Glossary

Question 1

Absolute discharge

Answer 1

An absolute discharge is the lowest form of sentence available to a court. It is usually imposed to reflect either the triviality of an offence, the circumstances in which an offender came to be prosecuted or special factors relating to the offender. It is in effect no punishment at all since there is nothing that the defendant must do or not do to comply with it, there is no way of breaching it, no conditions attached to it and it is ‘spent’ immediately for the purposes of the Rehabilitation of Offenders Act.

Question 2

Abuse of process application

Answer 2

An application to stay the indictment where either (1) the defendant cannot have a fair trial; or (2) continuing the prosecution offends the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute.

Question 3

Accepting/ declining jurisdiction

Answer 3

Terms which apply to either-way offences. If the magistrates’ court decides that the case must be heard in the Crown Court it is known as declining jurisdiction and then that is where the case will go. If the magistrates’ court decides that the case is suitable to be retained in the magistrates’ court this is known as accepting jurisdiction.

Question 4

Adjournment

Answer 4

In any case where the defendant is presented to court, and the court cannot conclude the case in one hearing, the case will have to be adjourned. It is important to note the word ‘adjournment’ applies to the case. It does not describe what happens to the defendant.

Question 5

Admissibility of confessions

Answer 5

There are two main ways under s.76 PACE 1984 to challenge a confession:
(i) under s.76(2)(a)- ‘oppression’; or
(ii) under s.76(2)(b)- ‘anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’.

Question 6

Adult

Answer 6

Aged 18 or over. With reference to sentencing procedure ‘adult’ sometimes means a person aged 21 or over, as that is the age an offender becomes liable to imprisonment rather than detention in a Young Offender Institution.

Question 7

AG References

Answer 7

The Court of Appeal (Criminal Division) has jurisdiction to hear references by the Attorney-General of:
(i) unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary; or
(ii) for opinions on points of law following acquittal on indictment.

Question 8

Allocation/ mode of trial

Answer 8

If the defendant indicates a not guilty plea at a first hearing for an either-way offence then the court must consider where the case will be tried (magistrates’ court or Crown Court) in a phase called ‘allocation’, though it is usually referred to as the ‘mode of trial’ hearing.

Question 9

Alternative offences

Answer 9

The prosecution can choose to charge the defendant with alternative offences, for example Actual Bodily Harm (the more serious offence) and Common Assault (the less serious offence).

Question 10

Alternative or lesser offences

Answer 10

As a general rule, the court can only find a defendant guilty or not guilty of the offence or offences specifically charged against a defendant and have no power to find a defendant guilty of an alternative lesser offence. There are, however, several exceptions to this rule

e.g. The Theft Act 1968, s.12A(5) provides that on a charge of aggravated vehicle taking an alternative of taking a vehicle without consent may be entered.

Question 11

Ancillary orders

Answer 11

Orders imposed in addition to or instead of sentence such as: prosecution costs orders, compensation orders, forfeiture and depravation orders and confiscation orders.

Question 12

Appeal by way of case stated

Answer 12

Section 111 Magistrates’ Court Act 1980 provides for an appeal by way of case stated. This a form of appeal to the High Court on the basis that the decision made was wrong in law or in excess of jurisdiction.

Question 13

Application for dismissal

Answer 13

For cases sent to Crown Court. A pre-trial application which is made after evidence is served and before arraignment.
The legal test used to decide the application is the same as that used for a submission of no case to answer (Galbraith).

Question 14

Application for specific disclosure

Answer 14

The defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed, as long as a defence statement has been served and the prosecution have either provided further disclosure or a notice of no further disclosure.

Question 15

Appropriate adult

Answer 15

If a person is, or appears to be, under 18 years of age, they must have an appropriate adult present at the police station. The right to an appropriate adult also applies to anyone whom a police officer suspects may be:
(i) mentally disordered or otherwise mentally vulnerable;
(ii) anyone whom an officer has been told in good faith may be mentally disordered or otherwise mentally vulnerable.

The role of the appropriate adult is to support and assist a detained person in understanding what is happening at the police station and why. The appropriate adult is also there to ensure that the detained person’s rights are respected. There are categories of people who can (e.g. parent) and cannot (e.g. solicitor or police officer) be an appropriate adult.

Question 16

Arraignment

Answer 16

The indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment.

Question 17

Arrest

Answer 17

restraining the liberty of a person with a view to detention. The purpose of an arrest is usually to facilitate the investigation of an offence by the police. It can be with or without a warrant. A warrant is a written order issued by a court which authorises a judicial officer or authorised person to undertake an act such as an arrest. When a constable arrests a person without a warrant under s.24 PACE 1984, written authorisation is not required and therefore there has to be a ground for the arrest as well as a reason why it is necessary to arrest the suspect.

Question 18

Backed for bail or not backed for bail

Answer 18

An arrest warrant can be ‘backed for bail’, meaning that the person should be arrested and given a date on which to appear in court and then released on bail. Most warrants are ‘not backed for bail’, meaning that the person should be arrested and brought to court in custody.

Question 19

Bad character

Answer 19

Bad character is defined in s.98 Criminal Justice Act (CJA) 2003 as: ‘evidence of, or of a disposition towards, misconduct on his part, other than evidence which- (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence.’ ‘Misconduct’ is defined in s.112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’. ‘Reprehensible behaviour’ is not further defined in the Act, though there is case law on the issue e.g. it is well-established that evidence of membership of a gang is evidence of reprehensible behaviour.

Question 20

Bail factors

Answer 20

When considering the grounds for objecting to bail, there are ‘factors’ to be taken into consideration. These factors are not grounds themselves, but help the court determine if the grounds are made out. The factors are mandatory considerations for the main three grounds: (a) the nature and seriousness of the offence and the likely disposal (ie sentence); (b) the character of the defendant, D’s antecedents, associations and community ties; (c) the defendant’s bail record in the past; and (d) the strength of the evidence.

Question 21

Bail

Answer 21

The release of a person subject to a duty to surrender to custody at an appointed time and place.

Question 22

Basis of plea

Answer 22

A written document signed by the defendant that accepts D’s conduct amounted to the offence but on a different factual basis than alleged by the prosecution.

Question 23

Bind over

Answer 23

A person can be bound over by a court to ‘keep the peace’ for a sum of money that they forfeit if they fail to do so. In appropriate cases, a bind over can also include the condition not to possess, use, or carry a firearm.

Question 24

Caution

Answer 24

A person arrested should be cautioned as soon as reasonably practicable after arrest. ‘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.’

Question 25

CCRC

Answer 25

Criminal Cases Review Commission is an independent body that has the power to refer, at any time, any conviction on indictment or sentence to the Court of Appeal or to the Crown Court if the conviction/sentence is a summary one. The question the CCRC asks itself is whether there is a real possibility that the Court of Appeal will quash the original conviction or sentence. If the CCRC chooses to make such a reference it is usually only in respect of an argument or information not available in the court of first instance or on appeal, save for where exceptional circumstances exist.

Question 26

Child

Answer 26

The Children and Young Persons Act 1933 s.107 defines a ‘child’ as a person under the age of 14 years old.

Question 27

Circumstantial evidence

Answer 27

Evidence from which facts are inferred e.g. the matter in issue is where the defendant was at midnight and a train ticket found in the defendant’s pocket showing a train ticket for a train arriving just before midnight at the station (circumstantial real evidence).

Question 28

Committal for sentence

Answer 28

Occurs when a defendant pleads guilty to an either-way offence or is found guilty at the magistrates’ court. If the magistrates’ feel their sentencing powers are not enough, the case is transferred to the Crown Court for sentencing.

Question 29

Common law exclusionary discretion

Answer 29

A judge can exclude evidence on the basis that ‘the probative value of the evidence is outweighed by its prejudicial effect’. In other words, does the evidence do more harm than good in terms of assisting the tribunal of fact to reach a decision on the issues?

Question 30

Common law offences

Answer 30

All matters that are contrary to common law, as opposed to the statutory offences which are the creation of statute.

Question 31

Community order

Answer 31

A Community Order is a sentence that requires a defendant to comply with one or more requirements available to a court to punish and/or rehabilitate a defendant in the community. It must not be imposed unless the court is satisfied that the offence(s) committed by the defendant was/were serious enough to warrant such a sentence.

Question 32

Community sentence threshold

Answer 32

‘A court must not pass a community sentence on an offender unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.’

Question 33

Conditional discharge

Answer 33

A conditional discharge, as the name suggests, is a discharge (so no actual punishment) but with a condition attached to it. The condition is that if the defendant commits another offence during the period specified, they can be re-sentenced for the original offence and sentenced for the new offence. The specified period must be no more than three years.

Question 34

Confession

Answer 34

A ‘”confession”, includes 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’(s.82(1) PACE 1984).This includes unequivocal confessions of guilt (i.e. wholly inculpatory statements such as ‘I did it’), mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had nothing to do with it but I was glad to see the victim die’) and depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.

Question 35

Court clerk

Answer 35

Also known as a justices’ clerk or legal adviser. Performs differing roles depending on the type of court. In the magistrates’ court the court clerk will provide legal advice to the bench of lay magistrates. In the Crown Court, the court clerk does not give legal advice but will be responsible for tasks such as selecting and taking verdicts from the jury.

Question 36

CPIA 1996

Answer 36

Criminal Procedure and Investigations Act 1996- contains some of the main disclosure provisions for example the prosecutor’s duty of initial disclosure and the contents of defence statements.

Question 37

CPS

Answer 37

Crown Prosecution Service are the body which conduct all criminal cases instigated by the police, can instigate cases itself or take over private prosecutions for example.

Question 38

Credit for guilty plea

Answer 38

Defendants are given ‘credit’ or a discount on their sentence if they plead guilty. The amount of credit depends on when the guilty plea was entered.

Question 39

Criminal Procedure Rules (‘CrimPR’)

Answer 39

The Criminal Procedure Rules apply to all criminal cases in the criminal courts including the magistrates’ court, Crown Court and criminal division of the Court of Appeal. The CrimPR include an ‘overriding objective’ (Rule 1) and more detailed case management powers (Rule 3) to which all parties to a case are required to adhere in order that criminal cases might be managed effectively.

Question 40

Custody officer

Answer 40

Must be of the rank of sergeant or above, is responsible for the handling and welfare of suspects in detention at the police station.

Question 41

Custody threshold

Answer 41

Section 152 Criminal Justice Act 2003 states: ‘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.’

Question 42

Custody time limits (pre-trial)

Answer 42

There are rules that seek to prevent unduly long periods of time being spent on remand in custody awaiting trial. The prosecution cannot hold a defendant beyond the ‘custody time limits’ unless the court has sanctioned an extension. 56 days for trials in the magistrates’ court of summary only or either-way offences and 182 days for trials in the Crown Court of indictable only or either-way offences, less any days spent in custody prior to the case being sent to the Crown Court (usually zero).

Question 43

Dangerous offenders

Answer 43

Defined in s.229 Criminal Justice Act 2003. Essentially a person who has been convicted of a serious specified offence which attracts a maximum sentence of either life or a determinate sentence of ten years or more.

The test is whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.

Section 51A(2) and (3)(d) of the Crime and Disorder Act 1998 provides for youths who are considered dangerous to be sent to the Crown Court. This applies where:
(a) The offence is a specified offence within the meaning of s.224 of the Criminal Justice Act 2003; and
(b) It appears to the court that, if he is found guilty, the criteria for the imposition of a sentence of extended detention under s_._226B CJA 2003 would be met.

Question 44

Defence statement

Answer 44

A defence statement is a written statement which sets out the nature of the accused’s defence with reasonable clarity e.g. the matters of fact on which D takes issue with the prosecution and why, any points of law D wishes to take including authority in support and particulars of any alibi witness (name, address and date of birth). A defendant must serve a defence statement in the Crown Court but not in a magistrates’ court.

Question 45

Deferral of sentence

Answer 45

A court can defer sentence for up to six months, the idea being that the defendant is allowed this time to prove to the court that D has either ‘changed’ or that the offence was an absolute ‘one-off’ and thus allowing D the ability to present to the court at the end of the deferral period in a much better light, and often, receive a lighter sentence as a result.

Question 46

Detention and Training Order (DTO)

Answer 46

The only custodial sentence available to the youth court. A DTO can also be imposed by the Crown Court.

Question 47

Determinate custodial sentence

Answer 47

A prison sentence for a defined period of time. The defendant serves half the sentence in prison and the other half on licence in the community. Any breach of D’s licence conditions can lead to their recall to prison to serve some or all of the remaining sentence. A custodial sentence must not be passed unless the court is satisfied that the offence or offences (if there is more than one and they are related) are so serious that neither a fine nor a Community Order can be justified.

Question 48

Direct evidence

Answer 48

Evidence that a witness gives of having had direct experience of a matter in issue e.g. the matter in issue is where the defendant was at midnight, the witness saw the defendant at the train station at midnight and gives direct oral evidence of this.

Question 49

Disclosure officer

Answer 49

Is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request. The disclosure officer must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.

Question 50

Early administrative hearing

Answer 50

Where a person has been charged at the police station, the first hearing can be treated as an ‘early administrative hearing’ conducted by a single magistrate or by a justices’ clerk. At such a hearing the accused will be asked if they wish to obtain legal aid. If the accused does, the matter can be adjourned to facilitate this. A decision on bail or custody can also be made by a magistrate.

Question 51

Evidential burden

Answer 51

Is where you have to raise some evidence to satisfy the judge that the matter should be argued before the jury.

Question 52

Exclusionary rule

Answer 52

A law which will prevent evidence from being admissible. If an exclusionary rule applies it does not matter how relevant the evidence in question may be, it will be inadmissible.

Question 53

Finality on collateral matters

Answer 53

The court generally restricts further evidence on periphery issues such as witness credibility. The courts are more lenient in allowing evidence to be admitted on the ‘collateral’ issue of a witness being ‘biased or partial’ and even when a witness denies such, counter-evidence will be admissible.

Question 54

Fine

Answer 54

A financial penalty that requires a defendant to pay a certain sum of money to the court on conviction. The amount is due immediately and can only be paid in instalments with the agreement of the court.

Question 55

Good character direction

Answer 55

A defendant in a Crown Court trial who is of good character will want the judge to give the jury a direction as to how they should approach the fact that the defendant is of good character. The good character direction’ itself consists of two limbs:

(i) Credibility- The jury should take the defendant’s good character into account in weighing the credibility of the evidence D gave in the trial or of the statements or answers D gave pre-trial.

(ii) Propensity- The jury should take into account the defendant’s good character in considering the likelihood of D having committed the offence charged. The judge should indicate that good character, in and of itself, cannot amount to a defence.

Absolute good character is where the defendant has no previous convictions and there is no evidence of other reprehensible conduct. Effective good character is where the defendant has previous convictions that are old, minor or relate to offences of a different nature to the offence charged. In such cases the court may treat the defendant as being of good character. Positive good character is where the defendant can go further than saying that they are of good character and adduce evidence of so-called “positive good character” by showing that D has behaved virtuously (e.g. charity work).

Question 56

Goodyear indication

Answer 56

Prior to deciding whether or not to plead guilty to an offence it is open to a defendant to ask the court for an indication of the sentence D would receive in the event of D proceeding to enter a guilty plea. The defendant can ask for such an indication either before the PTPH or at any stage of the proceedings before the jury return their verdict. This principle is named after the seminal case in which the rules for obtaining such an indication were considered at length, that of R v Goodyear.

Question 57

Grave crimes

Answer 57

Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 defines what is capable of being a ‘grave crime’ as:
(a) Any offence that in the case of an adult carries 14 years or more imprisonment;
(b) Offences under ss.3, 13, 25 and 26 of the Sexual Offences Act 2003. Section 91 allows a Crown Court to sentence a youth to any length of detention which would be possible if they were an adult. It is a power used where the maximum sentences available to the youth court are not sufficient.

Question 58

Grounds for objecting to bail

Answer 58

There are three primary grounds for objecting to bail for a large amount of offences that classify as ‘indictable’. These ‘big three’ (a BPP reference term, not a legal term of art) are the original and core grounds. The test, set out in the Bail Act 1976, Schedule 1, para 2, is whether, if the defendant is released on bail, there are ‘substantial grounds’ for believing that the defendant would either: (a) fail to attend the next hearing;
(b) commit further offences on bail; and/or
(c) interfere with witnesses, or otherwise obstruct the course of justice.

Question 59

Hearsay

Answer 59

The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents. The general rule is that hearsay is inadmissible which is an example of an exclusionary rule. When addressing hearsay, ask these two questions:

(1) Does the evidence fall within the definition of hearsay evidence? Use the three part test in R v Twist to determine whether a communication is hearsay. If the answer to this question is ‘yes’, then it is prima facie inadmissible.

(2) Does it fall within one of the exceptions to the general exclusionary rule? Section 114 Criminal Justice Act 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1).

Question 60

Hostile witnesses

Answer 60

A witness known to have evidence that could assist the prosecution then indicates they are not going to give that evidence in court. The prosecution can ask for the statement to be put to the witness, and the witness can effectively be cross-examined by their own advocate with the purpose of establishing the truth of the earlier account.

Question 61

Hung jury

Answer 61

A jury which is unable to reach a verdict either unanimously or by way of an acceptable majority is known as a hung jury. A hung jury will be discharged from further consideration of the case. A jury which is discharged for reasons other than being able to reach a verdict is not a hung jury.

Question 62

Inclusionary rule

Answer 62

Some evidence is deemed by its nature to be inadmissible per se, and to become admissible, you need an ‘inclusionary rule’. An example of an inclusionary rule is ‘bad character’ evidence. The evidence of a defendant’s bad character (such as previous convictions) that does not relate to the offences charged is generally considered inadmissible. However, there are quite a few ways to get the bad character evidence admitted, and the inclusionary rules are quite wide under the Criminal Justice Act 2003.

Question 63

Indictable offences

Answer 63

‘Either-way’ offences, in other words, capable of being tried on indictment. The defendant may end up at hearings in the magistrates’ court only or the magistrates’ court and the Crown Court. Assault occasioning actual bodily harm is an indictable or either-way offence.

Question 64

Indictment

Answer 64

The indictment is simply the document containing the charges that a defendant faces in the Crown Court. Each of these charges is contained in a ‘count’ on the indictment. Indictments must be in writing and each count must contain:
(i) a statement of the offence charged that describes the offence in ordinary language and identifies any legislation that creates it; and
(ii) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

Question 65

Inferences

Answer 65

An adverse inference is a common sense conclusion that is adverse to the interests of a party in proceedings. If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground.

Question 66

Initial details

Answer 66

The prosecution is obliged to serve ‘initial details’ of the case against the accused. The contents of the initial details differs depending on whether the accused was in police custody or not, immediately before the first hearing.

Question 67

Interview

Answer 67

An interview is widely defined by Code C, para 11.1A as: ‘the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences …’.

Question 68

Joinder of counts

Answer 68

When more than one offence is included on a single indictment. Counts may be included on the same indictment if they are: (i) founded on the same facts- as they arise out of a single incident or an uninterrupted course of conduct; or (ii) form part of a series of offences.

Question 69

Joinder of defendants

Answer 69

More than one defendant can be included on a single indictment. Defendants can be jointly named in one count or named individually in separate but related counts. The jury would consider the case against each defendant separately.

Question 70

Judicial notice

Answer 70

A judge is permitted to take judicial notice of a fact ‘on enquiry’. This simply means that judges might not know a particular fact ‘off the top of their head’ but could find out very easily, from a source that would be incontrovertible. So, for example, which counties border Staffordshire? If this was relevant to the case, the parties would have the option of asking the judge to take judicial notice ‘on enquiry’ and simply let the judge look up the answer. Jurors are not allowed to do their own research at any time.

Question 71

Judicial review

Answer 71

Judicial review is the means by which the High Court (the Divisional Court of the Queen’s Bench Division) polices inferior tribunals and public bodies. The principal grounds where a review can be applied for are - error of law on the face of the records (i.e. an error disclosed by the court records), excess of jurisdiction and a breach of natural justice.

Question 72

Juvenile

Answer 72

A person who is under the age of 18.

Question 73

Laying an information

Answer 73

Another way to commence proceedings is for the prosecutor to serve an information alleging an offence on a magistrates’ court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced this way.

Question 74

Legal burden

Answer 74

Is simply the requirement to prove an element of your case to a prescribed standard. The standard varies between prosecution and defence: (i) the standard to which prosecution proof is put is always ‘beyond reasonable doubt’; and (ii) the standard for anything that the defence has to prove is the ‘balance of probabilities’.

Question 75

Legal professional privilege

Answer 75

A client’s communications with a lawyer are confidential. There are two forms of privilege: (i) the purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege); or (ii) to obtain advice more generally (advice privilege). All the direct communication between lawyer and client is privileged unless the client chooses to waive this. Communications with third parties will be privileged in the case of litigation but not general advice.

Question 76

Litigants in person

Answer 76

Individuals who exercise their right to conduct legal proceedings on their own behalf, rather than instructing legal representative.

Question 77

Low value shoplifting

Answer 77

Low value shoplifting, where the value does not exceed £200, is now said to be a summary only offence. When read fully, however, the statute still allows an adult defendant to elect trial in the Crown Court. You should therefore continue to treat shoplifting as a theft which is an either-way offence.

Note: ‘shoplifting’ is not an offence in any event. Where a person has allegedly shoplifted, they are properly charged with theft. In reality the only difference that the supposed reclassification of the offence makes is that a magistrate’s court cannot decline jurisdiction at the mode of trial hearing.

Question 78

Lucas direction

Answer 78

In certain circumstances, a defendant’s lie does not automatically mean that the defendant must be guilty of the offence. A Lucas direction is when the jury is warned against the ‘forbidden reasoning’ that lies by their very nature demonstrate guilt.

Question 79

Lying a count on the file

Answer 79

When the prosecution lies a count on the file, with the judge’s agreement, the prosecution does have evidence to prove the offence, but have chosen for other reasons not to pursue it. Lying a count on the file does not result in a verdict of not guilty; rather, the case is put on hold, usually permanently.

Question 80

Mandatory life sentence

Answer 80

Where a defendant is convicted of murder, the court must pass a mandatory life sentence. It has no discretion to pass any other sentence. A mandatory life sentence is not available for any other offence than murder. A life sentence doesn’t necessarily mean that the defendant will spend their entire life in prison but instead a court will fix a minimum term. Once that minimum term has expired they can apply for release to the Parole Board who has ultimate discretion as to when a defendant is released.

Question 81

Multiple hearsay

Answer 81

An example of an oral hearsay statement would be that a witness (‘X’) testifies to what Y said. In contrast, an example of multiple hearsay would be X testifies to what Y said Z told Y.

Question 82

Multiple offending counts

Answer 82

Where the offence is a continuous one (e.g. conspiracy) it can be appropriate to include more than one offence in a single count. There is guidance on when ‘rolled up’ or ‘multiple incident’ counts may be appropriate.

Question 83

Newton hearing

Answer 83

Where a defendant pleads guilty on a basis that will make a material difference to sentence, the court must hold a hearing to decide the factual basis upon which it should pass sentence (R v Newton). In the magistrates’ court, a Newton hearing is exactly the same as a regular trial. In the Crown Court it takes place without a jury. At the conclusion of the hearing the Judge must decide whether the prosecution has proved its version of the facts beyond reasonable doubt. If it has, the defendant will be sentenced on the prosecution version of the facts. If it has failed to prove their factual basis to that standard, the defendant will be sentenced on the defence version of the facts as set out in their basis of plea.

Question 84

Notice of Intention to Call Defence Witnesses

Answer 84

In the Crown Court and magistrates’ court, the defendant must disclose to the court and the prosecutor a notice indicating if D intends to call any witnesses at trial (other than D) and if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.

Question 85

Offering no evidence

Answer 85

When the prosecution offers no evidence on a count on the indictment, this will result in the judge directing that a not guilty verdict is entered against that count. The prosecution should offer no evidence when it is satisfied that there is no or insufficient evidence to prove a count on the indictment.

Question 86

Officer in charge of the investigation

Answer 86

The ‘OIC’ who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material.

Question 87

Overloaded indictments

Answer 87

If counts have been wrongly joined on an indictment, an application can be made for the judge either to quash the indictment or, alternatively, to amend the indictment by deleting the improperly joined count or counts. If an indictment is quashed proceedings would have to be started again either by instituting new proceedings against the defendant or by way of a voluntary bill of indictment.

Question 88

PACE

Answer 88

The conduct of the police during an investigation is governed by the Police and Criminal Evidence Act (PACE) 1984and the PACE Codes of Practice.

Question 89

Persistent Young Offender (PYO)

Answer 89

No statutory definition. Guidance contained within the Sentencing Council publication Sentencing Children and Young People: Definitive Guideline states that a young person is likely to be categorised as a PYO if they have been convicted of, or made subject to a pre-court disposal that involves an admission or finding of guilt, in relation to imprisonable offences on at least 3 occasions in the past 12 months. Some sentences are only available to a PYO (eg a Detention and Training Order when offender is under 15 years old).

Question 90

PET form

Answer 90

A Preparation for Effective Trial form is to be completed by the parties at the first hearing in the magistrates’ court in preparation for summary trials. Parties set out what the issue(s) at trial will be and which witnesses are required to give live evidence. It allows case management directions for trial to be made.

Question 91

Plea before venue

Answer 91

If a guilty plea is indicated at a first hearing for an either-way offence this will be treated as a summary trial at which a guilty plea was entered. This is part of the hearing is known as ‘plea before venue’.

Question 92

Pre-trial hearings

Answer 92

Where a case has been set down for summary trial, the court can conduct pre-trial hearings at which pre-trial rulings can be made. These can cover matters such as admissibility of evidence and fitness to plead.

Question 93

Privilege against self-incrimination

Answer 93

The general principle (under the common law) that courts will uphold a witness’s right (and we are talking about witnesses other than the defendant) to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves.

Question 94

Prosecution notices

Answer 94

In cases of serious complex fraud and in cases where the allegation is of harm or threat of harm to a person and a child will be called as a witness, the prosecution can serve a notice on a magistrates’ court to the effect that the case should be taken over by the Crown Court. The effect of the notice is that a magistrates’ court must send the case to the Crown Court without conducting an allocation hearing.

Question 95

Pre-Sentence Report

Answer 95

Pre-sentence report ordered if there is a realistic alternative to a custodial sentence, the accused may be a dangerous offender, or if there is some other appropriate reason for doing so.

Question 96

PTPH

Answer 96

Plea and trial preparation hearing. The PTPH is the main, and often only, pre-trial Crown Court hearing. The PTPH has two stages:
(i) ‘plea’; and
(ii) either ‘sentence’ or ‘trial preparation’. At plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment. At the end of the trial preparation stage, the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial.

Question 97

Public interest immunity application

Answer 97

The prosecution must make this application if it does not wish to disclose material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.

Question 98

Real evidence

Answer 98

Simply means objects and things which are brought to court for inspection. Some real evidence will be in the form of documents that are exhibited by a witness who can vouch for their origin.

Question 99

Reasonable suspicion

Answer 99

A two part test:
(i) the constable carrying out the arrest must actually suspect (the subjective test); and
(ii) a reasonable person in possession of the same facts as the constable would also suspect (the objective test).

Question 100

Related offences

Answer 100

Discussed in the context of sending related offences to the Crown Court for trial. A related summary offence arises out of circumstances which are the same or connected with the indictable-only offence for example.

Question 101

Relevance

Answer 101

Relevance is established by whether the evidence is ‘logically probative’ of a fact in issue – i.e. does the evidence tend to prove or disprove a fact in issue. If evidence is irrelevant, it is inadmissible, and if the evidence is relevant, it is admissible.

Question 102

Remand

Answer 102

When a defendant is sent away and told to come back another day, it is called a ‘remand’. A defendant on remand is obliged to come back to court to continue with the case. The remand may either be served in custody or served in the community on bail.

Question 103

Res gestae

Answer 103

Section 118 Criminal Justice Act 2003 preserves the common law rule that a statement is admissible as evidence of any matter stated if:
(a) The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;
(b) The statement accompanied an act; or
(c) The statement relates to a physical sensation or a mental state (such as intention or emotion).

Question 104

ROTI

Answer 104

Where a defendant has been interviewed at the police station and has responded to the questions asked, that interview is recorded and from that recording a ‘record of taped interview’ (ROTI) is produced. The interview forms part of the prosecution evidence in the case. It is usually presented to the court as a written record of interview. It is very rare for a transcript of the whole of the interview to be shown to the court; in practice, the prosecution and the defence agree an edited record of interview which contains the relevant questions and answers whilst removing those questions and answers that are not relevant to the issues in the case.

Question 105

Rule against duplicity

Answer 105

Generally each count should relate to a single offence. Except in limited circumstances, a single count alleging multiple offences will be ‘bad for duplicity’.

Question 106

s.10 CJA written admissions

Answer 106

Where facts are agreed by all parties they can be written down and presented to the court as admissions pursuant to s.10 Criminal Justice Act 1967.

Question 107

s.34 Criminal Justice and Public Order Act 1994

Answer 107

Section 34 provides, in summary, that where the defendant withholds a fact when questioned under caution, or when being charged, which the defendant could reasonably be expected to mention, but presents it at trial, adverse inferences may be drawn. The inference may be relevant in determining guilt, determining whether there is a case to answer, or on an application to dismiss charges in the Crown Court. The provision enables the court to draw ‘such inferences as appear proper’. Its principal objective is to achieve early disclosure of a defendant’s account.

Question 108

s.35 Criminal Justice and Public Order Act 1994

Answer 108

Section 35 provides for the situation where a defendant either refuses to give evidence at their trial or refuses to answer certain questions.

Question 109

s.36 Criminal Justice and Public Order Act 1994

Answer 109

This provision permits an adverse inference to be drawn when an arrested person fails or refuses to explain an object, substance or mark on their person, clothing, footwear or in their possession or in any place where the accused is at the time of their arrest.

Question 110

s.37 Criminal Justice and Public Order Act 1994

Answer 110

Section 37 is concerned only with the accused’s location at the time of arrest, and only when the accused was found at the location of the crime at or around the relevant time.

Question 111

s.51 Crime and Disorder Act 1998

Answer 111

The power to send either-way and indictable only cases to the Crown Court.

Question 112

s.78 Police and Criminal Evidence (PACE) Act

Answer 112

Section 78(1) PACE states that: ‘the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, 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.’ This is an example of an exclusionary discretion which safeguards the fairness of the defendant’s case. It gives courts an ability to find prosecution evidence inadmissible if it has been wrongly obtained or obtained through ‘significant and substantial’ breach(es) of PACE. Some examples include denying access to a solicitor or using oppression in police interviews.

Question 113

s.82(3) PACE

Answer 113

Application to exclude evidence under the common law. Largely superseded by s.78 PACE and rarely used.

Question 114

s.9 CJA witness statements

Answer 114

When the defence have no dispute with the content of a prosecution witness’s statement no purpose would be served in calling the witness to give live evidence. For this reason, where the defence agree, the prosecution can simply rely on the written witness statements of prosecution witnesses under s.9 Criminal Justice Act 1967.

Question 115

Security

Answer 115

The defendant, or someone on the defendant’s behalf, putting up money or some other valuable item to be forfeited if the defendant does not answer bail and attend court.

Question 116

Sentencing Guidelines

Answer 116

The Sentencing Council are responsible for publishing definitive sentencing guidelines for criminal offences. We are yet to reach the stage where there are definitive guidelines for all criminal offences, but you will find that they do exist for the vast majority of those offences which regularly find themselves before the courts. Where they exist the court is obliged to follow the sentencing guidelines. It is, however, worth noting that the intention is that they act as ‘tramlines’ for the court, providing upper and lower limits for the sentencing of such a case, as opposed to prescribing exactly what the sentence must be.

Question 117

Slip rule

Answer 117

Section 142 of the Magistrates’ Court Act 1980 gives the magistrates court the power to vary a sentence or set aside a conviction if it is in the interests of justice to do so. Used if magistrates have made an error which they themselves can correct. The Crown Court has its own version of the ‘slip rule’ although it only applies to sentences and other orders, such as a driving ban or compensation. Section 155(1) of the Powers of Criminal Courts (Sentencing) Act 2000 empowers a judge to vary or rescind a sentence (or other order) within 56 days of it being made.

Question 118

Special measures

Answer 118

To assist witnesses in giving evidence before a court. The court will consider which measures will maximise the quality of the evidence, for example giving evidence in private or questioning a witness through an intermediary.

Question 119

Specimen or sample counts

Answer 119

Designed to show just one example of a defendant’s repeated conduct and have been used to avoid ‘overloading’ an indictment. The prosecution should provide the defence with a list of all the similar offences to which the sample counts relate.

Question 120

Split summing-up

Answer 120

Where the judge decides it will assist the jury when listening to the closing speeches, a split summing-up can be given. This allows for the principal legal directions to be given before speeches and avoids repetition of matters before the jury. The first part of such a split summing up could include, for example, the directions on burden and standard of proof, separate consideration of counts and defendants, the elements of the offence(s), the elements of the defence(s) and the route to a verdict, together with any other relevant legal directions, to be given before the prosecution and defence speeches.

Question 121

Submission of no case to answer

Answer 121

Also known as the ‘half time submission’ because it takes place after the close of the prosecution case but before the defence case commences. On the defendant’s application or on its own initiative, the court: (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations. See R v Galbraith for further details.

Question 122

Supreme Court

Answer 122

Hears appeal cases which involve a point of law of general public importance.

Question 123

Surety

Answer 123

The offer of money made by someone with influence over the defendant to secure the defendant’s return to court.

Question 124

Suspended sentence

Answer 124

It’s a prison sentence, but the defendant does not go into immediate custody and if they fulfil certain criteria, they can avoid prison entirely.

Question 125

Terminatory rulings

Answer 125

Terminatory rulings are those rulings that would bring the case to an end e.g. staying proceedings as an abuse of the court’s process and rulings of no case to answer.

Question 126

Third-party disclosure

Answer 126

If there is material held by third parties that might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it. Where material is requested from a third party but access or disclosure is refused, the prosecution can consider seeking a summons for production of the material.

Question 127

Totality

Answer 127

When sentencing for more than one offence, a court must consider what the total sentence should be and arrive at one that is just and proportionate. This is not as simple as adding the two (or more) sentences together, the Judge will consider whether consecutive or concurrent sentences are more appropriate in the circumstances. Where the various offences arise out of the same facts it will usually be appropriate to pass concurrent sentences for each, and where they arise out of different facts, consecutive sentences are likely to be passed.

Question 128

Tribunal of fact

Answer 128

The person or persons who make a decision as to disputed facts- this will be the jury in the Crown Court for example.

Question 129

Tribunal of law

Answer 129

The person or persons who make a decision as to disputed points of law- this will be the judge in the Crown Court for example.

Question 130

Turnbull Guidelines or Turnbull warning

Answer 130

In the leading case of Turnbull the Court of Appeal gave guidance on what a judge should say to a jury when a case depended wholly or substantially on disputed identification evidence. Turnbull also gives guidance to judges on when identification evidence can safely be left to the jury and when a case must be withdrawn to protect the defendant from an unsafe conviction.

Question 131

Unused material

Answer 131

Unused materialis material that is not being relied upon by the prosecution. Items such as: statements from witnesses that the prosecution is not relying upon at trial to prove its case, records of previous convictions of prosecution witnesses and disciplinary findings against police officers.

Question 132

Used material

Answer 132

Used material or initial details of the prosecution cases the material the prosecution will rely upon at trial to prove its case against a defendant. Items such as: the indictment, statements from the prosecution witnesses, the defendant’s record of taped interview and other documentary exhibits such as plans and diagrams that are relevant to proving the case.

Question 133

VIPER

Answer 133

Video Identification Parade Electronic Recording- a form of identification procedure.

Question 134

Voir dire

Answer 134

Also known as a ‘trial within a trial’. Where the facts on both sides are disputed the judge will have to make findings of fact. This is done by way of a hearing called a voir dire where evidence is called. It takes place in open court in the presence of the defendant and (when taking place in the Crown Court) in the absence of the jury.

Question 135

Voluntary bill of indictment

Answer 135

Although the usual way for an indictment to come into being is after a case is sent to the Crown Court, another method is by what is known as a ‘voluntary bill of indictment’. This is an exceptional procedure which involves applying to a High Court Judge for leave to direct the preferment of a voluntary bill of indictment. This procedure can be used where the defence have made a successful application to dismiss an indictment in the Crown Court and the prosecution wish to seek a trial.

Question 136

Warrant

Answer 136

A warrant is a written order issued by a court which authorises a judicial officer or authorised person to undertake an act such as an arrest or entry to premises.

Question 137

Weight (evidence)

Answer 137

All evidence varies in terms of how strong, reliable and valuable it is. Attaching the right degree of weight to a piece of evidence is a matter for the jury or the bench in the case of a summary trial. Advocates will typically devote considerable effort into persuading the jurors as to what weight they should attach to the evidence.

Question 138

Witness compellability

Answer 138

Some witnesses cannot be compelled to give evidence. Most can, but some cannot. The primary exceptions relate to the defendant, children, disordered and disabled persons along with spouse/ civil partner.

Question 139

Witness competence

Answer 139

Whether the witness is permitted to give evidence to the court. Generally speaking, anyone is a competent witness. There are a few exceptions in the case of the defendant, children, disordered and disabled persons and deaf or speech impaired.

Question 140

Witness summons

Answer 140

Either party can ask the court to require a witness to attend on the day of trial to give live evidence or produce a document. If a witness disobeys a witness summons and does not attend without a ‘just excuse’ then the courts can issue a warrant for the arrest of the witness. Failure to act as required to do so by the summons can be punishable as a contempt of court.

Question 141

Written charge and requisition

Answer 141

The beginning of the criminal justice process. The magistrates’ court can issue a written charge and requisition to secure D’s attendance at court. An alternative to a person being arrested and brought before the magistrates’ court.

Question 142

Written route to verdict

Answer 142

Legal directions can be complex. For this reason, save where the case is so straightforward that it would be superfluous to do so, judges should provide a written ‘route to judgment’ which is a series of questions for the jury to answer to lead them to the correct verdict. It can be presented (on paper or digitally) in the form of text, bullet points, a flowchart or other graphic.

Question 143

Young Person

Answer 143

The Children and Young Persons Act 1933 s.107 defines ‘young person’ as a person aged between 14 and 17 (inclusive).