Preliminaries to prosecution III (ways of charging, legal aid)

Question 1

Who makes the decision to charge?

Answer 1

A Crown Prosecutor (from CPS) who will exercise powers of the Director of Public Prosecutions (DPP) who is required to take over conduct of all prosecutions commenced by police

I.e. Crown Prosecutors exercise powers of the DPP

Question 2

Are all charging decisions taken by a Crown Prosecutor?

Answer 2

• Indictable-only offences taken by Crown Prosecutor
• Police retain discretion re whether to charge for number of summary offences (road traffic, criminal damage at or below £5,000, low-value shoplifting)

Question 3

Who makes decision to charge where it is made by police?

Answer 3

Custody Officer

Question 4

What is sought by the Code for Crown Prosecutors?

Answer 4

Uniformity in approach taken by different Crown Prosecutors re charging decisions

Question 5

What are associate prosecutors and what do they do?

Answer 5

CPS employees who are not lawyers but represent CPS on bail/other pre-trial applications or may conduct trials where offence charged is a non-imprisonable summary offence

Question 6

What are the 3 different forms of commencing criminal proceedings?

Answer 6

1. Arrest and charge - most common way
2. Written charge and requisition - only for ‘relevant prosecutors’
3. Laying an information - court issues summons/arrest warrant requiring accused to attend

Question 7

Re arrest and charge, when will this happen?

Answer 7

Either…

• End of period of detention at police station post-arrest
• After period of police bail when suspect re-attends station or while CPS decides what appropriate charge is

Question 8

When can pre-charge police bail be imposed?

2 situations

Answer 8

1. Insufficient evidence to charge suspect and they are released pending further investigation
2. Where police consider sufficient evidence to charge but matter referred to CPS for charging decision

Question 9

What will police decide regarding police bail?

Answer 9

• Whether suspect released with/without bail; and
• If released on bail, whether any conditions should be imposed

Question 10

What does ‘released under investigation’ (RUI) refer to?

Answer 10

Situation where suspect is not released on police bail but police still looking into the matter

Question 11

Who are the ‘relevant prosecutors’ in terms of those who can commence proceedings through written charge and requisition?

Answer 11

Those who prosecute on behalf of the state (public prosecutor) e.g. CPS, Health and Safety Executive, DVLA, Environment Agency

Question 12

How will a public (relevant) prosecutor commence proceedings and what will be served to whom in doing so? Must a person charged be arrested?

Answer 12

• Will issue written charge charging person with offence and serve requisition on person charged and on magistrates’ court at which person required to attend
• No requirement that person charged has been arrested

Remember written charge and requisition for written charge and requisition because they both start with R sound

Question 13

How does ‘laying an information’ work?

Answer 13

• Prosecutor serves information alleging offence on magistrates’ court
• Mags issues a summons/arrest warrant requiring accused to attend

Question 14

What are the types of prosecutions that can only be commenced by summons?

Answer 14

Private prosecutions

Question 15

What is the difference between written charge and requisition and laying an information?

Answer 15

• Written charge and requisition = only available to relevant prosecutors who serve requisition on person charged and magistrates’ court (written charge > requisition)
• Laying an information = prosecutor serves information alleging offence on magistrates’ court and then magistrates’ issues summons/arrest warrant (information > summons)

Question 16

What must be included in written charge/information and a requisition/summons?

For written charge and requisition or laying an information

Written charge/information = served on court
Summons/requisition = served on accused

Answer 16

Written charge/information:

• Statement of offence which describes offence in ordinary language
• Reference to statutory provision that creates offence
• Sufficient particulars of conduct complained of for accused to know what is alleged

Summons/requisition:

• Notice setting out when/where accused required to attend court
• Specify each offence in respect of which it has been issued

Question 17

Is there a statute of limitation requiring a charge to be brought within specified time after commission?

Answer 17

Only for alleged offences which are summary only, for which a magistrates’ will not try information/hear complaaint unless laid/made within 6 months of date of alleged offence

NO TIME LIMIT FOR CHARGING ACCUSED WITH INDICTABLE OFFENCE

Question 18

What are all suspects entitled to regardless of their means? Is this restricted?

Answer 18

• Entitled to free, independent legal advice at police station
• For non-imprisonable offences, limited to telephone-only advice

Can ask for police station’s 24 hour, independent ‘duty solicitor’/acess through the Defence Solicitor Call Centre (‘DSCC’)

Question 19

Throughout PACE, what does ‘solicitor’ mean?

Answer 19

A solicitor who holds a practising certificate or an accredited representative e.g. trainees, paralegals, ex-police officers

Question 20

What are the 2 tests to obtain a ‘representation order’ (public funding through Legal Aid)?

Answer 20

1. The means test; and
2. The merits test

Question 21

When is a D ‘passported’ through the means test?

I.e. automatically pass

Answer 21

If D is a minor and/or they are on specified welfare benefits

Question 22

What is the figure used for the means test in the magistrates’? How does it work?

Answer 22

• Weighted gross annual income (GAI)
• = applicant’s gross annual income added to partner’s and weighting applied re number of people in household

Question 23

When will D’s partner not be included in the GAI?

Answer 23

If they are a complainant, co-D, or witness for prosecution

Question 24

After GAI is calculated, when will public funding be available?

Answer 24

• Below lower threshold (GAI £12,475 or less) = eligible
• Above upper threshold (GAI £22,325 or more) = ineligible
• Between thresholds = undertake full means test (if applicant’s annual household disposable income is below threshold applicant will be funded)

Question 25

Can an applicant apply for an eligibility review if they fail the means test?

Answer 25

Yes if they have unusually high outgoings or defence costs

Question 26

How is the means test different in the Crown Court?

Answer 26

Applicant assessed on income and capital

• After combined capital/equity allowance of £30,000, applicants can be required to contribute any balance towards defence costs
• Outcome of assessment may require D to pay all, some or none of costs of defending case

If contribution required, it can come from income (payable throughout case) and/or capital (payable at end)

Question 27

How does annual household disposable income determine an applicant’s eligibility in the Crown court?

Answer 27

Thresholds are £37,500/more and £3,398/less - if between here = eligible for public funding with a contribution

Question 28

What must the applicant demonstrate to pass the merits test?

Answer 28

That it is in the interests of justice for them to be legally represented

Question 29

When will a D be passported through the merits test?

Answer 29

• Charged with indictable-only offence
• Either-way offence later sent to Crown

Question 30

What must D provide information in support of in the interests of justice test?

Answer 30

All/some of the 10 propositions in the application form

Question 31

What are the 10 propositions?

Answer 31

1. I will lose my liberty (‘imprisonable’ not enough, must be likely they will go to jail via aggravating circumstances)
2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence
3. It is likely I will lose my liveihood (requires representation to convey mitigation to avoid penalty interfering with employment)
4. It is likely I will suffer serious damage to my reputation (must be more than obviously damaging conviction e.g. school teacher charged with sexual assault)
5. A substantial question of law may be involved (issue of law rather than fact)
6. I may not be able to understand court proceedings/present own case (youth D, learning difficulties, interpreter not enough)
7. Witnesses may need to be traced/interviewed on my behalf (should provide kind of evidence D seeking to adduce via witness)
8. Proceedings may involve expert cross examination of prosecution witness (issues in the case making it difficult for D to cross examine witnesses)
9. It is in the interests of another person I am represented (must be someone involved in court proceedings [family suffering if suspect goes to jail not enough] e.g. complainant would feel uncomfortable if cross examined by D personally)
10. Any other reasons

Question 32

Can a D still pass interests of justice test if they plead guilty?

Answer 32

Yes - if a custodial sentence is likely they will generally pass the interests of justice test

Question 33

What can a solicitor claim for once a representation order is granted?

Answer 33

• Preparation - taking instructions, interviewing witnesseses, adivising on plea/mode of trial, preparing documents etc
• Advocacy - applications before the court

Question 34

Is there right of appeal for either means or merits test?

Answer 34

• Fail means test = no right of appeal but can submit another form if circumstances change
• Fail merits test = can submit another application and if unsuccessful can appeal to Crown

Question 35

What role does the duty solicitor (free advice) in appeal process?

Answer 35

Suspect may consult if they are charged with an imprisonable offence + can only represent them on one occasion (usually first hearing in court)

Question 36

What happens if a D does not secure a representation order?

Answer 36

Either:

• Instruct solicitor privately
• Represent themselves with assistance/support of the court