Unit one - overview

Question 1

Criminal trials are either:

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Answer 1

i) Trials on indictment in the Crown Court

ii) Summary trials in the Magistrates Court

Question 2

Classifications of offences
There modes of trial

Answer 2

a) Those triable only on indictment
b) Those triable only summarily, and
c) Those triable either way

Question 3

See the MCA 1980, ss. 17 to 25. These sections must be read in conjunction with sch. 1 to the Interpretation Act 1978
Interpretation Act 1978, sch. 1

Answer 3

(a) ‘indictable offence’ means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way;
(b) ‘summary offence’ means an offence which, if committed by an adult, is triable only summarily;
(c) ‘offence triable either way’ means an offence, other than an offence triable on indictment only by virtue of [s. 40] of the Criminal Justice Act 1988 which, if committed by an adult, is triable either on indictment or summarily; and the terms ‘indictable’, ‘summary’ and ‘triable either way’, in their application to offences, are to be construed accordingly

Question 4

The broad effect of s. 22 of the MCA 1980 is that the offences under s. 1 of the Criminal Damage Act 1971 involving damage not exceeding the relevant sum (currently £5,000) must be dealt with as if they were …

Answer 4

triable only summarily

Question 5

The CJA 1988, s. 40, enables certain specified summary offences to appear on an indictment if they are linked to an indictable offence for which the accused has been sent to the Crown Court for trial

Those offences include:

Answer 5

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

Question 6

Criminal trial of an adult either takes place in …

Answer 6

Crown Court or magistrates court.

Question 7

Criminal trial of a child either takes place in..

Answer 7

(a) special form of magistrates court, known as youth court

(b) sometimes either the Crown Court or an ordinary magistrates’ court.

Question 8

Crown court – appeals

Answer 8

when it exercises its jurisdiction in relation to trials on indictment, appeals from its decisions lie only to the Court of Appeal (Criminal Division), just as appeals from the High Court go to the Court of Appeal (Civil Division).

Question 9

decisions of the Crown Court which do not relate to trial on indictment (e.g., a decision taken in respect of an appeal from a magistrates’ court) may be challenged in the …

Answer 9

High Court either by an appeal by way of case stated or by application for judicial review

Question 10

Judge at the crown court may be:

Answer 10

(a) any judge of the High Court; or
(b) any circuit judge, recorder, qualifying judge advocate or District Judge (Magistrates’ Courts); or
(c) subject to and in accordance with the provisions of sections 74 and 75(2), a judge of the High Court, circuit judge, recorder or qualifying judge advocate sitting with not more than four justices of the peace, and any such persons when exercising the jurisdiction of the Crown Court shall be judges of the Crown Court

Question 11

Role of justices in the crown court

Answer 11

(1) When the Crown Court comprises a judge sitting with a justice or justices, the decision of the court may be by a majority

(2) The principle that the justices participate equally with the judge in the decisions of the court applies not only to the determination of the appeal, but also to interlocutory decisions (e.g., about the admissibility of evidence).

Question 12

In Orpin [1975], Lord Widgery CJ said (at p. 287) that the justices should be given an opportunity of taking part in the decision as to whether disputed evidence was admissible or not. It is up to the judge whether to retire for the purpose, or whether to consult with the justices briefly and informally on the bench. However, his lordship went on to say that, in matters of law, ‘the lay justices must take a ruling from the presiding judge in precisely the same way as the jury is required to take his ruling when the jury considers its verdict’

Question 13

Who has exclusive jurisdiction over trials on indictment?

Answer 13

CC

Question 14

MC - Appeals

Answer 14

• A person convicted by a magistrates’ court may, if he or she pleaded not guilty, appeal to the Crown Court against conviction and/or sentence;

Question 15

if the person pleaded guilty at the MC, can they appeal to the CC against conviction?

Answer 15

NO!

Question 16

if the person pleaded guilty at the MC, can they appeal to the CC against sentence?

Answer 16

YES!

Question 17

Bail

As well as being able to grant bail during the course of a trial on indictment or other proceedings before it, the Crown Court has jurisdiction, inter alia, to grant bail to a person:

Answer 17

a) who has been sent to it in custody for trial or sentence;
b) who is appealing to it from a magistrates’ court following the imposition of a custodial sentence by the justices;
c) who is appealing from it to the Court of Appeal and has been granted a certificate that the case is fit for appeal; or
d) who has been remanded in custody by a magistrates’ court following an argued bail application (Senior Courts Act 1981, s. 81).

Question 18

Who does the MC consist of?

Answer 18

• consists of justices of the peace
• mostly exercised by a court of two lay justices

Question 19

MC - Jurisdiction

Answer 19

o under MCA 1980, s2(1) - a magistrates court has jurisdiction to try any summary offence and (subject to the mode of trial procedure) any offence which is triable either way, irrespective of where the offence was committed.

Question 20

-MC - maximum penalt?y

Answer 20

o The court may impose of a penalty of anything up to 12 months imprisonment and/or an unlimited fine.

Question 21

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

Answer 21

a) the offence is not so serious that the court’s powers of punishment in the event of conviction would be inadequate, and

b) the accused agrees (ss. 18 to 21);

Question 22

What is a youth court?

Answer 22

form of magistrates’ court and has jurisdiction to try children or young people for any offence (other than homicide and certain firearms offences), whether indictable or summary, although in certain circumstances the court may choose instead to send the child or young person to the Crown Court for trial (MCA 1980, s. 24).

Question 23

Statutory bases
The vast majority of appeals against conviction and sentence are disposed

Answer 23

Court of Appeal (Criminal Division) under its statutory jurisdiction

Question 24

COA - Section 15(2) of the Senior Courts Act 1981 enables the exercise of the statutory powers conferred under the following legislative provisions, amongst others:

Answer 24

Criminal Appeal Act 1968, ss. 1 and 2
Jurisdiction to determine appeals against conviction on indictment.

Criminal Appeal Act 1968, ss. 9 and 11
Jurisdiction to determine appeals against sentence passed following conviction on indictment.

Criminal Appeal Act 1968, ss. 10 and 11
Jurisdiction to determine appeals against sentence passed on a committal for sentence.

Criminal Justice Act 1972, s. 36
Jurisdiction to give an opinion on a point of law referred to the court by the A-G following an acquittal on indictment.

Criminal Justice Act 1987, s. 9(11)-(14)
Jurisdiction to determine appeals against rulings made at preparatory hearings in serious fraud cases.

Criminal Justice Act 1988, ss. 35 and 36
Jurisdiction to increase sentence on a reference by the A-G following an unduly lenient sentence for an offence triable only on indictment.

Criminal Appeal Act 1995, s. 9
Jurisdiction to determine appeals on a reference by the CCRC.

Question 25

Can the COA hear an appeal against a refusal to make a football banning order?

Answer 25

NO!

There is no power for the Court of Appeal (Criminal Division) to hear an appeal against a refusal to make a football banning order (Boggild [2011] EWCA Crim 1928

Question 26

Court of Appeal [INFO ABOUT APPEAL]

[dont need to memorise as appeals is a seperate topic]

Answer 26

• Sections 33 and 34 of the Criminal Appeal Act 1968 allow either the prosecution or defence to appeal a decision of the Court of Appeal to the Supreme Court, but only if the Court of Appeal or the Supreme Court itself considers that the appeal involves a point of law of general public importance which should be considered by the Supreme Court.
• In addition, the Court of Appeal must certify that the appeal involves a question concerning a point of law of general public importance. An application to the Court of Appeal for leave to appeal to the Supreme Court must be made by the party seeking to appeal no more than 28 days after the decision, or the date on which the court gives the reasons for its decision, whichever is later. Time begins to run on the day of the decision and not the day following the decision
• CrimPR Part 43 (see Supplement, R43.1 et seq.) governs the making of an application to the Court of Appeal for permission to appeal or refer a case to the Supreme Court. Form SC must be served on the Registrar and all the parties. The Supreme Court has no power to grant representation orders and an application for appropriate representation before the Supreme Court should be made to the Court of Appeal
• Where the Court of Appeal is of the view that the prospective appeal raises no point of law of public importance, it may decide so on the papers (Daines [1961] 1 All ER 290). A refusal to allow oral submissions will not amount to a violation of a person’s rights under the ECHR, Article 6 (Steele [2006] EWCA Crim 2000, [2007] 1 WLR 222). A refusal by the Court of Appeal to certify a question cannot be appealed. In Dunn [2010] EWCA Crim 1823, [2011] 1 WLR 958, the Court of Appeal concluded that the fact that whether an appeal that has failed before it raises a point of law of public importance is decided by the Court itself does not offend either Article 6 or Article 14 of the ECHR.
• In Garwood [2017] EWCA Crim 59, [2017] 1 Cr App R 30 (451), the Court of Appeal considered whether there is jurisdiction to grant a certificate in circumstances when leave to appeal against conviction and sentence has been refused by the Court of Appeal. As a matter of statutory construction, the Court decided that the Criminal Appeal Act 1968 provided for an appeal to the Supreme Court only by appellants and not applicants. Therefore, it was not open to the Court of Appeal to certify a question when an applicant had been refused leave to appeal to the Court of Appeal. The consequence of that first refusal is that applicants never attain the status of appellants (unless a renewed application for leave to appeal is made and the Court grants leave but dismisses the appeal). Moreover, the Court decided that the authorities of Stafford (1969) 53 Cr App R 1, Mealey (1974) 60 Cr App R 59, and Moulden [2004] EWCA Crim 2715, [2005] 1 Cr App R (S) 121 (691) and [2005] EWCA Crim 374, which had been decided to similar effect, were binding on the Court.
• If the Court of Appeal certifies a question but leave to appeal to the Supreme Court is refused, the party may apply for leave to the Supreme Court within 28 days of the day on which the Court of Appeal gives reasons for its refusal of leave.
• If the Court of Appeal decides an appeal on one ground but leaves others undecided and the Supreme Court hears the appeal of that decision, the Supreme Court may either rule on those grounds as if it were the Court of Appeal or may remit them back to the Court of Appeal for its decision. In Mandair [1995] 1 AC 208, the House of Lords stated that the undecided grounds of appeal should be identified and written submissions should be made as to whether and how the House of Lords should dispose of them and the principle is equally applicable to appeals to the Supreme Court.
• Practice Direction 12 of the Supreme Court Practice Directions provides comprehensive instruction in respect of appeals to the Supreme Court concerning criminal proceedings.

Question 27

FUNDING LASPO - Representation order in the Magistrates Court and in the Crown Court

Answer 27

Section 17 of the LASPO 2012 provides for the determination of applications for a representation order in a magistrates’ court or Crown Court. Responsibility (save in exceptional circumstances) in the Crown Court for making that determination rests with the LAA.

Question 28

Does the MC have power to grant a representation order?

Answer 28

no!

Question 29

Does the CC have power to grant a representation order?

Answer 29

yes!

BUT very limited power to grant representation order and may do so only on oral application under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013 No. 614)

Question 30

CC - Regulation 6 states that a representation order may only be granted in proceedings:

Answer 30

a) which are described in the LASPO 2012, s. 14(g) (contempt in the face of the court);

b) which arise out of an alleged failure to comply with an order of the Crown Court and it appears to the court that there is no time to instruct a provider; or

c) where the individual is brought before the court under the Senior Courts Act 1981, s. 81, in pursuance of a Crown Court warrant.

Question 31

Legal aid test

• Two stage test

Answer 31

o A merits ‘according to the interests of justice’; and
o An assessment of means

Both parts must be satisfied

Question 32

LA test: (1)

S17 LASPO [D32.5]: sets out criteria that comprise ‘interests of justice’. Factors (s17) (not exhaustive):

Answer 32

o (a) likelihood of a D losing their liberty or suffer serious damage to reputation
o (b) whether will involve substantial question of law
o (c) whether individual will be able to understand proceedings
o (d) whether proceedings may involve tracing, interviewing or expert crossexamination of witnesses on behalf of the individual; and
o (e) whether is in interests of another person that the individual be represented.

Question 33

The ‘interests of justice’ test is automatically deemed met where:

Answer 33

proceedings in Crown Court on indictment; or following a committal for sentence.

Question 34

In assessing whether D is likely to lose his or her liberty, regard must be had to the facts alleged by the prosecution, rather than the maximum penalty that could theoretically be imposed (Highgate Justices, ex parte Lewis [1977] Crim LR 611). Therefore, it is not enough that the offence carries a custodial sentence and the question is whether a custodial sentence might be imposed in the particular case. The LAA pays particular regard to sentencing guidelines and D’s list of previous convictions.

Answer 34

The LAA pays particular regard to sentencing guidelines and D’s list of previous convictions:
- In Liverpool City Magistrates, ex parte McGhee [1993],
o the Divisional Court rejected the contention that what is now called an unpaid work requirement could be regarded as a sentence which deprives D of liberty.
o However, Rose LJ added that the list of criteria (in what is now the LASPO 2012, s. 17) is not exhaustive, and so the possibility of a community punishment order (now a community order with a relevant requirement) may be a factor in deciding whether to make a representation order.

• In R (Punatar) v Horseferry Road Magistrates’ Court [2002]
  o an application for representation submitted at the end of court proceedings was refused because the prosecution substituted a charge for a non-imprisonable offence in place of an imprisonable one. The Divisional Court held that representation should have been granted due to the fact that when the solicitor decided to attend court the offence that was charged at that time merited representation. It was wrong to apply hindsight.

Question 34

Overriding objective (D4.3)

Criminal Procedure Rules 2015, rr. 1.1 to 1.3

[THE LAW]

Answer 34

(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes—
(a) acquitting the innocent and convicting the guilty;
(b) treating all participants with politeness and respect;
(c) dealing with the prosecution and the defence fairly;
(d) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(e) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(f) dealing with the case efficiently and expeditiously;
(g) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(h) dealing with the case in ways that take into account—
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.

1.2

(1) Each participant, in the conduct of each case, must—
(a) prepare and conduct the case in accordance with the overriding objective;
(b) comply with these Rules, practice directions and directions made by the court; and
(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.
1.3

(1) The court must further the overriding objective in particular when—
* (a) exercising any power given to it by legislation (including these Rules);
* (b) applying any practice direction; or
* (c) interpreting any rule or practice direction.

Question 35

Rationale

• Court must further overriding objective by ‘actively managing the case’ and do so by giving any directions appropriate as early as possible – rules 3.2 (1) and (3)

Answer 35

• In Jisl [2004] EWCA Crim 696, Judge LJ stated (at [116]–[118]):
  o Active, hands on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge’s duty. The profession must understand that this has become and will remain part of the normal trial process, and that cases must be prepared and conducted accordingly …

o Once the issue has been identified, in a case of any substance at all, (and this particular case was undoubtedly a case of substance and difficulty) the judge should consider whether to direct a timetable to cover pre-trial steps, and eventually the conduct of the trial itself, not rigid, nor immutable, and fully recognising that during the trial at any rate the unexpected must be treated as normal, and making due allowance for it in the interests of justice. To enable the trial judge to manage the case in away which is fair to every participant, pre-trial, the potential problems, as well as the possible areas for time saving, should be canvassed. In short, a sensible informed discussion about the future management of the case and the most convenient way to present the evidence, whether disputed or not, and where appropriate, with admissions by one or other or both sides, should enable the judge to make a fully informed analysis of the future timetable, and the proper conduct of the trial. The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues. When trial judges act in accordance with these principles, the directions they give, and where appropriate, the timetables they prescribe in the exercise of their case management responsibilities, will be supported in this Court. Criticism is more likely to be addressed to those who ignore them.