Introduction To Criminal Litigation

Question 1

which offences (in the syllabus) are indictable only offences?

Answer 1

Murder
robbery
domestic burglary
aggravated burglary
Rape
GHB/Wounding with intent (s. 18)

Question 2

which offences (in the syllabus) are Either-Way offences?

Answer 2

theft
fraud
non-domestic burglary
GBH/Wounding (s. 20)
sexual assault
possession of class A or B drugs
possession with intent to supply class A or B drugs
criminal damage > £5,000

Question 3

Which offences (in the syllabus) are summary only offences?

Answer 3

common assault
Criminal damage < £5,000
petty shoplifting < £200

Question 4

where are adults tried?

Answer 4

Crown Court; or
Magistrates Court

Question 5

three classifications of crown court judge are…

Answer 5

High court judge
Circuit judge
Recorder

Question 6

what is the crown court

Answer 6

• Crown court created in 1971
• Crown court derives power from senior courts act 1981
• Crown court is a single court, sitting in different locations
• The court will normally sit near to where the location of the offence was
• CC is a superior court of record
• Decisions of crown court can only be appealed to the Court of Appeal, although some matters which a CC has dealt with but not relate to a trial on indictment, a Magistrates level, can be appealed in the high Court either in an appeal basis or judicial review

Question 7

bench in the crown court when acting on appeal from the magistrates

Answer 7

• When a crown court comprises of a bench of a judge or judges
• When an odd number of judges, then the judges who outvote the other have the casting vote, although when there is an even number, then the professional judge has the casting vote
• In matters of law ‘the lay justices must take a ruling from the presiding judge in precisely the same way as the jury is required to take his ruling when the jury considers the verdict.

Question 8

who makes up a magistrates bench?

Answer 8

at least 2 lay magistrates (justices of the peace); or
1 District judge

Question 9

powers of the magistrates court

Answer 9

• Mags have jurisdiction for summary or either way offences
• Mags may try an either way offence if: The seriousness of the offence does not exceed the Mags power for sentencing etc; or the Accused consents for the mags to be used where the court may impose a penalty of up to 12 months in prison or an unlimited fine
• Mags can commit the offender to the crown court if they feel it is beyond their sentencing powers
• Mags can send accused for an indictable offence to be tried in cc despite where the offence took place
• Youth court, made up of Mags, can try both summary and indictable offences, although there may be circumstances which require the case being sent to the crown court.

Question 10

What appeals can the CoA deal with under the Criminal Appeals Act 1968?

Answer 10

Ss 1 and 2 – appeal convictions on indictment

Ss 9 and 11 – determine appeal for sentences on indictment

Ss 10 and 11 – determine appeals for sentence passed on committal for sentence.

Question 11

What appeals can the CoA deal with under the Criminal Justice Act 1972?

Answer 11

s. 36 – give an opinion on a point of law referred to the court by the A-G following an acquittal on indictment.

Question 12

What appeals can the CoA deal with under the Criminal Justice Act 1984?

Answer 12

Ss 9(11)-(14) – determine appeals against ruling made in preparatory hearings in serious fraud cases.

Question 13

What appeals can the CoA deal with under the Criminal Justice Act 1988?

Answer 13

Ss 35 and 36 – increase sentence on a reference by the A-G following an unduly lenient sentence for an offence triable only by indictment.

Question 14

What appeals can the CoA deal with under the Criminal Appeal Act 1995?

Answer 14

S 9 – Determine appeals on a reference by the CCRC

Question 15

does the CoA have jurisdiction to appeal a football banning order?

Answer 15

No

Question 16

what does ss 33 and 34 of the Criminal Appeal Act 1968 allow the prosecution or defence do?

Answer 16

appeal a CoA decision to the Supreme Court

Question 17

what is the time limit of appealing further to the Supreme Court?

Answer 17

Appealing a CoA decision must be made no later then 28 days after the decision handed down by the CoA. Time begins on the day of the decision, not the following day

Question 18

what must both the CoA and the UKSC consider when deciding to grant leave for an appeal in the UKSC

Answer 18

whether the appeal concerns a point of law of public importance for the case to be heard in the SC

Question 19

where does public funding for trials come from?

Answer 19

Legal Aid Authority

Question 20

what is the statute for legal aid

Answer 20

LASPO 2012

Question 21

what is a representation order?

Answer 21

where the court grants that the individual needs full representation as the defendant’s case is serious enough to warrant one

Question 22

can the magistrates grant a representation order?

Answer 22

No

the only exception is when there is an appeal against representation

Question 23

can the Crown Court grant a representation order?

Answer 23

yes, only for the following:
(a)which are described in the LASPO 2012, s. 14(g) (contempt in the face of the court);
(b)which arise out of an alleged failure to comply with an order of the Crown Court and it appears to the court that there is no time to instruct a provider; or
(c)where the individual is brought before the court under the Senior Courts Act 1981, s. 81, in pursuance of a Crown Court warrant.

crown court also may hear consider appeals against the refusal of representation order in those situations where the interests of justice merits test is not automatically met.

Question 24

how are applications made for a representation order?

Answer 24

Application should be made electronically on the LAA portal using form CRM14 which incorporates the CRM15 means questions where required, along with any proof of means required for those who are not passported (on certain state benefits).

Question 25

legal aid is determined by what test?

Answer 25

Legal aid is determined by a merits, and a means test – 2 stage test

Question 26

what phrase is used for the merits test for determining whether to grant legal aid?

Answer 26

whether it is in ‘the interests of justice’

Question 27

what factors are taken into consideration to see whether it is in the interest of justice to establish the merits part of the test to determine to grant legal aid?

Answer 27

In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account—
(a) whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation,
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c) whether the individual may be unable to understand the proceedings or to state his or her own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
(e) whether it is in the interests of another person that the individual be represented.

Question 28

Legal Aid: are interests of justice met when there is a trial on indictment?

Answer 28

yes. automatically

Appeals to the CC not automatically covered, if D is likely to lose their liberty depends on the facts alleged by the prosecution and the sanctions theoretically imposed.

Question 29

what does it mean to deal with the case ‘justly’ in accordance with the overriding objective?

Answer 29

Acquitting the innocent and convicting the guilty
Treating participants with politeness and respect
Dealing with prosecution and defence fairly
Recognising rights of defendant – including art 6 ECHR
Respecting interests of witnesses and victims, keeping them informed about the progress of the case
Dealing with case efficiently and expeditiously
Ensuring appropriate info is available to the court when bail and sentence are considered

Dealing with cases taking into account:
- Gravity of alleged offence
- Complexity of the issues
- Severity of the consequences
- The needs of others

Question 30

what must participants do when conducting a case?

Answer 30

In accordance with overriding objective
Compliance with rules, practice directions and directions made by the court
At once, inform the court and parties of any significant failure (whether or not of the fault of the participant) to take any procedural step required by the rules or any directions of the court. A failure is significant where the court cannot further the overriding objective.

Question 31

what is a participant in a case?

Answer 31

anyone involved with the case such as: prosecutors, defence solicitors, the defendant, witnesses, expert witnesses, probation officers, police officers, organisations bringing prisoners to court and possibly jurors.

Question 32

how must the court further the overriding objective?

Answer 32

Exercising any legislative power
Applying practice direction
Interpreting rule or practice direction

Applies to court in appellate capacity, all forms of criminal courts
Specific rules surrounding medical reports where ordered by the courts or requested/obtained by the parties
Court must actively manage the case
Court must give direction as early as possible
Active case management from the court is for both pre-trial and during the trial itself
This is an essential part of the judges duty

Question 33

what is active case management?

Answer 33

Early identification of the issues/narrowing of issues
Needs of witnesses
Achieving certainty about what is done
Setting out procedural timetable
Ensure compliance with the directions and monitoring of the case
Discouraging delay
Promoting cooperation
Avoid unnecessary hearings
Ensure evidence is presented in shortest and clearest way
Require issues on the case are given in writing and decide what order they will be determined

Question 34

what can eb included in case management directions?

Answer 34

Court cannot give directions which would be inconsistent with legislation
Directions from the court must be early to endure the attendance of witnesses and the participation of all including the defendant
Limits and control over the questioning of witnesses will be directed by the court
Technology comes under the overriding objective too.

With the active assistance of the parties, the court will manage cases by establishing the disputed issues, setting a timetable, considering witnesses and perhaps limiting the duration of any stage of the hearing.

Question 35

what can parties do to practice good case management in accordance with the overriding objective?

Answer 35

Parties duty to cooperate the the court actively to ensure proper case management
Notice to the court of the identity of the intended defence advocate
Obligation to assist the court identify the real issues is separate from the statutory provision relating to disclosure
allow the Court to only address real issues with substance
it is not just for a party to obstruct or delay the preparation of a case for trial in order to secure some perceived procedural advantage, or to take unfair advantage of a mistake by someone else.

Question 36

case progression officers?

Answer 36

requires each of the parties and the court to appoint a case progression officer at the start of proceedings and to inform other parties how to contact that person
CPO ensure parties compliance with that case and with the court directions alerting parties to anything which could interfere with the case
As far as possible, case progression should be managed without a hearing in the courtroom, using electronic communication in accordance with CrimPR

Question 37

practical case management in magistrates court

Answer 37

this is where a Preparation for Effective Trial form is complete (PET form)

Question 38

practical case management in a Crown Court

Answer 38

Parties fill out a Better Case management (BCM) form then do a PTPH in the form of an oral hearing. Good planning and preparation reduces the need for further hearings

Question 39

failure to comply with rules, directions and time limits

Answer 39

• fix, postpone, bring forward, extend, cancel or adjourn a hearing;
• exercise its powers to make a costs order; and
• impose such other sanction as may be appropriate.
• the court may refuse to allow that party to introduce evidence;
• evidence that the party wants to introduce may not be admissible; or
• the court may draw adverse inferences from the late introduction of an issue or evidence.

Question 40

When must the prosecution serve notice of any intention to introduce a defendant’s bad character or to introduce hearsay evidence in a magistrates trial?

Answer 40

Not more than 20 days after a not guilty plea has been entered

Question 41

When must the defence serve a defence statement, if one is to be served?

Answer 41

within 10 business days of the prosecution complying with initial disclosure.

Question 42

When must the defence notify the prosecution and the court that a witness is required to attend court to give live evidence?

Answer 42

no more than 5 business days after service of the witness statement.

Question 43

when must the defence indicate if the application to introduce bad character evidence or hearsay evidence is opposed.

Answer 43

No more than 10 business days after service of a notice.

Question 44

If the defence intend to rely on hearsay evidence, they must give notice of such intention when?

Answer 44

as soon as reasonably practicable.

Question 45

When must the defence make any application to introduce the bad character of a prosecution witness.

Answer 45

no more than 10 business days after prosecution disclosure.

Question 46

When must the defence serve any statements of its own where a witness is not to be called to give live evidence.

Answer 46

At least 10 business days before trial

Question 47

When must any point of law be identified with skeleton arguments at trial?

Answer 47

at least 10 business days before trial.

Question 48

when must a certificate of readiness be served for trial?

Answer 48

Both parties must serve a certificate of readiness 10 business days before trial.

Question 49

what will the court expect the defence to do in order to help with active case management?

Answer 49

The court will also expect a plea to be entered to ensure the appropriate timetable can be set.

Question 50

can the directions set by the court be altered?

Answer 50

directions, may, with the consent of the court, be amended or varied upon request by the parties.