Overview of criminal procedure

Question 1

List 7 personnel you may find in a Magistrates’ court.

Answer 1

Prosecutor
CPS officer
Gaoler
Legal adviser
Magistrate
Usher
District Judge
Defence Lawyer

Question 2

There are three ways that a trial could go…

Answer 2

Summary only
Triable either way
Indictable only

Question 3

List 7 personnel you may find in a Crown Court.

Answer 3

Judge (usually circuit, sometimes recorders and resident judge)

Jury 

Usher 

Friends of D 

Police Liaison 

Probation officer 

Youth offending team 

Admin staff 

The Press 

The Public 

Witness and Victim Support Volunteers

Question 4

The Criminal Procedure Rules, introduced by section 69(1) Courts Act 2003, combined the following sources:

Answer 4

Crown Court Rules

Primary legislation 

Statutory Instruments 

Magistrates' Court Rules

Question 5

What are the 3 main components of the Criminal Procedure Rules?

Answer 5

The Rules Themselves (part 2(1)(a)]

The Practice Directions (consider alongside) 

Forms (Rule 5.1 says these must be used for apps/notice/supply of info)

Question 6

Section 40 of the CJA 1988 enables certain specified summary offences to appear on an indictment if they are linked to an indictable offence for which the accused has been sent to the Crown Court for trial (see D11.17). Those offences include:

(4)

Answer 6

common assault;
taking a motor vehicle without consent;
driving whilst disqualified;
criminal damage where the value of the damage does not exceed £5,000

Question 7

What two things can indicate whether an offence is triable either way?

Answer 7

(a) it is listed in the MCA 1980, sch. 1
(b) the enactment creating the offence (where the offence is a statutory one) specifies one penalty on summary conviction and a different (invariably greater) penalty on conviction on indictment.

Question 8

TRUE or FALSE: Common-law offences (i.e. offences not created by statute) are all indictable offences and are triable only on indictment.

Answer 8

TRUE (unless listed in the MCA 1980, sch. 1)

Question 9

How is common assault to be tried?

Answer 9

Summary only, although the racially or religiously aggravated form created by the CDA 1998, s. 29(1)(c), is triable either way

Question 10

How is criminal damage to be tried?

Answer 10

Triable either way. However, where the value of the property alleged to have been destroyed or the value of the alleged damage is not more than £5,000 (unless the destruction or damage was by fire and thus constitutes arson, see B8.25 to B8.30), criminal damage (unless charged in the racially aggravated form) is treated as if it were triable only summarily (MCA 1980, s. 22 and sch. 2).

Question 11

How is theft to be tried?

Answer 11

With one exception, theft is triable either way (MCA 1980, s. 17 and sch. 1, para. 28). Low-value shoplifting, as defined by s. 22A(3) (see D6.27), is said to be triable only summarily (s. 22A(1)) but, where an accused is aged 18 or over, he may elect Crown Court trial (s. 22A(2)) and s. 22A then ceases to apply (Chamberlin [2017] EWCA Crim 39, [2017] 1 Cr App R (S) 46 (369)).

Question 12

How is burglary to be tried?

Answer 12

Triable either way, with 3 exceptions:

if the burglary comprises the commission of, or an intention to commit, an offence which is triable only on indictment, then the burglary is also triable only on indictment (sch. 1, para. 28(b));

if the burglary is in a dwelling-house and any person in the dwelling was subjected to violence or the threat of violence, the offence is triable only on indictment (sch. 1, para. 28(c))

if the burglary is a domestic burglary and the accused, who is now aged 18 or over, has two previous separate convictions for domestic burglary in respect of offences committed after 30 November 1999, the offence is triable only on indictment (PCC(S)A 2000, s. 111(4)).

Question 13

How is fraud to be tried?

Answer 13

Triable either way.

Question 14

How is sexual assault to be tried?

Answer 14

Triable either way.

Question 15

How is ABH to be tried?

Answer 15

Triable either way.

Question 16

How is possession of a controlled drug to be tried?

Answer 16

Triable either way.

Question 17

How is PWITS to be tried?

Answer 17

Triable either way.

Question 18

How is GBH under s.20 to be tried?

Answer 18

Triable either way.

Question 19

How is GBH with intent under s.18 to be tried?

Answer 19

Indictment only.

Question 20

How is robbery to be tried?

Answer 20

Indictment only.

Question 21

How is rape to be tried?

Answer 21

Indictment only.

Question 22

A magistrates’ court may try an either-way offence allegedly committed by an adult if

Answer 22

(a) the offence is not so serious that the court’s powers of punishment in the event of conviction would be inadequate, and (b) the accused agrees (ss. 18 to 21)

Question 23

in the event of conviction, the Magistrates’ court may impose a penalty of anything up to:

Answer 23

six months’ imprisonment and/or an unlimited fine (s. 32(1)).

Question 24

Representation orders are applied for using which form?

Answer 24

CRM14

Question 25

The decision whether or not to grant a representation order is to be determined by a two-stage test, incorporating a merits test 'according to the interests of justice' and an assessment of means. Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 17 (2) In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account— (5 things!) .

Answer 25

(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 26

Criminal Procedure Rule 1.1 states the overriding objective is to deal with criminal cases justly. What does this entail? (7)

Answer 26

(a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and the defence fairly; (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights; (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case; (e) dealing with the case efficiently and expeditiously; (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and (g) dealing with the case in ways that take into account— the gravity of the offence alleged, the complexity of what is in issue, the severity of the consequences for the defendant and others affected, and the needs of other cases.

Question 27

What should a party to proceedings do if it fails to follow a procedural step?

Answer 27

Under CPR 1.2.1c, a party should "at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective. "

Question 28

CPR 1.1 is otherwise known as...

Answer 28

The overriding objective

Question 29

CPR 1.2 covers the duties of parties to the proceedings. What are their duties? (3)

Answer 29

(a) prepare and conduct the case in accordance with the overriding objective; (b) comply with these Rules, practice directions and directions made by the court; and (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

Question 30

1.3. The court must further the overriding objective in particular when― (3) (AEI - 3 vowels!)

Answer 30

EXERCISING any power given to it by legislation (including these Rules); APPLYING any practice direction; or INTERPRETING any rule or practice direction.

Question 31

CPR 3.2 covers...?

Answer 31

Case management - the duty of the court.

Question 32

What does active case management under CPR 3.2 include? | 8

Answer 32

(a) the early identification of the REAL ISSUES (b) the early identification of the NEEDS OF WITNESSES (c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a TIMETABLE for the progress of the case; (d) MONITORING the progress of the case and compliance with directions; (e) ensuring that EVIDENCE whether disputed or not, is presented in the shortest and clearest way; (f) discouraging DELAY dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; (g) encouraging the participants to CO-OPERATE in the progression of the case; and (h) making use of TECHNOLOGY

Question 33

CPR 3.3 covers the duties of parties to actively assist with the overriding objective. What are these duties? (3)

Answer 33

COMMUNICATION between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing; establishing, among other things― (i) whether the defendant is likely to PLEAD guilty or not guilty, (ii) what is AGREED and what is likely to be DISPUTED (iii) what INFORMATION or other material, is REQUIRED by one party of another, and why, and (iv) WHAT IS TO BE DONE by whom, and when (without or if necessary with a direction); (d) REPORTING on that communication TO THE COURT (e) ALERTING the court to ANY REASON WHY A DIRECTION SHOULD NOT BE MADE in any of the circumstances listed in rule 3.2(4) or (5) (The duty of the court: use of live link or telephone facilities), or that such a direction should be varied or revoked.

Question 34

When the court is setting grond rules for case management hearing under CPR 3.9, what must the court have regard to when setting grounds rules and giving directions to the parties? (3) The directions given by the court may include anything about...? (4)

Answer 34

(a) any intermediary’s report; (b) the parties’ representations; and (c) such other information or advice as the court requires. The directions given by the court may include any about— (a) the timetable for question submission (b) the timetable for the trial, (c) seating arrangements (d) any explanation to be given to the jury,of the witness’ or the defendant’s communication needs and behaviour

Question 35

CPR 3.11 covers hearings to inform the court of sensitive material. When does this rule apply? (3)

Answer 35

Where the prosecutor has, or is aware of, material— (a) the revelation of which to the public or to the defendant the prosecutor thinks would give rise to a REAL RISK OF SERIOUS PREJUDICE to an important public interest; (b) to which the prosecutor DOES NOT THINK TO OBLIGATION to disclose prosecution material applies, under Part I of the Criminal Procedure and Investigations Act 1996; but (c) of the existence of which the prosecutor thinks it necessary to inform the court to AVOID (i) potential UNFAIRNESS to the defendant in the conduct of the trial, (ii) potential PREJUDICE to the fair management of the trial, or (iii) potential PREJUDICE to that public interest.

Question 36

What is the standard of proof in a criminal trial?

Answer 36

Beyond reasonable doubt.

Question 37

Does the burden of proof always fall on the prosecution?

Answer 37

No. Certain defences, whether in common law or in statute, require the defendant to satisfy the burden of proof (e.g. insanity, diminished responsibility).

Question 38

Where the defendant carries the legal burden of proof, what is the standard?

Answer 38

Balance of probabilities

Question 39

What is the evidential burden of proof?

Answer 39

The standard required to get the evidence 'past the judge', such that, if left unchallenged, the evidence would be enough to establish 'reasonable doubt' in the eyes of the tribunal of fact.

Question 40

TRUE or FALSE: the judge in a jury trial is the tribunal of fact and the tribunal of law?

Answer 40

FALSE. The jury is ToF, the judge is ToL. In a Magistrates' court trial, the justices fulfill both roles.

Question 41

What are the facts in issue in a criminal trial? (4)

Answer 41

The identity of the defendant Actus reus Mens rea Defences

Question 42

What is direct evidence?

Answer 42

Evidence which allegedly clearly indicates a particular fact. e.g. "I saw the defendant stab the victim."

Question 43

What is circumstantial evidence?

Answer 43

Evidence which, when put together with other evidence, creates a clear narrrative. (e.g. motive + DNA + opportunity)

Question 44

What is the weight of evidence?

Answer 44

The extent to which it proves or disproves a conclusion.

Question 45

Probative value is a combination of which two considerations?

Answer 45

Relevance and weight.

Question 46

Can facts be proved without evidence?

Answer 46

Yes. - Formal admissions - Judicial notice - Personal knowledge

Question 47

Can a judge use his discretion to allow inadmissible evidence?

Answer 47

No. A judge can disallow admissible evidence, but not vice versa.

Question 48

What must a judge consider when choosing to exercise their general exclusionary discretion?

Answer 48

Is the evidence prejudicial? Was the evidence unfairly obtained?

Question 49

What are the three ways of adducing evidence? | TDR

Answer 49

Testimony Documents Real evidence

Question 50

What is a trial within a trial?

Answer 50

A situation where the tribunal of law (judge) must consider factual questions in order to determine whether a particular piece of evidence is admissible before the jury.

Question 51

How can the legal burden of proof be passed to the defendant?

Answer 51

Common law (insanity) Express statutory provision (diminished responsibility) Implied statutory provision

Question 52

Under CPR 3.2 (4) Where appropriate live links are available, making use of technology for the purposes of this rule includes directing the use of such facilities for...?

Answer 52

(a) for the conduct of a pre-trial hearing, including a pre-trial case management hearing; (b) for the defendant’s attendance at such a hearing― (i) where the defendant is in custody, or where the defendant is not in custody and wants to attend by live link, but (ii) only if the court is satisfied that the defendant can participate effectively by such means, having regard to all the circumstances including whether the defendant is represented or not; and (c) for receiving evidence under one of the powers to which the rules in Part 18 apply (Measures to assist a witness or defendant to give evidence).

Question 53

Under CPR 3.2(5), where appropriate telephone facilities are available, making use of technology for the purposes of this rule includes directing the use of such facilities for the conduct of a pre-trial case management hearing―

Answer 53

(a) if telephone facilities are more CONVENIENT for that purpose than live links; (b) unless at that hearing the court expects to take the DEFENDANT'S PLEA and (c) only if― (i) the defendant is REPRESENTED or (ii) exceptionally, the court is SATISFIED that the defendant can participate effectively by such means WITHOUT A REPRESENTATIVE.

Question 54

Under CPR3.5(1) In fulfilling its duty under rule 3.2 the court MAY GIVE ANY DIRECTION and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules. In particular, what may the court do? (9)

Answer 54

(a) NOMINATE a judge, magistrate or justices’ legal adviser to manage the case; (b) give a DIRECTION on its own initiative or on application by a party; (c) ask or allow a party to PROPOSE a direction; (d) RECEIVE applications, notices, representations and information by letter, by telephone, by live link, by email or by any other means of electronic communication, and CONDUCT A HEARING by live link, telephone or other such electronic means; (e) give a directions (in public/private, or without hearings (f) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (MODIFICATIONS) (g) shorten or extend (even after it has expired) a time limit fixed by a direction; (CHANGE TIME LIMIT) (h)require that issues in the case should be identified in writing, determined separately, and decide in what order they will be determined; (i)specify the CONSEQUENCES of failing to comply with a direction

Question 55

Can the magistrates' court give directions to the crown court if a case is to continue there? (and vice versa)

Answer 55

Yes. Under CPR 3.5(3) A magistrates’ court may give a direction that will apply in the Crown Court if the case is to continue there. Under CPR 3.5(4) The Crown Court may give a direction that will apply in a magistrates’ court if the case is to continue there.

Question 56

Under CPR 3.5(6) what can the court do if a party fails to comply with an order under CPR 3.5? (3)

Answer 56

The court may— (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (b) exercise its powers to make a costs order; and (c) impose such other sanction as may be appropriate.

Question 57

CPR 3.11 deals with when prosecutor is dealng with sensitive material. When it applies, what does CPR 3.11 stipulate should happen prior to the hearing? (5) Unless the court directs otherwise, what procedures should take place? (3) (quite a lot - think of the procedure)

Answer 57

A prosecutor must ask for a hearing so to INFORM the court. They shoud NOTIFY the defendant of that request only to such extent, if any, and at such time, if at all, as the court directs. Prosecutor must EXPLAIN: - why THE HEARING IS NECESSARY - why it should take place in the defendant’s ABSENCE - the exten to which the DEFENDANT SHOULD BE INFORMED of the hearing The prosecutor should identify MATERIAL that they want to inform the court of. PROVIDE OR DESCRIBE MATERIAL FOR THE COURT to the court only to the extent needed to achieve the purpose of hearing. Unless the court otherwise directs― (a) any such hearing must be in PRIVATE and must take place in the defendant’s ABSENCE; (nature of hearing) (b) the court officer must NOT GIVE NOTICE TO ANYONE OTHER than the prosecutor of the court’s decision on the request for a hearing, the arrangements for any such hearing, and any directions given at such a hearing; and (keep it secretive!) (c) the court officer may KEEP ANY WRITTEN REPRESENTATIONS OR MATERIAL received under this rule, or arrange for the whole or any part to be kept by some other appropriate person, subject to any conditions that the court may impose. (retention of materials)