Overview of Criminal Procedure Flashcards
Court hierarchies and functions, overriding objective, classification of offences
What are the 3 classes of offence?
Summary; Either Way; Indictable
Interpretation Act 1978 sch. 1
Has definitions of the 3 classes of offences
What should be remembered about the term “Indictable offences” in Acts?
Provisions related to indictable offences should be understood to include either way offences
s. 40 CJA 1988
Summary Offences can appear on an indictment when linked to a greater indictable offence
What offences fall under s. 40 CJA 1988?
taking a motor vehicle without consent, disqualified driving, common assault and criminal damage less then £5k
Are attempts, aiding and abetting etc triable either way?
Yes - if the substantive offence is too (CAA 1981 s. 4(1)(c))
Characterise the Crown Court
Created by the Senior Courts Act 1971 as a single court with “branches”
How is the crown court organised throughout the jurisdiction?
by geography and a three-class status system for severity of trial
How do crown and high courts differ?
CC decisions not related to trial on indictment may be challenged in high courts.
(ss. 28(2) and 29(3) 1981 Act)
In what ways are the crown court and high court similar?
They’re both senior courts and superior courts of record. They both have contempt and enforcement powers. (SCA 1981, s. 45)
What is a senior/resident judge in a crown court responsible for?
Distribution of work and court administration
SCA 1981, s. 8
high court, district, circuit judges, recorders and qualifying judge advocates have jurisdiction in crown court
SCA 1981, s. 46(1)?
the crown court has exclusive jurisdiction over indictment trials WHEREVER (s.46(2)) they are committed.
What are the exceptions to crown court proceedings being heard by a single judge?
where justices sit with the judge, where magistrates deal with pre-trial matters.
(s.73(1) SCA 1981)
How do crown court decisions work when a judge is with justices?
decisions must be by majority. The judge can be outvoted, but where opinion is split retains the deciding vote.
What should a crown court judge sat with justices ensure?
That he consults and announces that he has consulted the justices.
What are interlocutory decisions?
Interlocutory decisions are decisions about the admissibility of evidence.
MCA 1980, s. 108
Someone who pleaded not guilty and was convicted by a magistrates court may appeal to the crown court against conviction and or sentence. Someone who pleaded guilty may only appeal against sentence.
4 circumstances where the crown court MAY grant bail before or during trial on indictment?
someone in custody for trial or sentencing, someone appealing bail from magistrates, someone appealing to CoA, someone remanded by magistrates.
What summary offences does the crown court have jurisdiction over per CJA 1988, s.40?
???? can’t find the answer
Courts Act 2003, s.66?
gives crown court judges powers of district judges so a CC case wouldn’t need sending back to magistrates for “lesser” decisions.
Who sits in a magistrates court?
Justices of the Peace/Magistrates and district judges
What statutes contain the law on justices and magistrates courts?
Courts Act 2003 and MCA 1980
MCA 1980, s. 148(1)?
the expression “magistrates’ court” means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law.
MCA 1980, s. 148(2)?
where proceedings in magistrates courts have distinct stages, each stage need not constitute the same justices - must only be in the same local justice area.
MCA 1980, s. 2(1)
magistrates courts have jurisdiction to try any summary and some either way offences irrespective of where it is committed.
When can magistrates try either way offences by adults?
if the offence is not so serious that their powers of punishment upon conviction would be inadequate, and if the accused agrees. (MCA 1980, ss. 18-21).
What is the maximum punishment a magistrates court can give?
Anything up to 12 months imprisonment and/or an unlimited fine.
Where can you find the definition of a youth court?
MCA 1980, s.24
What can happen to either way convictions at magistrates court?
SA 2020, s.14: offender may be committed to the crown court if magistrates consider their punishment powers after conviction to be inadequate.
What are magistrates powers regarding indictable offences
magistrates may send the accused of an either way or indictable offence to the crown court regardless of where the offence was committed.
What manages most appeals against conviction and sentence?
The Court of Appeal (Criminal Division) using statutory powers.
Senior Courts Act 1981, s. 15(2)?
Enables the exercise of statutory powers of appeal by the court of appeal?
ss. 1-2 Criminal Appeal Act 1968?
grants the CoA jurisdiction to determine appeals against conviction on indictment.
ss 9 and 11 Criminal Appeal Act 1968?
gives CoA jurisdiction on appeals against sentence passed after conviction on indictment.
ss 10-11 Criminal Appeal Act 1968?
grants CoA jurisdiction to determine appeals against sentence passed on a committal for sentence.
s. 36 Criminal Justice Act 1972?
gave CoA jurisdiction to give opinion on a point of law referred to them by the A-G after an acquittal on indictment.
s. 9(11)-(14) Criminal Justice Act 1987?
Gave CoA jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases.
ss. 35-36 Criminal Justice Act 1988?
grants CoA jurisdiction to increase sentences on indictment only offences referred for undue leniency by the AG.
s. 9 Criminal Appeal Act 1995?
Gives CoA jurisdiction to determine appeals on reference from CCRC.
Bogglid [2011]?
CoA cannot hear appeals against refusals to make football banning orders.
ss 33-34 Criminal Appeal Act 1968?
Prosecution and defence may both appeal CoA to UKSC but ONLY if the courts think there is a point of law or public importance.
What must an appeal to UKSC from CoA contain in order to be accepted?
Must be considered to concern a point of law of general public importance by UKSC or CoA.
What is the time limit on appealing a CoA decision?
leave to appeal to UKSC must be made no more than 28 days after the decision or reasons for decision are given by CoA (Whichever is later).
when does the time limit for leave to appeal begin to count down?
the 28 day period of leave to appeal to UKSC begins on the day OF decision, not the day after.
Where can you find the procedural rules for making an application to CoA for leave to appeal to UKSC?
CrimPR Part 43.W (2023 text).
What should be remembered about the UKSC?
UKSC has no power to make representation orders.
What is the procedure for making application for leave to appeal to UKSC?
Form SC must be served on the registrar and all the parties to the CoA.
What are the rules on CoA deciding if an appeal to UKSC concerns a point of law of general public importance?
CoA may decide so on papers alone (Daines [1961]); refusal to hear oral submissions doesn’t violate HR (Steele [2006]; Dunn [2010]).
Daines [1961]?
CoA may decide whether to allow an appeal to UKSC on its papers alone.
Steele [2006] and Dunn [2010]?
CoA not hearing oral submissions in applications for appeal to UKSC does not violate human rights.
What is the impact of the judgment in Garwood [2017]?
CoA decided that under CAA 1968 provides for UKSC appeals from appellants only, not applicants.
If an application for leave is refused by CoA, they never become appellants and CoA does not need to consider whether there’s an important point of law considered.
What is meant by CoA certifying a question?
The court considers there to be a point of law of general public importance, but not yet that an appeal should be granted.
What can be done if CoA certifies a question but refuses leave to UKSC?
the party may apply for leave to UKSC within 28 days of the day on which CoA gives reasons for its refusal of leave.
What can UKSC do if CoA decides only some grounds of appeal?
UKSC may rule on the other grounds of appeal themselves or remit them back to CoA for a decision.
Mandair [1995]
undecided grounds of appeal should be identified and written submissions should be made as to whether and how they should be disposed of.
What is the primary source of public funding?
LASPO 2012 and standard crime contract (2022) issued by the Legal Aid Agency
What do the LASPO 2012 provisions apply to?
LASPO provides for any advice and assistance; advocacy assistance or representation orders dated on or after 1 April 2013.
What is the general rule for legal aid for criminal cases?
Legal aid is almost always authorised by LAA and applications should be made electronically.
s. 17 LASPO 2012?
provides for the determination of applications for a representation order in a magistrates or crown court.
What is a representation order?
An order authorising payment of legal aid for a defendant.
Who determines RO applications at crown court?
Save for exceptional circumstances, the LAA makes RO decisions and CC.
What are magistrates powers regarding ROs?
Magistrates have no power to grant representation unless considering an appeal against the refusal of an RO.
What is the procedure for applying for an RO?
Submit form CRM14 which incorporates the means questions of CRM15 along with any evidence required online.
This must be sent along with a signed declaration form from the client.
What governs Crown Court powers to grant ROs?
Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013
When may a Crown Court grant RO?
Upon oral application under Criminal Legal Aid regulation 6.
Criminal Legal Aid Regulation 6?
There are three instances where ROs will be granted.
proceedings listed in LASPO 2012 s.14(g); proceedings arising from failure to comply with CC order, proceedings under SCA 1981, s. 81
LASPO 2012, s. 14(g)
proceedings regarding contempt in the face of court that the court may grant a RO at.
Senior Courts Act 1981, s. 81?
proceedings in pursuance of a Crown Court warrant where the court may grant a RO.
What are the rules for Crown Court granting ROs?
There are no means tests for the granting permitted under regulation 6. All ROs outside of Reg.6 are invalid
(Criminal Legal Aid (General) Regulations 2013, reg. 3).
Criminal Legal Aid (General) Regulations 2013, reg. 3?
All ROs granted by the Crown Court that do not meet the requirements listed in regulation 6 are invalid.
What are Crown Court powers regarding RO appeals?
may consider appeals against refusal of ROs in situations where the interest of justice merits test is not automatically met.
What is the two stage test for determining whether to grant an RO?
a merits test “according to the interests of justice” and a means test.
What does LASPO stand for?
Legal Aid Sentencing and Punishment of Offenders Act.
Where is the merit test for RO explained?
LASPO 2012, s. 17(2)(a-e).
LASPO 2012 s. 17(2)(a)
interests of justice must take into account whether the individual would be likely to lose liberty, livelihood or suffer serious damage to reputation upon conviction
LASPO 2012 s. 17(2)(b)
interests of justice test for ROs should consider whether a substantial question of law is involved
LASPO 2012 s. 17(2)(c)
interests of justice test for ROs should consider whether the individual may be unable to understand proceedings or state their own case.
LASPO 2012 s. 17(2)(d)
interests of justice test for ROs should consider whether proceedings will involve tracing, interviewing or expert cross-examination of witnesses
LASPO 2012 s. 17(2)(e)
interests of justice tests for ROs should consider whether it is in the interests of another person that the individual be represented.
When is the interests of justice limb of the RO allocation test automatically met?
interests of justice are satisfied on indictment or following committal for sentence.
What possible loss of liberty should influence RO decisions?
it is not enough that the offence carries a custodial sentence. The question is whether on the facts, a custodial sentence is likely to be imposed.
What was established regarding ROs in ex parte McGhee [1993]?
unpaid work requirements do not deprive liberty.
However, the list of considerations for the interests of justice in s.17 LASPO is non exhaustive.
R (Putnatar) v Horseferry Road Mags Court [2002]
It is wrong to apply applications for ROs in hindsight.
What circumstances outside s. 17 can mean it is in the interests of justice to grant an RO?
Where a witness requires special measures that would be outside D’s competence and resources.
(GKR Law Solicitors v Liverpool Mags [2008])
What is the overriding objective?
per CPR 1.1(1) the overriding objective of this procedural code is that criminal cases be dealt with justly.
Where can you find an expansion on what dealing with a case justly entails?
The overriding objective is explained further in CrimPR 1.1(2)(a-h).
CrimPR 1.2?
each participant in each case must prepare and conduct the case in accordance with the overriding objective and notify the court of any failure to do so.
CrimPR 1.3?
The court must further the overriding objective when applying or interpreting any power, practice direction or rule.
What does CrimPR Part 3 concern?
Rules 3.1-.15 apply to the management of all cases up to CC in its appellate capacity.
CrimPR 3.2(1)(3)
The court must further the overriding objective by ‘actively managing the case’ and do so by giving any direction appropriate as early as possible.
What can be said about active case management?
Per Jisl [2004], active case management pre- and during trial is an essential part of the judge’s duty.
Where can you find a list of elements of active case management?
Rule 3.2(2)
What does Rule 3.2(2) list as active case management?
monitoring the progress of the case and compliance with directions, discouraging delay, promoting co-operation, avoiding unnecessary hearings, ensuring evidence is presented in the shortest and clearest way.
What sets out the court’s case management powers?
CrimPR 3.5
CrimPR 3.13?
Identifies powers to manage the trial or appeal in question
B [2005]?
A judge may exercise case management powers to limit cross-examination.
Heppenstall [2007]?
Entitlement to a fair trial is not inconsistent with proper judicial control over the use of court time.
Bryant [2005]?
Court will support efforts by the trial judge to move a case forward at reasonable speed maintaining a fair trial.
K [2006]?
Case management powers enable a judge to deal with pre-trial issues by written submissions and gives power to restrict their length
Boardman [2015]?
Judges’ case management powers can justify exclusion of late-served prosecution evidence.
What must temper active case management?
active case management must always be secondary to the imperatives of justice.
What is the extent of a court’s power to actively case manage?
courts may give any direction or step unless inconsistent with legislation or CPR.
CrimPR 3.8?
The court is obligated to give directions for the early conclusion of a case and facilitate attendance of witnesses and the participation of all parties.
what is an increasingly important aspect of case management?
the court should further the overriding objective by making use of technology by way of live links.
What does CrimPR 3.3 impose?
A duty upon the parties to assist the court in active management which includes early identification of the real issues.
What does CrimPR 3.4 require?
Each of the parties and the court must appoint a case progression officer at the commencement of proceedings and ensure all participants know how to contact them.
What are the responsibilities of a case progression officer?
ensures parties’ compliance with court directions and alerts other parties to anything that may interfere with the progress of the case.
What does CrimPD I, para 3A.24 state?
case progression should be managed without a hearing in the courtroom using electronic communication.
Where are the forms for case management laid out?
CrimPD Annex D
What is form PET?
PET is the Preparation for Effective Trial form.
When is PET form used?
For cases that are contested and are to proceed to the magistrates court.
What is the BCM form?
Better case management form.
When is the BCM form used?
BCM forms are completed upon the sending of a case to the crown court.
What is the PTPH form?
The PTPH is the Pre-Trial Preparation Hearing Form.
When is a PTPH used?
PTPH is completed at the first hearing at the crown court.
What is the purpose of the PET, BCM and PTPH?
These are intended to plan further stages of the case, standardise preparation and minimise need for hearings.
Munsone [2007]?
It is rare for a judge to exclude evidence simply due to non-compliance with time limits, but it is proper to do so where the exclusion is the only means of ensuring fairness.
CrimPR 1.2(1)(c)
Participants are expected to notify the court and all parties at once of any significant failure of compliance by themselves or others.
