FLK2 Criminal Litigation Flashcards
What is the burden of proof and the standard of proof in criminal proceedings?
Subject to a few statutory defences (and the common law defence of insanity), the burden of proof remains with the prosecution throughout a criminal trial. This explains why the prosecution must always present their case first and why they must persuade the court beyond a reasonable doubt of the defendant’s guilt.
Can the defence challenge the prosecution failure to provide unused material?
A defendant who has provided a defence statement can make application to the court if the CPS has failed to comply with its continuing duty of disclosure in light of the matters contained in the defence statement.
The defendant may ask the court for an order that the CPS disclose material provided the defendant has reasonable cause to believe that there is prosecution material which should have been, but has not been, disclosed.
The defendant will only be allowed to make such an application if they have set out in detail in their defence statement the material which they consider the CPS has in its possession which it has not subsequently disclosed.
What is a simple caution?
Instead of giving an informal warning, the police (in conjunction with the CPS) may instead decide to issue a simple caution.
Although criminal records are kept of cautions, a simple caution is not the same as a criminal conviction.
If a defendant who has received a caution is later convicted of a separate offence, the caution
may be mentioned to the court when the court is considering what sentence to pass.
Cautions are usually given in the police station by a police officer of at least the rank of inspector.
The offender must sign a form acknowledging that they agree to the caution and admit the offence for which the caution is being given.
How is evidence under gateway (g) excluded?
As with gateway (d), the court must exclude evidence that would otherwise be admitted under this gateway if, on an application by the defendant, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (CJA 2003, s 101(3)) (see gateway (d) above).
When will the admissibility of hearsay evidence be determined?
When either the CPS or the defendant has made an application to adduce hearsay evidence at trial, and this application is opposed by the other party, the court will usually determine the admissibility of such evidence at a pre- trial hearing.
In the magistrates’ court, this is likely to be at the case management hearing/ pre- trial review, or at a specific pre- trial hearing to resolve disputes about the admissibility of evidence. In the Crown Court, this is likely to be at the PTPH, or at a specific pre- trial hearing.
What is the purpose of a first hearing in the magistrates’ court if the offence is indictable only?
An adult defendant charged with an offence triable only on indictment will be sent straight to the Crown Court for trial following a hearing in the magistrates’ court.
The purpose of the hearing is to determine whether an offence triable only on indictment is charged and whether there are related offences which should also be sent to the Crown Court.
This would include:
(i) the either- way or summary offence appears to the court to be related to the offence triable only on indictment; and
(ii) in the case of a summary- only offence, it is punishable with imprisonment, or involves obligatory or discretionary disqualification from driving (CDA 1998, s 51(11)).
What arguments often raised in an appeal by way of case stated from the MC?
(a) the magistrates misread, misunderstood or misapplied the law;
(b) the magistrates decided to hear a case when they did not have the jurisdiction to hear it;
(c) the magistrates made errors in deciding the admissibility or otherwise of evidence;
(d) the magistrates erred in their decision following a submission of no case to answer.
What are the custody time limits for a remand before conviction?
Can the prosecution apply to court to extend the custody time limit?
What happens if the time period for a remand before conviction has expired?
The overall maximum period of remand in custody (normally referred to as the custody time limit) in the magistrates’ court is 70 days before trial for an either- way offence and 56 days before trial for a summary- only offence.
However, if the case involves an either- way offence and the allocation hearing takes place within 56 days, the custody time limit for the either- way offence is reduced to 56 days.
Can the prosecution apply to court to extend the custody time limit?
The prosecution may apply to the court to extend the custody time limit, although for an application to be successful 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.
The application may be made orally or in writing, although 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.
If the magistrates grant a prosecution application to extend the custody time limit, the defendant has a right of appeal to the Crown Court. Similarly, the prosecution may appeal to the Crown Court against the magistrates’ refusal to extend the custody time limit.
What happens if the time period for a remand before conviction has expired?
Unless the prosecution makes a successful application to extend the custody time limit, once the time limit has expired, the defendant must be released on bail until his trial.
How must the custody officer accommodate someone who does not speak English or has a speech and hearing impediment?
Where a suspect either doesn’t speak or understand English or has a hearing or speech impediment, the custody officer must obtain an interpreter or someone able to assist the suspect with communication.
What is the ‘normal caution’ that is given at the start of an interview?
At the start of the interview, the police officer conducting the interview will caution the suspect. The wording of the caution is the same as that used at the time of the suspect’s arrest and is set out in Code C:
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
The normal caution is worded in this way because, although the suspect has a right to remain silent and cannot be compelled to answer questions in the interview, if the suspect exercises this right but then at trial raises facts as part of their defence which they could have mentioned during the interview, the court may draw an ‘adverse inference’ from such silence under s 34.
What must the police do before undertaking identification procedures with vulnerable suspects?
(a) if the suspect is a juvenile aged 14 or over, consent must be obtained both from the juvenile and from the juvenile’s parent or guardian;
(b) if the suspect is a juvenile aged under 14, consent must be obtained from the juvenile’s parent or guardian (rather than from the juvenile);
(c) If the suspect is suffering from a mental health condition or mental disorder, then the consent must be given in the presence of the appropriate adult.
Can the prosecution withhold disclosure of unused materials?
In addition to having non- sensitive items of unused material, the CPS may also have ‘sensitive’ items which it does not wish to disclose. Examples include:
a) material relating to matters of national security or intelligence;
(b) material relating to the identity of police informants or undercover police officers;
(c) material revealing techniques and methods relied upon by the police (eg covert surveillance techniques used); and
(d) material relating to a child witness (such as material generated by a local authority social services department).
If such material satisfies the test for disclosure to the defence in s 3 of the CPIA 1996, the CPS can withhold the material only if it is protected by ‘public interest immunity’.
It is the decision of the court as to whether disclosure can be avoided on the grounds of public interest immunity.
The CPS must therefore make an application to the court for a finding that it is not obliged to disclose the relevant material.
The relevant procedural rules which must be followed when a public interest immunity application is made to the court are set out in Part 15 of the CrimPR and this type of an application will often be made ex parte (ie without notice to the defence).
It is usual, when drafting a defence statement, to ask the CPS if a schedule of sensitive materials has been prepared and, if so, whether the CPS has made any application to the court for an order that it is not obliged to disclose the existence of such material.
What is a detention and training order?
A detention and training order is the only type of custodial sentence that the youth court has the power to impose.
The youth court should not impose a detention and training order unless it is of the opinion that the offence (or the combination of the offence and one or more offences associated with it) is so serious that neither a fine alone nor a community sentence can be justified for the offence, and the court must also consider whether a YRO with intensive supervision and surveillance is appropriate.
The court would need to state the reasons why such a YRO was inappropriate.
Detention and training orders cannot be imposed on juveniles aged 10 or 11. If a juvenile is aged between 12 and 14 inclusive, an order may only be made if the court considers that the juvenile is a ‘persistent young offender’.
For juveniles aged 15 or over, there is no restriction on the making of such an order.
Note that unlike an adult offender, the youth court has no power to suspend a detention and training order for a juvenile.
Detention and training orders may now be ordered to run for at least four months but must not exceed a total of 24 months, so giving a youth court more flexibility when setting the length of such a sentence.
The length of the order must also be for the shortest period of time the court considers commensurate with the seriousness of the offence, or the offence and one or more offences associated with it.
A detention and training order may be imposed only if the court has received from the YOT a pre- sentence report that specifically addresses custody as a possible sentencing option.
When the court makes such an order, the juvenile will be held in detention in a young offender institution for one half of the period of the order. They will then be released into the community under the supervision of the YOT for the second half of the order. The degree of supervision is decided upon by the YOT (not the court) but is likely to include electronic monitoring and intensive supervision.
A juvenile offender who breaches the supervision element of their sentence can be further punished for such a breach.
How does legal privilege work at the police station?
Conversations between a suspect and their solicitor at the police station are protected by legal privilege.
In an interview, the police are not allowed to ask a suspect what advice they received from their solicitor (or, if the police were to ask, the solicitor would instruct the suspect not to answer).
What is the purpose of the solicitor talking to the investigating officer before speaking to the client?
The purpose of speaking to the investigating officer is to obtain the following information:
(a) disclosure (the facts of the offence and the evidence supporting those facts);
(b) significant statements and/ or silence; and
(c) the next steps the investigation officer proposes to take.
Who may be an appropriate adult for a juvenile?
There is a hierarchical order the police should follow when contacting an appropriate adult for a juvenile, as follows:
(a) The police should initially attempt to contact the juvenile’s parent or guardian (or a representative from the local authority where the juvenile is in local authority care) to act as an appropriate adult.
(b) If no one in (a) is available, the police should then ask a social worker from the local authority to act as an appropriate adult.
(c) If a social worker is not available, the police should finally contact another responsible adult who is aged 18 or over and not connected to the police. This may, for example, be an aunt or uncle, or a grandparent. Although the adult must be aged 18 or over, the police may consider that an adult who is only just 18 or over may not be sufficiently responsible to fulfil the role.
What offences are simple cautions restricted for?
The Criminal Justice and Courts Act 2015 restricts the use of simple cautions for indictable- only offences.
A defendant must not be given a simple caution for such an offence unless a police officer of at least the rank of superintendent determines that there are exceptional circumstances relating to the defendant or the offence, and the CPS agrees that a caution should be given.
In addition, under s 17(3), a defendant must not be given a simple caution for an either- way offence that has been specified by the Secretary of State unless a police officer of at least the
rank of inspector determines that there are exceptional circumstances relating to the offender
or the offence.
The either- way offences that have so far been specified by the Secretary of State are summarised as follows:
a) offensive weapon and bladed article offences;
b) carrying a firearm in a public place;
c) child cruelty;
d) sexual offences against children (including those relating to child prostitution and pornography);
e) sex trafficking offences;
f) indecent and pornographic images of children;
g) importing, exporting, producing, supplying and possessing with intent to supply to another Class A drugs.
Further, the use of simple cautions is restricted for repeat offending. A defendant must not usually be given a simple caution if in the two years before the offence was committed the defendant has been convicted of, or cautioned for, a similar offence.
What is an appropriate adult’s role when a police officer is interviewing a vulnerable suspect?
If a juvenile or suspect with a mental health condition or mental disorder is cautioned in the absence of the appropriate adult, this caution must be repeated in the appropriate adult’s presence.
Similarly, they must not normally be interviewed, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult.
When an appropriate adult is present in an interview, they must be informed by the interviewing officer that they are not there simply to act as an observer, and that the purpose of their presence in the interview is to:
(a) advise the person being interviewed;
(b) observe whether the interview is being conducted properly and fairly; and
(c) facilitate communication with the person being interviewed.
The appropriate adult’s presence at the police station (and particularly during the interview) is necessary to help the suspect cope with the demands of custody and questioning, and to appreciate the seriousness of the situation.
An appropriate adult may be required to leave the interview if their conduct is such that the interviewer is unable properly to put questions to the suspect.
This will include situations where the appropriate adult’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s responses from being recorded.
If the interviewing officer considers an appropriate adult is acting in such a way, they will stop the interview and consult an officer not below superintendent rank, if one is readily available, and otherwise an officer not below inspector rank, not connected with the investigation.
After speaking to the appropriate adult, the officer consulted must remind the adult that their role
does not allow them to obstruct proper questioning and give the adult an opportunity to respond.
The officer consulted will then decide if the interview should continue without the attendance of that appropriate adult.
If they decide that it should, another appropriate adult must be obtained before the interview continues.
Who can request a copy of the custody record?
Code C allows a legal representative or an appropriate adult to request a copy of the custody record when a detainee leaves police detention or is taken before a court. In practice solicitors will usually be provided with a printout of the custody record and detention log when they first arrive at the police station.
Who is the custody officer?
The custody officer will normally be a police officer holding at least the rank of sergeant, who should not be involved in the investigation of the offence for which the suspect has been arrested.
The Code confirms that a suspect who has been arrested (or who is attending the police station to answer bail) should be brought before the custody officer as ‘soon as practicable’.
In which situations will an either way offence be sent straight to the Crown Court?
Where notice, in serious or complex fraud cases, has been given by the DPP.
a) Notice is given 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) Where a notice, in certain cases involving children, has been served. 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. The offences to which this procedure applies include assault or threat of injury to a person, child cruelty, certain sexual offences, kidnapping, false imprisonment and child abduction.
c) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice, in respect of which the same defendant is being sent to the Crown Court. Where a defendant is sent to the Crown Court for trial for an offence triable only on indictment, or for an offence in respect of which notice has been given under, the court must at the same time send the defendant for trial for any either- way offence which appears to the court to be related. However, where the defendant appears on the related either- way charge on a subsequent occasion, the court may send them for trial.
d) Where there is an either- way offence related to an offence triable only on indictment, or one covered by a notice, in respect of which another defendant is being sent to the Crown Court.
Substantial grounds and other grounds
What are the exceptions for right to bail for offences triable only on indictment and either-way imprisonable offences?
Substantial grounds
The defendant need not be granted bail if the court is satisfied that 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.
Note therefore that this is a high threshold. It will not be satisfied if the court only believes the defendant may do any of these three things.
Other grounds
The defendant need not be granted bail if the court is satisfied that the defendant should be kept in custody for their own protection or, if they are a child or young person, for their own welfare.
The defendant need not be granted bail where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of making a decision on bail due to lack of time since the institution of the proceedings against them.
The defendant need not be granted bail if, having previously been released on bail in, or in connection with, the proceedings, the defendant has been arrested in pursuance of section 7.
If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.
What is the custody record and what is recorded on it?
This is an electronic document which records certain key information:
(a) the suspect’s name, address, telephone number, date of birth and occupation;
(b) the offence for which the suspect has been arrested and why the arresting officer considered it necessary to arrest the suspect;
(c) the time of the suspect’s arrest and the time of their arrival at the police station;
(d) the reason why the suspect’s ongoing detention at the police station has been authorised by the custody officer;
(e) the time such detention was authorised;
(f) confirmation that the suspect has been given details of the rights they may exercise whilst detained at the police station (see below), and whether they have requested legal advice from a solicitor; and
(g) details of the items of property the suspect has on their person, and details of any medical condition they suffer from.
The custody record will also have attached to it a detention log. This is a record of all the significant events that occur whilst the suspect is in police custody. The custody officer must also inform the suspect about their ongoing rights.
Who does the presumption of bail apply to?
There is a presumption that bail will be granted to the following types of defendants (unless one or more exceptions apply):
(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; and
(c) defendants who are appearing before the court for breach of a community sentence.
Is it possible to appeal a bail application?
Yes, both the defence and the prosecution can appeal.
What is the process of a PTPH hearing/what happens in a PTPH hearing?
The arraignment
At the start of the PTPH the defendant will be arraigned. This means that the count(s) on the indictment will be put to the defendant who will either plead guilty or not guilty. If the defendant pleads guilty to some counts but not guilty to others, the jury at the defendant’s trial will not be told about the counts to which a guilty plea has already been entered (so they are not in any way prejudiced against the defendant).
It will sometimes be the case that a defendant charged with several counts will agree with the CPS to plead guilty to certain counts if the CPS does not proceed with other counts. If this happens, at the arraignment, the CPS will offer no evidence in respect of these other counts and the judge will order that a verdict of not guilty be entered.
The CPS will also offer no evidence at the arraignment if, since the case was sent for trial, further evidence has become available which leads it to conclude that there is no longer a reasonable prospect of securing a conviction. In this case, the judge will again order that a not guilty verdict be entered, and the defendant will be formally discharged.
As an alternative to offering no evidence, the CPS may ask that a count ‘lie on the court file’.
This may happen when there are several counts on the indictment and the CPS evidence in respect of each count is strong. If the defendant is prepared to plead guilty to the more serious counts, the CPS may agree to lesser counts being left on the file. In such a case a not guilty verdict will not be entered and (in theory) with the leave of the court the CPS may be allowed to re- open the case at a later date.
What happens if the defendant pleads not guilty at the PTPH?
If the defendant pleads not guilty at the PTPH, the judge will then consider if any further directions are necessary to prepare the case for trial (over and above those given by the magistrates’ court when the case was sent to the Crown Court).
To determine whether further directions may be necessary, the judge will require the prosecution and defence advocates present at the PTPH to be in a position to supply the following information:
(a) a summary of the issues in the case;
(b) details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial;
(c) whether the transcript(s) of the defendant’s police station interview(s) require(s) editing;
(d) whether a defence statement has been served and, if so, whether there is any issue as to the adequacy of the statement;
(e) whether the prosecution will be serving any additional evidence;
(f) whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution;
(g) whether any expert evidence is to be called and, if so, whether any additional directions are needed in respect of this;
(h) whether any further directions are necessary concerning hearsay or bad character evidence;
(i) whether special measures are required for any witnesses;
(j) any facts which can be formally admitted;
(k) any points of law or issues concerning the admissibility of evidence which are likely to arise at trial;
(l) dates of availability to attend trial of the witnesses and the advocates.
At the PTPH, the judge will give any further case management directions that are necessary in the light of the above information disclosed by the parties, and then either fix a date for the defendant’s trial or place the case in the ‘warned list’. The warned list is a list of cases awaiting trial that have not been given a fixed date for the trial to start. If a case is placed in the warned list, the Crown Court will contact the defendant’s solicitor to let them know that the case has been listed for trial shortly before the date when the trial is due to start.
At the conclusion of the PTPH, the defendant will either be released on bail, or remanded in custody pending his trial.
Upon deciding a conviction from the CC is unsafe, when will the CA order a retrial?
Section 7 of the CAA 1968 enables the Court of Appeal to order a retrial where the Court allows an appeal against conviction and where it appears to the Court that ‘the interests of justice so require’.
If the Court is satisfied that the defendant would have been acquitted at trial (for example, had new evidence presented at the appeal been available at the original trial), the Court will not order a retrial.
In other cases, the Court will normally order that a retrial take place unless a retrial would be unfair to the defendant or in some other way inappropriate.
Can a co- defendant rely on a confession made by another defendant?
Section 76A(1) of PACE 1984 allows a defendant to adduce evidence that a co- defendant has made a confession where both defendants plead not guilty and are tried jointly. Clearly a defendant would only want to do this if the co- defendant’s confession doesn’t also implicate that defendant.
Under s 76A(2), however, if the co- defendant who made the confession represents to the court that his confession was obtained as a result of oppression, or in circumstances rendering it unreliable (see above), the court must exclude the evidence of the confession (even if the court believes the confession to be true), unless the court is satisfied that the confession was not obtained in such a way.
The court need only be satisfied on the balance of probabilities that the confession was not obtained either by oppression or in circumstances rendering it unreliable in order for the confession to be admissible when a co- defendant wants to rely on it as opposed to the prosecution.
What is the court’s power to exclude defendant’s bad character?
The court has no power under the provisions of the CJA 2003 to exclude bad character evidence admitted under any gateway other than (d) and (g). Bad character evidence under gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of these gateways are satisfied.
The court does, however, retain a discretionary power under s 78 of PACE 1984 to exclude evidence on which the prosecution propose to rely if the admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
In R v Highton & Others [2005] EWCA Crim 1985, the Court of Appeal held that judges should apply the provisions of s 78 when making rulings as to the use of evidence of bad character, and exclude evidence where it would be appropriate to do so under s 78 (so in reality this will apply to bad character evidence which the prosecution seek to adduce under gateways (c) and (f)).
What type of offence is criminal damage of less than £5,000?
Although criminal damage is an either- way offence, where the value of the property damaged
is less than £5,000 this will also be treated as a summary offence unless the damage was caused by fire.
What is a summary of the plea before venue, allocation and sending procedure?
(a) The prosecution will inform the court of the facts and the defendant’s previous convictions
(if any).
(b) The magistrates shall consider:
(i) any representations made by the prosecution or defence, as to whether summary trial
or trial on indictment would be more suitable; and
(ii) whether the sentence which they would have power to impose for the offence would
be adequate; and
(iii) the Allocation Guideline issued by the Sentencing Council. The Allocation Guideline states that, in general, either- way offences should be tried summarily unless it is likely that the court’s sentencing powers will be insufficient. In addition, it states that the court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case, including those advanced by the defence. The magistrates will do this by considering the Magistrates’ Court Sentencing Guidelines (MCSG) for the relevant offences.
(c) In considering the adequacy of its sentencing powers when dealing with two or more offences, the court should consider its potential sentencing powers in the light of the maximum aggregate sentence the magistrates could impose for all the offences taken together, if the charges could be joined in the same indictment or arise out of the same or connected circumstances.
(d) If the court decides that the offence appears more suitable for trial on indictment, the defendant is sent forthwith to the Crown Court.
(e) If the court decides that the case is more suitable for summary trial, it must explain to the defendant that:
(i) the case appears suitable for summary trial;
(ii) they can consent to be tried summarily or choose to be tried on indictment; and
(iii) if they consent to be tried summarily and are convicted, they may be committed to the Crown Court for sentence.
(f) At this stage, the defendant may request an indication of sentence, ie an indication of whether a custodial or non- custodial sentence would be more likely if they were to be tried summarily and plead guilty. It should be no more specific than that. If an indication of sentence is given, no court (whether a magistrates’ court or not) may impose a custodial sentence for the offence unless such
a sentence was indicated in the indication of sentence. An indication of sentence shall not be binding on any court (whether a magistrates’ court or not), and no sentence may be challenged or be the subject of appeal in any court on the ground that it is not consistent with an indication of sentence.
(g) The court may, but need not, give an indication of sentence. It would appear that the court cannot give an indication of sentence unless the defendant requests one. If the court gives an indication of sentence, the court should ask the defendant whether they want to reconsider the earlier indication of plea that was given.
(h) If the defendant indicates that they want to plead guilty, they are treated as if they had been tried summarily and pleaded guilty. In these circumstances, an indication of a non- custodial sentence will generally prevent a court from imposing a custodial sentence for the offence.
If the defendant does not change their plea to guilty, the indication of sentence shall not be binding on any court, and in these circumstances no sentence may be challenged or be the subject of appeal in any court because it is not consistent with an indication of sentence. Equally, an indication of a custodial sentence does not prevent the court from imposing a non- custodial sentence.
(j) Where the court does not give an indication of sentence, whether requested to do so or not, or the defendant does not indicate that they want to reconsider the indication of plea or does not indicate that they would plead guilty, the court must ask the defendant whether they consent to summary trial or wish to be tried on indictment
(k) If the defendant consents to summary trial, the court shall proceed to summary trial.
(l) The prosecution (not the defence) are allowed to make an application, before summary trial begins and before any other application or issue in relation to the summary trial is dealt with, for an either- way offence allocated for summary trial to be sent to the Crown Court for trial. The court may grant the application only if it is satisfied that the sentence which a magistrates’ court would have power to impose for the offence would be inadequate. Where there is a successful application by the prosecution for the offence to be tried on indictment, the case will be sent forthwith to the Crown Court for trial.
(m) If the defendant does not consent to summary trial, they must be sent forthwith to the
Crown Court for trial.
Note: where the court is dealing with two or more defendants charged with the same offence, if one of the defendants elects trial in the Crown Court, all of the defendants will be sent to the Crown Court for their joint trial regardless of the other defendant(s)’s decision on venue.
When may the police deny bail to a suspect?
Police bail not court bail
When a suspect is charged at the police station, the custody officer must then decide:
(a) whether to keep the person in police custody until they can be brought before a magistrates’ court, or to release them; and
(b) if they decide to release them whether to release them on bail with conditions or without conditions. If one or more of certain circumstances are satisfied may bail be denied to a suspect who has been charged with an offence:
Where a person arrested for an offence is charged with an offence, the custody officer shall, subject to section 25 of the Criminal Justice and Public Order Act 1994, order their release from police detention, either on bail or without bail, unless the custody officer has reasonable grounds :
* to doubt the name or address provided is the suspect’s proper name or address or where such name or address cannot be confirmed;
* to believe that the person arrested will fail to appear in court to answer bail;
* to believe that the detention of the person arrested is necessary to prevent them from committing an offence;
* to believe that detention of the person is necessary to enable a sample to be taken;
* to prevent them from causing physical injury to any other person or from causing loss of or damage to property;
* to prevent them from interfering with the administration of justice or with the investigation of offences or of a particular offence; and
* to believe that the detention of the person arrested is necessary for their own protection.
What is the general rule regarding witness competency?
All persons are competent to give evidence at a criminal trial.
Section 53 Youth Justice and Criminal Evidence Act (YJCEA) 1999 provides a uniform test that applies to all criminal proceedings:
(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.
All competent persons are also compellable. This means that a witness can be compelled to testify by the court issuing a witness summons. Failure to attend court in such circumstances amounts to contempt of court. If, having come to court, the witness refuses to answer questions, this will again be contempt of court which can result in imprisonment either under the general law of contempt or under a specific statute such as s 97 Magistrates’ Courts Act l980.
What conditions need to be met before an adverse inference can be drawn from silence in a police interview?
In R v Argent, the Court of Appeal said that certain conditions had to be satisfied before adverse inferences could be drawn from a defendant’s silence in police interview:
(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.
In Condron v UK, the European Court of Human Rights held that a jury should be directed that an adverse inference from a defendant’s silence could be drawn only if the court was satisfied that the real reason for the defendant’s silence was that they had no answer to the questions that were being put to them, or no answer that would stand up to scrutiny.
In R v Betts and Hall, the Court of Appeal stated that if a defendant remained silent during their initial interview at the police station and then answered questions during a subsequent interview, inferences from their failure to answer questions in the first interview might still be drawn at trial.
Note that it is unlikely, in practice, for a court to draw an adverse inference under s 34(1)
(b). If a defendant places their factual defence on record when interviewed by the police, a court will not then draw an adverse inference if the defendant says nothing when they are subsequently charged. If, conversely, the defendant remains silent in interview and then raises a defence at trial, the court is very likely to draw an adverse inference.
How can a confession made by the defendant outside the police station be challenged under s 78 if the defendant denies making it?
A defendant may sometimes be alleged to have made a confession ‘outside’ the police station when first approached by the police. If the defendant subsequently denies having made such a confession, its admissibility may be challenged under s 78 (and not under s 76(2)(b)).
For example, a confession allegedly made by the defendant when questioned by the police in an interview ‘outside’ the police station is likely to be excluded under s 78 if the police breached the provisions of Code C of PACE 1984 by:
(a) failing to make an accurate record of the defendant’s comments (Code C, para 11.7(a)), as the police would not then be able to substantiate that such comments were in fact made by the defendant;
(b) failing to give the defendant an opportunity to view the record of his comments and to sign this record as being accurate, or to dispute the accuracy of the record (Code C, para 11.11), as the defendant would then be deprived of the opportunity to challenge the accuracy of the police record; or
(c) failing to put this admission or confession to the defendant at the start of his subsequent interview at the police station (Code C, para 11.4), as the whole point of putting the confession to the defendant at the start of the audibly recorded interview is to ensure that the defendant has the opportunity to confirm or deny ‘on the record’ what he is alleged to have said.
How does the custody officer make the decision to detain the suspect?
After opening the custody record and informing the suspect of their rights, the custody officer must determine whether there is already ‘sufficient evidence’ to charge the suspect with the offence for which they have been arrested.
To do this, the custody officer will ask the investigating officer – usually in the presence of the suspect – for details of the evidence that already exists against the suspect.
What are the factors in favour of the Crown Court?
- Greater chance of acquittal
Statistically, more defendants are acquitted following a jury trial in the Crown Court than are acquitted following a trial before a bench of magistrates or a district judge in the magistrates’ court.
Juries are perceived to be more sympathetic to defendants than ‘case- hardened’ magistrates. In particular, if the prosecution case includes evidence from police officers who often give evidence before the same magistrates’ court, it is felt that a defendant will get a fairer hearing in the Crown Court where the jurors are hearing from each of the witnesses for the first time.
Magistrates may be predisposed to favour the evidence of police officers from whom they may have heard evidence in previous cases, whereas jurors are perhaps more likely to question the testimony of police officers whose evidence is disputed by the defendant.
Similarly, if the defendant has several previous convictions before the same magistrates’ court, the magistrates may be aware of such convictions and may be prejudiced against the defendant.
- Better procedure for challenging admissibility of prosecution evidence
The procedure for deciding the admissibility of disputed prosecution evidence is better for the defendant in the Crown Court than in the magistrates’ court.
In the Crown Court, when a dispute over the admissibility of a piece of prosecution evidence (such as a confession) arises, the jury will be asked to leave the court room and the judge will conduct a mini- trial to decide whether or not the evidence should be admitted. This mini hearing is known as a voir dire (or a ‘trial within a trial’).
Only if the judge decides that the evidence is admissible will the jury ever hear about it. If the judge rules the evidence to be inadmissible, the evidence will not be placed before the jury.
Were such a situation to arise in the magistrates’ court because the magistrates are responsible for determining both matters of law and matters of fact, the magistrates themselves would need to determine whether the evidence was admissible.
If the magistrates decided that a piece of prosecution evidence was inadmissible, when considering their verdict, the magistrates would then need to set to one side their knowledge of the existence of that piece of evidence. There is a risk that such knowledge would remain in the back of their minds and affect their decision as to the defendant’s guilt or innocence.
(Although the Crown Court remains the better venue for determining the admissibility of disputed items of prosecution evidence, most magistrates’ courts do now attempt to determine issues of admissibility of evidence at pre- trial hearings rather than at the hearing itself. Such hearings will take place before a different bench of magistrates from the bench who hear the trial, so there is no risk that the defendant will be prejudiced at trial by the magistrates being aware of any item of prosecution evidence which has been found to be inadmissible.)
- More time to prepare the case for trial
If the case against the defendant is complex, as the case will take longer to get to trial in the Crown Court, there will be more time to prepare the defence case. This is also relevant if there are a large number of potential witnesses for the defence who need to be interviewed.
What must the court have regard for when sentencing an adult defendant?
Section 57 of the Sentencing Act 2020 states that a court sentencing an offender aged 18 or over must have regard to the following five purposes of sentencing:
1. the punishment of offenders;
2. the reduction of crime (including its reduction by deterrence);
3. the reform and rehabilitation of offenders;
4. the protection of the public; and
5. the making of reparation by offenders to persons affected by their offence.
The court need not have such regard if the sentence is fixed by law (such as murder, which must attract a sentence of life imprisonment) or offences subject to a statutory minimum, or if the defendant is classed as a dangerous offender.
Representing clients at a sentencing hearing is therefore a very important and regular feature of practising as a criminal defence solicitor.
When is hearsay admissible under statute?
(a) cases where a witness is unavailable – CJA 2003, s 116;
(b) business and other documents – CJA 2003, s 117;
(c) previous inconsistent statements of a witness – CJA 2003, s 119;
(d) previous consistent statements by a witness – CJA 2003, s 120;
(e) statements from a witness which are not in dispute – CJA 1967, s 9; and
(f) formal admissions – CJA 1967, s 10.
What is the procedure for appeal of a bail application by the defence?
A defendant who is refused bail by the magistrates’ court (or who has been refused an application to vary a bail condition) may appeal against this decision to the Crown Court provided the magistrates have issued the ‘certificate of full argument’.
Although a defendant may make an appeal to the Crown Court after the magistrates have made an initial refusal of bail, for tactical reasons most defence solicitors will usually delay making an appeal to the Crown Court until they have made two full applications for bail before the magistrates’ court.
Delaying an appeal until after the second full application before the magistrates maximises the number of potentially successful applications for bail which the defendant will be able to make.
To appeal, the defendant’s solicitor must complete a notice of application (on the prescribed form) as soon as practicable after the magistrates’ court’s decision. This notice needs to be sent to the Crown Court and magistrates’ court and also served on the CPS (and any surety affected or proposed). The notice of application will specify the decision the defendant wants the Crown Court to make (eg to grant bail or vary a bail condition) and each offence the defendant has been charged with.
The notice should also explain why the Crown Court should grant bail (ie set out the arguments for why bail should be granted or conditions varied) as well as explaining any further information or legal argument that has come to light, if any, since the magistrates’ decision. The notice should also set out any suggested conditions to bail.
If the prosecution oppose the appeal, they must notify the Crown Court and the defence at once of the reasons why they are opposing the appeal.
Unless the Crown Court otherwise directs, the appeal should be heard as soon as practicable and in any event no later than the business day after it was served, although note that the Crown Court can vary these time limits.
How can a case be commenced other than by a charge?
For some offences (particularly summary- only offences including many road traffic offences), a suspect may not have been arrested by the police and may not even have needed to attend the police station.
An alternative method of commencing criminal proceedings exists for such offences.
The CJA 2003 has put in place arrangements for commencing prosecutions in this type of case.
Under these arrangements, a relevant prosecutor can now send to the person a document called a ‘written charge’, which charges that person with the offence.
The prosecutor must also send the person charged a document called a ‘requisition’ or single justice procedure notice.
The requisition requires that the person appear before a magistrates’ court at a given time and place to answer the charge.
Interestingly, this has also become a fairly common way to commence proceedings where the suspect has been RUI by the police once they have concluded their investigation and this procedure is therefore also being used in practice for more serious offences.
How do appeals from the magistrates’ court to the Crown Court work?
A defendant convicted in the magistrates’ court (including the youth court) may appeal to the Crown Court in the following circumstances:
(a) if they pleaded guilty, they may appeal against the sentence they received;
(b) if they pleaded not guilty, they may appeal against any resulting conviction and/ or the sentence they received.
The appeal will usually be heard by a recorder or a circuit judge who will sit with an even number of magistrates. This will normally be two magistrates, although up to four magistrates may sit on an appeal.
The prosecution does not have any rights of appeal to the Crown Court against the acquittal of a defendant, or the sentence imposed on a defendant by the magistrates’ court.
They can however appeal to the High Court on a point of law by way of case stated, as can the defence.
What are the benefits of pleading guilty?
The solicitor should advise the client that, were they to plead guilty, the client will receive a reduction in their sentence from the court for entering an early guilty plea
What is the procedure that is followed if a party wishes to appeal by way of case stated from the MC?
1) A party wishing to appeal by way of case stated must apply to the magistrates’ court within 21 days of the relevant decision being made by the magistrates’ court (see CrimPR, r 35.2). This is normally done by writing to the clerk to the magistrates’ court. The application must identify the question of law on which the aggrieved party seeks the view of the High Court.
2) Following receipt of this letter, the magistrates must then ‘state a case’ for the opinion of the High Court. To do this, the clerk to the magistrates (in conjunction with the magistrates or district judge who heard the case) will prepare a draft ‘statement of case’ that will:
(a) specify the decision in issue;
(b) specify the question(s) of law or jurisdiction on which the opinion of the High Court will be asked;
(c) include a succinct summary of:
(i) the nature and history of the proceedings
(ii) the court’s relevant findings of fact and
(iii) the relevant contentions of the parties
(d) if a question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact:
(i) specify that finding and
(ii) include a summary of the evidence on which the court reached that finding.
Once an initial draft of the ‘statement of case’ has been prepared, the clerk will send this out to the CPS and the defendant’s solicitor to enable them to suggest any necessary amendments. Once a final version of the statement of case has been agreed, the clerk will send this to the party making the appeal. That party must then lodge this with the High Court and give notice to the other party that this has been done.
What should a suspect who is released on pre-charge bail be given?
Where a suspect is released on bail, details of the time and date when the suspect needs to re- attend the police station will be contained in a written bail notice given to the suspect by the police.
When the suspect answers their bail, the police may:
(a) release them without charge (if, after making further enquiries, the police have insufficient evidence to charge);
(b) exercise further investigative powers (such as re- interviewing the suspect or conducting an identification procedure);
(c) release the suspect again on bail if their further enquiries are incomplete (but subject to the maximum periods) or, having completed their enquiries, they wish to pass their file to the CPS for advice; or
(d) charge the suspect (if, after making further enquiries, the police now have sufficient evidence to charge).
Under s 76, what would constitute oppression?
Section 76(8) of PACE 1984 states that ‘oppression’ includes ‘torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)’.
In R v Fulling, the Court of Appeal said that ‘oppression’ consisted of ‘the exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens’.
A good example of oppression can be seen in the case of R v Paris – in an audibly recorded interview at the police station, the defendant was bullied and hectored into making a confession. The Court of Appeal said that, other than actual physical violence, it would find it hard to think of a more hostile and intimidating approach adopted by interviewing officers.
What are the consequences of failing to surrender?
If the defendant does not have a reasonable excuse for absconding, the court may either sentence him immediately or adjourn sentence until the conclusion of the substantive proceedings.
The Sentencing Council has published a definitive guideline on failure to surrender to bail.
This suggests that sentence should be imposed ‘as soon as practicable’ but, depending on the facts of the case, this could be immediately or at the end of the substantive case.
Even if the magistrates decide not to impose a separate penalty for the absconding offence, they may decide to refuse the defendant bail in the substantive proceedings, or grant bail but with a much more stringent package of conditions.
The court may be persuaded to make a further grant of bail to the defendant if their failure to surrender was the result of a genuine misunderstanding, or if the defendant voluntarily surrendered to custody.
The defendant is unlikely to be granted bail again, however, if they wilfully failed to surrender and had to be arrested by the police.
When will the suspect make their first appearance at court if the suspect has been denied bail by the police?
If the police refuse to grant bail to a suspect after they have been charged, the suspect will be kept in police custody (unless they are a juvenile) and must be brought before the magistrates’ court as soon as is practicable, and in any event not later than the first sitting of the court after they are charged with the offence.
In practice this means that the suspect will normally appear before the court within 24 hours of being charged. There are remand courts that sit on Saturdays, but not on Sundays.
What is the court’s power to stop a ‘contaminated case’?
Section 107 of the CJA 2003 allows a judge in the Crown Court either to direct the jury to acquit the defendant, or to order a retrial in circumstances where evidence of the defendant’s bad character is ‘contaminated’. Contamination may occur if witnesses have colluded in ordermto fabricate evidence of the defendant’s bad character. Section 107 does not apply to trials in the magistrates’ court.
When will a defendant be given a one-third discount for a guilty plea?
Under the Guideline, the full one- third discount on sentence will only be available where a guilty plea is indicated at the ‘first stage of proceedings’.
This will generally be:
- on a guilty plea at the first hearing in the magistrates’ court;
- on a guilty plea at the first hearing in the magistrates’ court where the case is then committed for sentence to the Crown Court;
- on indication of a guilty plea in the magistrates’ court to an offence triable only on indictment, followed by a guilty plea at the first hearing in the Crown Court.
There are some limited exceptions that may still entitle a defendant to this full reduction if it would have been unreasonable to expect the defendant to indicate a guilty plea at this first hearing.
Who can give authorisation for extension of the maximum period of detention?
Must be given by an officer of the rank of superintendent or above.
When is hearsay admissible in the interests of justice?
This is a ‘catch- all’ provision, allowing the court to admit hearsay evidence that would not otherwise be admissible if it is in the interests of justice to do so. This provision gives the courts a very wide discretion to admit hearsay evidence which is cogent and reliable.
In deciding whether to admit hearsay evidence under s 114(1)(d), the court must have regard to the factors in s 114(2):
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in para (a);
(c) how important the matter or evidence mentioned in para (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why not;
(h) the amount of difficulty involved in challenging the statement; and
the extent to which that difficulty would be likely to prejudice the party facing it.
In assessing these factors, the court will need to have regard to the defendant’s right to a fair trial enshrined in Article 6 of the ECHR (see below).
The Court of Appeal considered the application of s 114(1)(d) and s 114(2) in R v Taylor. The court held that to reach a proper conclusion on whether the evidence should be admitted under s 114(1)(d), the trial judge was required to exercise his judgment in the light of the factors in s 114(2), give consideration to them and to any other factors he considered relevant and then to assess their significance and the weight that in his judgment they carried. There is no need, however, for the judge to reach a specific conclusion in relation to all the factors.
Can the prosecution introduce information in a document that has not been shared with the defence?
Where the CPS wishes to introduce information contained in a document that the defence is entitled to and that document/ information has not been made available to the defence, the court must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it.
What are the advantages of choosing to remain silent in a police interview?
a) No danger of the client incriminating themself by making any admissions, or inadvertently giving the police a piece of evidence which they would not otherwise have obtained.
If the case against the client is weak and the police are hoping to bolster it by getting the client to say something damaging in interview, giving a ‘no comment’ interview may mean that the police will not then have sufficient evidence to enable them to charge the client with the offence, and the client is likely to be released without charge.
What can the solicitor use to find out more about their client’s alleged crime?
a) The custody officer (and the custody record)
b) The investigating officer
c) The client themselveS
What is gateway (c) – it is important explanatory evidence?
Only the prosecution may adduce evidence of the defendant’s bad character under gateway (c).
The gateway is, however, likely to be used only in limited circumstances. Evidence is important explanatory evidence if:
(a) without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and
(b) the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).
Case law does make it clear that where the evidence is clearly understandable without
evidence of bad character, it should not be admitted.
If the prosecution can establish that the test for admitting evidence of the defendant’s bad character through this gateway is satisfied, the court has no power under the CJA 2003 to prevent the admission of this evidence. The court does, however, retain the discretionary power to exclude such evidence under s 78 of PACE 1984.
When will the suspect make their first appearance at court if the suspect has been granted bail by the police?
If a suspect is granted bail by the police after being charged, the date of their first appearance in the magistrates’ court is likely to be within one to two weeks of being charged.
When may conditional bail be imposed?
(a) to prevent the suspect from failing to surrender to custody;
(b) to prevent the suspect from committing an offence whilst on bail;
(c) to prevent the suspect from interfering with witnesses or otherwise obstructing the course of justice (whether in relation to themself or another person); or
(d) for the suspect’s own protection or, if the suspect is a child or young person (ie 17 or under), for their own welfare or in their own interests.
IEE, SPV, PA
When is the bad character of someone other than the defendant admissible?
In contrast to the numerous ways in which a defendant’s bad character may now be admissible in evidence at trial, the bad character of persons other than the defendant (ie, not just other witnesses in the case) is now admissible only on very limited grounds.
These grounds are set out in s 100(1) of the CJA 2003:
(1) … evidence of the bad character of a person other than the defendant is admissible if and only if—
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties agree to the evidence being admissible.
In practice, s 100 will commonly be used by the defence when applying to adduce bad character evidence of the complainant, but note that these provisions are much wider than that and can be relied on by both the defence and the prosecution and apply to any witness giving evidence in the case or indeed to any other person, other than the defendant, even if they are not a witness in the case.
Section 100(1)(a) - Important explanatory evidence
This is very similar to gateway (c) for evidence of a defendant’s previous convictions.
The evidence will be important explanatory evidence only if:
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
(b) its value for understanding the case as a whole is substantial (s 100(2)). ‘Substantial’ in this context is likely to mean more than merely trivial or marginal.
This gateway is not relied on very much in practice. The case of R v Lee [2012] EWCA Crim 316 emphasises that ‘when bad character is admitted it is essential that counsel and the judge focus on the exact basis upon which it is being admitted. A case which is truly one of propensity cannot and must not be dressed up as a case of important explanatory evidence.’
Note that unlike any of the gateways to s 101, under s 100(4), leave of the court will be required if a party wishes to adduce evidence of the bad character of a person other than the defendant under s 100(1)(a).
Section 100(1)(b) – it has substantial probative value in relation to an important matter in issue in the proceedings
Although this ground may apply to any person other than the defendant (and so may apply to a witness for the defence as well as to a witness for the prosecution), it is most likely to arise when the defendant seeks to adduce evidence of the previous convictions of a witness for the prosecution in order to support an allegation that either:
(a) the witness is lying or has fabricated evidence against the defendant; or
(b) the witness themselves is either guilty of the offence with which the defendant has been charged or has engaged in misconduct in connection with the alleged offence:
In R v Weir and Others [2005] EWCA Crim 2866, the Court of Appeal held that evidence of the bad character of a witness which is adduced under s 100(1)(b) may be used either to show that the witness engaged in misconduct in connection with the offence, or to show that the evidence given by the witness lacks credibility because the witness has a propensity to be untruthful.
In assessing the probative value of the evidence of another person’s previous convictions, the court must have regard to:
(a) the nature and number of the events, or other things, to which the evidence relates; and
(b) when those events or things are alleged to have happened or to have existed (s 100(3)).
The term ‘substantial’ is likely to be construed by the courts as meaning more than merely marginal or trivial.
Credibility as a witness
Previous convictions of a witness for the prosecution which may be used to suggest that the evidence given by the witness lacks credibility may be:
(a) convictions for offences where the witness has made a false statement or representation (such as perjury, fraud by false representation, or theft, where the witness has lied to another person as part of the commission of the theft); or
(b) convictions where the witness has been found guilty of an offence to which they pleaded not guilty but were convicted following a trial at which their version of events was disbelieved.
In R v Stephenson [2006] EWCA Crim 2325, the Court of Appeal suggested that previous convictions of a witness which demonstrated a propensity to be dishonest (as opposed to a propensity to be untruthful) may nevertheless be admissible under s 100(1)(b) to undermine the credibility of the witness.
Similarly, in R v Hester [2007] EWCA Crim 2127, the defendant was charged with blackmail and the prosecution called evidence from a witness who had a previous conviction for burglary. The Court of Appeal held that where credibility is in issue in relation to an important witness, the evidence that the witness had previous convictions for dishonesty offences may be admissible as being relevant to the issue of credibility, whether or not the previous convictions involved untruthfulness.
The decision in Stephenson was approved in R v Brewster [2011] 1 WLR 601, which said that whether convictions are persuasive as to creditworthiness depends on their nature, number and age, and it was not necessary for the conviction to demonstrate a propensity to untruthfulness. This represents a different approach to establishing a propensity to be untruthful under s 101(1)(d) (see 9.7.2.4 above).Misconduct in connection with the current offence or guilty of that offence
The other reason for a defendant wanting to raise the bad character of a person other than themselves is to use such evidence to suggest either that:
(a) the other person has committed some form of misconduct in connection with the current offence (for example, a defendant charged with assault may claim that they were acting merely in self-defence, and that they were in fact attacked by their alleged victim); or
(b) the other person is in fact guilty of the offence with which the defendant has been charged.
Although this ground applies equally to witnesses called either by the defence or by the prosecution, it is likely to be used most regularly by a defendant to suggest that a witness for the prosecution either committed the offence with which the defendant is charged or is guilty of some other form of misconduct in connection with that offence.
Misconduct in connection with the current offence
If it is alleged that evidence of another person’s misconduct has probative value because there is a similarity between that misconduct and alleged misconduct in connection with the current offence, the court will have regard to the nature and extent of the similarities and dissimilarities between each of the alleged instances of misconduct (s 100(3)(c)).
In R v Bovell [2005] EWCA Crim 1091, the Court of Appeal held that a judge could admit evidence of previous convictions relied upon to show the propensity of a prosecution witness to commit a particular type of offence if the defendant could show sufficient factual similarities between the earlier offence and the current incident.
Guilty of committing the current offence
If it is alleged that evidence of another person’s misconduct has probative value because it is suggested that the person is responsible for having committed the offence with which the defendant has been charged, the court will have regard to the extent to which the evidence shows or tends to show that the same person was responsible each time (s 100(3)(d)).
Witnesses who are not giving evidence
Although the defendant will usually rely upon s 100(1)(b) in respect of a witness for the prosecution who has previous convictions, it may also be used in relation to persons who are not giving evidence in the case.
Is leave of the court required to adduce evidence under s 100(1)(b)?
Under s 100(4), leave of the court will also be required if a party wishes to adduce evidence of the bad character of a person other than the defendant under s 100(1)(b).
Section 100(1)(c) – all parties to the proceedings agree to the evidence being admissible
If all parties to the case are in agreement, evidence of the bad character of a person other than the defendant will always be admissible.
What factors does the court take into consideration when deciding whether any of the exceptions for right to bail are made out?
In deciding whether any of these grounds is satisfied, the court must take into account the following factors:
(a) the nature and seriousness of the offence (and the probable sentence the defendant will receive for it);
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant’s record in respect of previous grants of bail in criminal proceedings; and
(d) the strength of the evidence against the defendant.
(a) The nature and seriousness of the offence and the probable method of dealing with the defendant for it (and the strength of the evidence against the defendant)
These two factors are often linked. They are most likely to be relevant to a prosecution argument that there are substantial grounds for believing that the defendant would fail to surrender to custody if they were to be granted bail.
If the defendant has been charged with a serious offence that is likely to result in a prison sentence if they are convicted and the evidence against the defendant is strong, the CPS may argue that the defendant will fail to surrender to custody (usually referred to as absconding) to avoid such a fate.
(b)The defendant’s character, antecedents, associations and community ties
(i) Character and antecedents
The reference to a defendant’s character and antecedents is a reference to the defendant’s previous convictions.
A defendant’s criminal record may be raised by the CPS when bail is being considered, to argue that there are substantial grounds for believing that the defendant will commit further offences if they are released on bail.
This is likely to be relevant if the defendant has a history of committing the same (or similar) types of offence as that with which they have been charged.
It will also be an argument raised by the prosecution if the reason for the defendant’s previous offending is ongoing (such as a serial shoplifter who steals to fund a drug addiction), or if the defendant has previously committed offences whilst on bail.
(ii) Associations
The reference to the defendant’s associations may be relevant to a prosecution argument that, if released on bail, there are substantial grounds for believing that the defendant will commit further offences.
For example, if a defendant is known to associate with other criminals, or is alleged to be a member of a criminal gang, the CPS may use this to suggest there are ‘substantial grounds’ to believe that they may commit further offences if released on bail.
The CPS may also suggest that a defendant’s associations are relevant if a witness is known to the defendant and there is a fear that the defendant may attempt to interfere with the witness.
This often arises in the case of domestic assaults when the victim is a relative of the defendant and there is a fear that the defendant may put pressure on the victim to ‘change their story’.
(iii) Community ties
The strength or otherwise of a defendant’s community ties will be relevant to an argument that there are substantial grounds for believing that the defendant will fail to surrender to custody if released on bail.
If, for example, the defendant is unemployed, has no relatives in the local area, has lived in the area only for a short time or is of no fixed abode, the CPS may argue that there is nothing to keep them in the area and nothing to prevent them from absconding.
(c) The defendant’s record in relation to previous grants of bail
If a defendant has previous conviction(s) for the offence of absconding, the CPS is likely to raise this to suggest that there are substantial grounds for believing that the defendant will fail to surrender if they are granted bail in the current proceedings.
What is the evidential burden and what burden does the prosecution have?
At trial, the prosecution will present their case first. At the conclusion of its case, the prosecution must have presented sufficient evidence to the court to justify a finding of guilt and to show that the defendant has a case to answer (this is before the defendant has adduced any evidence).
If the prosecution fails to do this, the defendant’s solicitor (or counsel) will be entitled to make a submission of no case to answer, and to ask the court to dismiss the case.
In such circumstances it is said that the prosecution has not discharged their evidential burden (see the relevant test to apply in R v Galbraith).
What options does the client have in a police interview?
A client whom the police wish to interview has four options:
1) to answer all the questions put to them;
2) to give a ‘no comment interview’;
3) selective silence, where the client answers some questions but not others;
4) to give a ‘no comment interview’, but either during the interview or before being charged, hand a written statement to the police setting out facts the client will rely upon in their defence at trial.
Can a defendant avoid an adverse inference by claiming their refusal to answer questions was based on legal advice?
Following the Beckles and Howell cases, the jury will now be directed by the trial judge that adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that the defendant genuinely and reasonably relied on the legal advice to remain silent.
What are the 7 gateways for admitting bad character evidence?
Evidence of a defendant’s bad character may be raised at trial through one or more of the 7 ‘gateways’ which are set out in s 101(1) of the CJA 2003. Section 101 provides that:
(1) In criminal proceedings evidence of a defendant’s bad character is admissible if, but only if:
(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, or
(g) the defendant has made an attack on another person’s character.
As with the drawing of adverse inferences, a defendant’s bad character cannot of itself prove guilt. The prosecution must adduce other evidence to substantiate their case before the jury or magistrates are allowed to take bad character into account.
Gateway (a) – all parties to the proceedings agree to the evidence being admissible
If the CPS and the defendant are in agreement that the evidence is admissible, it may be admitted under this gateway.
Gateway (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
This gateway allows a defendant to introduce evidence of their own bad character.
A defendant may do this if, for example they only have very minor previous convictions and do not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions. Another example of when a defendant may do this is if they pleaded guilty on previous occasions but are pleading not guilty to the current matter. The defendant may use such convictions to say to the jury that they accept their guilt when they have committed an offence, but on this occasion they are pleading not guilty because they genuinely have not committed the offence charged.
In R v Paton, the defendant was charged with kidnapping, false imprisonment and firearms offences after he was alleged to have blindfolded and interrogated the manageress of a garden centre about the security systems at the centre, and then locked her in the boot of her car. Various items found in the defendant’s car suggested that the defendant had been the kidnapper. The defendant raised evidence of his own bad character by claiming that these items had come from a burglary he had committed on an earlier occasion, and that he was not guilty of the more serious offences charged.
Gateway (c) – it is important explanatory evidence
Only the prosecution may adduce evidence of the defendant’s bad character under gateway (c).
The gateway is, however, likely to be used only in limited circumstances. Evidence is important explanatory evidence if:
(a) without it, the magistrates or jury would find it impossible or difficult properly to understand the case; and
(b) the value of the evidence for understanding the case as a whole is substantial (CJA 2003, s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).
Case law does make it clear that where the evidence is clearly understandable without
evidence of bad character, it should not be admitted.
If the prosecution can establish that the test for admitting evidence of the defendant’s bad character through this gateway is satisfied, the court has no power under the CJA 2003 to prevent the admission of this evidence. The court does, however, retain the discretionary power to exclude such evidence under s 78 of PACE 1984.
Gateway (d) – it is relevant to an important matter in issue between the defendant and the
prosecution
In practice this is by far the most important gateway relied on by the prosecution. Important matters in issue between the defendant and prosecution include:
(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged (except where his having such propensity makes it no more likely that
he is guilty of the offence); and
(b) the question whether the defendant has a propensity to be untruthful (except where it is not suggested that the defendant’s case is untruthful in any respect).
Only the prosecution may adduce evidence of a defendant’s bad character under gateway (d).
Propensity to commit an offence of the kind charged
The CPS may place before the court evidence that a defendant has previous convictions in order to suggest that the defendant has a propensity to commit offences of the kind with which they are currently charged.
To place such evidence before the court, the CPS must first satisfy the court that establishing such propensity makes it more likely that the defendant committed the offence.
Section 103(2) of the CJA 2003 states that:
A defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of:
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
This subsection does not apply in the case of a particular defendant if the court is satisfied that, as a result of the time which has passed since the conviction (or for any other reason), it would be unjust for it to be applied.
Two offences will be of the same description as each other if the statement of the offence in a written charge or an indictment would, in each case, be in the same terms.
Two offences will be of the same category as each other if they belong to the same category of offences prescribed by the Secretary of State. The Secretary of State has so far prescribed two categories of offences which are in the same category:
the sexual offences category, which specifies a number of sexual offences committed against children under 16 years of age; and
(b) the theft category, which includes the following offences:
(i) theft
(ii) robbery
(iii) burglary
(iv) aggravated burglary
(v) taking a motor vehicle or conveyance without authority
(vi) aggravated vehicle taking
(vii) handling stolen goods
(viii) going equipped for stealing
(ix) making off without payment
(x) any attempt to commit any of the above substantive offences
(xi) aiding, abetting, counselling, procuring or inciting the commission of any of the
above offences.
Can offences if they are not of the same description or the same category as the offence charged by used to demonstrate a propensity?
Even if an earlier offence is not of the same description or in the same category as the offence charged, evidence of the defendant’s conviction for the earlier offence may still be admissible under this gateway if there are significant factual similarities between the offences, since this would fall within the definition of having a propensity to commit offences of the kind with which the defendant is charged.
Propensity to be untruthful
The CPS may also place before the court evidence of a defendant’s previous convictions to show that the defendant has a propensity to be untruthful and therefore that evidence given by the defendant at trial may lack credibility.
The CPS will be allowed to do this only if it is suggested that the defendant’s case is in any way untruthful.
The Court of Appeal held that a defendant’s previous convictions will not be admissible to show that the defendant has a propensity to be untruthful unless:
(a) the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (because they had made false representations); or
(b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed.
What is meant by manner in which the previous offence was committed?
The court drew a distinction between a propensity to be dishonest and a propensity to be untruthful.
Only if a defendant’s previous convictions demonstrated a propensity to be untruthful will they become admissible under this gateway.
The court stressed that the only types of offence that would demonstrate such a propensity were offences where the defendant had actively sought to deceive or mislead another person by the making of false representations.
This includes previous convictions for perjury and offences involving an active deception of another (such as fraud by false representation), but not other offences where dishonesty forms part of the mental element of the offence but where the defendant has not actually been untruthful and has not actively deceived anyone.
For example, a previous conviction for theft is unlikely to demonstrate a propensity to be untruthful because, unless the defendant had actually sought to mislead or had lied to another person as part of the commission of the theft, although the defendant had acted dishonestly, they had not been untruthful.
Offences of any description may also fall within this part of gateway (d) if the defendant pleaded not guilty, testified but was convicted following a trial at which the court disbelieved their version of events, since this will demonstrate that the defendant has been found by a court to have been untruthful on a previous occasion.
e.g. Kate is charged with common assault. She is pleading not guilty and will raise the defence of alibi at trial. Kate has several previous convictions for various offences. On each occasion she pleaded not guilty and raised the defence of alibi but was convicted following a trial in which her alibi was disbelieved. The CPS may attempt to raise these previous convictions in evidence to show that Kate has a propensity to be untruthful.
How is a custodial sentence determined?
Most offences which carry a custodial sentence allow the sentencing court a discretion as to whether a custodial sentence should be imposed, and the length of any such sentence.
There are a limited number of exceptions where an offence carries either a mandatory sentence or a mandatory minimum term of imprisonment. For example, a defendant convicted of murder will receive a mandatory sentence of life imprisonment (Murder (Abolition of Death Penalty) Act 1965, s 1(1)).
Where the court has a discretion whether or not to pass a custodial sentence, it must apply the threshold test set out in s 230 of the Sentencing Act 2020:
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.
This test is known as the custody threshold. Only if this threshold is passed may the court impose a custodial sentence. If the custody threshold has been passed, this does not necessarily mean that a custodial sentence should automatically be imposed.
In R v Seed; R v Stark (2007), the Court of Appeal said that, where the custody threshold had only just been passed, a guilty plea or very strong personal mitigation might make it appropriate for a non- custodial sentence to be imposed.
Note that, according to s 230(4), the custody threshold test does not apply where an offender fails to express a willingness to take part in a community sentence.
If the custody threshold is passed and the court decides to impose a custodial sentence, the court must then consider the length of the custodial sentence.
What are the four different types of identification procedure?
(a) video identification;
(b) an identification parade;
(c) a group identification; and
(d) confrontation by a witness.
When is the defence entitled to received IDPC?
A defendant is entitled to receive IDPC for all offences (ie summary only, either- way and offences triable only on indictment). In practice, this will be provided in a digital format.
What is the maximum length of time legal advice can be delayed?
The length of any delay can be for a maximum of 36 hours from the relevant time.
What is the CA test for dismissing an appeal from the CC?
The Court must dismiss the appeal unless it considers that the conviction is unsafe.
If the conviction is unsafe, the Court must then decide whether to order a retrial.
When might a written statement be used in a police interview?
Handing in a written statement to the police is a useful strategy to employ if the solicitor considers that the client needs to place their version of events on record to avoid an adverse inference being drawn at trial (if, for example, the client has a positive defence such as self- defence or alibi), but the solicitor is concerned that the client may perform badly if they answer questions in interview.
This is likely to be the case if the client is young, emotional or has never previously been arrested and detained at the police station. If the client is to hand in a prepared written statement to the police, the solicitor will advise the client to answer ‘no comment’ to questions put by the police in interview.
The written statement will be read out and then handed to the police either during the interview, or after the interview but prior to the client being charged.
What happens if a suspended sentence is breached?
The sentence of imprisonment will not take effect unless either the defendant fails to comply with any requirements which have been imposed or, during the operational period, the defendant commits a further offence and the court sentencing the defendant for the ‘new’ offence orders that the original sentence of imprisonment is to take effect.
If a defendant is found either to be in breach of a requirement or to have committed a further offence during the operational period, if the suspended sentence was imposed by the magistrates’ court, they may be dealt with for the breach either by the magistrates’ court or by the Crown Court. If the suspended sentence was imposed by the Crown Court, any breach may generally be dealt with only by the Crown Court.
A court dealing with a defendant who has breached a suspended sentence must do one of the following:
(a) order the custodial sentence originally suspended to take effect unaltered;
(b) order the custodial sentence to take effect, but for a shorter period of time, and/ or substitute a lesser custodial period;
(c) amend the original order by imposing more onerous community requirements on the defendant; or
(d) amend the original order by extending the operational period, or by extending the supervision period.
The court must make an order under (a) or (b) above unless it considers that it would be unjust to do so in view of all the circumstances.
So for example, the court may decide it would be unjust to make an order under (a) or (b) if the defendant is coming to the end of the supervision period (having complied with the requirements imposed) or if, in the case of a defendant convicted of a further offence, the new offence is a minor matter or is a completely different type of offence to the offence originally committed.
The court will also take into account the time which has elapsed since the original offence was committed and any change in the defendant’s circumstances.
If the court does make an order under (a) or (b), the term of imprisonment for the original offence will be consecutive to the sentence imposed for any new offence.
The court can also impose a fine of up to £2,500 for breach of a suspended sentence order where it decides not to give immediate effect to the custodial sentence.
Generally, the court will activate a suspended sentence and order it to run consecutively with any additional sentence imposed for the new offence.
What is the procedure for a witness identifying a suspect from photographs?
The police will keep photographs of individuals with previous convictions and may show these photographs to a witness when they are trying to identify the person responsible for a crime.
Before a witness is shown any photographs, that witness’ first description of the suspect must
have been recorded (Code D, Annex E, para 2).
The witness must be shown at least 12 photographs at a time. As soon as a witness makes a positive identification from photographs, no other witnesses should be shown the photographs.
The witness who made the identification and any other witnesses should then be asked to take part in one of the identification procedures.
The suspect or his solicitor must be notified if a witness attending an identification procedure has previously been shown photographs, or a computerised or artist’s composite.
If the case subsequently comes to trial, when giving evidence the witness will not be allowed to say that they originally identified the suspect from photographs shown to them by the police.
Where will the defendant be kept whilst in custody?
Defendants who are remanded in custody will normally be kept at a prison or remand centre.
However, statute allows a magistrates’ court to remand a defendant to police custody for up to three days if this is necessary for the purposes of making enquiries in relation to offences other than the offence for which the defendant has been charged.
The CPS is likely to apply for such a remand when a defendant has been arrested and charged for one offence, but the police suspect their involvement in other matters about which they wish to interview them.
A defendant made subject to such a remand must be brought back before the magistrates as soon as the need to make enquiries has ceased.
Whilst they are at the police station, the defendant is entitled to the same rights as if they had been arrested and detained prior to charge.
What is the scope of a representation order granted to a defendant for a summary- only matter, or an either- way matter which is dealt with by the magistrates’ court?
The representation order granted to a defendant for a summary- only matter, or an either- way matter which is dealt with by the magistrates’ court, will cover all the work done by the solicitor in connection with those proceedings in the magistrates’ court, and may be extended to cover an appeal to the Crown Court against conviction and/ or sentence.
What is a youth caution?
Section 66ZA of the Crime and Disorder Act (CDA) 1998 sets out the circumstances in which a youth caution can be offered, namely where:
(a) there is sufficient evidence to charge the offender with an offence;
(b) the offender admits that they committed the offence; and
(c) the police do not consider that the offender should be prosecuted or given a youth conditional caution in respect of the offence, ie it is not in the public interest to deal with the matter in another way.
A youth caution given to a person aged 17 or under must be given in the presence of an appropriate adult.
In determining whether a caution is available the police must also take into account the seriousness of the offence.
When will other offences be taken into consideration when sentencing?
Defendants who are being sentenced for a particular offence may ask the court to take other offences into consideration (TIC) when considering the sentence to be imposed. In addition to the offence for which they were charged and convicted a defendant may have committed several similar types of offence for which they have not yet been prosecuted, but for which they may subsequently face prosecution. It is likely to be in the defendant’s interests that all matters outstanding (or potentially outstanding) against them should be dealt with at the same time.
The usual practice is for the police to present the defendant with a list of additional offences for which they are under investigation and may subsequently be charged. The defendant may ask the court to take some or all of these other offences into consideration when deciding the sentence they are to receive for the offence(s) for which they are currently before the court.
The offences to be taken into consideration should be of a similar nature to, or less serious than, the offence(s) for which the defendant has been convicted.
The manner in which the court deals with offences taken into consideration depends on the context of such offences. Although in theory these additional offences should increase the severity of the sentence the defendant receives, in practice they might add nothing, or very little, to the sentence the court would otherwise have imposed.
The advantage to the defendant of having offences taken into consideration is that this ‘wipes the slate clean’, because they will not subsequently be prosecuted for such offences. The advantage to the police is that a large number of TICs improves their clear- up rates without the need to commence a fresh prosecution against the defendant.
What happens in terms of legal aid if a defendant has failed the magistrates’ court means test and the case is subsequently committed to the Crown Court?
For either- way offences, where a defendant has failed the magistrates’ court means test and
the case is subsequently committed to the Crown Court, funding will not start until the day after the sending hearing and will only cover work done in the Crown Court, and only if the defendant passes the means eligibility test in the Crown Court.
At the conclusion of the case, the defence solicitor will then claim costs incurred under the representation order from the LAA.
What is a significant statement?
The terms ‘significant statement’ is defined as a statement which appears capable of being used in evidence against the suspect at trial, in particular a direct admission of guilt.
e.g. assault at a pub and the suspect says before the interview “I came from the pub and was only acting in self-defence”. This is a partial admission.
When may a conflict of interest arise?
A solicitor will often be asked to advise two (or more) suspects at the police station who are jointly alleged to have committed an offence.
Although a solicitor is allowed to act for two or more suspects where there is no conflict of interest, the difficulty faced by a solicitor at the police station is spotting when such a conflict may arise.
On arrival at the police station the solicitor will know little more than the names of the clients and the offence for which they have been arrested.
Until the solicitor knows what the police version of events is (and what version of events their potential clients are giving), the solicitor is not going to know whether there is an actual or potential conflict of interest.
It is the responsibility of the solicitor to determine whether a conflict of interest exists. If the custody officer suggests to the solicitor that there is a conflict, the solicitor should ask the officer to clarify why they consider this to be the case, but stress to the officer that ultimately it is the decision of the solicitor alone as to whether a conflict exists and not that of the police.
What initial steps must the custody officer take?
The custody officer is responsible for opening and then maintaining a custody record for each suspect who has been arrested and brought to the police station.
When will the court allow witness summons?
The court will issue a witness summons 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. The defendant’s solicitor will usually ask a potential defence witness to confirm in writing that they will attend court.
If a negative response is received, or if, as is much more likely, no response is received, the solicitor should then write to the court requesting that it issue a witness summons. The court will issue a witness summons requiring the witness to attend the trial.
What are the difference stages of a criminal trial in the magistrates’ court?
In the magistrates’ court the magistrates decide matters of both fact and law.
In a Crown Court trial, these functions are split between the judge and the jury. The jury (made up of 12 members of the public) will decide any matters of fact which are in dispute and will ultimately decide upon the defendant’s guilt or innocence.
The judge will resolve any disputes that arise over points of law during the course of a trial, and will direct the jury as to the relevant law which they must apply to the facts of the case when they retire to consider their verdict.
Although the judge will also sum up for the jury the evidence which they have heard before the jury retire to consider their verdict, the jury are solely responsible for deciding what the true facts of the case are.
The judge will also be responsible for sentencing the defendant in the event of a finding of guilt by the jury.
The advocates appearing on behalf of the prosecution and defence will either be solicitors who have obtained their higher rights of audience qualification or barristers.
Change of plea from guilty to not guilty
Rule 25.5 of the CrimPR sets out the procedure to be followed if a defendant who has pleaded guilty wants to change his plea to not guilty. The defendant must apply, in writing, as soon as practicable after becoming aware of the grounds for making such an application to change a plea of guilty (eg if the defendant had misunderstood the prosecution case). A very similar procedure applies to changing plea in the magistrates’ court (r 24.10).
Order of events
The procedure at a trial in the Crown Court is very similar to that in the magistrates’ court, but with some important differences, many of which are due to the split functions between the trial judge and the jury referred to above.
The order of events is as follows:
(a) The jury will be sworn in (commonly referred to as being ‘empanelled’). The jury will comprise a randomly selected panel of 12 members of the public between the ages of 18 and 75, whose names are on the electoral roll for the local area and who have resided in the UK for at least five years. Certain persons are ineligible for jury service (for example, anyone suffering from a mental disorder), and certain classes of people are disqualified from being jurors (for example, anyone currently on bail in criminal proceedings and many who have previous convictions for which they have served a custodial sentence (Juries Act 1974, s 1)).
Note that the defendant will usually have already been arraigned and entered their not guilty plea(s) at the PTPH. If for some reason this has not yet taken place, the arraignment will usually occur before the jury is empanelled so that the jury is not prejudiced by hearing the defendant plead not guilty to some of the offences on the indictment and guilty to others. The court clerk will then inform the jury what counts on the indictment to which the defendant has pleaded not guilty but will not say anything about the guilty pleas.
(b) The prosecutor will then give an opening speech to the jury, explaining what the case is about and what evidence the prosecution intends to call. The opening speech will usually contain the following elements:
(i) the legal elements of the offence(s) on the indictment;
(ii) an outline of the evidence the prosecutor intends to call; and
(iii) an explanation of the operation of the burden and standard of proof in a criminal case
The prosecutor may also highlight to the jury any points of law that they anticipate may arise during the case and possible defences open to the defendant.
(c) Each prosecution witness will then be called in turn to give evidence in just the same way as in the magistrates’ court, starting with the complainant. Each witness will be examined in chief by the prosecutor, cross- examined by the defence advocate and then (if necessary) re- examined by the prosecutor. The prosecutor will read out the statements of any witness whose evidence has been accepted by the defendant under the s 9 CJA 1967 procedure without the witness who gave the statement being required to attend court in person. The prosecutor will also read out the statement of any witness whose evidence is to be admitted as hearsay evidence.
(d) If any disputes as to points of law or arguments as to the admissibility of evidence arise, a hearing known as a ‘voir dire’ (or a ‘trial within a trial’) will take place in the absence of the jury. Such hearings normally arise in the context of disputes as to the admissibility of a piece of evidence upon which the prosecution seek to rely (for example, a disputed confession). It is normal practice for the defence to notify the prosecutor prior to the trial of any items of prosecution evidence of which they will seek to challenge the admissibility at trial. Often the issue is dealt with at a hearing prior to the trial date and the judge may rule on the admissibility then; at times it is dealt with on the day of trial prior to the jury being ‘empanelled’. Where it is not resolved before the start of the trial, the prosecutor, having advance notice of the issue, will not mention these items of evidence during their opening speech.
When the relevant point is reached during the presentation of the prosecution case, the judge will ask the jury to retire and will then conduct the voir dire. The judge will hear evidence from witnesses, and then legal submissions from both parties’ advocates about the item of evidence in dispute. The judge will then make their ruling. If the judge rules that a particular piece of evidence is inadmissible, the jury will never hear about that piece of evidence. If the judge rules that the evidence is admissible, the party wishing to rely on that evidence (usually the prosecution) may then raise it during the trial. It will still be open to the other party (usually the defence) to attempt to undermine the reliability or cogency of that evidence either when cross- examining the witness giving the evidence, or when examining- in- chief their own witnesses.
(e) At the conclusion of the prosecution case, defence counsel may make a submission that there is no case for the defendant to answer. This submission will be made to the judge in the absence of the jury. The test which the judge will apply in deciding whether there is a case to answer is the same ‘Galbraith test’, which we looked at for summary trials.
(f) If the submission of no case to answer is successful, the jury will be asked to return, and the judge will instruct them to return a verdict of not guilty. If the submission of no case to answer is unsuccessful, the judge may allow the defendant to change their plea from not guilty to guilty at this stage. A defendant may wish to do this if, for example, they have admitted their guilt to their solicitor but put the prosecution to proof of their case.
A defendant may also wish to change their plea to guilty at the end of the prosecution case if the trial judge has made a ruling on a point of law, or on the admissibility of a piece of evidence, which deprives the defendant of a defence upon which they had hoped to rely.
(g) If the submission of no case to answer is unsuccessful (and the defendant does not seek to change his plea), or no submission is made, the defence advocate will then present the defendant’s case. If the defence intend calling a witness or witnesses in addition to the defendant, defence counsel is entitled to make an opening speech to the jury. They are not entitled to do this if only the defendant is to give evidence. If there is more than one defendant, each defendant will present their case in turn. The order in which this is done will follow the order in which the defendants’ names appear on the indictment.
(h) Witnesses for the defence will then be called to give evidence. The defendant will be called first (assuming they are to give evidence). Should the defendant fail to give evidence, the judge will direct the jury that they may draw an adverse inference from such silence under s 35 of the CJPOA 1994. Each defence witness will be examined in chief by the defence advocate, cross- examined by the prosecutor and then (if necessary) re- examined by the defence advocate.
At the conclusion of the defence case, both prosecuting and defence advocates will deliver a closing speech to the jury. The prosecutor will give their closing speech first, followed by the defence.
(j) Before the jury retire to consider their verdict, the judge will then give their ‘summing up’ to the jury. The summing up has two parts, namely directions on the law and a summary of the evidence.
When the judge directs the jury on the law, they will cover three areas:
(i) the burden and standard of proof;
(ii) the legal requirements of the offence; and
(iii) any other issues of law and evidence that have arisen during the trial (for example, a Turnbull warning in the case of disputed identification evidence, or a direction as to the drawing of adverse inferences under ss 34 to 37 of the CJPOA 1994).
A very common ground of appeal raised by defendants following conviction at a trial in the
Crown Court is that the judge has misdirected the jury on a point of law or evidence.
When the judge gives the jury a summary of the evidence, they will provide the following:
(i) a succinct summary of the issues of fact that the jury has to decide;
(ii) an accurate and concise summary of the evidence and arguments raised by both
prosecution and defence; and
(iii) a correct statement of the inferences the jury is entitled to draw from their conclusions
about the facts.
At the end of the summing up, the judge will tell the jury to appoint a foreman and will instruct them to retire to consider their verdict and to reach a unanimous conclusion.
(k) The jury will then retire to consider their verdict. The deliberations of the jury are private and must remain completely secret. The jurors are permitted to consider only the evidence they have heard at trial when deciding their verdict and are not permitted to discuss the case with anyone other than their fellow jurors.
The jury must decide their verdict unanimously, although a majority verdict of 11:1 or 10:2 will be accepted if, after at least 2 hours and 10 minutes, unanimity is not possible (Juries Act 1974, s 17).
If the case was lengthy or in any way complex, the judge is likely to wait much longer than this minimum period before telling the jury that they are prepared to accept a majority verdict.
If any jurors have been discharged during the trial then the majority verdict requirements reflect this, so where there were only 11 jurors, the majority must be 10:1. If there were only 10 jurors, it must be 9:1 and where there are only nine jurors then only a unanimous verdict is acceptable.
(l) If the jury cannot reach a majority verdict within a reasonable time, the judge will discharge the jury. The prosecution is then likely to request a retrial before a new jury.
(m) If the jury finds the defendant not guilty, the defendant will be discharged by the judge and told that they are free to go. If the defendant’s case was not funded by way of a representation order, the judge will usually order that their legal costs be paid from central funds (ie by the state).
(n) If the jury finds the defendant guilty, the judge will then proceed to sentence the defendant. The judge will either sentence the defendant immediately, or, if necessary, adjourn sentence so that pre- sentence reports can be obtained. If the judge adjourns sentence, they will remand the defendant either on bail or in custody.
Although there is a presumption in favour of bail for a defendant who has been convicted but not yet sentenced, if the sentencing hearing has been adjourned so that pre- sentence reports may be prepared, a defendant who has been convicted of a serious offence is very unlikely to be granted bail before sentence. The judge is likely to refuse the defendant bail on the grounds either that the defendant will fail to surrender to custody, or that it would be impractical to prepare the report unless the defendant is in custody.
What happens if, following a guilty plea to an either way offence, the magistrates court decides their sentencing powers are insufficient?
If the magistrates decide that their sentencing powers are insufficient, they will commit the defendant to Crown Court for sentence. This section allows the magistrates to commit the defendant to Crown Court for sentence if they consider that the offence (or, if there is more than one offence, the combination of the offences) is so serious that the Crown Court should have the power to deal with the defendant as if they had been convicted at a Crown Court trial.
If the defendant is committed to the Crown Court for sentence, they will be remanded either in custody, or on bail. In most cases where a defendant pleads guilty at the plea before venue hearing and is committed to the Crown Court for sentence, the magistrates will not alter the position as regards bail or custody. Thus, when a defendant who has been on bail enters a guilty plea, the magistrates are likely to grant them bail, even if they anticipate that the defendant will receive a custodial sentence at the Crown Court. If a defendant who has been in custody enters a guilty plea at the plea before venue hearing, they are likely to remain in custody prior to the sentencing hearing at the Crown Court.
What is a Newton hearing?
Sometimes a defendant may plead guilty to the charge they face but dispute the specific factual version of events put forward by the CPS.
If the dispute concerning the correct version of events may have a bearing on the type of sentence the court imposes, the court must either accept the defendant’s version of events, or allow both the CPS and the defendant to call evidence so that the court can determine the true factual circumstances of the offence on which the defendant’s sentence will be based.
This is referred to as a Newton hearing, following the case of R v Newton (1983) 77 Cr App R 13.
What are the disadvantages of choosing to remain silent in a police interview?
a) Adverse inferences
The disadvantage of a client giving a ‘no comment’ interview is that, if the client is subsequently charged and pleads not guilty, the magistrates or jury may in certain circumstances draw an adverse inference under ss 34, 36 or 37 from the client’s silence in interview.
What is the role of the appropriate adult?
The Home Office has produced a document entitled Guide for Appropriate Adults that will be issued to an appropriate adult upon their arrival at the police station.
The guidance provides that the appropriate adult has ‘a positive and important role’, and that
the appropriate adult is not at the police station simply to act as an observer but rather to ensure that the suspect ‘understands what is happening to them and why’.
The key roles and responsibilities of an appropriate adult are:
(a) to support, advise and assist the suspect, particularly when the suspect is being questioned;
(b) to ensure that the suspect understands their rights whilst at the police station, and the role played by the appropriate adult in protecting those rights;
(c) to observe whether the police are acting properly, fairly and with respect for the rights of the suspect; and
(d) to assist with communication between the suspect and the police.
The guidance makes it clear that it is not the role of the appropriate adult to provide the suspect with legal advice, and any conversations the appropriate adult has with the suspect are not covered by legal privilege.
An appropriate adult should consider whether legal advice from a solicitor is required. Even if the juvenile or mentally vulnerable suspect indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the suspect.
However, the suspect cannot be forced to see the solicitor if they are adamant that they do not wish to do so.
The custody officer should explain a juvenile’s rights whilst at the police station in the presence of the appropriate adult, or repeat those rights in the presence of the appropriate adult if they have already been explained to the juvenile before the appropriate adult arrived at the police station.
What is the procedure for appeal of a bail by the prosecution?
If the magistrates grant bail to a defendant who has been charged with an imprisonable offence, the has CPS the right to appeal against this decision to a Crown Court judge in chambers.
Essentially the main requirements contain three sets of deadlines to follow:
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).
The defendant will therefore be remanded in custody by the magistrates until the appeal is heard.
The Code for Crown Prosecutors provides that this power should be used ‘judiciously and responsibly’, and so the power to appeal is not to be used merely because the Crown Prosecutor disagrees with the decision: ‘it should only be used in cases of grave concern.’
What additional right do juveniles have in addition to the right to have a person informed of their arrest and the right to receive free and independent legal advice from a solicitor?
In addition, however, if a juvenile has been arrested, the custody officer must, if practicable,
find out the person responsible for their welfare.
That person may be:
(a) the juvenile’s parent or guardian;
(b) if the juvenile is in local authority or voluntary organisation care, the person appointed by that authority or organisation to have responsibility for the juvenile’s welfare; or
(c) any other person who has, for the time being, assumed responsibility for the juvenile’s welfare.
That person must be informed as soon as practicable that the juvenile has been arrested, why they have been arrested and where they are being detained.
This right cannot be delayed.
Moreover, if a juvenile is known to be the subject of a court order under which a person or organisation is given any statutory responsibility to supervise or monitor them (for example, a supervision order), reasonable steps must also be taken to notify that person or organisation.
The person notified is known as the ‘responsible officer’ and will usually be a member of a Youth Offending Team.
How must interviews be conducted if they take place at the police station?
Interviews that take place in the police station must comply with the requirements of Codes C and E.
Such interviews are recorded (usually on tape, disc or digitally depending on the police force area) and are referred to in the Codes of Practice as ‘audibly recorded’ interviews.
Code E provides detailed guidance as to the procedure that needs to be followed in such interviews.
The interview will normally be recorded on two or three tapes/ discs or as one digital recording.
If the recording is on tape/ disc, the master tape/ disc, is sealed in the presence of the suspect at the end of the interview.
This seal will only be broken, and the tape/ disc opened at trial, if there is any dispute about what was said.
One of the other tapes/ discs is called a working copy and will be used by the investigating officer to prepare a written summary or transcript of the interview if the suspect is subsequently charged with an offence.
Some police forces will use a third tape/ disc, which will be given to the suspect if they are subsequently charged so they will also have a record of what was said in the interview and which they may pass on to their solicitor if they are legally represented.
What are offences triable on indictment?
These are the most serious form of criminal offence and must be dealt with by the Crown Court (you may sometimes see these referred to as ‘indictable- only offences’).
Although a defendant charged with an offence triable only on indictment will make their first appearance before the magistrates’ court, the magistrates will immediately send the case to the Crown Court.
Examples of such offences include murder, manslaughter, causing grievous bodily harm/ wounding with intent, rape, robbery, aggravated burglary, blackmail, kidnap and conspiracy.
What next steps does the solicitor need to obtain from the investigating officer?
The solicitor then needs to find out from the investigating officer what their intentions are. For example, is the client going to be interviewed straight away, will the police require the client to take part in an identification procedure, or to provide fingerprints or samples?
It may also be useful to ask the investigating officer their views on bail as this is usually something the client will be concerned about.
What is a solicitor’s role at the police station?
The solicitor’s only role in the police station is to protect and advance the legal rights of their client.
On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens the prosecution case.
What happens when a defendant breaches a community sentence?
The first thing that will happen when a defendant, without reasonable excuse, breaches a community order, is that the defendant will receive a warning from the officer from the Probation Service who is supervising the defendant’s compliance with his generic community order.
If, within the following 12 months, the defendant again fails without reasonable excuse to comply with the requirements of the order, the officer will report this matter to the court which imposed the order in the first place and the defendant will be required to appear before that court.
If the court is satisfied that the defendant has, without reasonable excuse, failed to comply with the requirements of the order, the court must:
(a) amend the order so as to impose requirements on the defendant which are more onerous (for example, by increasing the amount of unpaid work the defendant is required to complete); or
(b) revoke the order completely and re- sentence the defendant for the offence, but without taking into account the usual custody threshold; or
(c) where the defendant has wilfully and persistently failed to comply with the order, the court may revoke the order and impose a custodial sentence. This can be done even if the original offence was not punishable by way of a custodial sentence.
What is gateway (e) - it has substantial probative value in relation to an important matter in issue
between the defendant and a co- defendant?
This gateway may be used by one defendant to admit evidence of another defendant’s bad character. It cannot be used by the CPS.
A co- defendant is likely to want to admit evidence of a defendant’s bad character to demonstrate that the other defendant has a propensity to be untruthful (and thus to undermine the credibility of the evidence given by that defendant), or to show that the other defendant has a propensity to commit the kind of offence with which they have both been charged (thereby suggesting that it is the other defendant, rather than the co- defendant, who committed the offence).
Propensity to commit offences of the same kind
A co- defendant may therefore want to introduce in evidence the fact that a defendant has previous convictions for offences of the kind with which they have both been charged, in order to show that the defendant has a propensity to commit such offences and is therefore the more likely of the two to have committed the current offence.
A co- defendant who seeks to introduce evidence of a defendant’s previous convictions for this purpose will need to demonstrate that such convictions are relevant to an important matter in issue between himself and the defendant, and that the relevance of such convictions is more than merely marginal or trivial.
e.g. If one defendant has previous convictions for offences of violence, this has a substantial probative value to the issue between them, namely, which of them was in fact responsible for the offence.
Propensity to be untruthful
Section 104(1) of the CJA 2003 states:
(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co- defendant’s defence.
This part of the gateway is most relevant where the defendants enter into what is called a ‘cut- throat’ defence. This occurs when there are two (or more) defendants jointly charged with an offence, and each defendant pleads not guilty and blames the other(s) as having committed the offence.
In such a situation, it will be an advantage for a co- defendant to be able to adduce evidence of his fellow defendant’s previous convictions, in order to undermine the credibility of that defendant’s evidence and to suggest that their version of events is the more credible.
The most relevant previous convictions of a defendant which a co- defendant will seek to adduce in evidence in order to demonstrate that the defendant has a propensity to be untruthful will be convictions for specific offences which involve the making of a false statement or representation (for example, perjury or fraud by false representation), or convictions for any offence where the defendant was convicted at trial after entering a not guilty plea and testifying but not being believed by the court.
If the co- defendant can establish that the test for admitting evidence of the defendant’s bad character through this gateway is satisfied, the court has no power under the CJA 2003 to prevent the admission of this evidence.
What happens if a client admits guilt to their solicitor?
A solicitor may take instructions from a client who confirms that they did in fact commit the offence for which they have been arrested but wants to deny the offence when interviewed by the police.
If the client admits guilt to their solicitor, the solicitor must advise the client that they cannot then attend an interview to represent the client if the client intends to deny having committed the offence.
The solicitor cannot be a party to the client giving information to the police which the solicitor knows to be false since this would amount to a breach of the solicitor’s duty not to mislead the court under the SRA Code of Conduct.
The solicitor could attend such an interview where the client intends to give a ‘no comment’ response to police questions, since this would not involve the giving of false information.
What is conditional bail?
When a defence advocate is making an application for bail on behalf of their client, they will normally invite the magistrates to consider granting conditional bail to their client if the magistrates are not minded to grant bail on an unconditional basis.
After invoking the right to have a person informed of the arrest, when must the person be informed?
If they request to have a person informed of their arrest, they must be informed as soon as practicable of the arrest and the place they are detained.
Will a defendant be remanded after conviction?
Following conviction, a defendant may be remanded in custody before sentence for successive periods of not more than three weeks. If the defendant is remanded on bail, this may be for successive periods of not more than four weeks.
Does an applicant have a right to appeal against a refusal of legal aid because of a failure to satisfy the means test?
An applicant does not have the right to appeal against a refusal of legal aid because of a failure to satisfy the means test.
If, however, an applicant does not satisfy the means test but can demonstrate that they genuinely cannot fund their own defence, the applicant may ask that their entitlement to criminal legal aid be reviewed on the grounds of hardship by completing an application for review on the grounds of hardship (Form CRM16).
If a defendant qualifies for legal aid in the magistrates’ court, they will not be required to contribute to their defence costs.
To put this another way, in the magistrates’ court, legal aid is either free or not available. Whereas in the Crown Court, legal aid may also be available but subject to the defendant paying a contribution towards their legal aid costs.
What is a community resolution?
This is the starting point for out- of- court disposals. It is a non- statutory disposal for the resolution of a minor offence or anti- social behaviour incident through informal agreement between the parties involved.
It is primarily aimed at first- time offenders where there has been an admission of guilt, and where the victim’s views have been taken into account. It will not form part of the offender’s criminal record retained by the police.
What is the role of the defence solicitor at the first hearing?
The solicitor’s role at this stage involves taking the following steps:
(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf (unless the client is paying for their legal costs privately);
(b) obtaining details of the prosecution case from the CPS (for summary and either- way offences);
(c) taking a statement from the client;
(d) advising the client on the strength of the prosecution evidence and the plea the client should enter (for summary and either- way offences); and
(e) in the case of an either- way offence where the client is indicating a not guilty plea, informing the client that their case may be dealt with either by the magistrates’ court or by the Crown Court, and advising the client about the advantages and disadvantages of each court; and
(f) making an application for bail, where necessary.
How can a defendant challenge the admissibility of a confession they deny making?
A defendant who is alleged to have made a confession may challenge the admissibility of this confession at trial by arguing either:
(a) that they did not make the confession at all, and that the person to whom the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession; or
(b) that they did make the confession, but it should still not be admitted in evidence.
In the former situation (where the defendant denies ever having made the confession) the only way to challenge the admissibility of this is under s78 PACE 1984 (see Ch 9.6.4.2. below).
If the defendant accepts that they made a confession, they will usually challenge the admissibility of the confession under s 76(2) of PACE 1984.
Significant statements
Many of the confessions that we have referred to above may also be described as significant statements.
This is a term used by the police to describe something said by a suspect in the presence and hearing of a police officer or other member of police staff outside a formal police interview that appears to be capable of being used in evidence against the suspect, in particular a direct admission of guilt
Usually this will be in any one or more of the following circumstances:
a) Just before or at the time of arrest
b) On the way to the police station following arrest
c) Whilst at the police station, for example when being booked in to custody or at any time before or after a formal interview.
Such a statement therefore falls within the statutory definition of a confession under s82(1) PACE. Namely, something that is either wholly or partly adverse to the person who made it and so the rules on admissibility of confessions also apply to significant statements.
Para 11.4 of Code C requires the police at the beginning of a formal interview, after cautioning the suspect, to put to them any significant statements and to ask them whether they confirm or deny that earlier statement and if they want to add anything further.
When should a PTPH hearing be held?
Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take place within 20 business days after sending.
How do the sentencing guidelines work?
Most offences now have their own definitive sentencing guidelines. These guidelines require a sentencing court to usually follow an eight- step approach to arrive at its sentence. The first two and fourth steps are usually the key steps that determine what sentence the court will impose.
STEP 1 – Determining the offence category
There are three categories identified to reflect differing levels in harm and culpability. So, an offence falling into Category 1 reflects both greater harm and enhanced culpability. An offence in Category 2 reflects either greater harm or enhanced culpability. Offences falling within Category 3 will be those involving lesser harm and a lower level of culpability. The relevant sentencing guidelines identify an exhaustive list of factors that will help determine which category will be the most appropriate for the offence in question. Having identified the relevant category, the court is then required to use the corresponding starting point sentence which will then be further shaped by the remaining steps. Note that under this format, the starting point sentence applies to all offenders regardless of how the offender pleaded or whether or not they have previous convictions.
STEP 2 – Shaping the provisional sentence: starting point and category range
Having identified the relevant category as a starting point sentence, the court will then start to fine- tune the sentence by reference to a list of aggravating and mitigating factors.
These factors are there to provide the context of the offence and the offender and they are considered together so that a holistic approach is taken. The sentencer is also required to consider the relevant statutory thresholds for custody.
STEP 3 – Consider any factors which indicate a reduction in sentence, such as assisting the
prosecution
This step allows the court to reduce the sentence where the offender has provided assistance to the police, usually in relation to other matters (not very common in practice).
STEP 4 – Reduction in sentence for a guilty plea
A reduction in sentence will be given for a guilty plea. The SC provides guidance on just how much of a reduction should be awarded depending on when the plea is entered.
STEP 5 – Imposing an extended sentence
Section 61 of the Sentencing Act 2020 sets out the circumstances as to when a court will be required to consider imposing such a sentence, where for example the offender is classified as a dangerous offender.
STEP 6 – Totality principle
The court must consider this where an offender is being sentenced for a number of offences to ensure that the overall sentence is proportionate.
STEP 7 – Compensation and other ancillary orders
The court is reminded of their duty to consider whether or not to order the offender to pay compensation and also make any other appropriate ancillary orders such as confiscation, destruction and forfeiture orders.
STEP 8 – Giving reasons
Section 52 of the Sentencing Act 2020 obliges the court to give reasons for the sentence it is imposing. This includes explaining to the offender the effect of the sentence that has been passed; the effect of non- compliance with the sentence and to identify the definitive sentencing guidelines that have been followed at reaching the sentence passed, including any explanation as to why the court has imposed a lesser sentence than recommended in the guidelines if that is the case.
Not all these steps will apply to every case, but steps 1, 2, 4 and 8 are the most important in practice. The following example illustrates how the guidelines would apply in a case where the defence advocate should be able to persuade the magistrates to impose a sentence below the starting point sentence suggested in the guidelines.
What four options does the custody officer have?
(a) release the suspect (either without taking any further action or release under investigation);
(b) release the suspect without charge but on bail whilst the police make further enquiries;
(c) charge the suspect (and either release on bail or keep in custody until the suspect’s first court appearance); or
(d) offer the suspect an alternative to charge.
What is a solicitor’s duty to the court in a trial?
A solicitor representing a defendant at a trial before the magistrates is under a duty to say on behalf of their client what that client would properly say, were they to have the necessary skills and knowledge to do this.
In other words, it is the duty of the defence solicitor to act in their client’s best interests and to ensure that the prosecution discharges the onus placed upon it to prove the defendant’s guilt.
Therefore, even if a client admits their guilt to the solicitor, it would still be appropriate for the solicitor to put the prosecution to proof of its case if the solicitor considered that case to be weak.
The defendant’s solicitor nevertheless is required to act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice (Principle 1 SRA Code of Conduct), and also remains under an overriding duty not to mislead the court (under Standard 2 of the SRA Code of Conduct).
They cannot therefore say anything in their client’s defence which they know to be untrue.
The defendant’s solicitor also owes a duty of confidentiality to their client (under Standard 6.3 of the SRA Code of Conduct).
This means that if the defendant’s solicitor has to cease to act for their client, the defence solicitor must not tell the court why they are ceasing to act.
A defence solicitor who withdraws from acting in such circumstances will tell the court that they are no longer able to act for their client for ‘professional reasons’.
The detailed rules of professional conduct with which a solicitor must comply when acting as an advocate (whether for the prosecution or the defence) are contained in Standard 2 of the SRA Code of Conduct.
What is the scope and application of s 78 PACE and how does it interlink with the right to a fair trial?
Article 6 of the ECHR provides that anyone charged with a criminal offence is entitled to a ‘fair’ hearing. The appellate courts have held, on several occasions, that the discretion given to a trial judge to exclude evidence under s 78 where the admission of that evidence would otherwise lead to unfairness, ensures that a defendant will receive a fair trial.
Similarly, in cases such as Khan v United Kingdom [2000] Crim LR 684, the European Court of Human Rights has stated repeatedly that the key question to be answered when determining whether the defendant’s rights under Article 6 have been breached is whether the proceedings as a whole were fair. The width of the discretion given to the trial judge by s 78 should ensure that proceedings are conducted in a manner which is fair to the defendant.
What is exception to the general stance on a suspect being interviewed before receiving legal advice?
The police may interview a suspect before that person has obtained independent legal advice, but the rules are complex:
(a) Section 58(8) allows the police to delay a suspect receiving legal advice for up to 36 hours. If the police exercise these powers, they may (and usually will) want to interview the suspect prior to allowing them access to legal advice.
(b) If the relevant solicitor has agreed to attend the police station but awaiting their arrival would ‘cause unreasonable delay to the process of investigation’.
(c) If the solicitor the suspect has asked to speak to either cannot be contacted or has declined to attend the police station, and the suspect has then declined the opportunity to consult the duty solicitor.
(d) If a suspect asks for legal advice and changes their mind about this, the police may interview the suspect, provided:
(i) an officer of the rank of inspector or above speaks to the suspect to enquire about the reasons for their change of mind, and makes, or directs the making of reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect has stated that they wish to change their mind and the reason for it;
(ii) the suspect’s reason for the change of mind and the outcome of the efforts to contact the solicitor are recorded in the custody record;
(iii) the suspect, after being informed of the outcome of the efforts in (i) above, confirms in writing that they want the interview to proceed without speaking or further speaking to a solicitor, or without a solicitor being present, and do not wish to wait for a solicitor, by signing an entry to this effect in the custody record;
(iv) an officer of the rank of inspector or above is satisfied that it is proper for the interview to proceed in these circumstances and gives authority in writing for the interview to proceed; and if the authority is not recorded in the custody record, the officer must ensure that the custody record shows the date and time of the authority and where it is recorded, and takes or directs the taking of reasonable steps to inform the solicitor that the authority has been given and the time when the interview is expected to commence, and records the outcome of this action in the custody record;
(v) when the interview starts and the interviewer reminds the suspect of their right to legal advice, the interviewer shall then ensure that the following is recorded in the interview record:
(1) confirmation that the detainee has changed their mind about wanting legal advice or about wanting a solicitor present, and the reasons for it if given;
(2) the fact that authority for the interview to proceed has been given;
(3) that if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay, and a break will be taken to allow them to speak to the solicitor if they wish, unless para 6.6(a) applies, and that at any time during the interview, the detainee may again ask for legal advice, and that if they do, a break will be taken to allow them to speak to the solicitor, unless para 6.6(a), (b) or (c) applies (Code C, para 6.6(d)).
In the situations at (a) and (b) above, the caution given to the suspect at the start of the interview will be as follows:
‘You do not have to say anything, but anything you do say may be given in evidence.’
The reason for this wording is that no adverse inferences may be drawn at trial from the suspect’s silence in interview if the suspect had not at the time of the interview been allowed access to legal advice.
The suspect is therefore said to have an absolute right to remain silent. This will not apply to the situations at (c) and (d) above, because in these cases the suspect is allowed to speak to the duty solicitor (situation (c)) or a solicitor of their own choice (situation (d)). The caution in these cases will be the normal caution given at the start of the interview (see below).
What are the grounds for admitting hearsay?
Hearsay evidence will be admissible if it falls within one of four categories (s 144)
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if:
(a) any provision of this Chapter or any other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible (common law rules),
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
What powers does the youth court have with regard to bail?
Under the Bail Act 1976, the youth court has the power to remand a juvenile:
(a) on bail (with or without conditions)
(b) into local authority accommodation or
(c) in the case of 17- year- olds, into custody.
In deciding whether to grant bail, the youth court will normally have before it a report from the YOT providing details of the juvenile’s antecedents and also their record in relation to previous grants of bail. In addition, the report will inform the court about the juvenile’s home situation and their attendance record at school, college or work.
How can the admissibility of a confession be challenged under s 78?
Section 76 of PACE 1984 deals exclusively with the court’s power to exclude evidence of a confession made by the defendant.
Under s 78, the court has a more general discretion to exclude prosecution evidence. This includes evidence of a confession made by a defendant.
Section 78 provides the court with the discretion to exclude confession evidence on which the CPS seeks to rely if the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted.
Section 78 may be relied on either when the defendant admits making a confession but claims that the confession is untrue, or when the defendant denies making the confession at all.
When a defendant alleges that the police breached the provisions of PACE 1984 and/ or the Codes of Practice in obtaining a confession, the court is only likely to exercise its discretion under s 78 to exclude such evidence if these breaches are both significant and substantial.
Many of the cases in which the court has exercised this discretion under s 78 are concerned with suspects who have been denied access to legal advice. In R v Walsh, the Court of Appeal said that in most cases where a defendant had been denied access to legal advice in breach of s 58 of PACE 1984 or the provisions of Code C, this would lead to the court exercising its discretion to exclude any confession that the defendant subsequently made, since allowing the CPS to rely on such evidence would have an adverse effect on the fairness of the proceedings.
There is therefore a degree of overlap between the court’s discretion to exclude a confession (which the defendant admits to having made) under s 78, and the duty of the court to exclude a confession under the ‘unreliability’ ground in s 76(2)(b).
What are the contents of a generic community order?
In making a generic community order, the court may choose from a ‘menu’ of options and select those which are most appropriate for the defendant.
The options from which the court may choose are as follows:
(a) Unpaid work requirement – this requires the defendant to perform unpaid work in the community for between 40 and 300 hours. This work must be completed within a 12- month period and in practice this is the most common requirement attached to a generic community order.
(b) Activity requirement – this requires the defendant to take part in specified activities which may be designed to help the defendant overcome a particular problem (such as finding work), or which may be activities to make reparation to the victim (such as repairing damage caused).
(c) Programme requirement – this requires the defendant to take part in one or more courses to address the defendant’s offending behaviour, such as courses in anger management, sex offending or substance misuse.
(d) Prohibited activity requirement – this requires the defendant to refrain from taking part in specified activities.
(e) Curfew requirement – this requires the defendant to remain at a particular location (normally the defendant’s place of residence) specified by the court between specified times. In order to check compliance with such a requirement, the defendant will be electronically monitored, which is known colloquially as ‘tagging’.
(f) Exclusion requirement – this prohibits the defendant from entering a place or places (such as a city centre, or a particular type of establishment like a shop or a pub) for a period not exceeding two years. Again, the defendant will be electronically monitored.
(g) Residence requirement – this requires the defendant to live at a particular place as specified in the court order.
(h) Mental health treatment requirement – this requires the defendant to agree to treatment from a mental health practitioner for a specified period of time.
Drug rehabilitation requirement – this requires the defendant to agree to treatment to reduce or eliminate their dependency on drugs, and to submit to providing samples to determine whether they have drugs in their body. This will be for a period of time specified by the court.
(j) Alcohol treatment requirement – this requires the defendant to agree, during a period of time specified by the court, to treatment to reduce or eliminate their dependency on alcohol.
(k) Supervision requirement – this requires the defendant to attend appointments with
a member of the Probation Service. The purpose of such meetings is to promote the defendant’s rehabilitation, and the meetings will involve confronting the defendant’s offending behaviour, discussing how the defendant might ‘manage’ their life and generally monitoring the defendant’s progress. A supervision requirement may be imposed for up to three years.
(l) Attendance centre requirement – this requires the defendant to attend an attendance centre for a total of between 12 and 36 hours. Such an order can only be imposed on defendants who are under 25 years of age.
(m) Foreign travel prohibition requirement – this enables a court to impose a prohibition on foreign travel as a requirement. The effect of this requirement is to prohibit travel to a country or countries outside the British Isles (the United Kingdom, the Channel Islands and the Isle of Man).
What is the procedure for an appeal against sentence from the Crown Court?
A defendant may also appeal to the Court of Appeal against the sentence imposed by the Crown Court (CAA 1968, s 9).
The procedure to be followed (CrimPR, r 39.2) when an appeal against sentence is made to the Court of Appeal is essentially the same as for an appeal against conviction, with the defendant either requiring a certificate from the sentencing judge that the case is fit for appeal, or the defendant seeking permission from the Court of Appeal to proceed.
It is rare for the sentencing judge to grant a certificate, and most defendants will seek the permission of the Court of Appeal to proceed.
If the defendant seeks permission from the Court of Appeal, a notice of application for permission to appeal together with draft grounds of appeal must be sent to the Registrar of Criminal Appeals at the Court of Appeal within 28 days of the sentence being passed.
The draft grounds of appeal will state why it is considered that the sentence passed by the Crown Court is either wrong or excessive.
Assuming leave to appeal is granted by the single judge, the appeal will then be considered
by a two- or three- judge panel.
The appeal will usually be confined to legal submissions on what the appropriate sentence (or sentencing range) is in the particular case.
What must the identification officer explain to the suspect before a video identification, identification parade or group identification is arranged?
(a) the purpose of the identification procedure to be used;
(b) the suspect’s entitlement to free legal advice;
(c) the procedure to be followed, including the suspect’s right to have a solicitor or friend present;
(d) that if the suspect refuses to consent to the identification procedure taking place, such refusal may be given in evidence at trial, or the police may proceed covertly without the suspect’s consent (ie by holding a covert video or group identification), or make other arrangements to test whether a witness can identify the suspect (ie by arranging a confrontation);
(e) that if the suspect has significantly altered their appearance between being offered an identification procedure and the time of the procedure, this may be given in evidence at trial and the identification officer may consider other forms of identification;
(f) whether, before the suspect’s identity became known, the witness was shown photographs, or a computerised or artist’s composite likeness or image by the police; and
(g) that the suspect or their solicitor will be provided with details of the description of the suspect as first given by any witnesses who are to attend the identification procedure before the procedure takes place.
What happens at a first hearing specifically for summary offences?
Plea
The defendant will usually be required to enter a plea.
Guilty
If the defendant pleads guilty, a representative from the CPS will then tell the magistrates the facts of the case and if relevant, hand in the defendant’s record of previous convictions.
If the defendant is legally represented, their solicitor will then give a plea in mitigation on the defendant’s behalf.
The magistrates will then either sentence the defendant straight away or adjourn the case if they want to obtain any reports (such as a pre- sentence report from the Probation Service) before sentencing the defendant.
The magistrates may also need to adjourn the case if the defendant pleads guilty but disputes the specific factual allegations made by the CPS.
In such a situation, a separate hearing, called a ‘Newton hearing’, will be necessary to determine the factual basis upon which the defendant will be sentenced.
Not guilty
If the defendant is pleading not guilty, the court will then fix a date for the defendant’s trial to take place and will issue case management directions with which both the prosecution and defence must comply before trial.
(b) Decision whether to release defendant on bail or remand in custody
Whether the defendant is pleading guilty or not guilty, if the case is adjourned, the magistrates will need to determine whether the defendant should be released on bail or remanded in custody prior to the next hearing.
Under what condition will a witness statement from a witness be admissible at trial?
A written statement from a witness will be admissible at trial (as opposed to the witness having to come to court to give evidence) provided that:
(a) it is signed and dated;
(b) it contains the following declaration: This statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
(c) a copy has been served before the hearing on the other parties in the case; and
(d) none of the other parties has objected within seven days.
The statement may only contain matters which would have been admissible if the witness had given oral evidence at court.
Such witness statements should be used only for evidence which is not in dispute (although the CPS routinely serves the statements of all prosecution witnesses in the form of a s 9 statement).
If the party receiving a statement which is served in this form wishes to challenge the admissibility of anything said in the statement, or to cross- examine the maker of the statement, it should object in writing within seven days. Although the CPS is the more likely party to rely on the s 9 procedure, note that either party in criminal proceedings is entitled to use it.
Aside from the statutory aggravating factors, what are the other aggravating factors?
(a) offences that are planned or premeditated;
(b) offenders operating in groups or gangs;
(c) the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
(d) offences committed whilst under the influence of drink or drugs;
(e) the use of a weapon;
(f) deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence;
(g) offences involving the abuse of a position of trust;
(h) offences committed against those working in the public sector or providing a service to the public;
(i) in property offences, the high value (including sentimental value) of property to the victim; and
(j) failure to respond to previous sentences.
What happens if a defendant has been arrested on bail?
A defendant who is arrested will be detained in police custody and must then be brought before the magistrates’ court within 24 hours.
The magistrates’ court will then decide whether to remand the defendant in custody, or whether to grant bail with or without conditions pending the next substantive hearing in the case.
What happens if the defendant is not in a position to enter a plea?
There will be rare occasions when the defendant is not in a position to enter a plea, for example, there may be times when funding issues have not been finalised and financial details remain outstanding, or where the prosecution has not been able to disclose any of their evidence and so the case needs to be adjourned.
If the case is adjourned, the magistrates will consider whether the defendant should be granted bail or remanded in custody prior to the next hearing.
What are the differences between the youth court and the adult magistrates’ court?
Procedures in the youth court are modified to take account of the age of the juvenile. The layout of the court room is less formal than the magistrates’ court, with all participants in the case sitting at the same level rather than there being a raised dock or bench.
The juvenile will usually sit on a chair in front of the CPS representative and his own solicitor, and in full view of the magistrates. The use of straightforward language rather than legal terminology is encouraged, and solicitors remain seated when addressing the court.
Juveniles (and any child witnesses) are usually spoken to and referred to by their first name. Witnesses ‘promise’ rather than ‘swear’ to tell the truth, and child witnesses under the age of 14 must give unsworn evidence (as, in fact, is the case in the adult magistrates’ court).
Emphasis is placed on there being as much communication as possible between the magistrates, the juvenile and his parent or guardian.
Magistrates receive special training in youth justice matters before being allowed to sit in the youth court.
Some of the terminology in the youth court also differs from that in the adult magistrates’ court.
For example, there will be a ‘finding of guilt’ rather than a conviction, and the court will make an ‘order upon a finding of guilt’ rather than give a sentence.
Most of the procedural and evidential issues that may arise in the context of a case before the youth court are the same as for the case of an adult juvenile before the magistrates’ court.
In particular, the magistrates will issue the same standard directions for the parties to comply with in advance of trial as would be issued were the case being tried before the adult magistrates’ court.
The only exception to this will be if the juvenile is a PYO. If the juvenile is a PYO, the magistrates will issue revised directions to ensure that an expedited trial takes place. Whether or not standard directions have been issued, a trial in the youth court will follow the same procedure as a trial before the adult magistrates’ court.
What is included in a defence statement?
The defence statement must be a written statement which:
(a) sets out the nature of the defence, including any particular defences on which the defendant intends to rely (for example, alibi or self- defence);
(b) indicates the matters of fact on which the defendant takes issue with the prosecution and
why they take such issue;
(c) sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence;
(d) indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely for this purpose; and
(e) in the case of an alibi defence, provides the name, address and date of birth of any alibi witness, or as many of these details as are known to the defendant.
The defence are also under a continuing duty to update the defence statement if the details to be given under any of the above points should change before trial (if, for example, a witness comes forward who is able to support an alibi given by the defendant and whose existence was unknown at the time the initial defence statement was prepared).
Can a solicitor disclose their client’s case to a third party?
A solicitor representing a client at the police station may be asked for details of their client’s defence by another solicitor representing a co- accused who has been arrested in connection with the same offence. Such a request should be treated with caution.
The solicitor owes a duty of confidentiality to their client and should therefore not respond to such a request by releasing any such information. The only exception to this is if the solicitor considers it is in their own client’s best interests for such information to be disclosed.
This will only very rarely be the case. If the solicitor does consider that it would be in the client’s interests to disclose this information, the solicitor should first explain their reasoning to the client and obtain the client’s authority (ideally in writing) to disclose this information.
When will the defendant’s legal representative ask the Probation Service to prepare a pre-sentence report before plea?
The defendant’s legal representative will only ask the Probation Service to prepare a pre-
sentence report before plea if the defendant will:
- plead guilty to all offences charged on the full prosecution facts; and
- agree to co-operate with the Probation Service to prepare a report.
The legal representative must also be satisfied that:
- the defendant is likely to be sentenced in the magistrates’ court;
- the offence(s) is serious enough for a community order and a pre-sentence report is likely to be necessary; and
- the defendant understands that:
∘- a pre-sentence report before plea provides no indication of any sentence and that all sentencing options remain open to the court;
- the court will decide whether to consider the pre-sentence report before plea, if the Probation Service produces one; and
∘- the court may proceed to sentence without a pre-sentence report if the court considers a report unnecessary.
Moreover, s 30 of the Sentencing Act 2020 provides that the sentencing court must obtain and
consider a pre-sentence report before forming an opinion on:
- whether the custody threshold has been passed and, if it has, how long the custodial sentence should be; and
- whether the threshold for imposing a community sentence has been passed and, if it has,
the requirements that should be imposed on the defendant under a generic community order.
Note that a court is not required to obtain such a report if ‘in the circumstances of the case, it considers that it is unnecessary’. For example, it may be unnecessary where a custodial sentence is inevitable because of the seriousness of the offence or where the court already has a recent pre sentence report for that offender.
Whilst the requirement under s 30 sounds obligatory, the above qualification makes it clear that it is not. Section 30(4) also provides that if a court imposes either a custodial or community sentence before first obtaining or considering such a report, this will not invalidate any resulting sentence.
When should the written statement be handed in to the police?
The written statement can be handed in to the police either during the interview, or just prior to charge or even kept on the client’s file and not disclosed at either of these stages.
It is normal practice for the statement to be handed in at the start of the interview and for the suspect to then answer ‘no comment’ to questions put by the police during the interview. If, however, the defence solicitor feels that the police case is particularly weak, it may be better to hold back the handing- in of the prepared written statement until the police have actually decided to charge the client (but before the client is formally charged).
Handing in the statement earlier may give the police some additional information, which might lead them to decide to charge the client when otherwise they might not have done so. For example, in the statement the client may make a partial admission which gives the police sufficient evidence to enable them to charge the suspect with the offence.
Very occasionally a solicitor will take a written statement from their client but, rather than hand the statement to the police whilst the client is at the police station, retain the statement on the client’s file.
This may occur when the solicitor has doubts as to the accuracy of the instructions they have received from their client and are reluctant to disclose this defence to the police because they believe the facts put forward by the client either will not stand up to scrutiny, or may ‘change’ later in the case.
In such circumstances, the solicitor will retain the statement on file and produce it at a later stage in the case, if necessary, to try and prevent the court drawing an inference that the client’s defence was fabricated after they had left the police station.
Adopting such a tactic will not, however, prevent other adverse inferences being drawn by the court at trial. This could include an inference that the defendant was not sufficiently confident in their defence to expose it to police scrutiny or investigation, or that they had not thought up all the details of this defence at the time of the interview.
What kind of bail conditions can a custody officer grant for post charge bail?
The custody officer may impose most of the same types of condition which a magistrates’
court could impose on bail granted to a defendant, although the custody officer cannot impose a condition that a suspect reside at a bail hostel, undergo medical examination or see their legal adviser.
The custody officer may, for example, impose conditions requiring the suspect:
(a) to reside at a particular address;
(b) not to speak to or contact any witnesses;
(c) not to enter a particular area or set of premises; or
(d) to observe a curfew at night between specified hours.
What encompasses the police’s duty to inform the person responsible for the juvenile’s welfare after they have been arrested?
All suspects who have been arrested and detained at the police station have the right to have a person informed of their arrest and the right to receive free and independent legal advice from a solicitor.
This right applies to adult and juvenile suspects alike.
Who does the presumption of bail not apply to?
(a) who have been committed to the Crown Court for sentence; or
(b) who are appealing against conviction or sentence.
(c) Defendants charged with serious offences and they have been previously convicted of these specified offences (the court may still grant bail but only if exceptional circumstances exist).
The specified offences are:
(a) murder
(b) attempted murder
(c) manslaughter
(d) rape
(e) attempted rape
(f) a number of other serious sexual offences.
If any of the above apply, they can still apply for bail but the presumption does not apply.
In what (rare circumstances) would a defendant who has been charged with a non-imprisonable offence not be granted bail?
(a) the defendant was granted bail in previous criminal proceedings but failed to answer this bail and the court believes that, if granted bail in the current proceedings, the defendant would again fail to surrender to custody;
(b) the defendant needs to be kept in custody for his own protection or, in the case of a defendant under 18 years of age, for his own welfare;
(c) the defendant is currently serving a custodial sentence in respect of a separate offence; or
(d) the defendant was granted bail at an earlier hearing in the same proceedings, but has been arrested either for failing to answer his bail or for breaking any conditions of his bail, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the defendant would fail to surrender to custody, commit an offence or interfere with witnesses or otherwise obstruct the course of justice.
What are the rights of a volunteer at a police station?
There is no obligation to attend as a volunteer, and the volunteer can leave at any time unless formally arrested.
Generally, a legal adviser will advise a client to attend voluntarily if the client is given this choice.
In addition, the volunteer can request that a friend or a solicitor be present at the interview.
The police may then arrest a ‘volunteer’ if, when interviewed, the volunteer makes admissions which then give the police sufficient grounds to arrest them.
How can a defendant waive legal privilege in court?
At trial, however, a defendant may give evidence which has the effect of waiving such privilege and allowing the prosecution to cross- examine them about the reasons for the legal advice they were given.
If at trial, in order to prevent an adverse inference being drawn by the court, a defendant gives evidence that they remained silent in interview only following advice from their solicitor, this will not in itself waive privilege (R v Beckles).
However, if an adverse inference is to be avoided, the court is likely to want to know the reasons for the solicitor’s advice.
Once a defendant gives this information, legal privilege is said to be waived (R v Bowden). This means that if a defendant, when giving evidence- in- chief, gives the reasons for the legal advice they received, the defendant (and conceivably their solicitor, should the solicitor give evidence on the defendant’s behalf) may then be cross- examined as to any other reason for the solicitor’s decision to advise their client to remain silent.
Similarly, the prosecution will be entitled to cross- examine the defendant (and their solicitor) on the instructions which the defendant gave to their solicitor whilst at the police station which led to the solicitor advising them to remain silent in interview.
What happens if the only evidence against the defendant is an adverse inference?
A defendant will not be convicted of an offence if the only evidence against them is an adverse inference under ss 34, 36 or 37 of the CJPOA 1994, because a defendant’s silence when interviewed by the police cannot on its own prove guilt.
Before the prosecution may ask the court to draw an adverse inference from a defendant’s silence when interviewed by the police, the prosecution must first have adduced other evidence of the defendant’s guilt. Such evidence must establish that the defendant has a case to answer and must call for an explanation from the defendant.
What are summary only offences?
Summary offences are the least serious form of criminal offence and as a general rule may only be dealt with by the magistrates’ court.
Examples of summary offences include common assault, ss 4 and 5 of the Public Order Act 1984, taking a vehicle without consent and most road traffic offences.
What is the procedure for appeal from the youth court?
As the youth court is a type of magistrates’ court, a juvenile convicted or sentenced by the youth court has the same rights of appeal as a defendant who is convicted or sentenced by the adult magistrates’ court.
What is the relevant time for calculating detention for a person attending voluntarily at the police station who is then arrested at the police station?
The time of their arrest;
Will a defendant be remanded if their case has been committed to the Crown Court for sentence or if their case is being sent to the Crow Court for trial?
A defendant who is committed to the Crown Court for sentence, or whose case is sent to the Crown Court for trial, may be remanded in custody or on bail until the case comes before the Crown Court.
How will a defendant’s sentence be reduced for a guilty plea?
Section 73 of the Sentencing Act 2020 provides that when sentencing a defendant who has entered a guilty plea, the court must ‘take into account’ the stage in the proceedings at which the defendant gave their indication of a guilty plea and the circumstances in which the indication was given.
The rationale behind a reduction in sentence for defendants who plead guilty is that a guilty plea avoids the need for a trial and, if made sufficiently early, saves victims and witnesses from stress and anxiety about having to attend court to give oral evidence.
The ‘Reduction in Sentence for a Guilty Plea’ Definitive Guideline applies to all defendants aged 18 or over and to all cases, regardless of the date of the offence(s). It applies in the magistrates’ courts and the Crown Court.
The guidelines make it clear that the level of the reduction is not dependent upon the strength or otherwise of the prosecution case. Nor should it be affected by whether or not the defendant feels any remorse for their offending behaviour.
Whilst this may be an important feature at an earlier stage of the sentencing exercise, it is not relevant to this statutory entitlement to a reduction for a guilty plea.
What conditions could the court impose on the bail?
a) Surety
This would reduce the risk of absconding.
A surety is a person who enters into what is termed a ‘recognisance’ of money and is under an obligation to use every reasonable effort to ensure that the defendant attends court.
If the defendant fails to answer their bail at the next hearing, the court must declare the immediate and automatic forfeiture of the recognisance.
The court will order the surety to appear before the court to explain why they should not pay over the sum.
The court will then determine whether some or all of the surety should be paid.
A court is unlikely to accept as a surety a person who has a criminal record, who lives a long distance from the defendant or who has no financial means. As a matter of professional conduct, a solicitor should never stand surety for a defendant.
b) Security
This would reduce the risk of absconding.
The defendant will be required to deposit a sum of money (or goods) with the court. If the defendant fails to attend court to answer their bail, they will forfeit the security they have given.
c) Reporting to a police station
This reduces the risk of absconding and committing offences on bail.
The court orders the defendant to report to their local police station on a regular basis (on specified day(s) and time) so the police may ensure that the defendant remains in the local area.
d) Residence
This reduces the risk of absconding and committing offences on bail.
The court requires the defendant to reside at a specified address. The police will often check that such a condition is being complied with by visiting the address late at night or early in the morning.
e) Curfew
This reduces of committing offences on bail.
The court requires a defendant to remain at their place of residence between certain specified hours (for example, between 8 pm and 7 am).
The police may visit the residence during these hours to check that the defendant is there.
To support conditions of residence and curfew, the court may order that the defendant be electronically monitored (commonly referred to as ‘tagging’).
f) Non- communication with prosecution witnesses
This reduces the risk of committing offences on bail and interfering with a witness.
This condition not only covers direct face- to- face contact with the witnesses, but also indirect contact such as through a third party or contacting the witnesses by telephone or in writing or through any other means such as social media.
g) Restriction on entering specified areas
This reduces of committing offences on bail and interfering with a witness.
This prevents the defendant from entering a geographical area or town, for example where a prosecution witness resides, or where the defendant habitually commits offences in the same place or type of place, such as theft from a shopping centre or committing assaults in a city centre.
h) Attending appointments with his solicitor or the Probation Service
Requires a defendant to keep in regular touch with his solicitor to ensure that the case is not delayed because the defendant has failed to provide their solicitor with prompt instructions.
i) Surrender of passport
This reduces the risk of absconding.
Requires a defendant to surrender their passport. Only likely to be appropriate in serious cases where the defendant is known to have substantial financial assets or criminal contacts outside the UK.
What should the police officers do in relation to the right to legal advice?
If a solicitor attends the police station to see a particular suspect, that suspect must be informed of the solicitor’s arrival at the police station (whether or not they are being interviewed at the time of the solicitor’s arrival).
The suspect must then be asked if they would like to see the solicitor, even if they have previously
declined legal advice.
The solicitor’s attendance and the suspect’s decision must be noted in the custody record.
Code C also states that at no time should a police officer do or say anything with the intention of dissuading a person from obtaining legal advice.
No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which he is liable to be detained, or, if not detained, the time taken to complete the interview, might be reduced:
a) if they do not ask for legal advice or do not want a solicitor present when they are; or
b) if they have asked for legal advice or … asked for a solicitor to be present when they are interviewed but change their mind and agree to be interviewed without waiting for a solicitor.
What is the interests of justice test?
Legal aid will be granted by the magistrates’ court only if it is in the interests of justice for a defendant to have their legal costs paid from public funds.
In deciding what the interests of justice consist of in relation to any individual, the following factors must be taken into account:
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;
whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;
whether the individual may be unable to understand the proceedings or to state their own case
whether the proceedings may involve the tracing, interviewing or expert cross- examination of witnesses on behalf of the individual; and
whether it is in the interests of another person that the individual be represented.
These factors are repeated in Form CRM14. A solicitor completing Form CRM14 must discuss each factor with their client and, if that factor is relevant to the client’s case, tick the appropriate box. Full details in support must then be provided. Further guidance on what might be said about each factor is set out below:
It is likely that I will lose my liberty if any matter in the proceedings is decided against me.
This is relevant if the defendant is charged with an offence which is likely to result in a custodial sentence if they are convicted.
This may either be because the offence itself is a serious offence and/ or because the defendant has a bad criminal record which will be regarded as an aggravating factor, making the present offence more serious.
A solicitor can find out the likely sentence for the offence their client has been charged with by consulting the Sentencing Guidelines.
The solicitor will effectively be presenting the prosecution case against their client ‘taken at its most serious’ in order to justify why their client should receive public funding for their case. The solicitor will need to refer to any factual allegations made by the prosecution which aggravate the seriousness of the offence, and will also need to make reference to any previous convictions the defendant may have for the same or similar types of offence.
Such previous convictions will be taken into account by a sentencing court and are likely to lead to the court imposing a more severe sentence than if the defendant had no previous convictions.
This factor is also relevant if, regardless of the sentence which the court is likely to impose if the defendant is convicted, it is likely that the defendant will be refused bail in the proceedings and will be remanded in custody whilst the case is ongoing.
I have been given a sentence that is suspended or non- custodial. If I break this, the court may be able to deal with me for the original offence.
This will be relevant if the defendant is subject to for example, a suspended sentence of imprisonment in respect of a previous offence and commits a further offence during the period of the suspension.
There is a statutory presumption that a defendant who is convicted of a further offence during the period of suspension will have their earlier sentence activated and so will go to prison.
It is likely that I will lose my livelihood.
This will usually be relevant if the defendant intends to plead not guilty and is in employment and a conviction is likely to lead to the loss of that employment. It will always apply to any defendant in employment who is likely to face a prison sentence if convicted, but can also be relevant for other defendants who are not likely to receive a prison sentence but have particular types of job which may be lost in the event of conviction.
For example, the defendant may be a bus driver charged with a road traffic offence (such as dangerous driving), which will result in their disqualification from driving if they are convicted.
Alternatively, the defendant may be a teacher charged with common assault (since a conviction for an offence of violence will preclude a defendant from working with children in the future). This is also relevant for a defendant who is in a position of trust at work and who may lose their job if convicted of an offence involving dishonesty (such as an employee of a bank accused of theft).
It is likely that I will suffer serious damage to my reputation.
‘Serious’ damage will occur when the disgrace of a conviction is more than the direct effect of the sentence received and will result in the defendant losing their reputation for honesty or trustworthiness.
This will only apply to defendants who either have no previous convictions or convictions for very minor offences.
If the defendant has no previous convictions and has a position of standing or respect in the community (such as a vicar, local councillor or school governor), a conviction for any criminal offence, even if the offence is relatively minor, may cause serious damage to their reputation.
This only applies if the defendant is pleading not guilty.
A substantial question of law may be involved (whether arising from an act, judicial authority or other source).
This is relevant where either the prosecution evidence is in dispute, or the defendant wishes to adduce evidence which the CPS may argue is inadmissible.
Examples of when this may arise are:
(a) if there is disputed identification evidence and the court needs to apply the Turnbull guidelines to such evidence;
(b) if there is a possibility that the court may draw adverse inferences under ss 34, 36 or 37 from the defendant’s refusal to answer questions at the police station;
(c) if either the prosecution or the defence are seeking to persuade the court to admit hearsay evidence under s 114;
(d) if the defence are seeking to use ss 76 or 78 of PACE 1984 to argue that a confession made (or allegedly made) by the defendant should be excluded; and
(e) if the prosecution want to adduce at trial evidence of the defendant’s previous convictions under s 101 or either party is seeking to adduce bad character evidence of any other person under s 100 of the same Act.
This will only be relevant if the defendant is pleading not guilty.
I may not be able to understand the court proceedings or present my own case.
This factor may apply to a defendant who intends to plead guilty or not guilty. Reasons which may prevent the defendant from being able to understand the court proceedings or present their case include:
(a) mental or physical disability;
(b) poor knowledge of English (particularly relevant for defendants from overseas);
(c) age (a defendant who is particularly young or old); and
(d) vulnerability (a defendant who is emotionally immature or otherwise vulnerable).
Witnesses may need to be traced or interviewed on my behalf.
This will be relevant where a defendant wishes to call a witness in support of their case, such as a witness who can support a defence of alibi or, for a defendant charged with assault, a witness who will say that the defendant was acting in reasonable self- defence. Such witnesses will need to be traced and a statement taken from them. This may also be important if the defendant needs to call expert evidence in support of their defence (for example, a forensic scientist in a murder case). The defendant will need to explain why they require legal representation to trace or interview such witnesses.
This will only be relevant if the defendant is pleading not guilty.
The case involves expert cross- examination of a prosecution witness (whether an expert or not).
This will be relevant if a witness needs to be cross- examined to determine a question of law or to decide on the admissibility of a particular piece of evidence, or if the evidence given by the witness is complex or technical.
For example, if the defendant’s solicitor is attempting to persuade the court to exclude a confession their client made when interviewed at the police station (on the basis that the confession was made only as a result of improper conduct by the police), it may be necessary to cross- examine the interviewing officer to establish that the Codes of Practice issued under PACE 1984 were breached.
Only a person with legal expertise could properly conduct such a cross- examination. Similarly, only someone with a detailed knowledge of the law concerning disputed visual identification evidence could properly conduct a cross- examination of a prosecution witness who claims to have identified the defendant as the person who committed the offence when the defendant disputes this identification.
This factor will also be relevant if the prosecution seeks to rely on any expert evidence, such as evidence from a forensic scientist.
If the contents of the evidence to be given by the forensic scientist are disputed, this will require expert cross- examination to cast doubt upon the expert’s conclusions.
This will only be relevant if the defendant is pleading not guilty.
It is in someone else’s interests that I am represented.
This factor will apply when it would be inappropriate for a defendant to represent themself because they would then need to cross- examine prosecution witnesses in person.
For example, where a defendant is charged with a sexual or violent offence, it would be inappropriate for the defendant to cross- examine in person the complainant in such a case.
It would also be inappropriate for a defendant to cross- examine a child witness in person (particularly if the defendant were charged with having abused the child).
Note that this factor should not be used to argue that legal representation is in the general interests of the defendant’s family or the court.
This will only be relevant if the defendant is pleading not guilty.
Any other reasons.
This is designed to cover any matters not falling under any of the above headings.
The guidance notes suggest that further details should be given here if the defendant is likely to receive, for example, a ‘demanding’ community sentence if convicted.
To determine if this is likely, the solicitor will need to consult the relevant section of the Magistrates’ Court Sentencing Guidelines. Details should also be provided under this heading if a defence witness requires skilful examination- in- chief in order to bring out their evidence in a way which is most favourable to the defendant.
It is also common practice when using this factor to state that the defendant intends to enter a not guilty plea, since a defendant who is pleading not guilty is likely to need much more in the way of legal advice than a defendant who intends to plead guilty, particularly if the charge is a serious one and the case is likely to be tried in the Crown Court.
What happens if an applicant for legal aid fails the interests of justice test?
A defendant whose application for legal aid is refused under the interests of justice test may appeal against this decision either by adding further details to their original Form CRM14 and resubmitting this, or by requesting an appeal.
Can an adverse inference be drawn if they used a written statement?
A solicitor advising a client at a police station will often advise a client that rather than answering questions in interview, the client should instead hand to the police a written statement, which the solicitor will prepare on the client’s behalf.
The advantage of this is that it allows the client’s version of events to be set out in a clear and logical way. This is particularly useful for a client whom the solicitor feels may not come across well in interview (for example, a client who is distressed, emotional or tired).
In R v Knight, the Court of Appeal held that the purpose of s 34 was to encourage defendants to make an early disclosure of their defence to the police, not to allow the police to scrutinise and test that defence in interview (although of course the police would be able to investigate the facts of the defence outside the interview by, for example, speaking to witnesses who the defendant said would support their case).
Therefore, as long as a written statement which is handed to the police contains all the facts which a defendant later relies on in their defence at court, the court will not be able to draw an adverse inference under s 34 if, having handed in the statement, the defendant then refuses to answer questions from the police based on the contents of that written statement.
In the rare situations when a defence solicitor prepares a written statement for their client but does not hand this in to the police, whilst this will prevent the court at trial from drawing the inference of recent fabrication, it will not prevent the court from drawing an inference that the defendant was not sufficiently confident about their defence to expose this to investigation by the police following the interview.
When should an interviewee not be interviewed i.e. when are they unfit for an interview?
Code C provides that suspects who, at the time of the interview, appear unable to:
(a) appreciate the significance of questions or their answers; or
(b) understand what is happening because of the effects of drink, drugs, or any illness, ailment or condition, should not generally be interviewed (although there are some limited exceptions to this in cases where an interview needs to be held as a matter of urgency).
What is the procedure for making an appeal against conviction?
Only rarely will the defendant ask the trial judge to certify that the case is fit for appeal.
The usual method of commencing an appeal against conviction is for the defendant to seek permission to appeal from the Court of Appeal direct.
The procedure is as follows (CrimPR, r 39.2):
a) Within 28 days of the conviction (not sentence), the defendant must serve their appeal notice, together with the draft grounds of appeal, on the Registrar of Criminal Appeals at the Court of Appeal. The grounds are a separate document prepared by defence counsel, setting out the detailed arguments as to why the conviction is unsafe.
b) On receipt of these documents, the Registrar will obtain a transcript of the evidence that was given at trial and of the judge’s summing up to the jury. The Registrar will then put the case papers before a single judge, who will determine whether permission to appeal ought to be granted. This is a filtering stage, designed to weed out appeals that have no chance of success. If permission is granted, the single judge will also grant the defendant public funding for the hearing of the appeal. In appeals that are completely without merit, the single judge may, when dismissing the appeal, make a direction as to loss of time under s 29 of the CAA 1968. This means that any time spent by the defendant in custody awaiting the outcome of the appeal will not count towards the total time the defendant must serve for their sentence (as would normally be the case). This provision is designed to deter defendants from pursuing appeals that are without merit.
c) The hearing of the appeal will then take place before the full Court of Appeal, which will comprise a three- judge panel. The court will hear oral arguments from the parties, and may also hear fresh evidence if that evidence:
(i) appears to be credible;
(ii) would have been admissible at the defendant’s trial; and
(iii) there is a reasonable explanation for the failure to adduce this evidence at the defendant’s trial (CAA 1968, s 23).
What is a referral order?
A referral order must be made for a juvenile who pleads guilty to an offence (which carries a possible custodial sentence) and who has never previously been convicted or bound over by a court, unless the court is proposing either to impose a custodial sentence or to make an absolute discharge.
Referral orders cannot be made unless the juvenile pleads guilty to the offence with which they have been charged, although if the juvenile has entered a mixed plea (ie guilty to one or more offences but not guilty to others), the court has the power to make a referral order but is not obliged to do so.
The court may also make a second referral order in exceptional circumstances.
If the court makes a referral order, the juvenile will be referred to a ‘youth offender panel’. The youth offender panel comprises a member of the YOT and two community volunteers.
At the meetings, the panel will speak to the juvenile and their family with a view to:
(a) stopping any further offending;
(b) helping the juvenile right the wrong they did to their victim; and
(c) helping the juvenile with any problems they may have.
The panel will agree with the juvenile a ‘youth offender contract’. This is a programme of behaviour designed to prevent the juvenile re- offending and will last between three and 12 months. The terms of the contract are agreed between the juvenile and the panel members, rather than by the youth court.
When is a solicitor likely to advise the client to give a ‘no comment’ interview?
a) A solicitor may advise a client who admits their guilt to the solicitor to give a ‘no comment’ interview.
This will be important if the solicitor considers that the case against the client is weak and the police do not currently have sufficient evidence to prove the allegation.
A client who answers questions in such a situation may make a damaging admission which will give the police sufficient evidence to charge.
This course of action would not involve the solicitor being a party to the client lying to or misleading the police, and the police may decide not to pursue the case if they are unable to obtain any admissions from the client in interview.
b) The solicitor considers that the police have not provided adequate disclosure of the evidence they have obtained against the client (so that the solicitor is unable to properly advise the client on the strength of the police case against them).
Lack of disclosure from the police creates a real risk that the client may implicate themself if they answer questions in interview. This is a particularly important consideration if a co- accused has also been arrested and interviewed by the police, especially if the police are not prepared to disclose what they consider the role of the co- accused to have been, or if the police are not prepared to disclose what the co- accused has said in interview.
c) Linked to (b), the solicitor considers that the police may attempt to ‘ambush’ the client during the interview by revealing a piece of evidence which they had not disclosed to the solicitor in advance of the interview (in the hope that, when confronted with this evidence, the client will say something incriminating or be lost for words).
d) The client denies involvement in the offence and the police do not currently have sufficient
evidence to charge the client (since if the client agrees to answer questions in interview they run the risk of giving the police the additional evidence they need to enable them to charge the client.
e) The client is physically or mentally unfit to be interviewed (if, for example, the client is suffering from the effects of drink or drugs), or the solicitor considers that the client would fail to give a good account of their case in interview because the client is distressed, emotional or fatigued. This is likely to be the case if the interview is to take place late at night, the client has been at the police station for a number of hours before the interview takes place, or the client has been involved in an upsetting incident (often in connection with the alleged offence);
f) The client is likely to perform badly in interview due to his:
i) age
ii) lack of maturity
iii) psychological vulnerability or
v) previous inexperience of police detention and questioning.
If the client is particularly young, they may lack the maturity to answer questions properly or may become aggressive during the interview. Elderly clients may become easily confused or ‘lost’ during interviews at the police station. If the client appears particularly agitated or ill at ease, the solicitor may consider that the client is psychologically vulnerable to the questioning techniques the police may employ during the interview. Similar considerations will apply if this is the first time the client has been arrested and they have no previous experience of custody or questioning by the police. A solicitor may also have suspicions that the client could be suffering from some form of mental impairment if the client is behaving strangely, or if the client is unable to give the solicitor coherent instructions.
g) The facts of the case are so complex, or relate to matters occurring so long ago, that the client cannot reasonably be expected to provide an immediate response to the allegations made against them, or that any immediate response they are able to give will not be accurate. This may be a particular consideration in a fraud case in which the police want to ask the client about complex financial matters, or in a case involving allegations of physical or sexual abuse carried out many years previously.
h) Although the client says they did not commit the offence, the client does not have a viable case or defence. If the solicitor considers that the client has no case that will, at that time, stand up to police questioning, the safest course of action may be to give a ‘no comment’ interview, since the client will only come across badly in interview if they attempt to answer questions to which they have no real response.
g) Where the client has other good personal reasons for remaining silent. A common situation when a client may have such a reason for remaining silent is if the client would suffer extreme embarrassment if they were to tell the police what actually happened.
What guidelines are followed for the sentencing of a young offender?
(a) When sentencing children or young people a court must have regard to:
the principal aim of the youth justice system (to prevent offending by children and young people); and
the welfare of the child or young person.
(b) Whilst the seriousness of the offence will be the starting point, the approach to sentencing should be individualistic and focused on the child or young person, as opposed to offence focused. For a child or young person, the sentence should focus on rehabilitation where possible. A court should also consider the effect the sentence is likely to have on the child or young person (both positive and negative) as well as any underlying factors contributing to the offending behaviour.
(c) Domestic and international laws dictate that a custodial sentence should always be a measure of last resort for children and young people and statute provides that a custodial sentence may only be imposed when the offence is so serious that no other sanction is appropriate.
(d) It is important to avoid ‘criminalising’ children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re- integration into society rather than to punish. Restorative justice disposals may be of particular value for children and young people as they can encourage them to take responsibility for their actions and understand the impact their offence may have had on others.
(e) It is important to bear in mind any factors that may diminish the culpability of a child or young person. Children and young people are not fully developed, and they have not attained full maturity. As such, this can impact on their decision- making and risk- taking behaviour. It is important to consider the extent to which the child or young person has been acting impulsively and whether their conduct has been affected by inexperience, emotional volatility or negative influences. They may not fully appreciate the effect their actions can have on other people and may not be capable of fully understanding the distress and pain they cause to the victims of their crimes. Children and young people are also likely to be susceptible to peer pressure, and other external influences and changes taking place during adolescence can lead to experimentation, resulting in criminal behaviour. When considering a child or young person’s age, their emotional and developmental age is of at least equal importance to their chronological age (if not greater).
(f) For these reasons, children and young people are likely to benefit from being given an opportunity to address their behaviour and may be receptive to changing their conduct. They should, if possible, be given the opportunity to learn from their mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the child or young person and hinder their re-integration into society.
These guidelines go on to adopt a similar structure and approach to those that apply to adult offenders but as can be seen from s 4 that sets out how a court should determine the sentence for a juvenile, they do so in a more sympathetic way:
Determining the sentence – Section 4:
(a) In determining the sentence, the key elements to consider are:
- the principal aim of the youth justice system (to prevent re- offending by children and young people);
- the welfare of the child or young person;
- the age of the child or young person (chronological, developmental and emotional);
- the seriousness of the offence;
- the likelihood of further offences being committed; and
the extent of harm likely to result from those further offences.
(b) The seriousness of the offence is the starting point for determining the appropriate sentence; the sentence imposed and any restriction on liberty must be commensurate with the seriousness of the offence.
(c) The approach to sentencing children and young people should always be individualistic and the court should always have in mind the principal aims of the youth justice system.
(d) In order to determine the seriousness of the offence the court should assess the culpability of the child or young person and the harm that was caused, intended to be caused or could foreseeably have been caused.
(e) In assessing culpability the court will wish to consider the extent to which the offence was planned, the role of the child or young person (if the offence was committed as part of a group), the level of force that was used in the commission of the offence and the awareness that the child or young person had of their actions and its possible consequences. There is an expectation that in general a child or young person will be dealt with less severely than an adult offender. In part, this is because children and young people are unlikely to have the same experience and capacity as an adult to understand the effect of their actions on other people or to appreciate the pain and distress caused and because a child or young person may be less able to resist temptation, especially where peer pressure is exerted. Children and young people are inherently more vulnerable than adults due to their age and the court will need to consider any mental health problems and/ or learning disabilities they may have, as well as their emotional and developmental age. Any external factors that may have affected the child or young person’s behaviour should be taken into account.
(f) In assessing harm the court should consider the level of physical and psychological harm caused to the victim, the degree of any loss caused to the victim and the extent of any damage caused to property. (This assessment should also include a consideration of any harm that was intended to be caused or could foreseeably have been caused in the committal of the offence.)
(g) The court should also consider any aggravating or mitigating factors that may increase or reduce the overall seriousness of the offence. If any of these factors are included in the definition of the committed offence they should not be taken into account when considering the relative seriousness of the offence before the court.
On what grounds can a delay of the right to have someone informed of the arrest be authorised?
The police officer who authorises the delay may do so only if they have reasonable grounds for believing that telling the named person of the arrest will:
(a) lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons;
(b) lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) hinder the recovery of any property obtained as a result of such an offence.
There are guidelines that the police must follow.
What steps should a solicitor take if there is a conflict of interest?
Once the solicitor has spoken to the investigating officer, the solicitor should speak to one of the suspects (usually the first suspect to have requested the solicitor’s attendance at the police station).
If that suspect’s account suggests a clear conflict of interest (if, for example, the suspect denies guilt and accuses the other suspect of having committed the offence), the solicitor should decline to act for the second suspect and inform the police that this suspect should receive separate legal advice.
To act for both suspects in such circumstances would be a breach of para 6.2 of the SRA Code of Conduct, whereby a solicitor must not act where there is a conflict of interest between two or more clients or a significant risk of a conflict.
Even if there is no obvious conflict of interest, the solicitor should be alert to a potential conflict of interest arising later in the case. This could occur, for example, if both suspects admit the offence but, when the case comes to court, the mitigation for one of the suspects is going to be that they only played a minor role in the commission of the offence and that the larger role was played by the other suspect, and this is something the other suspect disputes.
If a conflict of interest emerges only after the solicitor has seen both suspects, the appropriate course of action is for the solicitor to withdraw from the case completely.
To continue acting for both suspects would be a clear conflict of interest. It would also be inappropriate to continue to act for only one of them because the solicitor would be in possession of confidential information from the other, which could not be passed on to the one whom the solicitor was continuing to represent.
Only if the solicitor is able to act for one client without putting at risk their duty of confidentiality to the other may they continue to represent that first client.
This is unlikely to be the case, because the confidential information received from the other is likely to assist the case of the client the solicitor is continuing to represent and so confidentiality will be put at risk (and also because the solicitor is under a duty to disclose all relevant information to the remaining client).
Does a defendant sentenced to custody usually serve all of their sentence?
A defendant sentenced to custody will not usually serve all of their sentence behind bars. They will normally be released automatically halfway through their sentence.
Adult defendants who receive a custodial sentence of up to two years (for an offence committed after 1 February 2015) will be automatically released at the halfway point and then be on licence in the community to the end of the sentence.
Upon release they must have a period of post- sentence supervision to ensure that they are supervised for a period of 12 months beginning on the day they leave custody.
When must the suspect be informed of their rights?
Before the custody officer decides whether or not the suspect will be detained before charge, the suspect must first be informed about their ongoing rights which may be exercised at any time whilst the suspect is in custody.
On what grounds can an extension of the maximum period of detention be authorised?
May only be given if the superintendent has reasonable grounds for believing that:
(a) the detention of the suspect without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest, or to obtain such evidence by questioning them;
(b) the offence is an indictable offence (ie an either- way or an indictable- only offence); and
(c) the investigation is being carried out diligently and expeditiously.
What are the disadvantages of accepting a conditional caution?
A client who accepts a caution will not be prosecuted for the offence. They must, however, be told about the following potential disadvantages in accepting a caution:
(a) a caution is a formal recorded admission of guilt which will form part of an offender’s criminal record and may affect how they are sentenced should they re- offend in future;
(b) the client will almost certainly lose the opportunity of receiving a caution on a subsequent occasion;
(c) the existence of the caution will be disclosable should the client apply for certain types of employment (particularly entry to a profession);
(d) if the offence is sexual, the client will also be placed on the sex offenders register; and
(e) the police may retain fingerprints and other identification data taken from the client (a record of cautions is usually kept for a minimum of five years).
A client should accept a caution only if they accept their guilt and there is sufficient evidence against them. If there is insufficient evidence, the CPS may choose not to prosecute. A solicitor should not advise a client to accept a caution as a matter of convenience, simply to dispose of the case.
What steps can an investigating officer take to secure, preserve or obtain evidence whist the suspect is detained at the police station?
(a) carrying out an audibly recorded interview with the suspect about the suspect’s alleged involvement in the offence(s);
(b) arranging for an identification procedure to be conducted by another officer to see if a witness to, or a victim of the offence is able to identify the suspect;
(c) taking fingerprints from the suspect to see if these match fingerprints found at the scene of the crime, or on any relevant objects or articles which the police have recovered; and
(d) taking samples from the suspect to see if these match any samples obtained during the course of the police investigation.
How is the suspect informed that their right to legal advice has been delayed?
Authorisation for delaying a suspect’s access to legal advice can be given orally but, if it is, it must be confirmed in writing as soon as is practicable.
What does the court have to take into account when considering the application of s 35?
(a) the burden of proof remains on the prosecution throughout;
(b) the defendant is entitled to remain silent;
(c) before drawing an adverse inference from the defendant’s silence, the court had to be satisfied that there was a case to answer on the prosecution evidence;
(d) an adverse inference from the defendant’s failure to give evidence cannot on its own prove guilt; and
(e) no adverse inference could be drawn unless the only sensible explanation for the defendant’s silence was that he had no answer to the case against him, or none that could have stood up to cross- examination.
As with ss 34, 36 and 37, a defendant will not be convicted of an offence if the only evidence against him is an adverse inference from his failure to give evidence in his defence at trial.
Unlike ss 34, 36 and 37, there is also a limited statutory exception to the drawing of adverse inferences which can be found at s 35(1)(b). This provides the court with a discretion to direct that an adverse inference is not drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence.
Case law suggests that this exception will be applied strictly.
What is the definition of a confession?
A confession is ‘any statement wholly or *partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise’.
Anything said by a defendant that constitutes an admission of any element of the offence with which they are subsequently charged, or that is in any way detrimental to their case, will satisfy the definition of a confession.
*Partly adverse would be saying - “yes I hit the person but only in self defence”.
What is gateway (g) – the defendant has made an attack on another person’s character?
What constitutes an attack on another person’s character?
Under this gateway, a defendant’s bad character will become admissible if the defendant makes an attack on any person’s character. The attack does not necessarily need to be on the character of a witness for the prosecution who is attending court to give evidence (although commonly it will be).
It may be an attack on the character of a person who is dead, or a person whom the CPS does not intend to call to give evidence. Furthermore, the attack on the character of the other person does not necessarily need to take place at trial. The attack may be made when the defendant is being questioned at the police station, or in a defence statement which is served on the CPS.
Only the prosecution may adduce evidence of a defendant’s previous convictions under gateway (g).
Evidence attacking another person’s character is evidence to the effect that the other person has:
(a) committed an offence (whether a different offence from the one with which the defendant is charged or the same one); or
(b) behaved, or is disposed to behave, in a reprehensible way (CJA 2003, s 106(2)).
Although the courts are likely to find that a defendant who makes an emphatic denial of guilt has not attacked the character of another, it is likely that the courts will give a very wide interpretation to this gateway.
What is the admissibility of confession evidence?
In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of s 76.
This means that a confession will be admissible at trial to prove the truth of its contents (ie to prove the defendant’s guilt) and is therefore also an exception to the hearsay rule.
How should a client be advised on the appeals process depending on whether they are the prosecutor or the defendant?
This would be the only avenue of appeal for the CPS, but the defence can appeal straight to the Crown Court against both conviction and/ or sentence.
Appealing to the Crown Court would usually be the best approach to adopt rather than a case by way stated.
The use of appeal by way of case stated was discouraged by Lord Justice Leveson who was at pains to point out that a much speedier and more effective way to challenge a decision by the defendant that resulted in a conviction in the magistrates’ court was to simply appeal against the conviction to the Crown Court. Leveson LJ observed that even if a case stated application succeeded it was still quite likely that the case would return to the magistrates’ court for a retrial and a considerable amount of time will have elapsed, and he did not believe that such delay would ever be in the defendant’s best interests.
What is the special position with regards to bail of a defendant who is charged with murder?
Where a defendant is charged with murder and makes an application for bail only a Crown Court judge may grant bail.
The magistrates’ court must transfer the defendant to the Crown Court (in custody).
A Crown Court judge must then, within 48 hours, make a decision as to whether to grant bail.
The Coroners and Justice Act 2009 provides that bail may not be granted, in these circumstances, unless the court is of the opinion that there is no significant risk of the defendant committing, whilst on bail, an offence likely to cause physical or mental injury to another.
What happens if a defendant breaches bail conditions?
A defendant who breaches any bail conditions other than a condition to attend the next court hearing (for example, a defendant who fails to comply with a curfew, a condition of residence or a condition not to contact a prosecution witness) does not commit a criminal offence by breaching such conditions.
However, a defendant who breaches their bail conditions is likely to have their bail reviewed by the magistrates, who may decide that the failure to comply with the conditions requires a remand in custody.
On what grounds can delay of the right to legal advice be authorised?
Delay to the suspect receiving access to legal advice may only be authorised if the officer has reasonable grounds for believing that the exercise of this right, at the time when the suspect wishes to exercise it, will:
(a) lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons; or
(b) lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) hinder the recovery of any property obtained as a result of such an offence.
There are guidelines that the police must follow when determining whether to delay a suspect’s access.
What powers does the Court of Appeal have on appeal against a sentence?
The Court of Appeal may confirm a sentence passed by the Crown Court or quash the sentence and replace it with an alternative sentence or order as it thinks appropriate. The Court of Appeal cannot, however, increase the sentence imposed by the judge in the Crown Court (CAA 1968, s 11(3)).
A loss of time direction may also be made if the defendant makes an appeal against sentence that is deemed to be without merit.
Under what circumstances is a police officer empowered to arrest person who has been bailed to attend court either by the police following charge, or by the court at a previous hearing?
A police officer is empowered to arrest a person who has been bailed to attend court (either by the police following charge, or by the court at a previous hearing) if the officer reasonably believes that the person:
(a) is not likely to surrender to bail; or
(b) has broken, or is likely to break, their bail conditions.
When must a suspect be brought before the custody officer?
A suspect who has been arrested must be brought before a custody officer in the custody suite on their arrival at the police station (or after their arrest if they were arrested at the police station).
What is the relevant time for calculating detention in the case of a person who attends a police station to answer ‘street bail ’?
The time when they arrive at the police station.
What happens if a client tells their solicitor that they are guilty but they want to enter a guilty plea at court?
Occasionally a client will tell their solicitor that they are guilty of the offence but nevertheless intend to enter a not guilty plea at court. This will raise issues of professional conduct for the solicitor who, whilst under a duty to act in their client’s best interests, is under an overriding duty not to mislead the court (SRA Code of Conduct, para 1.4). In such circumstances the client has two options – to plead guilty, or to plead not guilty.
To comply with their duty to act in the client’s best interests, the solicitor will need to advise the client of the benefits were the client to enter a guilty plea, and of the limitations on the solicitor’s ability to continue representing the client were they to enter a plea of not guilty.
What test will the magistrates court apply to decide if a defendant should be remanded to custody or given bail with/without conditions if they have been arrested on bail for something to do with their bail?
The magistrates will adopt a two- stage approach:
a) The court will first determine if there has been a breach of the bail conditions previously imposed. In practice the defendant will often admit the breach because there will usually be compelling evidence available to prove this. However, if the defendant does not admit to breaching their bail conditions, the magistrates will have to decide whether or not there has been a breach. Although it is possible that oral evidence from both the police officer who arrested the defendant and the defendant will be given to determine whether a breach has occurred, usually the court will rely on the witness statements from the prosecution and only the defendant is likely to give oral evidence.
b) If the magistrates determine that there has been a breach of bail conditions, they will decide whether the defendant should be remanded in custody or on bail pending the next hearing (unless the case can be disposed of at that hearing). So, a defendant who has breached their bail conditions without good reason is likely to be remanded in custody, although the magistrates may be persuaded to make a further grant of bail but with more stringent conditions attached to it.
How can a suspect dispute the bail conditions a custody officer has granted for post charge bail?
A suspect who wishes to vary conditions imposed on bail which the police have granted may
either:
(a) ask the custody officer who imposed the conditions (or another custody officer at the
same police station) to vary the conditions or
(b) make an application to the magistrates’ court for the conditions to be varied.
What is a concurrent sentence?
A concurrent sentence means that the custodial terms are deemed to be served at the same time.
Who is classed as a dangerous offender?
In a limited number of situations, a defendant (both adult and juvenile) may be classified as a ‘dangerous’ offender. In such a situation, the sentencing court must impose one of the following forms of custodial sentence:
(a) automatic life imprisonment;
(b) discretionary life imprisonment; or
(c) an extended sentence of imprisonment.
Who is allowed to attend a hearing at the youth court?
The only people who are usually allowed to attend a hearing in the youth court are:
(a) the district judge/ youth justices
(b) court staff (such as the court clerk and usher)
(c) the juvenile and his parents or guardian
(d) the CPS representative
(e) the juvenile’s solicitor
(f) a representative from the YOT
(g) members of the press.
When will a police interview after charge be necessary?
(a) to prevent or minimise harm or loss to some other persons, or the public;
(b) to clear up an ambiguity in a previous answer or statement; or
(c) in the interests of justice for the suspect to have put to him, and to have an opportunity to comment on, information concerning the offence which has come to light since he was charged.
What is the pre-sentence report before plea?
Where an adult defendant will be pleading guilty and their case is likely to be sentenced in the magistrates’ court, their legal representative can ask the Probation Service to prepare a pre-sentence report before the first hearing.
If the Probation Service decides to produce the report, the court will decide whether to use it to sentence the defendant.
What must the interviewing officer remind the suspect of after giving the suspect a caution?
After cautioning the suspect, the officer must also remind the suspect that they are entitled to free and independent legal advice, even if the suspect has a solicitor present at the interview.
When must the first detention review take place?
The first review must take place no later than six hours after the custody officer first authorised the detention of the suspect (note: not six hours after the suspect first arrived at the police station).
What is a basis of plea in relation to a Newton hearing?
One way the prosecution and defence may try to avoid having a Newton hearing is to agree a version of events upon which the defendant will be sentenced. This is known as a ‘basis of plea’ and it will usually be instigated by the defence. A basis of plea is a document that sets out the defendant’s factual version of events to an offence which the defendant accepts they are guilty of.
The purpose of the basis of plea from the defence perspective is to remove various
aggravating features of the case which would lead to a higher sentence and which the
defendant does not accept are an accurate reflection of what actually happened.
If the basis of plea is accepted by the prosecution and the sentencing judge, the sentence will
proceed on the version put forward by the defence.
If the basis of plea is rejected by the prosecution and the judge thinks that the version of events put forward by the prosecution is sufficiently more serious than the version put forward by the defence (so as to justify a higher sentence), then there will be a Newton hearing to determine the factual basis upon which the defendant will be sentenced.
It is also worth bearing in mind that the sentencing judge is entitled to reject a basis of plea which they consider to be absurd. If the judge takes the view that the basis put forward by the defence is patently absurd then sentencing will take place on the prosecution version of events without a Newton hearing taking place.
So the sentencing judge is the final arbiter on whether or not a basis of plea is accepted and is entitled to reject a basis even if accepted by the prosecution.
What is the test for unused material?
Section 3 provides that such material must be disclosed if it ‘might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused’.
Examples of the types of material that require disclosure include:
(a) records of the first description of a suspect given to the police by a potential eyewitness if that description differs from that of the defendant;
(b) any information provided by the defendant which indicates an innocent explanation for the offence;
(c) material casting doubt on the reliability of a witness (eg previous convictions);
(d) material casting doubt on the reliability of a confession; and
(e) any statements from witnesses which appear to support the defendant’s account.
The case management directions referred to above give time limits as to when the prosecution must make initial disclosure of any unused material in their possession which satisfies the testmin s 3 of the CPIA 1996.
The CPS usually sends to the defendant’s solicitor a schedule of all the non- sensitive unused material in its possession, together with copies of any items on the schedule which satisfy the test in s 3.
The duty of disclosure on the CPS is ongoing, and so the CPS must apply this test to any further material it receives after making initial disclosure.
The CPS must also consider the need to make further disclosure in the light of any information received from the defence about the nature of the defence case.
If the defendant’s solicitor considers that the disclosure made by the CPS is incomplete, they will request disclosure of any ‘missing’ items when drafting the defence statement.
Should the CPS refuse to supply to the defendant’s solicitor items which the solicitor has requested, the solicitor may apply to the court to request the specific disclosure.
Such an application may be made only if the defendant has provided a defence statement.
When would a defendant automatically satisfy the means test?
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.
What is gateway (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?
This gateway allows a defendant to introduce evidence of their own bad character.
A defendant may do this if, for example they only have very minor previous convictions and do not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions. Another example of when a defendant may do this is if they pleaded guilty on previous occasions but are pleading not guilty to the current matter. The defendant may use such convictions to say to the jury that they accept their guilt when they have committed an offence, but on this occasion they are pleading not guilty because they genuinely have not committed the offence charged.
In R v Paton, the defendant was charged with kidnapping, false imprisonment and firearms offences after he was alleged to have blindfolded and interrogated the manageress of a garden centre about the security systems at the centre, and then locked her in the boot of her car. Various items found in the defendant’s car suggested that the defendant had been the kidnapper. The defendant raised evidence of his own bad character by claiming that these items had come from a burglary he had committed on an earlier occasion, and that he was not guilty of the more serious offences charged.
What happens at a first hearing specifically for either-way offences?
An adult defendant charged with an offence triable only on indictment will be sent straight to the Crown Court for either trial or sentence following a preliminary hearing in the magistrates’ court.
For such offences, the defendant’s case will therefore always have to be adjourned, so the
magistrates will 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.
What are the statutory aggravating factors in sentencing?
There are four situations when the sentencing court is obliged to treat an offence as being more serious than it would otherwise have done:
Previous convictions – the court must treat any previous convictions as an aggravating factor if, having regard to the nature of the previous conviction and the time that has elapsed since the conviction, the court considers it reasonable to do so. In practice, this means that previous convictions are likely to be regarded as aggravating factors if the offences have been committed recently and/ or are for similar types of offence. For example, if a defendant convicted of a theft from a supermarket has several previous convictions for the same type of offence, these previous convictions will be seen by the sentencing court as an aggravating factor.
(b) Offences committed whilst on bail – if the offender was on bail in respect of another offence at the time of the current offence, the court must treat this as an aggravating factor.
(c) Racial or religious aggravation – any racial or religious motive for committing the offence must be treated as an aggravating factor.
(d) Hostility based on sexual orientation or disability – any hostility towards the victim of an offence based on that victim’s sexual orientation or any physical or mental disability, must be treated as an aggravating factor.
What is the procedure for challenging the admissibility of confession evidence in the Crown Court ?
In the Crown Court, the admissibility of disputed confession evidence will be determined by the trial judge in the absence of the jury at a voir dire (a trial within a trial).
If the confession was made by the defendant in an interview at the police station, the interviewing officer will give evidence as to how the confession was obtained and the defendant will then give their version of events. The audio recording of the interview is
also likely to be played.
If the confession was made ‘outside’ the police station, the officer to whom the confession was allegedly made will give evidence, as will the defendant.
Prosecuting and defence counsel will then make submissions to the judge on whether or not the confession should be excluded in the light of the evidence given. The judge will then make their ruling.
If the judge rules the confession to be inadmissible, the jury will hear nothing about the
confession.
If the judge rules the confession to be admissible, the interviewing officer will then give evidence of the confession when giving evidence to the jury. The defendant will still be able to attack the credibility of the confession (either when giving evidence, or when then police officer is being questioned) in an attempt to persuade the jury to attach little or no weight to it.
