor cases of assault or public order offences.
* As a sentence following a plea of guilty or a verdict of guilty (it seems that courts do impose a bind over as a sentence alone).
* Where a defendant is acquitted but the court considers that a person may breach the peace in the future.
* On a witness in the proceedings where the court considers that a person may breach the peace in the future.
88
How is this bind over sentence passed in court using MR Smith as example who has breached a public order act?
Mr Smith, the prosecution has decided not to pursue the charge under section 5 of the Public Order Act against you. Instead, we are binding you over in the sum of £100 to keep the peace for 1 year. If you fail to keep the peace for the next 1 year, you will have to pay this court £100. At the end of the year, if you have kept the peace, you pay nothing.’
89
When can a bind over be imposed?
It can be imposed on conviction of any offence save for those set out in s.12(1) Powers of Criminal Court (Sentencing) Act 2000 which, in short, are offences where there is a mandatory minimum sentence that a court must pass.
90
what are the consequences of breach for bind over?
The only way to breach a conditional discharge is to commit an offence during the period that the order is in force. This means the offence must be committed during that period, whereas in reality the defendant may appear in court some time after that.
91
If D breached the conditional discharge imposed by the mags court can they be sentenced for the breach?
Sentencing court for the breach- Magistrates’ court- Can deal with the breach by re-sentencing the Defendant for the original offence to anything it could have sentenced D to at the time.
Sentencing court for the breach- Crown Court- Can deal with the breach by re-sentencing the Defendant for the original offence, but it is limited to the magistrates’ court sentencing powers for that offence.
92
If the crown court imposed the conditional discharge where can they be sentenced?
Sentencing court for the breach- Magistrates’ court- It cannot re-sentence the Defendant and must commit D to the Crown Court to be sentenced for the breach under s.13(5) PCC(S)A 2000.
Sentencing court for the breach- Crown Court- Can deal with the breach by re-sentencing the Defendant for the original offence to anything it (the Crown Court) could have sentenced D to at the time.
93
Who has the power to impose a fine as a sentence?
The magistrates' court and the Crown Court. In the Crown Court the power to fine is for any amount with no upper limit. In the magistrates' court, fines are set on a standard scale from Level 1 (£200) to Level 5 (unlimited). Where a statute fails to set an amount on summary conviction, it is assumed to be Level 3 (£1,000).
94
When can a fine be imposed?
It can be imposed on conviction (guilty plea or verdict) of any offence unless specifically prohibited by statute (eg an offence that imposes a mandatory minimum sentence). A fine can be imposed alongside any other sentence except for a hospital order or alongside a discharge (conditional or absolute) when sentencing for a single offence. Though there is no general prohibition on doing so, it is generally accepted as undesirable to combine a fine with imprisonment.
95
before imposing a fine can the courts enquire defendant of his financial circumstances ?
YES
Before imposing a fine, the court can either enquire of the defendant (in person or through their advocate) as to their means. This is usually by asking the defendant to fill in a means form in which they set out their income and outgoings. Alternatively, the court can make the defendant subject to a Financial Circumstances Order which more formally requires a defendant to report their assets and financial circumstances to the court within a prescribed period of time. Failure to do so is in itself an offence for which the defendant can be fined.
96
Is this true or false?
| A fine must be proportional to both the gravity of the offence and the means of the offender.
TRUE
97
Can the courts fix instalment fines?
The court can fix particular instalments (eg £20 per week) or simply allow a payment in instalments of any number and amount but fix a date by which the fine must be paid.
98
What happens if D fails to pay the fine?
In short, if an offender fails to pay their fine they may be brought back before a magistrates' court (regardless of whether the fine was imposed by a magistrates' or Crown Court) and a means enquiry can be held.
The court has the power to:
* Allow the defendant more time to pay.
* Require the defendant to pay in instalments.
* Write off some or all of the fine (if the fine was imposed by the Crown Court, the magistrates' court must obtain permission from that court before following this course).
* Where the defendant refuses to pay through wilful refusal or culpable neglect, D can be sentenced to a period of imprisonment in default. The court must have considered or tried other means of obtaining the money first.
99
What is a community order?
Community Order is a sentence that requires a defendant to comply with one or more requirements available to a court to punish and/or rehabilitate a defendant in the community. It must not be imposed unless the court is satisfied that the offence(s) committed by the defendant was/were serious enough to warrant such a sentence.
100
What 3 things must the court court considering requirements when making a community order?
When making a Community Order, the court must impose at least one of the requirements set out in s.177 Criminal Justice Act (CJA) 2003. There is no upper limit to the number of requirements that can be added, though:
* some requirements may be incompatible with each other;
* an order can only be three years long and so numerous requirements might be impossible to complete within three years; and
* an order with too many requirements may be susceptible to appeal as being manifestly excessive.
101
What are the community order requirements set out in s.177 CJA 2003?
Unpaid Work Requirement- The defendant must carry out unpaid work as directed by the Probation Service. The court must specify when passing sentence the number of hours (must be between 40 and 300) and the time within which it must be completed; usually within 12 months.
· Rehabilitation Activity Requirement- The defendant must attend appointments or participate in activities as directed by the Probation Service. The court must specify when passing sentence the maximum number of days that the defendant must attend as instructed.
· Programme Requirement- The defendant must participate in an accredited programme (eg anger management, alcohol treatment). The court must specify when passing sentence that a programme is needed and the number of days upon which the defendant must attend.
· Prohibited Activity Requirement- The defendant must not do a certain thing as defined by the court (eg attend a football match). The court must specify when passing sentence what the prohibited activity is and whether it is at specified days and/or times and/or a period of time.
· Curfew Requirement- The defendant must stay at the specified place (usually a specific address) during the times specified. The court must specify when passing sentence how long the requirement lasts for in weeks/months (not to exceed 12 months). What specific times from and to that the defendant must be at the specified place (minimum two, maximum sixteen hours per day can be imposed). The court must impose an electronic monitoring requirement (tagging) in addition, unless court considers it inappropriate to do so.
· Exclusion Requirement- The defendant must not enter a specific area or keep away from a particular person. The court must specify when passing sentence the area and period of time that the requirement is in force (not to exceed two years). The court must impose an electronic monitoring requirement (tagging) in addition, unless court considers it inappropriate to do so.
· Residence Requirement- The defendant must live at a particular address. The court must specify when passing sentence the amount of time in days/weeks/months that the defendant must live at that address.
· Mental Health Treatment Requirement- The defendant must undergo mental health treatment. The court must specify when passing sentence the length of the treatment, that the defendant has a condition susceptible to treatment, that they are willing to undergo treatment, that a hospital order is not required.
· Drug Rehabilitation Requirement- The defendant must take a drug test as and when required to prove that they are not taking drugs. The court must specify when passing sentence the length of the treatment, that the defendant misuses drugs and has a drug addiction susceptible to treatment, that they are willing to undergo treatment, that a hospital order is not required.
· Alcohol Treatment Requirement- The defendant must attend treatment under the direction of a specified person to reduce or eliminate their dependency on alcohol. The court must specify when passing sentence the length of the treatment, that the defendant misuses alcohol and has a drug addiction susceptible to treatment, that they are willing to undergo treatment, that a hospital order is not required.
· Attendance Centre Requirement- The defendant must be aged 18–24 and attend an attendance centre as required. Attendance centres punish the offender by loss of their free time but also provide a disciplined learning environment. The court must specify when passing sentence the total number of hours that they must attend (between 12 and 36).
· Electronic Monitoring Requirement- The defendant must be subject to a community order requirement that must be monitored by an electronic tag. The court must specify when passing sentence an electronic monitoring requirement must be imposed where a curfew or exclusion requirement has been made unless the court considers it inappropriate to do so. It can use an electronic monitoring requirement in conjunction with any other requirement if it wishes to do so.
102
What will happen if a community order is breached?
If a defendant fails without reasonable excuse to comply with any requirement of their Community Order, they must be warned that their failure is unacceptable. If they fail without reasonable excuse to comply with any requirement of their Community Order again, breach proceedings must be instituted against the defendant.
The defendant will be brought back before the court and have the breach put to them. They can either admit or deny the breach; if they choose the latter, the court will hold a trial as to whether there was a failure without reasonable excuse.
103
What are the consequences of D admitting a breach in court or find out there was a breach after denial?
If the defendant admits the breach or the court finds that there was a breach following a denial, then it must deal with the defendant in one of the following ways:
* By amending the order to make it more onerous.
* By fining the defendant up to £2,500.
* By revoking the Community Order and re-sentencing D to anything that the court could have sentenced D to originally. Where the court decides to do this, they must take into account the extent to which the defendant has complied with the order.
The court is able to extend (once only) the period of the Community Order by up to six months beyond the usual three-year limit if necessary.
104
What is the threshold for imposing a community order (summarise)?
The court must not make a community order unless it is a opinion that the offence or combination of offences associated with it was serious enough to warrant the making of such an order.
105
What types of custodial sentences are they?
Determinate custodial sentences
Suspended determinate custodial sentences
Minimum sentences for certain offences
Extended determinate sentences (EDS)
Mandatory life sentence for murder
Other statutory life sentences
Discretionary sentences
106
When should a custodial sentence be passed?
A custodial sentence must not be passed unless the court is satisfied that the offence
or offences are so serious that neither a fine nor a Community Order can be justified.
107
Where a defendant falls to be sentenced to a period of imprisonment for more than one offence, the court must consider whether to make the sentences concurrent or consecutive to each other, i.e.
Give an example of a concurrent and consecutive sentence.
Two 12-month sentences to run concurrently with each other = a total sentence of 12 months
Two 12-month sentences to run consecutive to each other = a total sentence of 24 months
108
Who can pass a determinative custodial sentence?
The magistrates' court can impose a maximum of 6 months for one offence ( s 224 SA 2020)
or
A total of 12 months when imposing sentences to run consecutively where a person is charged with two or more either-way offences s 133 MCA 198 ( e.g. 2 months plus 3 months plus 6 months = 11 months)
The Crown Court has unlimited powers of imprisonment subject to the statutory maximum for each offence.
109
If a defendant has been remanded in custody for any period prior to sentence, then that period is automatically counted towards their sentence. This is administered by the Home Office once the defendant is serving.
IS this true?
YES
110
IF D on bail has electronically monitored curfew with at least 9 hours are they entitled to credit towards their sentence? AND is it automatice?
YES if a defendant has been on bail with a curfew condition, which was electronically monitored, where the number of hours under curfew was at least nine, they are entitled to credit towards their sentence.
NO This is not automatic (unlike time on remand) and the court must expressly state that the time under curfew counts. Each day on bail is calculated as equal to half a day serving a prison sentence and rounded up to the nearest whole number. Note, any days upon which the curfew was breached does not count towards this calculation.
111
What is a suspended sentence of imprisonment?
A suspended sentence of imprisonment must be for offending that crosses the custody threshold but the defendant does not go into immediate custody and if they fulfil certain criteria, they can avoid prison entirely.
112
how much time can each court suspend a sentence of imprisonment?
A magistrates' court may suspend any determinate custodial sentence of between 14 days and 6 months.
The Crown Court may suspend any determinate custodial sentence of between 14 days and 2 years.
113
What are the three elements of a suspended sentence ?
A suspended sentence has three elements to it:
The custodial term: How long a custodial term they would have received but for it being suspended.
The operational period: How long the custodial term is suspended for. This must be between six months and two years.
The supervision period: How long the defendant must be supervised by the Probation Service for. This is optional, but if used, must be between six months and two years and equal to or shorter than the operational period.
When passing a suspended sentence, the court may (but not must) make the defendant subject to any one or more of the Community Order requirements set out in Schedule 9 SA 2020.
114
If breach found while on suspended sentence what will happen?
If the breach is found proved or is admitted then the court must activate the suspended custodial sentence in part or whole having regard to the extent to which the defendant had complied with the order prior to breach, unless it would be unjust to do so.
115
What are the minimum sentence to be imposed for serious offences written in statue? i.e. for certain firearm offences
seven years’ imprisonment for a third Class A drug trafficking offence
three years for a third domestic burglary
five years for certain firearms offences
six months for a second offence of possessing a weapon
six months for threatening with a weapon.
116
Where is extended determinate sentences imposed?
Extended sentences are imposed in certain types of cases (specified violent, sexual or terrorism offences) and where the court has found that the offender is dangerous.
It is the licence period which is extended not the period of custody as an extended licence period is required to protect the public from risk of harm.
117
What is time limit for extension period for extended determinate sentences?
Extended determinate sentences s 254-257 SA 2020
The extension period must—
(a) be at least 1 year, and
(b) not exceed—
(i) 5 years in the case of a specified violent offence;
(ii) 8 years in the case of a specified sexual offence or a specified terrorism offence.
The overall term of an EDS imposed cannot exceed the maximum term permitted for the offence.
118
what is a Mandatory life sentence for murder ?
Where a defendant is convicted of murder, (which is indictable only) the court must pass a mandatory life sentence. It has no discretion to pass any other sentence. A mandatory life sentence is not available for any other offence than murder.
On sentence the court will fix a minimum term. Once that minimum term has expired the defendant can apply for release to the Parole Board who has ultimate discretion as to when a defendant is released. If released the defendant remains on licence for life.
The remaining starting points are 30, 25 and 15 years.
119
What are Statutory life sentences ?
Offenders who are considered dangerous or who are convicted of a second, very serious offence may be sentenced to imprisonment for life. The provisions are contained in the SA 2020.
Unlike the life sentence for murder which is mandatory there is still an element of discretion in the imposition of these life sentences.
There are also offences such as rape or robbery for which the maximum sentence is life imprisonment. It is, however, unheard of for offenders convicted of these offences to get a life sentence without fulfilling the statutory provisions under the SA 2020.
120
If a defendant is sentenced today to an extended determinate sentence comprising 6 years custody and 3 years extended licence, which of the following is correct?
D may be released at 4 years of custodial sentence has been served as 2/3 point of their custodial sentence can apply to parole for release.
121
what is a Prosecution costs order ?
An order that the defendant pay a ‘just and reasonable’ amount of the prosecution costs
122
what are the consequences of breaching a Prosecution costs order ?
A period of imprisonment in default and the sum is still due
123
what is a Compensation order ?
An order that the defendant pay a person financial compensation. A court must make a compensation order where it is allowed to do so, unless it would be unjust. If it does not, then it must give reasons as to why it chose not to
124
What are the consequences of breaching a compensation order?
Where a defendant is convicted (plea/ verdict of guilty) of any offence. It can be imposed in addition to or instead of any sentence. Where imposed with a fine, compensation should take precedence
125
What are the general duties of the parties in arbitration?
The parties also have duties imposed upon them in an arbitration.
Both in preparing for the hearing and during the hearing itself the parties must comply with section 40, another mandatory provision of the Act. This states that:
"The parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings, and this includes:
complying without delay with any determination of the tribunal as to procedural or evidential matters, or with any order or directions of the tribunal; and
where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law."
The parties cannot contract out of s. 40, even with the arbitrator’s consent.
126
When will the courts intervene in regards to arbitration?
Court intervention is rare and, generally, the court will only make an order if the arbitrator has no power to make this order or his order would not be effective. Unless the situation is urgent and relates to preservation of evidence or assets, a party can only apply to the court if he has the consent of the arbitrator or the other parties
127
How to make an application for arbitration to courts if you require them to intervene?
arty applying needs to issue an arbitration claim form (Court Form N8) in accordance with the CPR Part 8 procedure for commencing claims. CPR 62.4 sets out the required contents of the arbitration claim form.
128
Who makes the decision on the award in relation to costs?
The arbitrator is also able to make an award in relation to costs.
Alternatively, the parties can make agreements between themselves about how the costs of the arbitration will be paid, subject to section 60 of the Act which provides that any clause in an arbitration agreement which has the effect that one party shall pay the costs of the arbitration irrespective of the outcome will be void, unless that agreement was made after the dispute arose. This is a mandatory provision and cannot be contracted out of by the parties
129
On what basis can you appeal an arbitrators decision?
(Mandatory) Section 67 Challenge on jurisdiction: For example, the dispute was not of the type covered by the arbitration agreement
(Mandatory) Section 68 Challenge for serious irregularity: For example, the arbitrators did not conduct the hearing fairly
(Non-mandatory) Section 69 Appeal on a point of law: The process for such an appeal is much more restrictive than an appeal in litigation
130
If the unsuccessful party is not complying with the award granted by arbitration the successful party will have to take steps to enforce it. What are the two avenues through which the successful party can enforce the award against the unsuccessful party?
Domestic arbitration awards may be enforced by bringing an ordinary civil claim in the High Court or by using the summary procedure in section 66 of the Act (which cannot be excluded by the parties) which allows a party to apply to the High Court for permission to ‘convert’ the arbitration award into a court judgment. The result of s. 66 is that the successful party can enforce the award in the same way as if it were a court judgment.
Cross border enforcement will involve the successful party enforcing the award through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’) which provides an extensive enforcement regime for international arbitration awards.
The effect is that an arbitration award rendered in a Convention state is automatically enforceable, without re-examination of the merits, in the approximately 150 countries that have ratified the New York Convention. These include some countries which do not have existing reciprocal arrangements with England and Wales in relation to the enforcement of court judgments (such as the USA) resulting in easier enforcement of arbitral awards in those countries than of court judgments.
