Procedures and processes involved in criminal litigation

Question 1

What happens if a suspect is denied bail by the custody officer?

Answer 1

They will attend the Magistrates’ Court at the next available hearing.

Question 2

What is the presumption for bail?

Answer 2

That a defendant is released on bail following the bail hearing (except in homicide cases).

Question 3

The court can remand a defendant into custody for non-homicide cases if what?

Answer 3

1. An exception to the right of bail applies; and
2. There is a real prospect of a custodial sentence being imposed if convicted.

Question 4

What are the exceptions to bail?

Answer 4

• Substantial grounds to believe the defendant would do any of the following:
  o Fail to surrender;
  o Commit further offences on bail;
  o Interfere with witnesses or obstruct justice; or
  o Commit an offence on bail that would cause (or cause fear of) physical or mental injury to an associated person (such as spouse or ex).
• They are charged with a crime that can be tried in the Crown Court (burglary, arson, GBH) and they were on bail at the time of the offence
• Custody is for their own protection
• There’s insufficient evidence to make a bail decision
• They failed to surrender or breached bail conditions in the same proceedings.

Question 5

When considering bail what do the court consider?

Answer 5

• Nature and seriousness of the offence including probable method of dealing with it (custody, community order, fine)
• Defendant’s character, previous convictions (makes less likely), associations and community ties (if strong and reputable organisations makes more likely)
• Defendant previously complying with bail obligations
• Strength of the evidence (if strong evidence less likely). Note: rules of evidence are relaxed at bail hearings.
• Risk that defendant might cause physical or mental injury to another.

Question 6

When can conditions be attached to bail?

Answer 6

If they are relevant, proportionate, and enforceable

Question 7

What do common bail conditions include?

Answer 7

• Defendant residing at specified address or reporting to a local police station at specified intervals
• Prohibiting defendant from going to a certain area or contacting certain individuals
• Requiring the defendant to follow a curfew, wear electronic tag or providing surety or security that will be forfeited if defendant fails to surrender.

Question 8

What is the procedure for applying for bail?

Answer 8

No prescribed procedure for bail hearing

Question 9

When does does court consider bail?

Answer 9

Must consider bail at each hearing

Question 10

How many bail applications can defendant make?

Answer 10

Defendant may make only one further bail application (two total) based on the same facts and submissions.
After this must be a change of circumstance to make request for bail such as new evidence that weakens prosecution case or new bail address.

Question 11

What are appeals against decisions on bail by defendant?

Answer 11

• Appeal by defendant from magistrates’ court to Crown Court
• Appeal possible once magistrates have issued a ‘full argument certificate’

Question 12

What are appeals against decisions on bail by prosecution procedure?

Answer 12

• Appeal by CPS from grant of bail to defendant by magistrates’ court or Crown Court
• CPS must inform court at end of hearing
• Defendant is remanded in custody
• CPS must serve appeal notice with grounds on defendant within 2 hours

Question 13

Consequences of breaching bail?

Answer 13

If a defendant breaches their bail conditions, they can be arrested without a warrant. Bail can be withdrawn or the court impose more stringent conditions.

Question 14

Consequences of absconding bail?

Answer 14

If a defendant fails to surrender to bail this is a separate offence and bail can be revoked.

Question 15

Who generally brings criminal cases to court?

Answer 15

The state as Crown Prosecution Service CPS (local authorities, county councils and agencies may).

Question 16

Where do all criminal offences start?

Answer 16

With a first appearance in the Magistrates’ Court, more serious offences then progress to crown court.

Question 17

What are the three classification of offences?

Answer 17

Summary only
Either way
Indictable only

Question 18

Under classification of offences what is summary only?

Answer 18

least serious offences such as assault and battery

Question 19

Under classification of offences what is either way?

Answer 19

moderately serious crimes such as actual bodily harm and grievous bodily harm

Question 20

Under classification of offences what is indictable only?

Answer 20

most serious offences such as grievous bodily harm with intent, murder and manslaughter

Question 21

Who needs to apply for a representation order (unless defendant privately funded)?

Answer 21

The defence solicitor attending court to represent a defendant

Question 22

When will a representation order be granted?

Answer 22

if it’s in the interest of justice and the means test is satisfied

Question 23

Under a representation order what factors does interest of justice test look at?

Answer 23

• Defendant is likely to lose their liberty or livelihood or suffer serious reputational damage
• Case requires the determination of a substantial question of law
• Defendant is unable to understand the proceedings or state their own case
• Case will involve tracing witnesses or interviewing them

Question 24

Under a representation order when will a means test be satisfied?

Answer 24

If the defendant doesn’t have sufficient means to hire a legal representative such as when the defendant:
* Is under 18
* In receipt of income support, state pension or benefits
* Income is sufficiently low to qualify for legal aid

Question 25

What does it mean if a representation order is in place?

Answer 25

Solicitor may seek disclosure from the prosecution before the first appearance.

For summary only and either way offences may include: summary of the offence, list of defendant’s previous convictions, an outline of the interview, witness statements, exhibits or victim’s impact statement.

Question 26

What happens at first hearings before the magistrates’ court for summary only offences?

Answer 26

The defendant pleads guilty or not guilty:
* Guilty – the court will immediately sentence unless pre-sentence reports are required
* Not guilty – a date will be set for trial and orders regarding disclosure will be made

Question 27

What happens at first hearings before the magistrates’ court for either way offences?

Answer 27

The court proceeds to the plea before venue process.

Question 28

What happens at first hearings before the magistrates’ court for indictable only offences?

Answer 28

The matter is immediately sent to the Crown Court for trial

Question 29

What is the role of the defence solicitor at the hearing?

Answer 29

Duty to advance their client’s case and a duty to not mislead the court. If these duties cause conflict and the conflict cannot be resolved the solicitor must withdraw.

Should advise on the strength of the evidence, the likely sentence, further steps and court procedure.

Advice can include for either way offences the maximum sentence the Magistrate’s Court can impose is 12 months for a single either way offence and proceedings are quicker and costs lower there, but rates of acquittal are higher in Crown Court

Solicitor must inform all clients that they are entitled to a reduction in sentence for pleading guilty – but it is for the client to decide whether to plead guilty

Question 30

What should solicitor do if becomes aware that defendant has misled court and/or they refuse to disclose the truth to court?

Answer 30

Solicitor should therefore refuse to act for a Defendant
In addition, solicitor cannot agree to calling a witness whose evidence they know to be untrue.

Question 31

When is a plea before venue used?

Answer 31

For either way offence only

Question 32

What is procedure on defendant entering plea in plea before venue?

Answer 32

1. Charge against the defendant is read
2. Clerk explains what happens if defendant pleads guilty or not guilty
3. Clerk asks defendant how they would plead
4. If defendant indicates guilty plea the court proceeds to sentence, if pleads not guilty or doesn’t give an indication the court proceeds to allocation.

Question 33

What are the advantages and disadvantages to trial at Magistrates’ Court?

Answer 33

Advantages to trial here
* Quicker (less stressful?), less publicity, cheaper
* Lesser sentence
* No defence statement

Disadvantages to trial here
* Magistrates ‘battle hardened’
* Limited voir dire (a separate hearing in which the trier of law determines whether evidence is admissible and can potentially be entered into evidence in the trial)
* Can commit D to CC for sentence

Question 34

What are the advantages and disadvantages to trial at Crown Court?

Answer 34

Advantages to trial here
* Trial by jury
* Judge for legal/evidential points
* Voir dire

Disadvantages to trial here
* Defence disclosure
* Longer, (more stressful?), more publicity
* Greater costs, funding issues
* Longer sentence

Question 35

At plea before venue what does the Magistrates’ Court decide regarding allocation of business between magistrates’ court and Crown Court?

Answer 35

Will accept jurisdiction if it thinks it has sufficient sentencing power. If Magistrates’ Court declines jurisdiction, then the case will be sent to the Crown Court for trial.

Question 36

What happens in decision as to allocation under s19 Magistrates’ Courts Act 1980?

Answer 36

Court shall decide whether the offence appears to be more suitable for summary trial or trial on indictment.
Before decides the court
(2a) gives the prosecution an opportunity to inform the court of the accused previous convictions if any and
(2b) gives the prosecution and the accused an opportunity to make representations as to whether summary trial or trial on indictment would be more suitable.

The court shall consider whether the sentence a magistrates’ court would have power to impose for the offence would be adequate and any representations made under 2b. If declines jurisdiction then the case will be sent to the Crown Court for trial.

Question 37

What happens if Magistrates’ Court accepts jurisdiction under s20 Magistrates’ Courts Act 1980?

Answer 37

The defendant will be told that they may elect to have it heard there without a jury (a summary trial) or before a jury in the Crown Court (a trial on indictment).
The defendant can request the court gives an indication whether the sentence would be custodial or non-custodial if they pleaded guilty and accepted summary proceedings, the court is not obliged to give an indication but if they do and the defendant changes plea to guilty the court is then bound to follow this indication in sentencing.

Question 38

What is the special difference for low value shoplifting under s22a Magistrates’ Courts Act 1980?

Answer 38

Is triable only summarily. But if person accused brought before the court before the summary trial begins court must give the person the opportunity of electing to be tried by the Crown Court. i.e the Magistrates’ Court may not decline jurisdiction but the defendant can elect to have a trial in Crown Court, this is hybrid approach to normal system in that Magistates’ Court cannot decline jurisdiction but defendant can elect Crown Court trial.

Note: to be low-value shoplifting value of stolen goods does not exceed £200, goods were offered for sale in a shop/other premises where trade or business, and at time of offence person accused was or purporting to be customer.

If convicted of low-value shoplifting by a Magistrates’ court may not appeal to the Crown Court against the conviction on the ground that the convicting court was mistaken on whether the offence was one of low-value shoplifting.

Question 39

What are the two situations an either way offence will be sent to the Crown Court without plea before venue and allocation taking place?

Answer 39

1. Defendant or a co-defendant is charged with an indicatable only offence alongside the either way offence; or
2. Prosecution gives notice to the court that is a serious or complex fraud case or involves child witnesses whose welfare is best protected by Crown Court trial.

Question 40

Magistrates’ court case management directions, what are included in the standard directions for trial of a summary case?

Answer 40

Prosecution must serve its evidence and notice of any intention to adduce bad character evidence within 28 days of the order.

Defence must (after receiving prosecution’s evidence and any notice of intent to adduce bad character evidence) notify the prosecution which prosecution witnesses are required to attend trial within 7 days; and serve its defence statement within 14 days.

Question 41

At what stage is a Plea and Trial Preparation Hearing (arraignment) used?

Answer 41

Typical in case being heard before the Crown Court is held within 28 days after the case was sent from Magistrates’ Court.

Question 42

What happens at a Plea and Trial Preparation Hearing (arraignment)?

Answer 42

Pleads guilty = court proceed to sentencing.
May ask for an indication of sentence (Goodyear indication) before entering plea, if judge agrees and gives an indication and defendant then pleads guilty will be bound by their indication.

Pleads not guilty = judge will set trial date.

Question 43

What disclosure timeline must the prosecution follow?

Answer 43

Ordinarily has 50 days (or 70 days if defendant is on bail) to complete disclosure.

Question 44

What duty to disclose does are the prosecution under?

Answer 44

To disclose all evidence on which it intends to rely at trial.
Under an ongoing duty to disclose any unused material which might reasonably be considered capable of undermining the case for the prosecution or assisting the case for the defence.

Question 45

When must defence serve defence case statement?

Answer 45

Within 28 days of prosecution providing disclosure.

Question 46

What must defence case statement set out?

Answer 46

• Nature of the defence
• Facts of the prosecution case which are disputed and alternative facts which are alleged
• Points of law defence wishes to raise
• Details of any alibi witnesses

Question 47

What happens if defence fail to serve an adequate defence case statement on time that reflects the defence put forward at trial?

Answer 47

An adverse inference may be drawn

Question 48

Who has and what is th burden to prove crime has been committed

Answer 48

On the prosecution. Each element of an offence must be proven beyond reasonable doubt

Question 49

What is the burden for defence for proving some defences?

Answer 49

On the balance of probabilities (=more likely than not).

Question 50

What are the burdens for raising and disproving defences?

Answer 50

Defence has the burden of raising certain defences (e.g. self-defence) but once raised the prosecution has the burden of disproving the defence beyond reasonable doubt.

Question 51

When must Turnbull guidelines be followed?

Answer 51

If a case wholly or substantially relies on ID evidence that the defendant disputes

Question 52

What do the Turnbull guidelines do?

Answer 52

Sets out factors for determining the reliability of identification evidence (ADVOKATE)

Question 53

What factors does ADVOKATE stand for in Turnbull guidelines?

Answer 53

• Amount of time the witness observed the suspect
• Distance between the witness and defendant
• Visibility at time of observation (night/day)
• Obstruction between the witness and defendant
• Known to the witness
• Any special reason to remember the suspect
• Time between the incident and the identification procedure
• Errors in the witness’s first description of the defendant’s appearance

Question 54

What happens if the judge views the visual evidence is weak and without support?

Answer 54

They should withdraw from the jury and enter an acquittal.

Question 55

What is a Turnbull warning?

Answer 55

• Special need for caution before convicting the defendant in reliance on identification evidence – mistaken witnesses can be convincing and several witnesses may be mistaken
• Jury should consider the circumstances of the identification
• Weaknesses of the witnesses’ identification based on guidelines above

Question 56

What are the various circumstances a judge or jury may draw an adverse inference from the defendant’s silence?

Answer 56

S34 – defendant fails to mention facts relied on in defence when questioned or charged that in circumstances could have been reasonably expected to mention

S35 – defendant’s failure to give evidence or refusal to answer a question without good cause (on the ground of privilege or court exercise general discretion to excuse from answering) note: defendant not compellable to give evidence on own behalf so won’t be guilty of contempt of court for failure to do so

S36 – defendant’s failure or refusal to account for objects substances or marks. If arrested by a constable and on his person or clothing or in possession or in any place where at time of arrest any object/substance/mark and constable reasonably believes that the presence of this may be attributable to the participation of the person in committing an offence and the person is informed of this and requested to account for it and they fail or refuse to do so

S37 – defendant failure or refusal to account for presence at a particular place (crime scene)

Question 57

What is the definition for hearsay evidence?

Answer 57

Evidence of something someone else said out of court.

Question 58

What are the grounds for admitting hearsay evidence?

Answer 58

Generally admissible in civil trials but only admissible in criminal if under statute or rule of law, in the interest of justice or the parties agree.

Question 59

What under statute are the grounds for admitting hearsay evidence?

Answer 59

• Witness is unavailable as dead, unfit, outside of UK and it isn’t practicable to secure their attendance, or they are unable to be found.
• Business document:
  o which was created or received in the course of trade, business, profession or other occupation
  o person who supplied the information may reasonably be supposed to hace had personal knowledge of the matter; and
  o if information was received by other people it was done in the course of trade, business, profession or other occupation.
• Statements were prepared for use in criminal proceedings and the relevant person cannot be expected to recollect the matter
• Statements are earlier consistent or inconsistent statements of a witness
• Statements are expert evidence
• Statement is a confession

Question 60

What under the rule of law are the grounds for admitting hearsay evidence?

Answer 60

• Statements a witness heard that were made at the same time of the offence
• Statements preserved by circumstances:
  o Statements made when a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded
  o Statements accompanied by an act which can only be properly evaluated with the statement
  o Statements relating to a physical or mental state.

Question 61

What under the interest of justice are the grounds for admitting hearsay evidence?

Answer 61

This is a safety net that allows the court discretion to adduce evidence that might otherwise not be admissible.

Court must consider:
o Value of the statement to matter in issue
o What other evidence could be given
o Importance of evidence to case as a whole
o Circumstances of the statement
o Reliability of person making statement
o Amount of difficulty in challenging the statement, and
o Extent of likely prejudice caused.

Question 62

What is multiple hearsay?

Answer 62

When statement has been relayed through more than one person

Question 63

When is multiple hearsay admissible?

Answer 63

• It’s a business document
• It’s a consistent or inconsistent statement (said earlier that supports or conflicts with a witness’s in-court testimony)
• All parties agree
• Value of evidence so high that it’s in the interests of justice

Question 64

What is confession evidence?

Answer 64

Any statement which is at least partly adverse to the person who made it is a confession. Doesn’t need to be made to a person in authority to be a confession.

Question 65

What is the admissibility of confession evidence?

Answer 65

Must be relevant to a matter in issue to be admissible ie goes to prove or disprove a fact in issue between the prosecution and the defence.

Question 66

Who decides the admissibility of confession evidence in the Crown Court?

Answer 66

Admissibility is decided by the judge without the jury in a voir dire hearing

Question 67

What are the two basis a defence can challenge the admissibility of a confession?

Answer 67

Mistake or untruth

Question 67

What happens in Magistrates’ Court if bench decide confession evidence is inadmissible?

Answer 67

They must put this from their minds when deciding the case.

Question 68

What does mistake mean in context of a defence can challenge the admissibility of a confession?

Answer 68

listener misheard

Question 69

What does untruth mean in context of a defence can challenge the admissibility of a confession?

Answer 69

includes confessions obtained by oppression or by things said or done likely to render the confession unreliable.

If challenged on this basis the prosecution must prove beyond reasonable doubt that these don’t apply.

Question 70

What is definition of bad character?

Answer 70

Evidence of, or of a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside of the facts of the offence the defendant is charged.

Question 71

What are the 7 gateways of bad character under s. 101(1) Criminal Justice Act 2003?

Answer 71

A. All the parties agree
B. Adduced by the defendant
C. Evidence needed to properly understand other evidence in the case
D. Evidence is relevant to an important matter in issue between the prosecution and defence such as propensity to commit the offence or propensity to be untruthful
E. Evidence is substantially probative to an important matter in issue between co-defendants (such as when both blaming each other for the offence)
F. Evidence is needed to correct a false impression given by the defendant
G. Defendant has attacked another witness’s character

Question 72

What are the 3 gateways where the evidence of the bad character of a person other than the defendant is admissible only if?

Answer 72

1. It is important explanatory evidence
2. It has substantial value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole, or
3. All parties to the proceedings agree to the evidence being adduced.

Question 73

What is the procedure for admitting bad character evidence?

Answer 73

If prosecution wishes to adduce evidence of bad character they must provide notice within 20 days of a not guilty plea in Magistrates’ Court or 10 days of not guilty plea in the Crown Court.

Question 74

What are the court’s powers to exclude bad character evidence?

Answer 74

If any of the 7 gateways are made out the evidence is admissible but if under gateways: D (Evidence is relevant to an important matter in issue between the prosecution and defence) or G (Defendant has attacked another witness’s character). The court must not admit it if the defence makes an application to exclude it and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of the proceedings that it should not admit it.

For this decision court must have regard to amount of time that has elapsed between the matters that constitute the bad character evidence and the offence charged.

Under other gateways/exclusion of evidence court may refuse to allow evidence for an adverse effect on the fairness of the proceedings but for these two gateways more strong that “must not admit” the evidence if would have an adverse effect on the fairness of the proceedings.

Question 75

When does the court have discretion to exclude evidence offered by the prosecution?

Answer 75

If it appears to the court that considering all the circumstances the admission of evidence would have an adverse effect on the fairness of the proceeding.
Note: confession evidence is under separate scope.

Question 76

When is exclusion of evidence for unfairness often used?

Answer 76

If police officers have breached their duties under PACE eg obtaining evidence through illegal search or improper identification.

Question 77

Typically for the court to exercise its discretion to exclude evidence what must breaches be?

Answer 77

Significant and substantial and have rendered the evidence unreliable.

Question 78

What is burden and standard of proof in magistrates’ court and Crown Court?

Answer 78

Burden of proof on the prosecution to prove defendant guilty. Must prove beyond reasonable doubt that offence was committed.

Question 79

Order of witnesses and why?

Answer 79

As prosecution bear the burden of proof they will call witnesses first. The defence call its witnesses after the prosecution, may include defendant who will do so before any other defence witnesses.

Question 80

What are the stages of a criminal trial?

Answer 80

1. Prosecution’s opening speech
2. Prosecution calls witnesses
3. Defendant calls witnesses
4. Judge sums up evidence
5. In jury trial the jury deliberates
6. Verdict is delivered - by judge or bench in Magistrates’ Court, by jury in Crown Court
7. Pre-sentence report may be ordered
8. Sentence is handed down

Question 81

When is submission of no case to answer made in the trial process?

Answer 81

Can be made after prosecution has finished calling witnesses to argue that the prosecution hasn’t presented enough evidence to amount to a case. In the Crown Court the application is head by the judge in the absence of the jury.

Question 82

In submission of no case to answer what are the outcomes?

Answer 82

If the submission is successful then the defendant is acquitted, if unsuccessful the case proceeds.

Question 83

When can leading and non-leading questions be asked?

Answer 83

The party who called the witness may not ask leading questions.

The opponent of a witness may ask leading questions in cross-examination of the witness.

Question 84

What does competence mean for witnesses?

Answer 84

Competence means the witness is allowed to give evidence in court.

Is not competent if it appears to the court that they aren’t able to understand questions put to them as a witness or give answers that can be understood.

Question 85

What does compellability mean for witnesses?

Answer 85

Whether a witness may be forced to give evidence. Prosecution cannot compel the defendant to give evidence but if they choose to testify they are then subject to cross-examination by the prosecution. (Note: adverse inference can be drawn if defendant chooses not to testify).

Question 86

Can the prosecution compel the defendant to give evidence?

Answer 86

No but if they choose to testify they are then subject to cross-examination by the prosecution.

(Note: adverse inference can be drawn if defendant chooses not to testify).

Question 87

What are the rules relating to compelling a defendant’s spouse to testify?

Answer 87

Generally, a defendant’s spouse may not be compelled to testify by the prosecution or a co-defendant, but spouse may choose to testify.

There are exceptions if the offence involves assualt, injury, or threat of injury to them/child under 16; sexual offence on child under 16; or attempting, conspiring, aiding or abetting those crimes.

The defendant may compel their spouse to testify (unless the spouse is jointly charged with defendant).

Question 88

Special measures can apply to witnesses in circumstances such as what?

Answer 88

• Under 18;
• With a disability;
• Affected by fear of giving evidence;
• Alleging they were sexually assaulted by defendant; or
• Some cases involving knife/gun charges

Question 89

Examples of special measures?

Answer 89

A screen between the witness and defendant, witness testifying through video link, court officers removing wigs and gowns, witness giving evidence in private, witness pre-record testimony.

Question 90

When are special measures used?

Answer 90

Certain witnesses may request special measure when giving evidence.

Question 91

What are solicitor’s duty to the court?

Answer 91

Defendant may admit to their solicitor that they are guilty and still plead not guilty. Solicitor may continue to represent the defendant but may not put anything before the court that they know is untrue. Solicitor may test the strength of the prosecution’s evidence in hopes of casting reasonable doubt.

If defendant maintains their innocence to solicitor but decides to plead guilty to avoid trial the solicitor cannot put forward anything in mitigation that suggests the defendant didn’t commit the offence.
Solicitor is under a duty to assist the court on points of law even if this goes against the defendant’s interests.

Solicitor cannot represent two or more defendants with conflicting interests such as co-defendants blaming each other. If acting for two defendants and a conflict arises must normally have to withdraw from the entire case.

Question 92

What is the role of sentencing guidelines?

Answer 92

If sentencing guidelines exist then the Court is obliged to follow them unless it is against the interest of justice.

Question 93

What are aggravating factors the sentencing court is required to take into account?

Answer 93

• Relevant previous convictions
• The offence was committed while defendant out on bail
• The offence was motivated by racial or religious hostility
• The offence was motivated by victim’s sexual orientation, transgender identity, or disability

Question 94

What are aggravating factors the sentencing court has discretion to take into account?

Answer 94

• Offence was premeditated
• Offence committed in a group
• Offence targeted a vulnerable victim
• Offence was committed under the influence of drugs or alcohol
• Offence involved abuse of a position of trust
• Offence was committed against a defendant who was providing a service to the public
• A weapon was used in committing the offence

Question 95

What are mitigation factors the sentencing court has discretion to take into account?

Answer 95

• Offence was committed on impulse
• Defendant was highly provoked or acted out of fear
• Defendant has a disability or mental illness
• Defendant played a minor role in the crime
• Defendant attempted to make reparation with the victim
• Defendant very young or very old

Question 96

What is totality principle when sentencing?

Answer 96

The sentence imposed must not be disproportionate to the overall seriousness of the offending behaviour.

Question 97

Under totality principle the court is more likely to impose consecutive sentences rather than concurrent sentences when what?

Answer 97

a defendant is found guilty of multiple offences that didn’t arise out of the same conduct.

Question 98

What is mitigation for pleading guilty?

Answer 98

Defendant who pleads guilty at the first opportunity is entitled to a one-third reduction in sentence. Pleading guilty any other time before trial will also be given a sentence reduction, although not as much as this.

Question 99

What mitigation may the court take into account?

Answer 99

Defendant’s age, health, good character, work and home situation, progress since the offence was committed, remorse for offending, and efforts to address the offending.

Question 100

What are the four types of sentences?

Answer 100

Custodial sentences
Suspended sentences
Community orders
Fines

Question 101

When should a custodial sentence be imposed?

Answer 101

Should only be imposed if offence or series of offences is so serious that neither a fine nor community order can be justified.

Question 102

When should a suspended sentence be imposed?

Answer 102

If custody threshold is passed may impose a suspended sentence that means the offender is not placed in custody but will be liable to serve the sentence in custody if they break any conditions of the suspension or if they commit any further offences whilst subject to the suspended sentence.

Maximum period of suspension is 2 years and court may impose additional requirements.

Question 103

In types of sentence what is community order?

Answer 103

Sentence carried out in community rather than in custody.

Can consist of various elements including:
* Unpaid work
* Rehab/treatment programme
* Curfew
* Restriction from a particular area
* Requiring the offender to reside in certain location

Question 104

What happens if community order breached?

Answer 104

Offender may be sentenced immediately to custody

Question 105

When is a Newton hearing used?

Answer 105

A defendant may plead guilty to the offence but dispute the facts set out by the prosecution and offer to plead guilty on different facts.

If the prosecution rejects this plea a Newton Hearing is held to settle the disputed facts.

Question 106

What happens in a Newton hearing?

Answer 106

Hearing takes the form of a trial and witnesses can be called to give evidence.

If the hearing is settled in the prosecution’s favour then the defendant will lose any credit for the guilty plea.

Question 107

Procedure for appeal against conviction and/or sentence from the magistrates’ court

Answer 107

If a defendant is not satisfied with the outcome of their case (either conviction or on sentence imposed) they can appeal against the conviction or sentence.

If defendant has pleaded guilty in Magistrates’ Court they can appeal against sentence to the Crown Court. The prosecution doesn’t have the right to appeal this.

Defendant must lodge a written notice of appeal with the sentencing court within 21 days. The appeal is a right so no grounds need to be given. A new trial is then held in the Crown Court.

Question 108

Powers of the Crown Court in appeals from the magistrates’ court?

Answer 108

Crown Court has the power to increase or reduce the sentence imposed but are restricted to the sentencing powers of the Magistrates’ Court.

Question 109

What is the process for appeal to the High Court by way of case stated?

Answer 109

Either the defendant or prosecution can appeal from the Magistrates’ Court to the High Court by way of case stated on the basis that the decision is wrong in law or in excess of jurisdiction.

Must be made in writing within 21 days of the decision being appealed. Must include the point of law subject to the appeal.

Common arguments under this appeal include: bench misunderstood or misapplied the law, made errors on the admissibility of evidence, or heard a case outside of their jurisdiction.

Question 110

Where do appeals from crown court go?

Answer 110

To the Court of Appeal

Question 111

What are defendant’s grounds of appeal from the Crown Court?

Answer 111

Defendant may appeal a conviction on the basis that the conviction was unsafe. Conviction may be unsafe if: evidence wrongly admitted or excluded, a direction was wrongly given or omitted, trial judge showed obvious bias, wrongful exercise of discretion, errors in summing up or there were problems relating to the jury.

Defendant may appeal a sentence on the basis that the sentence was wrong in law, wrong in principle, or manifestly excessive.

Question 112

What are prosecution’s grounds of appeal from the Crown Court?

Answer 112

Prosecution cannot appeal a decision by the jury to acquit a defendant, but can appeal rulings made by the judge during the course of a trial.

For example a judge’s decision regarding the admission or exclusion of evidence including confessions or identification evidence.

Question 113

What is the procedure for making appeal from the Crown Court?

Answer 113

Must apply for leave to appeal from either the Crown Court or the Court of Appeal. If seeks leave from the Court of Appeal must lodge a notice for application of leave to appeal within 28 days of the decision.

Court may decline to hear the appeal.

Question 114

What are powers of the Court of Appeal on grounds of unsafe conviction?

Answer 114

The Court of Appeal can quash the conviction and order either acquittal or a retrial, find the defendant guilty of some offences but not others, find the defendant guilty of alternative offences or dismiss the appeal

Question 115

What are powers of the Court of Appeal on grounds of sentencing?

Answer 115

The Court of Appeal can quash any sentence imposed by the Crown Court and impose a sentence it deems appropriate but cannot exceed the sentence imposed by the Crown Court. Any new sentence will be deemed to have been imposed at original sentencing date so time in custody pending appeal will be taken into consideration

Question 116

When can Attorney General refer a case to the Court of Appeal?

Answer 116

If they feel a sentence passed was unduly lenient and permission is granted of Appeal.

Question 117

Who is youth court for?

Answer 117

For youths between 10 and 17 (age of criminal responsibility is 10 so below cannot be guilty of an offence).

Question 118

What happens if person turns 18 during the course of their proceedings at the Youth Court?

Answer 118

Youth Court may elect to retain the case or remit it to the Magistrates’ Court. In either the court will have the full range of sentencing options as in adult court on conviction.

Question 119

What trial’s must be heard in the Crown Court not Youth Court?

Answer 119

• Murder, attempted murder or manslaughter
• Violent or sexual crimes
• Firearm offences

Question 120

How are grave crimes dealt with in Youth Court?

Answer 120

Grave crime is an offence punishable by imprisonment of 14 years or more in adult court.

The Youth Court may send a grave crime case to the Crown Court if it determines it doesn’t have adequate sentencing power.

Question 121

What happens for allocation for youths jointly charged with adult?

Answer 121

If adult sent to Crown Court for trial the youth will also be sent to Crown Court.

Question 122

In Youth Courts what is the primary focus for sentencing?

Answer 122

to prevent offending rather than punishment

Question 123

Role of the Sentencing Children and Young People – definitive guidelines?

Answer 123

Provides guidelines to both Magistrates’ and Crown Courts on:
1. Types of sentences available when dealing with youths and
2. The purpose and role of sentencing when dealing with youths.

Purpose to prevent offending. Emphasis on rehabilitation, on avoiding criminalising youths unnecessarily and on getting young offenders to take responsibility for their actions.

Question 124

In Youth Court sentencing what is referral orders?

Answer 124

An order sending the youth to the Youth Offender panel who will meet with the youth and their family and agree a code of conduct of 3-12 months.

Question 125

In Youth Court sentencing what are detention and training orders and when are they available?

Answer 125

An order requiring youth to spend the first half of their sentence in custody and second half reporting to the Youth Offender Team.

Maximum duration 2 years.

Not available for 10/11 year olds, only for persistent offenders (sentenced on 3 occasions for an offence punishable by imprisonment) for 12-14 year olds. For 15-17 year olds can be imposed whenever court determines a custodial sentence is justified.

Question 126

In Youth Court sentencing what are Youth rehabilitation orders?

Answer 126

Similar to adult community order, youth can be ordered to meet with probation service, work unpaid for up to 240 hours in 12 months, make restitution to victim, obey a curfew etc.