Unit 1: Pre-Trial Principles Flashcards
What are the three classes of offence?
indictable, summary, and triable either way
where can you find the definitions of the three classes of offences?
Interpretation Act 1978, sch. 1
what should be noted about the phrase ‘indictable offence’ within Acts?
indictable offence should be understood to include those triable either way
What is the function of s. 40 CJA 1988?
s. 40 CJA 1988 enables some summary offences to appear on indictment where linked to an indictable offence
What offences fall under s. 40 CJA 1988?
common assault, taking a motor vehicle without consent, disqualified driving, criminal damage less than £5k
what are the two roots of offences triable either way?
Offences triable either way must either be listed in MCA 1980 sch 1 OR where there are two penalties for the offence given on enactment for either summary or indictable convictions.
Are attempts, aiding and abetting etc triable either way?
Per CAA 1981 s. 4(1)(c), these offences are triable either way only if the substantive offence is too
Summarise the characteristics of the crown court.
Crown Court created by Courts Act 1971 and is a single court - you can be tried in any branch of it.
In what ways are the crown court and high court similar?
both are senior courts and superior courts of record and have contempt and enforcement powers (Senior Courts Act 1981, s. 45)
How is a crown court different from a high court?
crown court decisions not related to trials on indictment may be challenged in the high court (ss. 28(2) and 29(3) 1981 Act)
What are the two stratifications of crown courts?
geographical location and status
Explain the function of geographical location regarding crown courts
1st tier - high court judges sit, 3rd tier - high court judges rarely sit. The more severe the crime the more likely to be sent to 1st tier.
what does a senior judge in a crown court do?
The senior judge / resident judge, is responsible for distribution of work and court administration
Senior Courts Act 1981 s. 8
high court, district, circuit judges, recorders and qualifying judge advocates may all exercise jurisdiction of the crown court
What are the exceptions to crown court proceedings being heard by a single judge?
s. 73(1) SCA 1981 where justices may sit with a judge ; where magistrates courts deal with pre-trial matters
How do crown court decisions work when a judge sits with justices?
decisions must be by majority. The judge can be outvoted, but where opinion is split retains the deciding vote.
What are interlocutory decisions?
Interlocutory decisions are decisions about the admissibility of evidence
What should a crown court judge sat with justices ensure?
That he consults and announces that he has consulted his fellow justices.
SCA 1981, s. 46(1)
Crown Court has exclusive jurisdiction over trials on indictment WHEREVER (s.46(2)) they are committed.
MCA 1980, s. 108
Someone who pleaded not guilty and was convicted by a magistrates court may appeal to the crown court against conviction and or sentence. Someone who pleaded guilty may only appeal against sentence.
What are 4 circumstances where Crown Court may grant bail before or during trial on indictment?
Where someone is in custody for trial or sentencing, where someone is appealing bail from magistrates, where someone is appealing to court of appeal, where someone has been remanded by magistrates.
What summary offences does the crown court have jurisdiction over per CJA 1988, s.40?
What provision confers district judge powers upon crown court judges?
Courts Act 2003, s.66. So if a summary offence is linked to an indictable offence it needn’t be returned to mags to be dealt with.
Who sits in a magistrates court?
Justices of the Peace (magistrates); district judges.
What statutes contain the law on justices and magistrates courts?
Courts Act 2003 (appointments, removal, organisation); MCA 1980 (jurisdiction and powers). also CrimPR procedure.
MCA 1980, s. 148(1)
the expression “magistrates’ court” means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law.
MCA 1980, s. 148(2)
where proceedings in magistrates courts have distinct stages, each stage need not constitute the same justices - must only be in the same local justice area.
MCA 1980, s. 2(1)
magistrates courts have jurisdiction to try any summary and some either way offences irrespective of where it is committed.
When can a magistrates try either way offences by adults?
if the offence is not so serious that their powers of punishment upon conviction would be inadequate, and if the accused agrees. (MCA 1980, ss. 18-21).
What is the maximum punishment a magistrates court can give? (MCA 1980, s. 32(1)).
the court may impose anything up to 12 months imprisonment and/or an unlimited fine.
What can a magistrates court do with either way convictions?
SA 2020, s.14: offender may be committed to the crown court if magistrates consider their punishment powers after conviction to be inadequate.
What are a magistrates powers regarding indictable offences?
magistrates may send the accused of an either way or indictable offence to the crown court regardless of where the offence was committed.
MCA 1980, s.24
defines a youth court as a ‘form of magistrates’ that can try children and young people of any offence except homicide and some firearms. though the court may choose to send the accused to a crown court.
What manages most appeals against conviction and sentence?
The Court of Appeal (Criminal Division) using statutory powers.
What provision enables the exercise of statutory powers of appeal by the court of appeal?
Senior Courts Act 1981, s. 15(2).
What power does ss. 1-2 Criminal Appeal Act 1968 confer on the court of appeal?
ss.1-2 CAA 1968 grants jurisdiction to determine appeals against conviction on indictment.
What power does ss 9 and 11 Criminal Appeal Act 1968 confer on the court of appeal?
ss 9 and 11 CAA 1968 grants jurisdiction to determine appeals against sentence passed following conviction on indictment.
What power does ss 10-11 Criminal Appeal Act 1968 confer on the court of appeal?
ss 10-11 CAA 1968 grants jurisdiction to determine appeals against sentence passed on a committal for sentence.
What power does s. 36 Criminal Justice Act 1972 confer on the court of appeal?
s. 36 CJA 1972 grants jurisdiction to give an opinion on a point of law referred to the court by the A-G following an acquittal on on indictment.
What power does s. 9(11)-(14) Criminal Justice Act 1987 confer on the court of appeal?
s.9(11)-(14) CJA 1987 grants jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases.
What power does ss 35-36 Criminal Justice Act 1988 confer on the court of appeal?
ss 35-36 CJA 1988 grants jurisdiction to increase sentence on a reference by the A-G following an unduly lenient sentence for an offence triable only on indictment.
What power does s. 9 Criminal Appeal Act 1995 confer on the court of appeal?
s. 9 CAA 1995 grants jurisdiction to determine appeals on a reference by the CCRC.
What does the court of appeal not have jurisdiction to hear?
The court of appeal does not have jurisdiction to hear an appeal against refusal to make a football banning order (Boggild [2011]).
What is the function of ss. 33-34 Criminal Appeal Act 1968?
ss. 33-34 CAA 1968 allows prosecution or defence to appeal CoA decisions to Supreme Court ONLY if CoA or UKSC consider the case to involve a point of law of general public importance
What must an appeal to UKSC from CoA contain in order to be accepted?
Must be considered to concern a point of law of general public importance by UKSC or CoA.
What is the time limit for appealing a CoA decision?
leave to appeal to UKSC must be made no more than 28 days after the CoA decision or on the date CoA gives reasons for its decisions, whichever is later. Time begins on the day OF decision. Not day after.
Where can you find the procedural rules for making an application to CoA for leave to appeal to UKSC?
CrimPR Part 43.W
What is the procedure for making application for leave to appeal to UKSC?
Form SC must be served on the registrar and all the parties. UKSC has no representation order powers and so these applications should be made to CoA.
What are the rules on CoA deciding if an appeal to UKSC concerns a point of law of general public importance.
CoA may decide so on papers alone (Daines [1961]); refusal to hear oral submissions doesn’t violate HR (Steele [2006]; Dunn [2010]).
What is the impact of the judgment in Garwood [2017]?
CoA decided that under CAA 1968 provides for UKSC appeals from appellants only, not applicants. If an application for leave is refused by CoA, they never become appellants and CoA does not need to consider whether there’s an important point of law considered.
What is meant by CoA certifying a question?
CoA certifying a question means that the court considers there to be a point of law of general public importance, but not yet whether there should be an appeal granted.
What can be done if CoA certifies a question but refuses leave to UKSC?
the party may apply for leave to UKSC within 28 days of the day on which CoA gives reasons for its refusal of leave.
What can UKSC do if CoA decides only some grounds of appeal?
If UKSC hears appeal of the CoA decision on one ground, they may rule on the other grounds themselves or remit them back to CoA for a decision.
What did Mandair [1995] establish about undecided grounds of appeal going to UKSC?
undecided grounds of appeal should be identified and written submissions should be made as to whether and how they should be disposed of.
What is the primary source of public funding?
LASPO 2012 and the standard crime contract 2022 issued by the Legal Aid Agency
What do the LASPO 2012 provisions apply to?
LASPO provides for any advice and assistance; advocacy assistance or representation orders dated on or after 1 April 2013.
What is the general rule with legal aid for criminal cases?
Granting legal aid is almost always authorised by LAA and applications should be made electronically.
s. 17 LASPO 2012?
s 17 LASPO 2012 provides for the determination of applications for a representation order in a magistrates or crown court.
Who determines representation order applications at crown court?
save for exceptional circumstances, at the crown court the LAA makes decisions on representation orders.
What are magistrates powers regarding representation orders?
Magistrates have no power to grant representation unless considering an appeal against the refusal of representation.
What is the procedure for applying for a representation order?
Apply for a RO on the LAA portal using form CRM14 which incorporates the means questions of CRM15 along with any evidence required.This must be sent along with a signed declaration form from the client.
What governs Crown Court powers to grant representation orders?
Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013
When may a Crown Court grant RO?
On oral application under Criminal Legal Aid Regulation 6.
What are the three circumstances where an RO at crown court may be granted under Regulation 6?
ROs can be granted in proceedings described in LASPO 2012, s.14 (g), proceedings which arise out of failure to comply with a Crown Court order, proceedings under SCA 1981, s. 81
LASPO 2012, s.14(g)
proceedings regarding contempt in the face of court that the court may grant a RO at.
Senior Courts Act 1981, s. 81?
proceedings in pursuance of a Crown Court warrant where the court may grant a RO.
What are the rules for Crown Court granting ROs?
There are no means tests for the granting permitted under regulation 6. All ROs outside of Reg.6 are invalid (Criminal Legal Aid (General) Regulations 2013, reg. 3).
Criminal Legal Aid (General) Regulations 2013, reg. 3?
All ROs granted by the Crown Court that do not meet the requirements listed in regulation 6 are invalid.
What are a Crown Court’s powers regarding RO appeals?
The Crown Court may consider appeals against refusal of ROs in situations where the interest of justice merits test is not automatically met.
What is the two stage test for determining whether to grant a RO?
a merits test ‘according to the interests of justice’ and a means test.
What does LASPO 2012 stand for?
Legal Aid, Sentencing and Punishment of Offenders Act
Where is the merits ‘according to the interests of justice’ test for ROs explained?
LASPO 2012, s. 17(2)(a-e).
LASPO 2012 s. 17(2)(a)
interests of justice must take into account whether the individual would be likely to lose liberty, livelihood or suffer serious damage to reputation upon conviction
LASPO 2012, s. 17(2)(b)
interests of justice test for ROs should consider whether a substantial question of law is involved
LASPO 2012, s. 17(2)(c)
interests of justice test for ROs should consider whether the individual may be unable to understand proceedings or state their own case.
LASPO 2012, s. 17(2)(d)
interests of justice test for ROs should consider whether proceedings will involve tracing, interviewing or expert cross-examination of witnesses
LASPO 2012, s. 17(2)(e)
interests of justice tests for ROs should consider whether it is in the interests of another person that the individual be represented.
When is the interests of justice limb of the RO allocation test automatically met?
interests of justice are satisfied on indictment or following committal for sentence.
What can be said about the possible loss of liberty in influencing RO decisions?
it is not enough that the offence carries a custodial sentence. The question is whether on the facts, a custodial sentence is likely to be imposed.
What was established regarding ROs in ex parte McGhee [1993]?
unpaid work requirements do not deprive liberty. However, the list of considerations for the interests of justice in s.17 LASPO is non exhaustive.
What was established in ARE (Punatar) v Horesferry Road Mags Court [2002]?
It is wrong to apply applications for ROs in hindsight.
What circumstances outside s. 17 can mean it is in the interests of justice to grant an RO?
Where a witness requires special measures that would be outside D’s competence and resources (GKR Law Solicitors v Liverpool Mags [2008])
What is the overriding objective?
per CPR 1.1(1) the overriding objective of this procedural code is that criminal cases be dealt with justly.
Where can you find an expansion on what dealing with a case justly entails?
The overriding objective is explained further in CrimPR 1.1(2)(a-h).
CrimPR 1.2?
each participant in each case must prepare and conduct the case in accordance with the overriding objective and notify the court of any failure to do so.
CrimPR 1.3?
The court must further the overriding objective when applying or interpreting any power, practice direction or rule.
What does CrimPR Part 3 concern?
Rules 3.1 to 3.15 apply to the management of all cases up to Crown Court in appellate capacity. Within better case management.
CrimPR 3.2(1) (3)?
The court must further the overriding objective by ‘actively managing the case’ and do so by giving any direction appropriate as early as possible.
What can be said about active case management?
Per Jisl [2004], active case management pre- and during trial is an essential part of the judge’s duty.
Where can you find a list of elements of active case management?
Rule 3.2(2)
What does Rule 3.2(2) list as active case management?
monitoring the rogresss of the case and compliance with directions, discouraging delay, promoting co-operation, avoiding unnecessary hearings, ensuring evidence is presented in the shortest and clearest way.
What sets out the court’s case management powers?
CrimPR 3.5,
What does CrimPR 3.13 identify?
CrimPR 3.13 identifies powers to manage the trial or appeal itself.
What was held in B [2005] about case management?
a judge can exercise case management powers ti limit cross-examination.
What was held in Heppenstall [2007]?
entitlement to a fair trial is not inconsistent with proper judicial control over the use of court time
What was held in Bryant [2005]?
the court will support efforts by the trial judge to move a case forward at reasonable speed maintaining a fair trial
What was held in K [2006]?
case management powers in CrimPR enable a judge to deal with issues pre-trial by written submission with power to restrict their length.
What was held in Boardman [2015]?
The judge’s case management powers can justify exclusion of late-served prosecution evidence.
What must temper active case management?
active case management must always be secondary to the imperatives of justice.
What is the extent of a court’s power to actively case manage?
courts may give any direction and take any step to active management unless inconsistent with legislation including the CrimPR.
CrimPR 3.8?
The court is obligated to give directions for the early conclusion of a case and failitate attendance of witnesses and the participation of all parties.
what is an increasingly important aspect of case management?
the court should further the overriding objective by making use of technology by way of live links.
What does CrimPR 3.3 impose?
CrimPR 3.3 imposes a duty upon the parties to assist the court in active management which includes early identification of the real issues.
What does CrimPR 3.4 require?
CrimPR 3.4 requires each of the parties and the court to appoint a case progression officer at the commencement of proceedings and ensure all participants know how to contact them.
What are the responsibilities of a case progression officer?
A case progression officer ensures parties’ compliance with court directions and alerts other parties to anything that may interfere with the progress of the case.
What does CrimPD I, para 3A.24 state?
case progression should be managed without a hearing in the courtroom using electronic communication.
Where are the forms for case management laid out?
CrimPD annex D
What is form PET?
PET is the Preparation for Effective Trial form
When is PET form used?
For cases that are contested and are to proceed to the magistrates court.Wha
What is the BCM form?
Better case management form.
When is the BCM form used?
BCM forms are completed upon the sending of a case to the crown court.
What is the PTPH form?
The PTPH is the Pre Trial Preparation Hearing form
When is a PTPH used?
PTPH is completed at the first hearing at the crown court.
What is the purpose of the PET, BCM, and PTPH?
These forms are intended to plan further stages of the case, standardise case preparation, and minimise the need for further hearings.
Musone [2007]?
It is rare for a judge to exclude evidence simply due to non-compliance with time limits, but it is proper to do so where the exclusion is the only means of ensuring fairness.
CrimPR 1.2(1)(c)
participants are expected tp notify the court and all parties at once of any significant failure of compliance by themselves or others.
THEN YOU’VE GOT NO FLASHCARDS ON THE SEPARATE ACTUAL WORDING OF CRIM PRs.
What is the purpose of PACE 1984 and PACE codes of practice?
governs police powers of investigation, arrest, detention, interrogation, entry and search of premises and people, taking of samples and various identification procedures.
PACE 1984, s. 67(10)
Failure by a police officer (or similarly bound person) to comply with PACE codes does not automatically render them liable to criminal or civil proceedings
PACE 1984, s. 67(11)
PACE codes are admissible in evidence in criminal or civil proceedings.
Where can you find the definition of ‘interview’
PACE Code C, para. 11.1A.
PACE Code C, para. 11.1A?
An interview is defined as the ‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution.
PACE Code C para 10.1?
A person whom there are grounds to suspect of an offence ‘must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or their silence may be given in evidence to a court in a prosecution’.
What are the four circumstances in which a caution is not necessary before questioning a suspect?
No caution is needed to identify of a vehicle, to obtain information in accordance with a statutory requirement, in furtherance of a proper and effective conduct of a search, or to seek verification of a written record.
What cannot amount to an interview?
Questioning of a person in circumstances where a caution does not have to be administered.
What is important to note about police cautions?
A caution must be given if the person is being questioned about an offence other than what they have been arrested for if there are grounds to suspect them.
Where can you find the general rules for the conduct of interviews?
Code C section 11
Code C para. 11.1?
Following decision to arrest, a suspect must normally be interviewed only at a police station or other authorised place of detention.
What is meant by decision to arrest?
If an officer has decided to arrest someone, the arrest should not be delayed to question the suspect first.
What are the three exceptions to the requirement of interviews being conducted at the station?
Where it would lead to interference or harm of evidence, people or damage to property; where it could alert other suspects; where it could hinder recovery of property.
In exceptional circumstances, for how long may interviews last?
For the Code C para. 11.1 circumstances, the interview must cease as soon as the relevant risk has been averted.
PACE 1984, s. 39 as amended PCA 2017, s. 75?
Those in police detention may be interviewed by an officer not at the police station using live link. Such an officer is still bound by PACE.
When must a caution be issued?
A caution must be given upon arrest, at the commencement of any interview or recommencement, and where there is any doubt.
Code C, para. 10.7?
Minor deviation from the words of the caution in para. 10.5 is okay so long as the sense of the caution is preserved.
How is a person whom there are grounds to suspect of an offence defined?
Note for Guidance 10A defines this as ‘some reasonable objective grounds for the suspicion based on known facts or information’.
Williams (Michael) [2012]?
Whether there are sufficient grounds for a caution to be administered is an objective question, not based on the police officer’s opinion.
What must a suspect be provided with at interview?
A suspect and their solicitor must be given information to sufficiently understand the nature of the suspected offence. (Code C para. 11.1A).
What are the two circumstances in which a suspect must be given a special warning following arrest?
A suspect should get a special warning if asked to account for any object, mark or substance on them or at the scene, and when asked to account for their presence at the scene.
What must the interviewing officer always remind the suspect?
Upon commencement and recommencement the IO must remind the suspect that they are entitled to free legal advice and that the interview may be delayed to obtain some.
Code C, para. 11.4?
At the beginning of an interview the IO must, after caution, put any significant statement or silence heard by police staff to the suspect
Define ‘significant statement’
A significant statement is one which appears to be capable of being used in evidence, and in particular a direct admission of guilt.
What is NOT a significant statement that police must immediately raise in interview?
Anything a suspect is alleged to have said as part of the conduct constituting the offence is not a significant statement.
Define ‘significant silence’
A significant silence is a failure or refusal to answer a question or answer satisfactorily when under caution which may give rise to inferences.
Code C para. 11.5?
No officer may use oppression nor indicate how the police will act unless directly responding to a question from the suspect about what would happen next.
Imran and Hussain [1997]?
There is a positive duty on the police not to actively mislead a suspect
Emmerson (1991)?
Rude and loud questioning by police is not oppressive.
Stringer [2008]?
Asking hypothetical questions in police interview is not oppressive
Paris (1993)?
Police questioning continuing after repeated denials or refusals may become oppressive.
Beales [1991]?
Hectoring and bullying during an interview is oppressive.
When must a police interview cease?
When all questions the officer considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect, other evidence has been accounted for, and there is a reasonable prospect of conviction.
Code C, para. 11.6?
Gives police latitude in determining when interviewing should cease. They may continue after sufficient evidence has been adduced.
PACE 1984, s. 37(7)?
Once the custody officer determines that there is sufficient evidence to charge a person they must do so, which usually precludes further interviewing.
Code C, para. 11.7?
Interviews of suspects wherever taken must be contemporaneously recorded. As must any unsolicited comment.
Code C, para. 11.13?
Suspects must, where appropriate, be given an opportunity to verify the record of their interview + comments.
What are the consequences of not recording interviews?
Not recording interviews can (Canale [1990]) but not always (Waters [1989]) lead to the exclusion of evidence.
Code E, para. 2.1?
Interviews must normally be recorded using an authorised recording device.
Code C, para. 11.18?
A special category person may not be interviewed or asked to sign in absence of an appropriate adult unless one of two exceptions are met.
What are the two exceptions to the interview of special category persons without appropriate adults?
Special category persons may be interviewed alone where the rules for emergency on-site interviews applies or where a Superintendent or above authorises it.
What is a Special Category Person?
A child or young person, or mentally disordered or vulnerable person.
Code C, para. 11.17?
An appropriate adult for a special category person must be reminded of their functions as an adviser and observer as well as that of facilitating communication with the interviewee.
Re A Ward of Court [2017]?
Judicial consent is not required before the police interview a ward of court.
Code C para. 11.18?
A person whom the custody officer has deemed requires an interpreter mustn’t be interviewed without one unless delay will lead to consequences and there is no risk of mental or physical harm from the interview.
Code C, paras. 13.1ZA and 13.12?
While interpreters must normally be present, they can attend via live link where it will not undermine or limit the suspects ability to communicate confidently and effectively.
Code C, para. 11.18. [intoxicated persons]?
A person who is unable to appreciate the significance of questions and their answers or to understand what is happening cannot be interviewed unless authorised by a superintendent or above.
How is ECHR Article 5(1)(c) incorporated into police powers?
Police must almost always have reasonable grounds for suspicion
What is ECHR Art. 5(1)(c)?
A person may be deprived of liberty on reasonable suspicion of having committed an offence or when it is reasonable considered necessary to prevent his committing an offence or fleeing after having done so.
What is the difference between the ECHR reasonability test for police powers vs the domestic law test?
The ECHR test is one of reasonable suspicion, the UK PACE test is one of reasonable grounds of believing which is a more stringent test.
Where can you find an explanation of reasonable suspicion?
There is no blanket description. But it is explained in relation to stop and search powers - Code A paras. 2.2-2.6B.
Code A, para 2.2?
Reasonable suspicion [stop and search] requires both a genuine suspicion by the officer concerned and an objective basis for the suspicion.
Code G, para. 2.3A?
Reasonable suspicion [arrest] requires reasonable, objective grounds based on known facts and information.
What is the court’s interpretation of reasonable suspicion?
Case law has held that the constable carrying out the arrest actually suspects (subjective) and that a reasonable person in possession of the same facts would also suspect (objective).
Roberts v Chief Constable of Kent [2008]?
The fact that force has been used does not necessarily make it unreasonable.
Simpson v Chief Constable of South Yorkshire Police (1991)?
The use of excessive force does not render an arrest unlawful.
Lockley (1864)?
Handcuffs should only be used where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace.
Taylor (1895)?
Where handcuffs are unjustifiably used it is a trespass against the person even if the arrest itself is lawful.
What is the definition of arrest?
there is no statutory definition of ‘arrest’. It is an ordinary english word meaning simply to be deprived of liberty to go where you please.
What should be noted about the legal notion of arrest?
While arrest is an ordinary english word, the courts have held that contextual factors should be taken into account.
