Pre-Trial Criminal Litigation

Question 1

power to adjourn

Answer 1

At any stage before the case is sent to the Crown Court for trial or before (or during) a summary trial, a magistrates’ court may adjourn the proceedings

Question 2

challenging adjournments

Answer 2

It is possible to challenge the grant or refusal of an adjournment by way of judicial review. However, the Divisional Court will be ‘particularly slow’ to interfere with a decision to refuse an adjournment, given the discretionary nature of that decision.

that the grant or refusal of an adjournment ‘is a paradigm example of a discretionary case management decision where an appeal ought only to succeed on well-recognised but limited grounds (for example, error of principle, error of law or where the decision can properly be characterised as plainly wrong)’.

Question 3

Magistrates may adjourn the proceedings at any time, and on doing so on any occasion when the accused is present may remand the accused, and shall remand him if—

Answer 3

(a) on the occasion on which he first appeared, or was brought, before the court to answer to the information he was in custody or, having been released on bail, surrendered to the custody of the court; or
(b) he has been remanded at any time in the course of proceedings on the information;
and where the court remands the accused, the time fixed for the resumption of the proceedings shall be that at which he is required to appear or be brought before the court in pursuance of the remand.

Question 4

what does remand mean?

Answer 4

that the accused is to return to court at a certain date.

Question 5

how is someone remanded?

Answer 5

this can be done wither on Bail or Remanded into Custody

Question 6

remanding the accused on adjournments

Answer 6

where the case is held and paused and the defendant is either kept in custody or released on bail until the date they are told to return

Where a case is simply adjourned, there is no need to fix the date for the next hearing at the time of adjourning, whereas if there is a remand the adjournment date must be fixed forthwith and is the date to which the accused is remanded. An accused who is not remanded and who then fails to appear on the date to which the case is adjourned commits no offence, but it may be possible either for an arrest warrant to be issued or for the proceedings to be conducted in the absence of the accused. An accused who has been remanded on bail and who then fails without reasonable cause to surrender to custody commits an offence under the Bail Act.

Question 7

further remands

Answer 7

A person who is brought before the court after an earlier remand may be remanded again. Thus, there may be several remand hearings before the case is sent to the Crown Court or the commencement of summary trial. The only limitation on the number of remands is the general discretion of magistrates to refuse an adjournment if it would be against the interests of justice.

Question 8

remand on bail

Answer 8

the accused may be remanded for a period greater than eight clear days if the remand is on bail and both the accused and the prosecution agree to a longer period of remand.

Question 9

time limits on remand in custody: Between first appearance and committal

Answer 9

the maximum period for which an accused charged with an indictable offence may be held in the custody of the magistrates’ court between first appearance and committal proceedings is 70 days.

Question 10

Time Limits on remand in custody: Between first appearance and summary trial

Answer 10

If the offence is triable either way and the court determines to try the case summarily, the maximum period in custody between first appearance and the court beginning to hear evidence for the prosecution is again 70 days, unless the decision for summary trial is taken within 56 days, in which case the limit is reduced to 56 days. In the case of a summary offence, the maximum period is 56 days

Question 11

Time Limits on Remand in Custody: Between committal and trial on indictment

Answer 11

the maximum period for which an accused committed for trial to the Crown Court may be held in custody between ‘committal’ and the start of trial is 112 days.

Question 12

Time Limits on Remand in Custody: Multiple Committals

Answer 12

If a single indictment is preferred containing counts in respect of which the accused was committed for trial on two or more different occasions, the 112-day limit applies separately in relation to each offence

Question 13

Time Limits on Remand in Custody: Section 51 Sending

Answer 13

Where the accused has been sent for trial under the CDA 1998, s. 51, the maximum period is 182 days between the date on which the accused is sent to the Crown Court and the start of the trial. From this maximum must be deducted any period during which the accused was held in custody by the magistrates

Question 14

Time Limits on Remand in Custody: Retrial Directed by the CoA

Answer 14

Where an indictment is preferred by direction of the Court of Appeal, following the ordering of a retrial, the 112-day limit applies from that preferment

Question 15

Time Limits on Remand in Custody: Voluntary Bill

Answer 15

Where proceedings are by way of a voluntary bill of indictment the 112-day period runs from the date of preferment of the bill

Question 16

what happens if the custody time limit expires?

Answer 16

Where the time limit expires before completion of the stage, then the accused is released on bail

The BA is amended to the following criteria:
- Automatic entitlement to bail
- More likely a surety or security is needed to be paid
- Officers cannot arrest the accused for the likeliness of failing to surrender without a warrant from Mags

The ordinary conditions may still be imposed, i.e curfew and tag

Question 17

how can conditions be imposed when an accused is bailed automatically due to the expiry of a custody time limit?

Answer 17

Prosecution must give written notice of the bail conditions and serve it to the court and the defence, the defence must respond with either:
- A written notice of a wish to be represented at a hearing of the application
- Written notice of the accused not objecting to the conditions
- Written statement of the reasons for objecting.

Prosecution must bring the accused to court within the 2 days preceding the expiry of the custody time limit.

Question 18

does the expiry of the custody time limit negative effect the proceedings?

Answer 18

No. Expiry of the custody has not effect on the proceedings, the committal is still valid.

Question 19

consequences of absconding

Answer 19

• if absconded whilst during the custody time limit, then the limit is removed
• if an accused has been released in consequence of the expiry of a custody time-limit and then fails to attend court in answer to bail, the earlier expiry of the limit is disregarded and the question, once the accused has been arrested, of whether to bail again or remand in custody is therefore entirely in the discretion of the court

Question 20

criteria for extending the custody time limit

Answer 20

Court must be satisfied that the extension is a Good and sufficient cause; and the Crown had acted with due diligence;

Everyone arrested and detained have the right for their trial to be heard in a reasonable amount time

With that provision in mind, the overriding purposes of the statutory provisions were said to be:
(a) to ensure that the periods for which unconvicted defendants are held in custody are as short as is reasonably and practically possible;
(b) to oblige the prosecution to prepare cases for trial with due diligence and expedition; and
(c) to give the court power to control any extension of the maximum period for which any defendant may be held awaiting trial.

Question 21

main points of practice guidance when it comes to extensions of custody time limits

Answer 21

(1)It is for the prosecution to satisfy the court on the balance of probabilities that the statutory conditions are met.
(2)The necessary standard is that of a competent prosecutor conscious of his duty to bring the case to trial as quickly as is reasonably and fairly possible.
(3)In judging whether this standard was met, the court should consider the nature and complexity of the case, the preparation necessary, the conduct of the defence, the extent to which the prosecutor was dependent on others outside his control and other relevant factors.
(4)What amounts to good and sufficient cause is a matter for the court on the facts of the case.
(5)Staff shortages and sickness will be inadequate reasons for extension. The unavailability of a judge or a courtroom may be good and sufficient cause, but such cases should be approached with ‘great caution’.
(6)The court should state the reasons for its decision.
(7)Once the court had heard full argument and decided, the Divisional Court would be most reluctant to disturb its decision, and would do so only on the familiar grounds which support an application for judicial review.

Question 22

who is it to apply for the defendant to be remanded into custody?

Answer 22

the prosecution

Question 23

factors to consider when determining a “good and sufficient cause”

Answer 23

• The seriousness of the offence – may require linger for the police to gather the evidence
• Public protection – it is not a stand-alone ground but can be taken into consideration
• Factors relevant to the application of bail
• Covid 19 pandemic
• No available Judge or courtroom – where there are listing difficulties. The court must take into consideration what has been done in order to deal with the listing difficulties and how they have been attempted to be counteracted. The availability of counsel can also provide an additional consideration to this (this is heavily on the circumstances of the defendant and their professional relationship with counsel, i.e. trusting a specific barrister).
• The convenience of the defence and witnesses. There papers may have been given to the defence at a late stage. It enables the defence to consider the papers fully and correctly.
• Where witnesses are ill

Question 24

for a court to extend a custody period, does the crown have to act with both Due Diligence and provide a Sufficiently good reason?

Answer 24

No. The court may extend the custody period even if one of the limbs are satisfied. it is the courts discretion to do so.

Question 25

factors to consider when determine due diligence

Answer 25

- the stage of proceedings which the time limits relate to - who was responsible for the delay (if third party, prosecution may still be responsible as they have to provide info to third party for them to act diligently, i.e. providing them the date of trial etc.)

Question 26

what is bail?

Answer 26

D released from custody during the adjournment of the case and told to return to court on a specific date

Question 27

when may the Crown Court grant bail?

Answer 27

(a) who has been sent in custody for trial in the Crown Court; (b) who has been given a custodial sentence following conviction in the magistrates’ court (whether by guilty plea or a finding of guilty after trial) and who is appealing to the Crown Court against conviction and/or sentence; (c) who is in the custody of the Crown Court pending disposal of the case (so whenever the Crown Court adjourns a trial or adjourns between conviction and sentence, it has a discretion to grant the accused bail for the period of the adjournment); (d) whose case has been decided by the Crown Court but who has applied to the court to state a case for the Divisional Court’s opinion or is seeking judicial review of the decision; (e) to whom the Crown Court has granted a certificate that the case is fit for appeal to the Court of Appeal, whether against conviction or against sentence; and (f) who has been remanded in custody by a magistrates’ court on adjourning a case, provided the magistrates’ court has granted a certificate that, before refusing bail, it heard full argument.

Question 28

when may the Magistrates Court grant Bail?

Answer 28

- when the accused is awaiting trial - when the accused has been committed to the Crown Court for Trial - when the court is awaiting reports after summary conviction - committal to the crown court for sentence - Where a magistrates’ court has summarily convicted an accused and passed a custodial sentence, it may grant bail pending the determination of an appeal to the Crown Court or to the Divisional Court by way of case stated.

Question 29

which court can only grant Bail for a charge of murder

Answer 29

Crown Court

Question 30

when must the crown court determine the decision for bail in a case where the accused is charged with murder?

Answer 30

After the accused is committed to the crown court in custody Must be done as soon as reasonably practicable. In any event, within at least 48 hours after being committed to the Crown Court, excluding weekends and the time starts on the beginning of the day after the Magistrates committal

Question 31

what happens regarding Bail if someone pleads guilty at the Plea Before Venue Hearing?

Answer 31

then Bail may still be continued, even if a custodial sentence is highly likely. the Court can refuse bail where they are of the mind that there are good reasons for remanding the accused into custody. i.e. the presumption for bail still remains

Question 32

principles of bail

Answer 32

Bail is a rebuttable presumption that the accused is entitled to Bail, i.e. it is for the prosecution to persuade the court that Bail should not be granted. the persons who benefit from this presumption are anyone: (a) who appears before the Crown Court or a magistrates’ court in the course of or in connection with proceedings for an offence, or applies to a court for bail (or for a variation of the conditions of bail) in connection with those proceedings; (b) who has been convicted of an offence and whose case is adjourned for reports before sentencing; and (c) who has been brought before the court under the SA 2020, sch. 10, for alleged breach of a requirement of a community order.

Question 33

the presumption of bail does not apply to who?

Answer 33

(a) those appealing their conviction or sentence; or (b) to defendants being committed for sentence from the Magistrates' Court to the Crown Court.

Question 34

in Principle, what happens when the presumption of bai does not apply to specified persons?

Answer 34

the burden is reversed, where it is for the defence (the one applying for bail) has to apply and prove that the individual is entitled to Bail.

Question 35

No Bail for Homicide or Rape if Previous Conviction

Answer 35

the court may not grant bail if the accused is charged with (or been convicted of) murder, attempted murder, manslaughter, rape or attempted rape, if the accused has been convicted of any of these offences in the past (or culpable homicide) court may grant bail if there are exceptional circumstances to justify granting bail. conviction is a wide term to include: NGRI, unfit to plead, conviction was in the EU.

Question 36

Bail for murder

Answer 36

the court will not grant bail for an accused charged with murder. unless, the defence can persuade the court that there is no significant risk that the accused will cause serious physical or mental or psychological to another person again, the presumption of bail is reversed.

Question 37

what are the three core grounds for refusing bail for an indictable offence?

Answer 37

(a) fail to attend a subsequent hearing (failure to surrender to custody); (b) commit further offences on bail; and/or (c) interfere with witnesses, or otherwise obstruct the course of justice eg witness intimidation or destruction of evidence.

Question 38

what is the standard of proof for the grounds of refusing bail?

Answer 38

"substantial grounds for believing" that if granted bail, the defendant will behave in a way that the ground specifies - not a high test. It is not for the court to conclude that the defendant would behave in the way specified in the ground, or even that D’s behaviour would be more likely than not to include the behaviour in the ground. It is not enough for the judge simply to have a subjective perception of one or more of these three risks. It is only necessary to show that the fears of the behaviour happening have substance and merit.

Question 39

what is the process of a court deciding bail?

Answer 39

This enquiry is a factual one, and is not a trial per se, and so there are no formal rules of evidence in determining if the ground is made out. Representations will be made by both the prosecution and the defence but generally neither party needs to call witnesses or produce documentary evidence. Witnesses can be called (such as a police officer or the person proposed as a surety although it's rare) and hearsay evidence is permitted (i.e. statements made out of court presented in evidence as proof of its contents). The magistrates have an inquisitorial role in this process and may ask questions of either party or insist that sureties are called to give evidence of their means and relationship with the defendant. The order in which it goes, it is presumed that the accused is entitled to bail, the prosecution goes first in submissions to refuse bail. Defence then have the opportunity to rebut the prosecutions arguments and puts forth their own case to keep bail. Prosecution have the chance to resubmit responses to the defence counsels arguments.

Question 40

Real Prospect of Custody - Bail

Answer 40

this is another ground that bail shovel not be refused where there is no real prospect of the accused receiving a custodial sentence. logic: why send someone to prison for them to not to get sent to prison? on the other hand, the mere fact that a custodial sentence is inevitable, this does not give grounds to refuse bail

Question 41

when considering the three main grounds to refuse bail, what factors should the court consider?

Answer 41

(a)the nature and seriousness of the offence and the probable method of dealing with the offender for it; (b)the character, antecedents, associations and community ties of the accused; (c)the accused’s ‘record’ for having answered bail in the past; (d)the strength of the evidence against the accused; and (e)if the court is satisfied that there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to cause physical or mental injury to anyone else.

Question 42

Bail Factor - Nature and seriousness of the offence

Answer 42

- Nature and seriousness of the offence is normally graded in accordance with the sentencing guidelines of the likely sentence. - The likely penalty to be given. Although this is a factor and not a ground for refusing bail - Presumption of bail is still given when the accused is to be sentenced at a later date and a pre-sentence report is being prepared. - The mere fact that a custodial sentence is inevitable, this does not give grounds to refuse bail

Question 43

Bail Factor - Character, Antecedents, associations and community ties

Answer 43

- Character and antecedents: this refers to previous convictions. Failing to surrender is especially relevant here - Associations and community ties: this applied to the criminal background D is exposed to and belongs to when they are at home. This factor also considers the employment of D, whether they have a family and dependants etc. does D have a partner? Mortgage? All family and practical factors around D’s everyday life

Question 44

Bail Factor - Bail Record

Answer 44

- the question of has the defendant absconded in the past or kept to they bail conditions?

Question 45

Bail Factor - Strength of Prosecution Case

Answer 45

court may be of the mind that they rather un the risk of D absconding than the custody time limit being overrun by prosecution delaying the gathering of evidence.

Question 46

Bail Factor - Risk of injury to another person

Answer 46

Where D has been violent in the past Where a prosecution witness has already been intimidated

Question 47

other grounds withholding bail

Answer 47

- Domestic violence, risk to an associated person: can include anything from an intimate relationship, to family relationship to tenant/lodger. - Accused already on bail: when they were on bail when they committed the offence - Own protection – anger in the community back where the offence took place. Can be for the welfare of the child if the accused is below 18 years old - Accused already in custody - Insufficient time - Absconded in current proceedings - Bail in cases involving the abuse of drugs

Question 48

Bail in cases involving the abuse of drugs

Answer 48

An accused aged 18 or over may not be granted bail, unless the court is of the opinion that there is no significant risk of the accused committing an offence while on bail, where the three conditions set out : (1)there is drug test evidence that there is a specified Class A drug in the person’s body; (2)either the accused is charged with an offence under the Misuse of Drugs Act 1971, s. 5(2) or (3), and the offence relates to a specified Class A drug, or the court is satisfied that there are substantial grounds for believing that the misuse of a specified Class A drug caused or contributed to the offence with which the accused is charged or that offence was motivated wholly or partly by intended misuse of a specified Class A drug; and (3)the person does not agree to undergo an assessment (carried out by a suitably qualified person) of dependency upon or a propensity to misuse any specified Class A drugs, or has undergone such an assessment but does not agree to participate in any relevant follow-up which has been offered. then presumption to bail is reversed again.

Question 49

Bail for Imprisonable Summary offences

Answer 49

there are exceptions to the presumption in favour of bail which are as follows: (a)where the accused has previously been granted bail and has failed to surrender to custody in those proceedings, and the court believes, in view of that failure, that the accused would, if released on bail, fail to surrender to custody; (b)where the accused was on bail on the date of the current alleged offence and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail; (c)where the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person or cause such a person to fear physical or mental injury, i.e. domestic violence; (d)where the court is satisfied that the accused should be kept in custody for the accused’s own protection (or welfare, if a child or young person); (e)where the accused is already serving a custodial sentence; (f)where the accused has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice (whether in relation to the accused or any other person); (g)where the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decision on whether to grant bail for want of time since the institution of the proceedings; and (h) Bail of Cases involving the abuse of drugs

Question 50

after the three main grounds for refusing bail, what are the next three?

Answer 50

a) a remand in custody would be for the defendant's own protection; b) the court has insufficient information to deal with the issue of bail, and so remands in custody for a (short) period for the production of sufficient evidence; and/or c) the defendant is already serving a sentence in custody.

Question 51

what are the specials grounds for refusing bail?

Answer 51

a) serious cases with high penalties; and b) cases of a particular nature that affect the assessment of the risk posed by a defendant on bail. (Particularly with Domestic Violence cases)

Question 52

purpose of grounds and factors for refusing bail

Answer 52

the grounds are to base the refusal to bail, the factors are there to assist in proving the grounds. i.e. a refusal to bail cannot be based on a factor, a factor has to be used to show a ground which may substantiate a refusal for bail.

Question 53

bail for non-imprisonable offences

Answer 53

The grounds for withholding bail in such cases are as follows: (a)where the accused is under the age of 18 or has been convicted of an offence in those proceedings and (in either case), having been previously granted bail in criminal proceedings, has failed to surrender to custody and the court believes, in view of that failure, that the accused would fail to surrender to custody; (b)where the court is satisfied that the accused should be kept in custody for his or her own protection (or welfare, if a child or young person); (c)where the accused is already serving a custodial sentence; (d)where the accused is under the age of 18 or has been convicted of an offence in those proceedings, and (in either case) has been arrested under the BA 1976, s. 7, and the court is satisfied that there are substantial grounds to believe that the accused would fail to surrender to custody, commit an offence on bail, or interfere with witnesses or otherwise obstruct the course of justice; (e)where the accused has been arrested under s. 7 and the court is satisfied that there are substantial grounds for believing that, if released on bail, the accused would commit an offence while on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to an associated person (as defined by the Family Law Act 1996, s. 62, see D7.25), or to cause such a person to fear such injury, i.e. domestic violence (para. 6).

Question 54

unconditional bail

Answer 54

only has one condition which is surrender to custody. Surrender to custody is the accused surrendering to the court, basically attending court when they need to, when the court requires them to

Question 55

what does not apply for non-imprisonable offences

Answer 55

It should be noted that the grounds of ‘risk of absconding etc.’ and ‘insufficient time’ for refusing bail to someone charged with imprisonable offences do not apply where the offences are non-imprisonable.

Question 56

purpose of bail conditions

Answer 56

- Prevent accused offending again - Forces accused to surrender to custody - Keep accused away from witnesses and factors which are pertinent to the case - To get the accused to help preparing reports etc for their sentence and trial - For accused to have meetings with legal rep

Question 57

imposing bail conditions requirements

Answer 57

- Conditions are imposed if the court sees it necessary to do so - Enough if it is perceived that a ‘real risk’ the accused will do the above - Prosecutors are ones to ask the court to impose conditions and provide a basis as to why the condition is necessary

Question 58

bail conditions can include —

Answer 58

- Attending police station 2-3 times a week - Electronic tag - Curfew - Surety - Security - Accused not to contact or go near a specific address - Accused to reside at specific address - Surrender passport - Notify police of change in residence - Conditions involving residence, passport and curfew is to stop accused from absconding - Conditions to prevent accused from going to specific place and buildings and the curfew is to stop accused from reoffending - Conditions concerning prevention from specific buildings /areas and individual sis to prevent accused from interfering with witnesses and the case

Question 59

common bail conditions —

Answer 59

(a)a condition of residence, often expressed as a condition that the accused is to live and sleep at a specified address; (b)a condition that the accused is to notify any changes of address to the police; (c)a condition of reporting (whether daily, weekly or at other intervals) to a local police station; (d)a curfew (i.e. the accused must be at a specified address between certain hours); (e)a condition that the accused is not to enter a certain area or building or go within a specified distance of a certain address; (f)a condition that the accused is not to contact (whether directly or indirectly) the victim of the alleged offence and/or any other probable prosecution witness; and (g)a condition that the accused’s passport must be surrendered to the police (sometimes with an additional restriction to prevent the accused from applying for travel documents).

Question 60

an electronic minoring condition will commonly be applied alongside a...

Answer 60

...curfew

Question 61

Sureties are only for...

Answer 61

...securing the offender to surrender to custody. It is not to prevent them from reoffending

Question 62

what is a security?

Answer 62

Security is a valuable asset given by the accused for them to prevent them from absconding. This can eb provided by a third party. The valuable asset could be something like a car, etc.

Question 63

varying bail conditions

Answer 63

Prosecution or defence can apply to have the conditions varied if need be. This has to be done by the court who granted the bail in the first place with the said conditions which are to be varied. D has to be present at bail hearings if they are to be varied etc. this can be done via person or video link. If D is in custody they need not be present. Both counsels make submissions which the court provides reasoning for the decisions

Question 64

breaching bail conditions

Answer 64

Anyone who breaches bail conditions is able to be arrested under section 7(3) BA 1976. This is not something you can charge someone, it is only an arrest power

Question 65

in a second bail application, can the previous arguments be reused?

Answer 65

Yes. in Second bail applications, the arguments can be repeated. It’s basically a second opinion and a second bite of the cherry.

Question 66

what is a surety?

Answer 66

the offer of money made by someone with influence over the defendant to secure the defendant's return to court. A surety is usually required where there is a risk of the defendant absconding. The surety will agree to forfeit a sum of money if the defendant absconds. The defendant cannot stand as a surety in D’s own case. Sureties do not deposit the sum of money, referred to as a recognisance, at the time bail is granted. They merely promise to pay that sum of money if the defendant fails to surrender to the court and the court then orders all or part of the recognisance to be forfeited.

Question 67

Bail hostels

Answer 67

Residence at a bail hostel and a further condition that the defendant complies with the rules of the bail hostel can be used to try to prevent the defendant absconding, and/or interfering with witnesses and/or committing further offences on bail. A bail hostel may be used if the defendant does not have a fixed address. It provides a residence and a curfew while the defendant is on bail. The bail hostel will also place upon the resident its own rules with which D must comply e.g. not to bring alcohol or controlled drugs onto the premises. If the rules are breached, the resident would have to leave and would consequently be in breach of the court imposed bail condition of residence.

Question 68

Surrender of Passport

Answer 68

In some circumstances it may be necessary for the court to impose a condition that the defendant surrenders D’s passport to prevent the risk of D absconding.

Question 69

power under section 7 Bail Act

Answer 69

The Bail Act s.7 provides that there is a power of arrest allowing officers to arrest those either who are in breach, or who are about to be so. the accused may be arrest ed y an officer without a warrant for any of the following: (a) the officer has reasonable grounds for believing that the accused is not likely to surrender to custody; or (b) the officer has reasonable grounds for believing that the accused has broken, or is likely to break, any condition of bail; or (c) a surety has given written notice to the police that the person bailed is unlikely to surrender to custody and for that reason the surety wishes to be relieved of any obligations.

Question 70

which of the bail breaches amount to a criminal offence?

Answer 70

The only bail breach which is a criminal offence is failing, without reasonable cause, to surrender to custody. This offence is commonly known as failing to surrender (‘FTS’). This is an offence punishable summarily by up to three months' imprisonment and/ or an unlimited fine or 12 months and/ or an unlimited fine on indictment.

Question 71

what is a certificate of full argument - Bail?

Answer 71

- Contains the arguments made in the bail application - The court serves these - If there has been a second application with the change of circumstances, the court must identify the change of circumstances and cite why that has changed or not changed their decision

Question 72

how many attempts does D get with applying for bail when their trial is in the Magistrates court

Answer 72

they have 3 attempts - first time application - Second time application - appeal to the Crown Court

Question 73

how many attempts does D get for bail when their trial is in the Crown Court

Answer 73

they have 2 attempts - first time application - second time application

Question 74

Bail Timeline - the usual case

Answer 74

* The defendant attends court the first time the case is listed, and applies for bail. * If the defendant is unsuccessful, the case will be returned to court a week later where the issue of bail can be raised a second time without any restriction or qualification, and the defendant can apply again. In principle it is possible for the defence advocate to make identical applications at the first and second hearings and to find that the same application is denied first but then allowed by a different bench of magistrates (or District Judge). * Once the defendant has had both applications, the defendant must secure a 'certificate of full argument' from the magistrates' court before then appealing to the Crown Court (if D wishes to do so). The certificate is simply a short summary that the magistrates produce so that the Crown Court knows what has transpired in the court below. Appeals are heard one business day after an appeal notice is served. * D can only apply again if there has been a change in circumstances.

Question 75

Bail Timeline - Urgent Cases

Answer 75

- In urgent cases, the defence may wish to exercise its appeal right more quickly than would be allowed by waiting a week for a second attempt in the magistrates’ court. - The Crown Court will hear a bail appeal no later than one business day after the appropriate notice is served, but clearly this is still a quicker route to being heard than waiting for a week to pass and applying again in the magistrates’ court. - If a defendant appeals to the Crown Court after only one application in the magistrates’ court, then the defendant loses the right to a second application in the magistrates’ court. - D can only apply again if there has been a change in circumstances. Appeals notices must be served as soon as practicable.

Question 76

Bail Granted by the Magistrates Court - Prosecution appeal process

Answer 76

a) prosecution must have opposed bail originally b) offence must be punishable by imprisonment c) prosecution indicates orally at the hearing when bail is granted that they will appeal (the defendant is then held in custody) d) intention to appeal is confirmed in writing and served on the court and defence within two hours e) appeal is heard within 48 hours – excluding weekends f) appeal is heard by a Crown Court Judge

Question 77

can the prosecution appeal the granting of bail?

Answer 77

Yes.

Question 78

Bail Granted by Crown Court - Prosecution Appeal Process

Answer 78

same as when the prosecution appeals bail that has been granted by magistrates. the only difference is that the appeal is heard by a High Court Judge within the High Court.

Question 79

how is the start of the trial defined when in the Magistrates Court?

Answer 79

then the Magistrates start hearing evidence

Question 80

how is the start of the trial defined when in the Crown Court?

Answer 80

when the jury are sworn

Question 81

Prosecution appeal of bail decision - oral notice

Answer 81

- must give oral notice at the conclusion of proceedings - must give trial notice before the accused is released from custody - it will suffice that oral notice was given to the court officer and when the justices had rose, but there accused was still in custody - oral notice must be confirmed in wiring and served on all parties and the court.

Question 82

what happens to D when bail is appealed by the prosecution?

Answer 82

D is to remain in custody until appeal is disposed of

Question 83

how long does the prosecution have to serve written confirmation of the appeal of granting bail?

Answer 83

2 hours from the conclusion of bail proceedings if not done within the 2 hours, the accused will be released on bail (based on original conditions set by the court) and the appeal will be deemed as disposed of

Question 84

what options does the court haver if the accused refuses to turn up to court whilst on bail?

Answer 84

(1) The court may issue an arrest warrant (often called a ‘bench warrant’), under the BA 1976, s. 7(1). This applies whatever court the accused was bailed to attend and regardless of whether bail was granted by the custody officer at the police station or by the court itself at an earlier hearing. The usual form of warrant simply orders that the accused be arrested and brought to court. However, at the court’s discretion, the warrant may be ‘backed for bail’ (see D7.99), either with or without a requirement for sureties. Where the accused fails to appear, a bench warrant will normally be issued. It should be noted that the Justices’ Clerks Rules 2005 (SI 2005 No. 545), sch. 1, para. 3, empowers a clerk to issue a warrant of arrest, whether or not endorsed for bail, for failure to surrender to court, where there is no objection on behalf of the accused. (2) Instead of issuing a warrant, a magistrates’ court may adjourn and extend the accused’s bail under the MCA 1980, s. 129(see D7.73). Similarly, the Crown Court, in appropriate cases, may simply order that the case be stood out of the list and take no further action in respect of the accused (who will remain under an obligation to attend whenever the case is next listed). Such a course of action is appropriate only where the court is satisfied that there is a good reason for the accused’s non-attendance (e.g., a doctor’s certificate has been sent to the court indicating that the accused is unfit to attend). (3) It may be possible to proceed in the absence of the accused (though it should be borne in mind that if the offence is triable either way, a magistrates’ court may try the case only with the consent of the accused, and that consent must be given at a hearing at which the accused is present unless the court is satisfied that there is a good reason for absence and the accused is represented by a lawyer who consents to summary trial on behalf of the accused: see D6.10).

Question 85

how do the courts deal with an accused who has been arrested under Section 7 BA?

Answer 85

- Jurisdiction to deal with accused arrested under section 7 is with a Magistrate - Despite if D is to be brought before CC for their crime - must be brought to court within 24 hours of arrest. - Mags can continue bail, with change of conditions. Or if accused has not breached, then bail is to continue. - If D has breached and Mags revoke bail, D can only apply to CC to have bail granted again.

Question 86

what happens if D has breached their bail in under 24 hours before their surrender date?

Answer 86

they will be brought back to the court on the time of their surrender and be dealt with accordingly.

Question 87

where D has been brought back to court following a section 7 arrest and has not been yet convicted in the current proceedings, the magistrates cannot...

Answer 87

...witthold bail if there is no real prospect that the person will be sentenced to a custodial sentence in the current proceedings.

Question 88

what happens in a section 7 inquiry?

Answer 88

There is a two stage approach: (a) First, the justice must determine whether there has been a breach of a bail condition (if there has been no breach of a condition, then the accused is entitled to be granted bail on precisely the same conditions as before); secondly, if there has been a breach, the justice is obliged to consider whether or not the bailed person should be granted bail again. In carrying out the first stage of that process, the justice must act fairly and give the accused a chance to answer the allegation of breach. That does not, however, include an inquiry as to whether the arrested person had any reasonable excuse for breaching bail (since s. 7 makes no mention of such a defence and, indeed, s. 7 does not create a criminal offence). (b) the second stage (assuming that the justice is satisfied that there has been a breach) is the point at which the reasons for the breach of bail become relevant. At that stage, the justice must consider all the issues relating to ‘reasonable excuse’ when deciding whether or not to grant bail. The breach of bail will be a factor, but only one factor, as to whether the bailed person is granted bail again. the justice can rely on hearsay evidence.

Question 89

is Section 7 an offence on its own?

Answer 89

No. it is an arrest power.

Question 90

Failure to surrender

Answer 90

- Failure to surrender, without an excuse or a cause - Burden is on the accused to provide a cause as to why they failed to surrender - Accused who has an excuse must surrender to custody the moment that excuse ceases to apply - Failure to surrender is punishable either as if it was on a summary conviction or as if it was a contempt of court - Up to 3 months or a fine - When it is with the CC they can receive a sentence of up to 12 months and unlimited fine as if it was treated like a contempt of court

Question 91

failure to surrender - being late to court

Answer 91

this does not provide an automatic defence to a failure to surrender

Question 92

What offence does Section 6 BA 1976 create?

Answer 92

an offence of absconding whilst on bail

Question 93

Procedure for prosecuting offences under section 6 BA 1976

Answer 93

- With section 6 BA 1976, there is no need for a written charge or requisition. Nor a requirement for a summons - It is seen appropriate that the court themselves will set in motion a course of proceedings of its own motion - Although a prosecutor may invite the court to consider starting such proceedings - Prosecutor will cross-examine - Defence counsel is required to put forth the reasons why there has been a breach/failure to surrender. If the court is satisfied and a prima facie case of why there has been a breach and the defence is excused then the court will indicate no further action is necessary - Otherwise the charge is out to D - The decision of the decision that no charge is preferred on absconders first appearance after absconding, that decision is binding on further courts

Question 94

where will the accused have their first hearing?

Answer 94

regardless of the type of offence, the first appearing the accused will have will be in the Magistrate's Court

Question 95

when must a first hearing be held by where the accused is on bail, if the prosecutor anticipates a guilty plea which is likely to be sentenced in a magistrates' court;

Answer 95

14 days of being charged

Question 96

when must a first hearing be held by where it is anticipated that the accused will plead not guilty, or the case is likely to go to the Crown Court for either trial or sentence.

Answer 96

28 days of being charged

Question 97

which offences can a Magistrates deal with?

Answer 97

Summary only Either-Way

Question 98

which offences can a Crown Court deal with?

Answer 98

Either-Way Indictable only

Question 99

another word for Either-Way offences

Answer 99

Indictable offences

Question 100

what does it mean if an offence is "indictable only"

Answer 100

can only be dealt with on indictment - can only be dealt with in the Crown Court

Question 101

what are initial details?

Answer 101

the initial details that the Crown has against them.

Question 102

what initial details have to be disclosed to the defence where the accused has been held in custody?

Answer 102

Where the accused was in police custody for the crime before the first appearance, the prosecutor needs to provide: - The summary of the circumstances of the offence - The accused past criminal record

Question 103

what initial details have to be disclosed to the defence where the accused has NOT been held in custody?

Answer 103

If the accused was not in custody, then the prosecutor needs to provide - Summary of the offence - Accused previous criminal record - Account given to the accused in interview - Written witness statements, not including exhibits, at the stage of when the prosecutor sees material to plea or to decide which venue - Statement of effect on witnesses and victims and victims family

Question 104

are initial details always required?

Answer 104

Yes. - Where the accused has requested them, they must be served accordingly - If they are not requested then the prosecutor must prepare them anyway so they are available to the accused at the beginning of the first hearing

Question 105

what happens if the prosecution do not provide initial details?

Answer 105

Ordinarily, the failure to supply initial details does not constitute a ground upon which a court may dismiss a charge or give rise to an abuse of process application. The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution's failure to serve.

Question 106

why are initial details necessary?

Answer 106

The information supplied must be sufficient at the first hearing to allow the court to take an informed view on plea and venue for trial. Where no guilty plea is anticipated, they should be sufficient to assist the court in identifying the real issues and in giving directions. The information required for the Preparation for Effective Trial (PET) form must be available and where there is to be a trial, the parties must complete the form.

Question 107

when must initial details be served?

Answer 107

Initial details must be served on the court as soon as practicable, and in any event no later than the beginning of the day of the first hearing. Where the defendant asks for initial details, the same time limit applies to service of initial details on the defence. In any event the initial details must be made available to the accused no later than the beginning of the day of the first hearing. The CPS now uses electronic case files. These can be sent to defence representatives via secure email.

Question 108

when is a video link seen to be suitable?

Answer 108

- Can be for sentence - Not suitable for youths to be sentences as such - Good for all advocates to do this remotely for bail

Question 109

can the initial hearing be done via video link?

Answer 109

yes. The court may give directions to request the accused to be present at initial hearings. This can be via Video link.

Question 110

what will the court consider when deciding whether to hold first hearing via video link?

Answer 110

directions for video link will be done in the interests of justice to do so Especially required when the defence are required to provide submissions to the court Court can also consider: - The views of that person - Facilities of being able to do so - Where individual could take part effectively - Where person is witness, the importance of their evidence in the hearing and whether direction would prevent any other party from using that evidence effectively - Arrangements for members of the public to hear the procedure so being conducted in accordance with the rules - Mental health also becomes a factor - Video link is used to hinder disruptions and delays - It can be difficult to conduct court conferences with client

Question 111

Where the accused has entered a guilty plea, and attended through video link then the court will...

Answer 111

...proceed to sentencing so long as it is in the interests of justice to do so.

Question 112

what does PTPH mean?

Answer 112

Plea, Trial and Preparation Hearing

Question 113

does an accused have to be present at the first hearing?

Answer 113

yes. although here are exceptions in certain circumstances

Question 114

does an accused have to be present at the first hearing?

Answer 114

yes. although here are exceptions in certain circumstances

Question 115

what is the exception to an accused being resent at a Plea Before Venue Hearing?

Answer 115

It operates where the accused is legally represented and the court considers that due to the disorderly conduct of the accused it is not practicable for the proceedings to be conducted in their presence. In those circumstances, the representative can indicate the plea.

Question 116

what is the exception to an accused being present for the Determination of a mode of trial hearing?

Answer 116

This is where the accused is legally represented; the representative indicates to the court that the accused consents to the mode of trial proceedings being conducted in their absence, and the court is satisfied that there is a good reason for the accused not being present. 'Good reason' is not defined, but ill-health is an obvious example. In these circumstances the representative can consent to summary trial or elect Crown Court trial on behalf of the accused.

Question 117

for a guilty plea to be effective it must not be...

Answer 117

...ambiguous/equivocal

Question 118

what does an ambiguous plea look like?

Answer 118

“I was guilty but it was not my fault” (To an allegation of ABH) 'Guilty, but I was acting in self-defence' (To an allegation of theft) 'Guilty, but I was going to give it back'

Question 119

consequence son proceeding to sentence for an ambiguous plea

Answer 119

ground for an appeal

Question 120

if a plea seems ambiguous, what can the court do on their own initiative?

Answer 120

enter a Not Guilty plea

Question 121

summary only offences - First Heating - Guilty plea

Answer 121

If the defendant pleads guilty the court will proceed to sentence. If there is any dispute as to the factual basis upon which the defendant will be sentenced the court may have to hold a 'Newton hearing' Sentence may be passed immediately or adjourned for the preparation of a pre-sentence report (PSR).

Question 122

summary only offences - First hearing

Answer 122

The defendant will be asked by the clerk of the court to enter a plea to the offence that they are charged with.

Answer 123

If the defendant pleads not guilty then the court will set a trial date and do any necessary case management to ensure that the trial is effective on that date. The legal adviser will go through the questions on the case progression form and each advocate must confirm the following: * the defendant’s and legal representative’s contact details; * names, numbers, types of witness and which party requires their attendance at court; * the estimated length of trial; * identification of trial issues; * advance warning whether any applications are to be made (e.g. special measures, bad character and hearsay); * whether any prosecution statements can be read; * whether any special arrangements need to be made (e.g. interpreter, intermediary, wheelchair access, hearing loop system) for anyone attending the trial, and * that the defendant advocate has advised the D of credit for early guilty plea and that trial will go ahead in D’s absence if D fails to attend on the trial date. The court should set a timetable for the trial and an estimate of how long the trial will take.

Question 124

In most cases the CPS will be aware when a not guilty plea is likely and...

Answer 124

...the file that comes to court will have a partially completed case progression form included amongst the prosecution papers.

Question 125

Setting out what the issue(s) at trial will be and which witnesses are required to give live evidence allows the court to...

Answer 125

...actively manage the case, by ensuring that only those witnesses whom the defence want to challenge on their evidence come to court.

Question 126

Magistrates Case Progression Officer

Answer 126

The magistrates’ court also has a case progression officer to monitor directions made by the court. In addition, both CPS and defence advocates must indicate a nominated person in their respective offices who will be responsible for complying with the directions on the case progression form.

Question 127

Pre-Trial Hearings - Summary Trials

Answer 127

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. Rulings can be made on the application of the defence or prosecution, or of the court's own motion.

Question 128

Pre-Trial Ruling - Summary Trials

Answer 128

A pre-trial ruling is binding until the case is disposed of by: * conviction or acquittal of the accused; or * a prosecution decision not to proceed; or * the dismissal of the case. The court can, however, discharge or vary a pre-trial ruling if it is in the interests of justice to do so and the parties have been given an opportunity to be heard. A party can apply to have a pre-trial ruling varied or discharged only if there has been a material change of circumstances.

Question 129

who can make an application for a pre-trial ruling

Answer 129

- Prosecution - Defence - Court on its own initiative

Question 130

material change of circumstances for a variation of a pre-trial ruling

Answer 130

Changes in circumstances can have happened prior or post to the pretrial hearing, it just depends on whether they were brought before the court at the pre-trial hearing

Question 131

Pre-Trial Hearing - Either-Way Offences

Answer 131

The defendant is supplied with a copy of the initial details by the prosecutor and the court begins by asking the defendant to indicate a plea. The charge is written down and read out to the accused. The clerk of the court will explain to the defendant that they will be asked to indicate a plea. The defendant must be warned that if they plead guilty, they can be committed to the Crown Court for sentence if a magistrates’ court is of the opinion that its sentencing powers are insufficient to deal with the offence. If a guilty plea is indicated, the proceedings 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’. If the defendant indicates a not guilty plea or gives no indication then the court must consider where the case will be tried in a phase called 'allocation', though it is usually referred to as the ‘mode of trial’ hearing.

Question 132

Pre-Trial Hearing - Either-way Offences: Defendant pleads guilty

Answer 132

when the Defendant pleads guilty. the court will ensure on what basis the Defendant pleads guilty. if there is any dispute on the factual basis, a Newton hearing will be held next, the Magistrates will decide whether they have the adequate sentencing powers for the case

Question 133

Pre-Trial Hearing - Either-Way Offences: Magistrates Sentencing Powers

Answer 133

A magistrates' court must consider whether their sentencing powers are sufficient in the circumstances given that they can't pass a sentence of more than 6 months' imprisonment per offence and that any fine is restricted to £5,000 per offence; unless a defendant is charged with 2 or more either-way offences, in which case they can pass a maximum of 12 months by sentencing the defendant so that two of the 6-month sentences run consecutively rather than concurrently. A magistrates' court is unable to pass any form of extended sentence so if they believe that the defendant should be made subject to one of those because the defendant is a dangerous offender, they must commit for sentence.

Question 134

Pre-Trial Hearing - Either-Way Offences: Magistrates Retain the case for sentencing

Answer 134

this happens where the Magistrates are of the mind that they have adequate sentencing posers for the case at hand. If the court decides that its powers are sufficient then sentence may be passed immediately or adjourned for the preparation of a pre-sentence report (PSR).

Question 135

Pre-Trial Hearing - Either-Way Offences: Magistrates decide sentencing powers are inadequate

Answer 135

If the court decides that its powers are insufficient either because the sentence exceeds their maximum, or because the defendant should be made subject to a sentence of a kind that they cannot pass, then the defendant will be committed for sentence to the Crown Court. A magistrates' court should order a PSR for use by the Crown Court if they consider that 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. The accused will make their next appearance at the Crown Court to be sentenced by a Crown Court Judge who will be able to pass a sentence of anything up to the Crown Court limit for the offence.

Question 136

caution when courts adjourn for a PSR

Answer 136

Where the court adjourns sentence for the preparation of a PSR, it must be careful not to create an expectation that the offender will be sentenced in a magistrates' court if there is a possibility of committal for sentence. The court should make it clear that all sentencing options, including committal to the Crown Court for sentence, remain open.

Question 137

Where there is a plea before venue, then the specific procedure must be conducted and adhered to —

Answer 137

a) The charge is written down (if that has not already been done) and read to the accused. b) The court explains that the accused may indicate whether the plea would be guilty or not guilty if the offence were to proceed to trial. The court should explain that, if the accused indicates a plea of guilty, the proceedings will be treated as a summary trial at which a guilty plea has been tendered, and that the accused may be committed for sentence, if the court is of the opinion that its powers of punishment are inadequate, or if it appears to the court that the criteria for the imposition of a sentence under the the ‘dangerous offender’ provisions. c) The court asks the accused to indicate whether (if the offence were to proceed to trial) the plea would be guilty or not guilty. d) If the accused indicates a guilty plea, the court proceeds as if the accused had pleaded guilty at summary trial, and so moves on to the sentencing stage. e) If the accused indicates a not guilty plea, an allocation (‘mode of trial’) hearing must take place. If the accused fails to give an indication of intended plea, the court will regard this as an indication of an intention to plead not guilty and so will go on to determine allocation.

Question 138

what happens when the defendant pleads not guilty to an either-way offence?

Answer 138

there will be a "mode of trial" procedure. this will determine where the trial will be heard

Question 139

what is the process for a "mode of trial" hearing

Answer 139

* Prosecution: opens the facts, outlines the defendant’s offending history (if any), and makes submissions as to where the trial should be held consistent with the allocation guidelines. The submissions will cover the nature and seriousness of the offence including any particular aggravating and mitigating features. * Defence: can make submissions as to venue. Where they agree with the prosecution it may be no more than saying that. However, if the prosecution submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller, more persuasive submissions at this point. * The court must then decide whether to allocate the case to a magistrates' court or the Crown Court.

Question 140

what happens if the Magistrates decide not to retain jurisdiction for the trial?

Answer 140

they decide to allocate it to the Crown Court. The matter is sent forthwith pursuant to s.51 Crime and Disorder Act 1998 and the defendant will make their next appearance at the Crown Court. The defendant has no right to elect a magistrates' court trial in these circumstances.

Question 141

The court must take into account the allocation guideline which indicates that either-way offences should generally be tried summarily unless —

Answer 141

* the court's sentencing powers would be insufficient i.e. the outcome would clearly be a sentence in excess of the court’s powers for the offence(s) after taking into account personal mitigation and any potential reduction for a guilty plea; or * for reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court.

Question 142

If the court decides to retain jurisdiction what are the further steps in this process?

Answer 142

The court will explain to the defendant that: * The court has decided that summary trial is more suitable. * The defendant can consent to be tried summarily or, if D so wishes, be tried by a jury. * If D is tried summarily and is convicted, D may still be committed to the Crown Court for sentence. the defendant can ask for an indication of sentence

Question 143

indication of sentence

Answer 143

The defendant is able to ask for an indication of sentence if they were to plead guilty instead. The court has the discretion as to whether they will give an indication. If they do, it must be confined to telling the defendant whether the sentence would be custodial or non-custodial. The court can decline to give an indication. If the defendant asks for an indication and one is given, they can change their plea to guilty and the process followed will be as above, as if they had pleaded guilty from the outset. Where a non-custodial sentence is indicated, that indication will be binding on a magistrates' court, but not on the Crown Court in a case where the dangerous offender provisions are engaged.

Question 144

if the magistrates retain jurisdiction and the defendant still wishes to plead not guilty, even after an indication of plea, then the defendant will...

Answer 144

...have the opportunity to elect to crown court

Question 145

the defence advocate must do what when the defendant has the opportunity to elect to crown court?

Answer 145

advise on which court should hear the case. evaluate the two.

Question 146

why would an accused wish to elect to crown court?

Answer 146

- the acquittal rate is higher in the Crown Court; and - the separate tribunals of law and fact in the Crown Court can be advantageous to the defendant. Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury.

Question 147

why would an accused wish to keep the case to eb tried in the magistrate's court?

Answer 147

- are less formal and the waiting time before the trial date is much shorter and the trial itself is much quicker. - do not require a defendant to serve a defence statement. - provide reasons for a conviction. Magistrates have to provide reasons whereas juries do not give reasons. - have less sentencing powers than those of the Crown Court. Although a defendant should be advised that it is not always the case that a Crown Court judge will sentence more harshly than a magistrates' court. Also, a magistrates’ court has a power to commit for sentence even after trial. - are less expensive than the Crown Court. Trials are cheaper.

Question 148

can the the prosecution can apply for the case to be reallocated to the Crown Court?

Answer 148

Yes. On the basis that the court lacks the appropriate sentencing powers.

Question 149

can the defendant be absent in the allocation hearing?

Answer 149

Yes. where any one of these four conditions is met: (i) a legal representative of the accused is present at the hearing and signifies the accused’s consent to the court proceeding in the accused’s absence; (ii) a legal representative of the accused is present at the hearing, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; (iii) it is proved to the satisfaction of the court that notice of the hearing was served on the accused within what appears to the court to be a reasonable time before the hearing, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; or (iv) the accused has appeared on a previous occasion to answer the charge, and the court does not consider that there is an acceptable reason for the accused’s failure to attend; and the court also has to be satisfied that it is not contrary to the interests of justice to proceed in the absence of the accused.

Question 150

what is legitimate expectation?

Answer 150

if the accused believes that the same venue will sentence from the directions and expressions given or even implications given by the bench, then the accused must be sentences in accordance with that expectation

Question 151

when is a defence statement required

Answer 151

cases tried on indictment

Question 152

what is the contents of a defence statement?

Answer 152

- A statement of case setting out on what basis the case will be defended - Nature of the accused defence and any specific defences they are raising - Matter of fact which defence takes issue with the prosecution case - Particulars of matter of fact which defence relies on - Any points of law with authority which defence relies on

Question 153

defence statements for summary trials

Answer 153

- Defence statement is not required but it means they cannot request disclosure - Prosecution still required to give initial details - Must be done 14 days after initial disclosure from prosecution Mags court protocol in relation to defence statements: - Consider at early stage to give statement - Clear ad detailed exposition of the facts and law in issue - Courts to examine with care and ensure they comply with formalities - Late defence statements which affects the procedure leads to a more scrutinises future application to adjourn - Difficult issues with disclosure must be referred to district judge

Question 154

When MUST magistrates give reasons?

Answer 154

when they convict the accused or sentence them to a hospital order.

Question 155

When MAY a magistrate give reasons?

Answer 155

when they acquit the accused

Question 156

when Magistrates are giving reasons for their decision, to what standard are those decisions?

Answer 156

they must give sufficient reasoning to explain their decisions but they do not need to be on an elaborative form.

Question 157

how does the prosecution influence the allocation of the trial?

Answer 157

All the prosecution can do is to make submissions. Although, the following submissions seem to be more influential: - Complexity of the case especially where fraud is concerned and specialist case management is required - Where the trial will involve the presence of children to be questioned.

Question 158

multiple defendants charged with a summary only offence

Answer 158

Those who plead guilty will usually have their sentence adjourned until after the trial of those who have pleaded not guilty.

Question 159

Prosecution Notice

Answer 159

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 160

Criminal Damage: Where there are a series of two or more criminal damages charges —

Answer 160

- They will be treated as an aggregate amount - Applies where offences are found on the same facts - Charges on the same occasion, as if there is a series of criminal damages made by the accused. Similar r facts can be that they happened in the same area etc

Question 161

Criminal Damage: Procedure for determining the amount involved

Answer 161

- Representations are made by both prosecution and defence - A definite figure does not have to be determined - Documentation may be used, analogies and comparative documents and speeches

Question 162

what offences depend on the value of the criminal activity where they will be summary only offences?

Answer 162

- Criminal Damage - Shoplifting

Question 163

what type of criminal damage offences have to be proceeded by the consideration of the amount of the value of damage caused?

Answer 163

Scheduled offences - damaging and destroying property - aiding and abetting curial damage those which are NOT scheduled offences include: - Criminal damage by fire - Endangering life - Damage made to memorial or to a structure for commemorative purposes

Question 164

what is the relative sum used to determine whether criminal damage is a summary only offence

Answer 164

£5,000 - If it does not exceed it is tried summarily - If either way, the D has the ability to choose summary or indictment - If it is not clear if the amount exceeds the relative amount, then it is assumed to be either way

Question 165

for the offence of criminal damage, If the amount is not exceeded the relative amount but is tried in CC for a joint indictment...

Answer 165

...the sentences of the criminal damage must be constrained to mags powers and not CC, as it must be dealt with as if it was in the Mags court

Question 166

special provision for low value shoplifting

Answer 166

- Not to exceed £200 - Accused still has right to elect to CC - But otherwise charges as if it was a summary offence - This must be asked in writing - Magistrates cannot send it to CC, it will be deemed null - On the same occasion is seen as the same meaning as in criminal damage - Low value shop lifting cannot be on a joint indictment

Question 167

Multiple defendants jointly charged with an indictable only offence —

Answer 167

The defendants will all be sent to the Crown Court by way of s.51 CDA 1998.

Question 168

Where the defendant is charged with a summary only AND (an indictable only or either-way offence) to be tried in the Crown Court

Answer 168

Where a defendant is charged with an indictable only offence (or an either-way offence that is to be tried in the Crown Court as a result of allocation or election), the treatment of the summary only offence depends on two matters: (i) whether it is related to the indictable only/either-way matter; and (ii) if it is related, it depends on which category it falls into (section 40 CJA 1988 or Section 51(3) CDA 1998)

Question 169

Section 40 Criminal Justice Act 1988: Summary trial matters which must be sent for trial and included on the indictment

Answer 169

- Common assault - Assaulting a prison or secure training centre officer - taking a motor vehicle without consent - driving a motor vehicle whilst disqualified - Criminal damage

Question 170

Section 51(3) Crime and Disorder Act 1998: Related Summary Matters which may only be sent for PLEA

Answer 170

anything which is not listed within Section 40 CJA 1988, but which are imprisonable offences or disqualification from driving offences.

Question 171

related matters which cannot be sent for plea or trial in the crown court

Answer 171

where her offences are not listed in section 40 CJA 1988 nor are they imprisonable offences or disqualification from driving offences.

Question 172

what happens if the summary offences is sent to the Crown Court under Section 51(3) CDA 1998 but the defendant pleads not guilty?

Answer 172

then the crown can offer no evidence, where the court can discharge the offence - normally happens when D is convicted on the indictable offence. if the offence is not discharged then the case is remitted back to the Magistrates.

Question 173

what happens if the summary offences is sent to the Crown Court under Section 51(3) CDA 1998 but the defendant pleads guilty?

Answer 173

then the crown court will sentence D but restrained to the powers of the Magistrates Court

Question 174

what happens if the count for Criminal Damage has been added onto the indictment once the initial case has been handed to the crown court and/or no evaluation hearing of the criminal damage has been dealt with?

Answer 174

Crown court are not restrained by the powers of Magistrates for sentencing.

Question 175

what happens if the summary offence is not related to the indicated one which has been sent tot he Crown Court but has happened around the same time?

Answer 175

A summary offence unrelated to the either-way/indictable-only offence dealt with at the same time must be tried in a magistrates' court and the usual procedure is to adjourn the summary matter sine die (without a date) until the conclusion of the indictable matter.

Question 176

Where an offence has been sent to the Crown Court and the accused is subsequently charged with a related offence.

Answer 176

Where an offence has already been sent to the Crown Court and the accused on a subsequent occasion appears before a magistrates' court charged with an either-way or an imprisonable summary offence, or one that carries disqualification, that appears to be related to the offence that has been sent, the court may send D to the Crown Court for trial on the new offence. Because this is a discretionary power, the court must conduct a plea before venue and mode of trial hearing in respect of the new offence.

Question 177

Where a defendant is charged with an either-way offence AND an indictable only offence.

Answer 177

The provisions of s.51(3) CDA 1998 require a magistrates' court to send the either-way offence to the Crown Court for trial without having to take an indication of plea and consider allocation if the offences are related to each other.

Question 178

what is 'Used Material' regarding disclosure?

Answer 178

- the material which is to be relied on by the prosecution at trial. - it can include: statements of witnesses, exhibits, defendant's record of taped interview - Defendant will know what case is against them.

Question 179

what is 'Unused Material' regarding disclosure

Answer 179

- the material which the prosecution are not relying on when bringing the case - this can include: statements of witnesses the prosecution are not calling to trial, records of previous convictions of prosecution witnesses, disciplinary findings against police officers involved

Question 180

duty of disclosure

Answer 180

- Disclosure duties begin with the bringing of the case until the conclusion of the proceedings - Conclusion means, conviction, acquittal or disposal or when the prosecution ceases the case

Question 181

importance of unused material

Answer 181

Unused material can be extremely important to a defendant in a criminal trial. Often a case will be based on a number of witnesses whose evidence, if believed, is sufficient to convict the defendant of a criminal charge. In the same case there might be other witnesses who throw doubt on this. If the prosecution, having reviewed all the material available, considers that there is a realistic prospect of conviction and that it is in the public interest to prosecute the case, it would clearly be wrong to only reveal to the defendant the material that supports its case and not the material that does not. Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant. The defendant may choose to present that material in defence at trial.

Question 182

disclosure: the case of R v. H and C.

Answer 182

'fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defence, if not relied on as a part of its formal case against the defendant should be disclosed to the defence...full disclosure of the material should be made'

Question 183

what are the four stages of disclosure?

Answer 183

(1) the investigation stage- the duty to record and retain material during the investigation; (2) the initial duty of disclosure on the prosecution; (3) defence disclosure; and (4) the continuing duty on the prosecution to keep disclosure under review.

Question 184

requirements of The Criminal Procedure and Investigations Act (CPIA) 1996

Answer 184

- All police officer to retain all relevant information which is gathered - Information which the police see as may be not relevant should eb given to the prosecutor to review - Prosecution must apply the disclosure test under s.3 CPIA - Duty to disclosure all throughout the proceedings, including the conclusion of the prosecution case at trial - Accused may make further applications for disclosure following service of defence statement and previous disclosures

Question 185

Meaning of criminal investigation.

Answer 185

An investigation conducted by police officers with a view as to whether a criminal conviction will be ascertained. This will include: - Investigation into crimes committed - Investigations into whose purpose is to ascertain whether a crime has been committed, with a view of possible criminal proceedings - Investigations with the belief of crimes being committed, this can be group activity which has happened over a long period of time, with a view of possible criminal proceedings.

Question 186

Every Criminal Investigation will have —

Answer 186

- an officer in charge of the investigation: 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; - an investigator: namely any police officer conducting the investigation; and - a disclosure officer: who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor's request.

Question 187

All material which may be relevant to a criminal investigation must be retained. This includes, in particular —

Answer 187

* crime reports * records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender * witness statements (and drafts if they differ from the final version) * exhibits * interview records * experts' reports and communications between the police and experts for the purposes of criminal proceedings * records of first descriptions of suspects and any material casting doubt on the reliability of a witness.

Question 188

how long to retain material after the defendant has been convicted?

Answer 188

Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.

Question 189

disclosure when there is an Appeal

Answer 189

In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material.

Question 190

duty of retaining information during the commencement of proceedings

Answer 190

The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence. Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Question 191

The A-G's Guidelines add further detail to the disclosure test, namely that in deciding whether or not material should be disclosed under s.3 CPIA, prosecutors should consider, amongst other things:

Answer 191

(a) the use that might be made of the material in cross-examination; (b) its capacity to support submissions that could lead to: (i) the exclusion of evidence; (ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made; (iii) a court or tribunal finding that any public authority had acted incompatibly with the accused's rights under the ECHR. (c) its capacity to suggest an explanation or partial explanation of the accused's actions; (d) the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant's mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).

Question 192

Prosecutors Duty of Disclosure under Section 3 CPIA 1996

Answer 192

The prosecutor must— (a)disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or (b)give to the accused a written statement that there is no material of a description mentioned in paragraph (a).

Question 193

what is 'prosecution material' - Section 3(2) CPIA 1996?

Answer 193

prosecution material is material— (a)which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or (b)which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.

Question 194

how is a prosecutor notified by a disclosure officer?

Answer 194

* In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material. * In magistrates' court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

Question 195

Disclosure: Sensitive information

Answer 195

- Sensitive material is any material which would cause extreme prejudice or is in the public interest to keep sensitive and confidential - Sensitive material is listed in a separate schedule - Sensitive schedules must contain all relevant information for the prosecutor to make the decision of whether it should be disclosed or not - In exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.

Question 196

Examples of sensitive information relates to —

Answer 196

- Informants - National security information - Material given in confidence - Undercover police officers - Surveillance places - Techniques in detection of crime - Material relating to child witnesses

Question 197

Additional things prosecutors should do when it comes to disclosure

Answer 197

- Prosecutor should review and keep under review throughout proceedings - Prosecutors should challenge defective defence statements - Material which ought to be disclosed is disclosed - Prosecutor should highlight issues of disclosure to disclosing officer for them to deal with and rectify - Prosecutor can use the technique of ‘dip-sampling’ to check all material has been disclosed properly when there is large quantities of it

Question 198

In R [2016] 1 WLR 1872 the Court of Appeal addressed those problems facing the prosecution in long and complex cases where large volumes of material are seized, including electronic data, during the course of the investigation:

Answer 198

1. The **prosecution are in the driving seat at the initial disclosure stage** - the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure and must explain what it was doing and what it would not be doing at this stage, ideally in the form of a "Disclosure Management Document"; 2. **The prosecution must encourage dialogue with the defence and engage promptly with them** – the defence had then to engage with the prosecution and assist the court in fulfilling its duty of furthering the overriding objective; 3. **The law is prescriptive of the result, not the method of disclosure** – at the initial disclosure stage the prosecution should formulate a disclosure strategy, then canvass that strategy with both the court and the defence and should use technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized; 4. **The disclosure process should be subject to robust case management by the judge** – the court was entitled and obliged to give orders and directions to address disclosure failings with which it was confronted; 5. **Flexibility is critical** – disclosure was not a "box-ticking" exercise and the constant aim was to make progress.

Question 199

when should the prosecution disclose the initial details for the first hearing?

Answer 199

The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.

Question 200

The initial details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view —

Answer 200

(1) on plea; (2) on venue for trial (for either-way offences); (3) for the purposes of case management; (4) for the purposes of sentencing (including committal for sentence for either-way offences).

Question 201

where a defendant pleads not guilty and the case is adjourned for summary trial and there is any further prosecution evidence still to be served....

Answer 201

...the court will give a date by which this must be done.

Question 202

where a defendant pleads not guilty and the case is adjourned for summary trial and the prosecution has not complied with its initial disclosure of unused material at this stage...

Answer 202

...a date will be given for this to be completed.

Question 203

when will a PTPH usually happen?

Answer 203

If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending

Question 204

what shoudl the prosecution do regarding disclosure before a PTPH?

Answer 204

The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged.

Question 205

what is the purpose of a defence statement?

Answer 205

This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.

Question 206

what happens if the prosecution have to disclose more evidence after the PTPH

Answer 206

At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.

Question 207

when does a defence statement have to be served?

Answer 207

Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates' court) to provide a defence statement which sets out the accused's defence to the allegation.

Question 208

what must a defence statement contain?

Answer 208

a written statement that contains the following: (a) setting out the nature of the accused's defence, including any particular defences on which he intends to rely, (b) indicating the matters of fact on which he takes issue with the prosecution, (c) setting out, in the case of each such matter, why he takes issue with the prosecution, and (d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and (e) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

Question 209

what must a defence statement contain if the defendant relies on an alibi?

Answer 209

must give particulars of it, including: (a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given; (b) any information in the accused's possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.'

Question 210

time limit of the defence statement in the Crown Court

Answer 210

A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so). This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.

Question 211

time limit for a defence statement in the magistrates court

Answer 211

In the magistrates' court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates' court provide that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates' court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.

Question 212

the consequence of the defence not serving a defence statement within the magistrates court.

Answer 212

the defence will be unable to make an application for specific disclosure.

Question 213

notice to call defence witnesses

Answer 213

The Notice of Intention to Call Defence Witnesses must be given within: - 10 business days (magistrates' court); or - 28 days (Crown Court) ...of the prosecution complying or purporting to comply with initial disclosure.

Question 214

What amounts to a Disclosure failure by the defence?

Answer 214

(a) fails to serve a defence statement (b) fails to do so within the required time limits (c) serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial) (d) relies on a defence at trial which is different to that contained in the defence statement (e) fails to give notice of defence witnesses. (f) Puts forward defence at trial which is not in defence statement (g) Inconsistent defences in defence statement (h) Relied on alibi and not provided alibi details required (i) Calls witness not ID’d adequately or at all in Defence statement

Question 215

notice to call witnesses contents

Answer 215

In both the Crown Court and the 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 the defendant being a witness); and * if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.

Question 216

what are the consequences for the defence failing to disclose?

Answer 216

- jury may draw such adverse inferences as appear proper against the defendant for such a failure. - the prosecution or co-defendant may comment on such failure without the leave of the court (unless there is a point of law) - a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn. - 'Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’

Question 217

can an adverse inference be drawn for the defendant failing to provide a defence statement in the magistrates court?

Answer 217

In the magistrates' court, no adverse inference can be drawn against a defendant for failing to serve a defence statement

Question 218

can the court prevent a defendant calling an alibi witness D has failed to include in a defence statement?

Answer 218

No. The appropriate sanction here is comment/adverse inference

Question 219

continuing duty of disclosure

Answer 219

duty on prosecutors to keep disclosure under review especially after the service of the defence statement one the defence statement has been received the crown must review disclosure in light of the issues highlighted in the statement

Question 220

applications for specific disclosure

Answer 220

- under section 8 CPIA 1996 - 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 under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed. - This is commonly known as a 'section 8 application' or an 'application for specific disclosure'. - In order to make an application for specific disclosure, the defendant must have served a defence statement (in the magistrates' court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made

Question 221

procedure for specific disclosure

Answer 221

Defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe: (a) that the prosecutor has the material; and (b) that it is material that should be disclosed under the CPIA. The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application.

Question 222

when should specific disclosure be relied upon?

Answer 222

applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.

Question 223

consequences for prosecution failure for disclosure

Answer 223

* The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court. * It could result in a conviction being quashed on appeal due to being unsafe. * It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits. * It could also potentially result in the exclusion of evidence in the case due to unfairness.

Question 224

what should the defence initially do when there has been a failure to disclosure?

Answer 224

Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.

Question 225

Third party disclosure

Answer 225

- No duty of disclosure under the CPIA rests upon such third parties but, if the material 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. - In cases where it is believed the third party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained in case a request for disclosure is made. - There must be some reason to believe that the third party holds relevant material, so speculative inquiries of third parties are not required. - Where material is requested from a third party but access or disclosure is refused, the prosecution can consider (in the Crown Court) seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material, or (in the magistrates' court) under the similar provisions in s.97 of the Magistrates' Court Act 1980.

Question 226

Public Interest Immunity Process

Answer 226

In such circumstances the prosecution cannot simply hold this sensitive material back and keep quiet. The required course of action under the CPIA is to apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (usually abbreviated to 'PII') Application. The court will consider the material and may withhold disclosure of such material to the minimum extent necessary to protect the public interest, whilst always ensuring that the defendant(s) can have a fair trial. Sensitive material of this nature must be recorded at the investigation stage in the Sensitive Material schedule in which investigators must state: * why the material is sensitive and to what degree * the consequences of disclosing the material to the defence (including the involvement of third parties in bringing the material to the attention of the prosecution) * the relevance of the material to the issues in the case * the implications for continuing the prosecution if the material is ordered to be disclosed * whether it is possible to make disclosure without compromising its sensitivity.

Question 227

what is public interest immunity?

Answer 227

an application made to allow the non-disclosure of sensitive material

Question 228

disclosure for large and complex cases

Answer 228

Large and complex cases will require a schedule which is timetabled which may be set by the court

Question 229

common law duty of disclosure

Answer 229

The duty to disclose can still continue between the conviction and sentence.

Question 230

disclosure of evidence which makes conviction unsafe

Answer 230

Evidence which can make the conviction unsafe and comes into the prosecution’s possession, this has to be disclosed so the duty of disclosure continues in this situation

Question 231

Defence statements: Other information

Answer 231

- Defence statements just containing denials is just inadequate - Defence needs to put a positive case in response to the prosecution case - Defence statements cannot make far reaching allegations nor can they use ambiguous terms - Judges expect a defence statements to contain a clear and detailed exposition of the facts and law in issue

Question 232

Prosecutors must show the defence statement to who?

Answer 232

Prosecutors must provide the investigators with the defence statements so that they can react accordingly

Question 233

what must be done if other witnesses are to be called than those mentioned in the defence statement?

Answer 233

- Amended notice to the court must be served and applied to the court if witnesses are to be called after the initial list is given - Details of witnesses include names, addresses, DOB and any other details for effective ID

Question 234

10 business days amounts to how many normal days?

Answer 234

14 normal days.

Question 235

investigators duty regarding investigations

Answer 235

- investigators pursue all reasonable lines of inquiry even if it points away from the accused - ensure that all other lies of inquiry have been considered - need not gather evidence which helps the defence

Question 236

overview of a pre-charge engagement

Answer 236

- Prosecutors to discuss with investigators and accused legal representatives - This is to refine issues and lines of inquiry - Helps with charging decision/position - This normally happens after first PACE interview - It is voluntary - Must be agreed between the parties - Ability to get legal representation before the meeting takes place - They must be recorded and signed

Question 237

examples of aims of a pre-charge engagement?

Answer 237

a) giving the suspect the opportunity to comment on any proposed further lines of inquiry and to identify new ones (although only lines of inquiry reasonable in the circumstance of the case should be followed: para. 15); b) asking whether the suspect is aware of, or can provide access to, relevant digital material; c) agreeing key word searches of digital material with the suspect; d) obtaining a suspect’s consent to access medical records; e) the suspect identifying potential witnesses; and f) clarifying whether expert or forensic evidence is agreed.

Question 238

what is the Indictment?

Answer 238

Indictment is the document which contains the counts of the offences on which D is charged which is read out when D is arraigned Each of these charges is contained in a 'count' on the indictment. Indictments only exist in the Crown Court Indictments may also be used when prosecutor reinstitutes proceedings after the custody period time-limit have expired

Question 239

when is an indictment in force?

Answer 239

when served The act of uploading the indictment onto the digital system suffices it being in force

Question 240

electronically generated indictment

Answer 240

- Where one has been generated and uploaded, this suffices - Though it has to be clarified by a court officer, it does not affect the validity of the indictment - Where multiple are uploaded, the prosecution are required to identify which one they wish to pursue

Question 241

who has the responsibility for drafting the indictment?

Answer 241

Prosecution counsel are the ones responsibility for the proper draft of the indictment and ensure it is in the proper form for arraignment

Question 242

Time limit for serving a bill of indictment

Answer 242

Served on the appropriate court officer within 20 business days of the date on which: - Copies of documents are serves in accordance with s.51 CDA 1998 - High court judge has consented to the voluntary bill of indictment Indictment must be served at least 7 days before the PTPH which takes place at least 28 days of the case being sent to the Crown Court

Question 243

extension for time limit on serving the indictment

Answer 243

Crown Court can grant an extension application to do so has no specific procedure or contents

Question 244

contents of an indictment

Answer 244

- Indictments can contain any indictable offence which has been disclosed by the papers served on the defence. - Joined counts and defendants must be based on sufficient related facts - Where the drafter of the indictment want to include a count which has not been put to the accused, then it must come from the facts on which have been served to the defence

Question 245

how each counts are written on an indictment

Answer 245

- Each count must have a separate para - Each count must be split into a statement of the offence and the particulars of the offence - Statement of offence must provide a short statement of the actual offence at hand with the correct legislation - Particulars of the offence contain the names, dates and places involved

Question 246

dates on an indictment

Answer 246

- When it comes to dates, the drafter must include, if known, the date properly, Day, Month, Year - If mot known then a rough estimate can be given, i.e, on or about […], or any time before […] or any time between […] and […] - It must be committed on a reasonable approximation with the date given.

Question 247

when can a count say that an offence occurred on more than one day?

Answer 247

Continuous offences: Where an offence may take place continuously or intermittently, then the count may properly allege that the offence occurred on more than one day

Question 248

examples of continuous offences

Answer 248

- conspiracy offences - theft where where small sums of money have been taken but not clear on what days, but the period of when the money was took is

Question 249

where may a multiple offending count be used?

Answer 249

- The victim was the same on each occasion or where there is no identifiable victim, such as the importation of drugs - The alleged incidents had a marked degree of repetition, such as method used or the place where it happened, or both - Alleged incidents took place over a defined period of time, (not necessarily) but no more than about a year - Where the multiple accounts would not be appropriate or the defence puts forth as such

Question 250

duplicity on indictments

Answer 250

However, except in limited circumstances where 'rolled up' counts are permitted for continuous offences, each count should relate to a single offence. This is known as the rule against duplicity; a single count alleging multiple offences will be 'bad for duplicity’.

Question 251

joinder of counts in an indictment

Answer 251

Discretionary power of the court. CrimPR 3.29(4) Where the same indictment charges more than one offence, the court may exercise its power to order separate trials of those offences if of the opinion that—(a) the defendant otherwise may be prejudiced or embarrassed in his or her defence (for example, where the offences to be tried together are neither founded on the same facts nor form or are part of a series of offences of the same or a similar character); or (b) for any other reason it is desirable that the defendant should be tried separately for any one or more of those offences.

Question 252

what legislation contains the power to sever the indictment?

Answer 252

Section 5(3) Indictments Act 1915

Question 253

joinder of indictments: Charges found on the same facts

Answer 253

**Joined if the offences arose from a single continuous and uninterrupted version of events** . i.e. the joined counts of arson then murder; **Joinder where the one offence is a pre-condition of the second offence:** an example of this is where the defendant was charged with assault and affray then the defendant intimidated a witness and tried to bribe them. It was found that all these counts were properly joined as they all arose from the same facts the offences D had committed gave him the motive to bribe the witness - a factual connection is reached by a coincidence of time and place

Question 254

Joinder of Indictments: Series of offences if the same or similar nature

Answer 254

- In deciding whether offences exhibit the similarity demanded by the rule, the court should take into account both their legal and their factual characteristics. - To show the existence of a series of offences, the prosecution must be able to point to some nexus between them. This means ‘a feature of similarity which in all the circumstances of the case enables the offences to be described as a series’. A nexus is clearly established if the offences are so connected that the evidence of one would be admissible to prove the commission of the other in accordance with the rules on similar-fact evidence, but this is not essential

Question 255

The procedure for specimen or sample counts is as follows:

Answer 255

- Defence should be provided with a list of the similar offences of which it is alleged that those selected in the indictment are samples - Evidence of all of the alleged similar offence should be provided and be led of evidence of system - The additional offences need not be referred until after a verdict of guilty is returned upon the sample offence

Question 256

Specimen or sample counts

Answer 256

Where not appropriate to allege a continuous series of events so a specimen or sample counts will be appropriate where the prosecutor will have a choice of count which will depend on the circumstances of the case at hand

Question 257

issues with specimen counts

Answer 257

The problem is that the accused needs to know the case which is being brought against him in order to meet it. He/She needs to be able to be tried by a jury for an offence he is going to serve a sentence for

Question 258

joinder of the accused

Answer 258

Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment, or as a result of being named individually in separate counts, albeit that there is no single count against them all.

Question 259

joinder of the accused - drafting of the joined counts

Answer 259

(a)There is no need to distinguish between principal offenders and secondary parties (Accessories and Abettors Act 1861, s. 8: see D11.42). (b)The count need not expressly allege that the unlawful acts of each accused were done in aid of the others, as that allegation is implicit in the drafting of a single count (DPP v Merriman [1973] AC 584 per Lord Diplock at p. 607C).

Question 260

For joined counts for two or more defendants, is there a need to distinguish between principle and accessory defendants?

Answer 260

No.

Question 261

joinder of the accused, when drafting a joint count, what is the overarching principle the prosecution need to consider?

Answer 261

- whether it is in the interests of justice - overarching principle - think about calling witnesses back more than once

Question 262

possible verdicts on joined counts

Answer 262

In short, if two accused, D1 and D2, are charged in a joint count the jury may (a) acquit both, or (b) convict both, or (c) acquit one and convict the other. Should they convict both it will usually be on the basis implicit in the joint count that they helped each other to commit the crime, but the jury may equally convict both where the evidence suggests that they acted independently of each other if they are satisfied that each accused committed the offence.

Question 263

joinder of counts - joint enterprise

Answer 263

the prosecution are well advised only to draft a joint count where the evidence reveals a joint enterprise. If the co-defendants were acting without reference to each other, separate counts are preferable. There has to be one joined result in order for Ds to be on the same count

Question 264

separate counts - indictments

Answer 264

(a) joinder of offenders is a matter of the practice of the courts. (b) Since joinder of offenders is merely a matter of practice, errors in the application of the relevant rules, though amounting to an irregularity in the proceedings, will not deprive the trial court of jurisdiction. Consequently, the Court of Appeal is entitled to dismiss an appeal against conviction advanced on this ground if there has been no miscarriage of justice and especially where there has been a failure by the defence to object to the joint trial. (c) joinder is appropriate if the offences separately alleged against the accused are, on the evidence, so closely related by time or other factors that the interests of justice are best served by a single trial. (d)It was conceded by the appellant and accepted by the court that, where there is a joint count against two accused, that count may be followed by a separate count or counts against one or more of the accused even in relation to a distinct matter, provided that there is no breach of what is now r. 3.29(4)

Question 265

the power to sever the indictment

Answer 265

Can be applied to severing the joinder of counts and/or accused Judge has the power to sever the count s and have separate trials, so long as: - Necessary and expedient - Procedure shall be the same as if it was originally treated as a separate trial The power the court has is one which is discretionary It is the presumption that the counts will be joined, however, if it appears that it will prejudice the defendant, i.e confuse the jury and they assume that if one act has been committed then they must have committed the other, then the judge can sever the counts.

Question 266

discretion to order separate trials of the accused - Ludlow Principles

Answer 266

(a)Where the accused are charged in a joint count, the arguments in favour of a joint trial are very strong. These arguments include: (i)severance will necessitate much or all of the prosecution evidence being given twice before different juries and increase the risk of inconsistent verdicts; (ii)even if the accused are expected to blame each other for the offence (i.e. will run ‘cut-throat’ defences), the interests of the prosecution and the public in a single trial will generally outweigh the interests of the defence in not having to call each accused before the same jury to give evidence for him or herself which will incriminate the other. (b)Where the prosecution case against one accused (D1) includes evidence that is admissible against D1 but not against the co-accused (D2), there is no obligation to order severance simply because the evidence in question might prejudice the jury against D2. However, the judge should balance the advantages of a single trial against the possible prejudice to D2, and should consider especially how far an appropriate direction to the jury is really likely to ensure that they take into account the evidence only for its proper purpose of proving the case against D1. (c)Where a joint trial of numerous accused would lead to a very long and complicated trial, the judge should consider whether a number of shorter trials, each involving only some of the accused, might make for a fairer and more efficient disposition of the issues. This reason for severance is tied up with the rule against overloading indictments. (d)There may be some distinction to be drawn between cases where the accused are jointly charged in a single count and those where they allegedly committed separate offences which were nonetheless sufficiently linked to be put in one indictment. In the latter situation, the cases against the accused are unlikely to be as closely intertwined as when a joint offence is alleged, and the public interest argument in favour of a single trial is correspondingly less strong. There should, therefore, be a greater willingness to order separate trials.

Question 267

can the discretionary power of ordering separate trials be appealed?

Answer 267

It is unlikely to be a ground of appeal in the exercise fo the discretion

Question 268

statutory provision for the amendment of indictments

Answer 268

Power to amend the indictment is under section 5(1) IA 1915 “(1) Where, before trial, or at any stages of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice”

Question 269

Two situations where the power of amending an indictment may be exercised:

Answer 269

- Respect of formal defects in the wording of the count, ie not including a relevant element in the particulars - Divergencies in the evidence itself and the allegations in the count

Question 270

Material Discrepancy to the charge on an indictment

Answer 270

If the discrepancy is not material to the charge, then an amendment is not necessarily a ground for injustice. In Pople, ‘in substance, the charge was the same’ the incorrect description of the thing obtained was not material to the charge.

Question 271

amendment of an indictment with a new count

Answer 271

- This is under the same power as amending an indictment – S 5(1) ISA 1915 - New counts can be made after the close of prosecution case - The new count will have to be put to D after arraignment so that they can plead. This is more open to objection - If the amendments are of form rather than substance then there is less contingency - A new count does not require evidential basis if it arises from the same facts which have been produced at the committal

Question 272

When can amendments for indictments be made under the IA 1915?

Answer 272

o Between the arraignment and the empanelling of the jury o Alteration of the description of an object which was not material to the actual charge, but was amended at the close of the prosecution case o Amendment can be made when jury have gone to deliberate the verdict

Question 273

voluntary bills of indictment

Answer 273

- Seeking permission from the High Court to give permission to the Crown Court that an accused must stand trial for an offence on the indictment - It is used to reinstate proceedings when they have been dismissed under the CDA 1998 but fresh evidence has come to light - voluntary bills of indictment should only be used where it is appropriate to depart from the normal procedure - where a charge has been passed (sent up) to the CC but has been dismissed but the prosecution wish to proceed

Question 274

how must the counts be numbered on the indictment?

Answer 274

consecutively

Question 275

Draft indictment served by the prosecutor at the direction of the Court of Appeal. CrimPR 10.8

Answer 275

(1) This rule applies where the Court of Appeal orders a retrial. (2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 28 days after that order.

Question 276

Draft indictment served by the prosecutor on re-instituting proceedings. CrimPR 10.7

Answer 276

(1) This rule applies where the prosecutor wants to re-institute proceedings in the Crown Court under section 22B of the Prosecution of Offences Act 1985. (2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 3 months after the proceedings were stayed under section 22(4) of that Act(1).

Question 277

Draft indictment approved with deferred prosecution agreement. CrimPR 10.6

Answer 277

(1) the rule applies where — (a)the prosecutor applies to the Crown Court under rule 11.4 (Deferred prosecution agreements: Application to approve the terms of an agreement); and (b)the Crown Court approves the proposed indictment served with that application. (2)Where this rule applies, that proposed indictment constitutes the draft indictment.

Question 278

Draft indictment served by the prosecutor with a High Court judge’s permission. CrimPR 10.5

Answer 278

(1) This rule applies where— (a)the prosecutor applies to a High Court judge under rule 10.9 (Application to a High Court judge for permission to serve a draft indictment); and (b)the judge gives permission to serve a proposed indictment. (2) Where this rule applies— (a)that proposed indictment constitutes the draft indictment; and (b)the prosecutor must serve the draft indictment on the Crown Court officer not more than 20 business days after the High Court judge’s decision.

Question 279

Draft indictment served by the prosecutor after sending for trial. CrimPR 10.4.

Answer 279

(1) This rule applies where— (a)a magistrates’ court sends a defendant to the Crown Court for trial; and (b)rule 10.3 (Draft indictment generated electronically on sending for trial) does not apply. (2) The prosecutor must serve a draft indictment on the Crown Court officer not more than 20 business days after serving under rule 3.19 (Service of prosecution evidence) copies of the documents containing the evidence on which the prosecution case relies.

Question 280

unfitness to plead consequences

Answer 280

the following orders may be imposed following a fitness to plea: o hospital order o discharge order o supervision order the verdict will be whether D has committed the act or if he is not guilty

Question 281

procedure where accused is found unfit to plead

Answer 281

- a special verdict has to be returned - the jury is sworn on this too, the oath is different - fitness to plead is determined by the court without a jury - fitness to plead is determined as soon as it arises - question of fitness to plead shall not be determined if the question arises once the jury have acquitted D - question will be determined based on the medical evidence of two practitioners one at least approved

Question 282

arraignment

Answer 282

- where the court clerk puts the indictment to D where they return a plea of guilty or not guilty. this must be done on each count - in pleas in the alternative, if D pleads guilty to one, then it is unnecessary to continue reading the rest - court must confirm that the charges on the indictment are correct ones which the prosecution are putting to D - can be done via video link if appropriate - the arraignment will be done without the jury being in the court room, this is so D is not prejudiced by pleading to one or more of the counts and not guilty to the rest. The counts are read out to the jury once they are sworn

Question 283

pleas that may be entered on arraignment

Answer 283

- Guilty - Not Guilty - pleas in alternative, i.e. section 18 or 20

Question 284

entry of a not guilty plea

Answer 284

- this can be expressly - or if the plea is silent or ambiguous, then the court will assume this is a not guilty plea

Question 285

effect of plea of not guilty

Answer 285

- once D has entered not guilty, then the prosecution must prove the case. beyond reasonable doubt on both actus reus and mens rea - any deficiency in the prosecution case, defence can raise a point of law of no case to answer. Defence should produce the facts and issues of dispute - where there is an official formal admission, then the prosecution are discharged from their duty

Question 286

effect of plea of guilty

Answer 286

- plea of guilty must be entered personally by D - once D has done this, it releases prosecution from their duty to prove the case BRD - there may be a dispute on the material facts of the case where if it is significant enough to have an effect on the sentence then a Newton Hearing must be held - or there can be a sentence passed on the Defence’s version of events - the convicted is still convicted by his own plea regardless of a newton hearing if the prosecution facts are how the offence was committed rather than was it committed.

Question 287

Adjournments following plea.

Answer 287

- This is to the discretion of the court where it may be necessary to gather reports pertinent to sentencing - If the accused has pleaded to a serious offence then there is a less likely chance of bail when there is an adjournment, otherwise there is still a presumption to bail to the court can commit D to custody or bail

Question 288

mixed pleas from the accused

Answer 288

Where prosecution are not prepared to accept the pleas which the accused has pleaded guilty for, sentencing of those pleaded will follow trial

Question 289

plea of guilty to lesser offence

Answer 289

- If accused pleads guilty to lesser offence then the court will acquit D of the actual charge then proceed to sentence on the lesser offence - Prosecution are only bound to the courts view if they have asked for it - The court ultimately makes the decision of the pleading to the lesser offence - Court can adjourn for further view of prosecutions decision - Where there is a plea bargain, prosecution are only bound by Courts view if they have asked for it.

Question 290

change of plea

Answer 290

- It is easier if D changes plea of NG to G. if this is done during the trial, then the judge asks for the jury to return a verdict of guilty - D can have another arraignment and have the indictment put again. In Poole the judge discharged the jury and D was arraigned again. This was seen as valid - With G to NG it is more difficult. - It is to the discretion of the judge - It has to be based on the plea being influenced by legal rep - It can be accepted any time before sentence - The discretion applies even when plea was unequivocal

Question 291

PTPH Hearings

Answer 291

- PTPH: Plea and Trial Preparation Hearing - All the case management is done here before the actual trial - Hear the plea and set further stages of the case - Service of prosecution papers and defence statement - Timetable for future trial and/or sentence

Question 292

preliminary hearings: generally

Answer 292

- Helps for case progression - Permission from prosecution is required for such hearings - Interest of justice for prosecution and accused to enter in a deferred prosecution agreement - Necessary consent for the prosecution is needed

Question 293

material for a PTPH hearing

Answer 293

- time allowed for the conducting of a PTPH must be sufficient for the effective trial preparation, including the service of the prosecution case, preferring of indictment and service of defence statement - Where D is in custody and initial detail shave not been provided then the material required for bail needs to be sent 7 days before PTPH - Beyond that prosecution must have served material required for the just and effective case management of the case at hand without the need for further case management hearings

Question 294

Judge must be satisfied of the following for PTPH —

Answer 294

o D knows about the credit of pleading o What D’s plea is to be o Trial can take place in d’s absence if he fails to turn up

Question 295

PTPH: The Form

Answer 295

Likely use of witnesses must be included should D enter NG plea Orders for: o Witnesses o Disclosure o Outstanding legal issues are to be included on the form Admissibility issues are also dealt with here

Question 296

Prosecution Options for NG plea or mixed plea: Offering No Evidence

Answer 296

o CJA 1967, s.17 o Offering no evidence on some of the counts may have been agreed between both counsel o Prosecution cannot be forced by the court to call evidence o The court still needs to approve this action. The prosecution have to provide reasons for doing so. if the court cannot heed the reason as to why then there will be no proper basis for approving or disproving the order

Question 297

Prosecution Options for NG plea or mixed plea: Letting Counts Lie

Answer 297

o Where the counts are left on file to not be proceeded unless there is permission from CoA o Appropriate where D pleads guilty to a bulk of the charges, where pleads NG to subsidiary charges o It avoids the accused being acquitted o The use of this method is inappropriate where the evidence is factually strong in D’s favour o It protects the position of both the prosecution and defendant. Where they have to effectively have an appeal in order to reinstate the trial, where if the appeal is unsuccessful D cannot be tried o It just protects the prosecution where they can proceed when they want to, but with an additional barrier to protect D

Question 298

Applications for Dismissal

Answer 298

- Accused may apply orally or in writing to dismiss the charge - Judge must dismiss and dismiss the charge and quash any related count on indictment if it is found there is no sufficient evidence to prove the guilt - This can be made orally or in writing - Oral when there is written notice of doing so

Question 299

Test on Dismissal Applications

Answer 299

- Judge to take into account the whole of the evidence against the accused - Not appropriate to consider evidence which was in isolation to the context of the charge - Judge is not bound to consider any possible inference which may be made by jury - Judge must assess inference s and conclusions if they are so required and ones which prosecution will ask to draw