Criminal Litigation

  • Created by: m.ogwat
  • Created on: 22-11-18 17:06

Commencing Criminal Proceedings

Three methods of commencement:

1.Prosecutions by ‘relevant’ prosecutors (e.g. CPS): ‘written charge’ (setting out the offence with which D is charged) & ‘requisition’ (requiring D to appear before a magistrates' court), issued by the prosecutor.

2.Private prosecutions: the prosecutor applies to a magistrates’ court for the issue of a summons requiring D to appear before it.

3.Arrest: see later cards

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Contents of written charge/information

■ A statement of the offence that: oDescribes the offence in ordinary language, and oIdentifies any legislation that creates it; plus

■ Such particulars of the conduct constituting the commission of the offence as to make clear what P alleges against D.

■ More than one incident of the commission of the offence may be included in the allegation if those incidents, taken together, amount to a course of conduct (having regard to the time, place or purpose of commission).

See Crim PR, r. 7.3

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Time limits

■ Summary offences: proceedings must be commenced within 6 months of the commission of the offence (unless the statute creating the offence provides otherwise).

■ Either-way offences: no time limit unless the statute creating the offence provides for one.

MCA 1980, s 127: Time limits

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Arrest

■ A police officer may arrest (without a warrant):

Anyone who is/whom the officer has reasonable grounds for suspecting to be about to commit an offence;

Anyone who is/whom the officer has reasonable grounds for suspecting to be committing an offence;

If an offence has been committed or the officer has reasonable grounds for suspecting that an offence has been committed, anyone whom the officer has reasonable grounds to suspect of being guilty of it.

PACE 1984, s. 24

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Arrest must also be ‘necessary’

vThere must also be reasonable grounds for believing that arrest is ‘necessary’ to:  

Ascertain the suspect’s (real) name/address; Prevent the suspect injuring themselves/another; Prevent the suspect suffering injury; Prevent the suspect causing loss of/damage to property; Protect a child/vulnerable person from the suspect; Allow a prompt and effective investigation; Prevent a prosecution being hindered by the suspect’s disappearance.

See also PACED Code G.

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Reasonableness

Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911:

■ Two elements have to be satisfied:

Honest (i.e. actual) belief; Based on reasonable grounds (the decision must be one which, objectively reviewed afterwards according to the information known to the officer at the time, is held to have been made on reasonable grounds).

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More on Arrest

  • A magistrate can issue an arrest warrant (written application, substantiated on oath).
  • Reasonable force may be used when making an arrest: oHandcuffs should be used only where reasonably necessary to prevent escape or violence.

MCA 1980, s 1:  Magistrates’ arrest warrants

PACE 1984, s 117: Use of force

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After arrest

The suspect must either be granted ‘street bail’ (to attend a police station on a later date), or be taken to a ‘designated’ police station (i.e. one with custody facilities);

On arrival at the police station, the suspect is taken before the custody officer (a sergeant);

The custody officer can authorise detention prior to charge if that detention is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest, or to obtain such evidence by questioning the suspect.

PACE 1984, s30A: “Street bail”.

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Detention without charge

Normal maximum period of detention without charge: 24 hours from arrival at the police station.

If the offence is an indictable one, then:

oDetention beyond 24 hours, up to a total of 36 hours, may be authorised by an officer of the rank of superintendent or above;

oDetention beyond 36 hours, up to a total of 96 hours, may be authorised by a magistrates’ court.

Note the limitation on the length of police bail in Part 4 of the Policing and Crime Act 2017.

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Rights of suspect

A custody record must be maintained;

The suspect is entitled: oTo have someone informed of their arrest and where they are being detained;

oTo consult a solicitor privately.

If the suspect is a child/young person or mentally disordered, they are entitled to be accompanied by an ‘appropriate adult’ to be provide assistance and support.

PACE 1984, s 58: Right to consult a solicitor

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Charging the suspect

  • (Usually after interview): The suspect may be charged, and then either granted police bail or kept in custody.
    • CPS advice on the appropriate charge(s) must be sought first, except for minor offences); or
  • The suspect may be released on police bail (if release on bail is necessary and proportionate) while CPS decide whether to charge. If so:
    • CPS may use the written charge and requisition procedure, or
    • The suspect may be charged by the police on return to the police station.
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Preliminary hearings

Attendance at preliminary hearings where D is in custody (in a prison or police station) will be by ‘live link’ where facilities are available.

Live link: an arrangement by which a person can see and hear, and be seen and heard by, the court when that person is not in the courtroom.

  • Applies to bail applications and other preliminary hearings.
  • Where D pleads guilty, the court can continue to proceed to sentencing via live link if it is not contrary to the interests of justice to do so.
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Bail

If police bail is withheld after charge, D appears at a magistrates’ court no later than the first sitting after being charged with the offence;

Where D is on bail, an adjournment is called a ‘remand’;

Rebuttable presumption in favour of bail; oApplies after conviction only if the case is adjourned for reports.

Grounds for withholding bail: BA 1976, sch. 1: oI mprisonable indictable offences: part I; o Imprisonable summary offences: part IA; o Non-imprisonable offences: part II.

Bail Act 1976, s 4: Presumption in favour of bail

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Indictable offences (1)

Ø Substantial grounds for believing that D would:

oFail to surrender to custody, or oCommit an offence while on bail, or oInterfere with witnesses/otherwise obstruct the course of justice.

Ø D was already on bail for another offence when the present offence was allegedly committed.

ØD would commit an offence by engaging in conduct that would cause physical/mental injury to an associated person [domestic violence].

ØD's own protection (or, if a child/young person, welfare)

BA 1976, Sch. 1, Part I

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Indictable offences (2)

ØD is already serving a custodial sentence for another offence.

ØThe court has insufficient information to make a bail decision.

Ø* D has been arrested for absconding in the present proceedings. ØDrugs cases: refusal to undergo a drug test.

ØWhere the case is adjourned for inquiries/a report, it would be impracticable to complete the inquiries/make the report without keeping D in custody.

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* Proviso

v* Certain grounds do not apply where:

oD has attained the age of 18, and oD has not been convicted in the proceedings, and oIt appears to the court that there is ‘no real prospect’ that D will be sentenced to a custodial sentence in the proceedings:

§Failure to surrender; commit offence while on bail; interfere with witnesses etc.;

§D already on bail;

§D has been arrested for absconding.

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Relevant factors for the court

The nature and seriousness of the offence and the probable method of dealing with D for it;

D’s character, antecedents, associations and community ties;

D’s ‘record’ for having answered bail in the past;

[Prior to conviction,] the strength of the evidence against D;

[If satisfied there are substantial grounds for believing D will commit an offence while on bail,] the risk that D may do so by engaging in conduct likely to cause physical or mental injury to any other person.

BA 1976, sch 1, part I, para 9

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Imprisonable summary offences

o* D has failed to surrender to custody, and court believes, in view of that failure, D would fail to surrender to custody if granted bail. o* D was on bail at the date of the present alleged offence, and the court is satisfied that there are substantial grounds for believing that D would commit an offence while on bail. oD would commit an offence by engaging in conduct that would cause physical/ mental injury (domestic violence cases). oD’s own protection (or welfare, if a child/young person). oD serving a custodial sentence for another offence. o* D has been arrested for absconding in the present proceedings, and the court is satisfied that, if released on bail, D would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice. oThe court has insufficient information. oDrugs cases: refusal to undergo drug test. v* Prior to conviction, the starred grounds do not apply if it appears to the court that there is ‘no real prospect’ that D will be sentenced to a custodial sentence in the proceedings.

BA 1976, Sch. 1. Part IA

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Non-imprisonable offences

oD is under 18 or has been convicted, and has failed to surrender to custody, and the court believes, in view of that failure, that D would fail to surrender to custody if granted bail. oD’s own protection (or welfare, if a child or young person). oD serving a custodial sentence for another offence. oD is under 18 or has been convicted, and has been arrested for absconding in the present proceedings, and the court is satisfied that, if released on bail, D would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice. oD has been arrested for absconding in present proceedings and the court is satisfied that, if released on bail, D would commit an offence by engaging in conduct that would cause physical/mental injury (domestic violence cases).

BA 1976, Sch 1, Part II

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Serious offences

CJPOA 1994, s. 25: A person charged with or convicted of an offence listed in s. 25, and who has been previously convicted of any such offence, shall be granted bail only if the court is ‘satisfied that there are exceptional circumstances which justify it’.  Includes murder, manslaughter, ****.

Murder: Only a Crown Court judge can grant bail. oA person charged with murder must not be granted bail unless the court is of the opinion that there is no significant risk of D committing, while on bail, an offence that would cause physical/mental injury to anyone else.

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Procedure for making a bail application

The prosecution outline the facts of the case and present their objections to bail, based on information provided by police;

Usually, no evidence is called;  

The defence make their application for bail:

oThe prosecution objections are unfounded, &/or oThose objections can be met by imposition of conditions.

The bench decide:

oUnconditional bail; oConditional bail; oBail withheld (D is ‘remanded in custody’).

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Conditional bail

Conditions may be imposed if there is a ‘real [not fanciful] risk’; the condition(s) must be ‘necessary’ to prevent the risk materialising. P and D may both apply for variation of conditions. Common conditions include:

oResidence (living & sleeping at a specified address); oReporting to a police station; oKeeping away from specified people and/or specified places; oSurrendering passport; oCurfew; oElectronic monitoring (‘tagging’).

BA 1976, s 3: Conditional bail

Sharkey [1985] QB 613

R (CPS) v Chorley Justices (2002) 166 JP 764

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Sureties

A third party (‘surety’) promises to pay a specified sum (‘recognisance’) if D absconds.

Counsel must establish that the proposed surety: oUnderstands the obligation they are taking on;

oHas some influence over D; and

oHas the necessary funds.

Contrast ‘security’, where D lodges assets with the court (forfeit if D absconds).

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Length of remand in custody

Generally, remand in custody cannot exceed 8 clear days.  But:

D can consent to being remanded in absence if legally represented, but can be remanded in absence on no more than 3 consecutive occasions.

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Repeated bail applications

If bail is refused at the second hearing, the court (at subsequent hearings) need not hear arguments as to fact or law which it has heard previously.

oTo justify another application to magistrates, D must present arguments which the court has not heard previously.

Not necessarily a change in circumstances: the question is whether there are any new considerations which were not before the court when D was last remanded in custody.

BA 1976, sch 1, part IIA: Repeated bail applications.

New considerations: R (B) v Brent Youth Court [2010] EWHC 1893 (Admin), at [16].

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Bail applications in the Crown Court

When bail is refused after a fully-argued application, the magistrates must issue a ‘certificate of full argument’.

D then can apply to the Crown Court for bail;

oUsually heard ‘in chambers’;

oD has no right to be produced from prison (but may appear by video link);

oThe procedure is the same as in the magistrates’ court (i.e. prosecution objections to bail followed by the defence attempting to refute those objections). oIf unsuccessful, a further application can be made only if there is new information to put to the court.

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Consequences of failure to surrender

If the court accepts there is a good reason for D’s absence:

adjournment, with D remanded on bail as before.oIf D claims to be unfit to attend court, a medical certificate to that effect should be produced.

Otherwise, the possible consequences include:

oBench warrant for D’s arrest (usually not ‘backed for bail’); oWarning letter to D’s last known address; oTrial in absence of D; oForfeiture of surety’s recognizance; oConviction and sentence for offence of absconding; oReduced chance of being granted bail in the future.

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Offence of failure to surrender to custody

Separate offence:

Committed only if the failure was ‘without reasonable cause’.

D has to prove reasonable cause.

Applies equally where D surrenders late.

D should be brought before the court hearing the proceedings in which bail was granted. oD can be dealt with for failure to surrender even if acquitted of the ‘main’ offence; oThe sentence for failure to surrender does not have to be proportionate to the sentence for the ‘main’ offence.

BA 1976, s 6: Offence of failure to surrender

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Effect on D’s chances of being granted bail again

Present case: The presumption in favour of bail ceases to apply unless there is no real prospect that D will be sentenced to a custodial sentence in the proceedings.

Consequences for later cases involving D: D’s record of answering bail in the past is a relevant consideration (so less likely to be granted bail).

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Breach of bail conditions

A police officer may arrest D without warrant if:

qReasonable grounds for believing that: oD is not likely to surrender to custody or oD has broken/is likely to break any condition of bail; or

qA surety has given written notice to the police that D is unlikely to surrender to custody and that the surety wishes to be relieved of their obligations.

Breach of bail conditions is not a criminal offence: it simply gives rise to a power of arrest.

BA 1976, s 7: Breach of bail conditions

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After arrest for breach of bail

D must be brought before a magistrate within 24 hours (excluding Sundays).

Two questions for the magistrate:

1.Is D likely to abscond or breach a bail condition, or has D already broken a condition? If ‘yes’:

2.Should D be granted bail and, if so, on what conditions?

The reason for the breach is relevant only to the second question.

A magistrate cannot withhold bail if D has not yet been convicted, and there is ‘no real prospect’ that D will receive a custodial sentence.

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Prosecution appeal against grant of bail

P can appeal to the Crown Court against a magistrates’ court decision to release D on bail (or to the High Ct against a decision of the Crown Ct) if:

oD is charged with an imprisonable offence; oThe prosecution is conducted by CPS; oCPS objected to bail at the bail hearing; o P gives oral notice of appeal at the end of the bail hearing, before D is released; and oP serves written confirmation within the next 2 hours.

The appeal (a re-hearing) will be heard within 48 hours (excluding weekends and public holidays).

Bail (Amendment) Act 1993

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Custody Time Limits (‘CTL’s)

If the relevant CTL expires, D must be released on bail.

The prosecution may apply, before the expiry of the relevant time limit, for an extension, if they can show that:

oThere is ‘good and sufficient’ reason for extension; and oThey have conducted the case with ‘due diligence and expedition’.

POA 1985, s 22

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The CTLs

Summary offences: 56 days between the first court appearance and the start of the summary trial.

Either-way offences in magistrates’ court: 70 days between the first appearance and (i) summary trial, or (ii) sending to the Crown Court for trial.

Either-way offences in Crown Court: 112 days between sending to the Crown Court for trial and the start of the trial (a total of 182 days).

Indictable-only offences: 182 days between the day the case was sent to Crown Court and the start of the trial.

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DISCLOSURE
 (1) ‘Initial details’

No later than the beginning of the day of the first hearing, P must serve on the court, and (if D so requests) on D, ‘initial details’ of their case.

If D is in custody: oA summary of the circumstances of the offence; and oD’s criminal record (if any).

If D is on bail, P must also serve: oAny account given by D interview;

oAny written witness statement that P considers material to plea, or allocation or sentence; and

oAny available statement of the effect of the offence on the victim or others.

Crim PR, Part 8: Initial details of the prosecution case

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Failure to provide IDPC

Where P wants to introduce information contained in a document that should be disclosed, but has not served that document on D (or otherwise made that information available to D), the court must not allow P to introduce that information unless D is first allowed “sufficient time to consider it”.

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(2) Witness statements for the prosecution

Must be served on D: oCrown Court trial: 

Prosecution witness statements are disclosed to D when the case is sent to the Crown Court for trial;

oMagistrates’ court trials:

As a matter of good practice, D should receive the prosecution witness statements before the trial.

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(3) Material the prosecution won't use

The prosecution must disclose to D any ‘unused’ material which might reasonably be considered capable of:

Undermining the case for the prosecution against the accused, or Assisting the case for the accused. I.e. anything that may undermine confidence in the accuracy of evidence called by P, or may provide a measure of support for the defence at trial.

P is under a continuing duty to review their disclosure obligations. After P has purported to comply, D can apply to the court to order further disclosure.

CPIA 1996, s 3: Prosecution duty to disclose unused material

See also R v Barkshire[2011] EWCA Crim 1885, at [9]

CPIA 1996, s 7A: Prosecution continuing duty of disclosure

CPIA 1996, s 8: Defence application for disclosure

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A-G’s Guidelines

Includes material that may:

oBe useful to D in cross-examination; oSupport submissions that could lead to the exclusion of evidence, or to a stay of proceedings; oSuggest an explanation D’s actions;oHave a bearing on scientific/medical evidence in the case.

Material should also be disclosed if it might go to the credibility of a prosecution witness;

oRelevant previous convictions have to be disclosed.

Previous convictions: see HM Advocate v Murtagh [2009] UKPC 36

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Defence statement

Mandatory in a Crown Court trial;

voluntary in a magistrates’ court trial. It must: oSet out the nature of the defence (including any particular defences on which D intends to rely); oIdentify the matters of fact on which D takes issue with P; oExplain why D takes issue with P on those matters; oGive particulars of the matters of fact on which D intends to rely; oIndicate any point of law D wishes to take (e.g. admissibility of evidence/abuse of process), and any authority on which D intends to rely; oGive full particulars of any alibi (including name, address and date of birth of any alibi witnesses).

CPIA 1996, s 5:Defence statement mandatory in Crown Court cases

CPIA 1996, s 6: Defence statement voluntary in magistrates’ court cases

CPIA 1996, s 6A: Contents of defence statement

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Defence witnesses

D must (in both magistrates’ court and Crown Court cases) give the prosecution notice of the name, address and date of birth of each proposed defence witness (or any information D’s possession which might be of material assistance in identifying or finding any such proposed witness if those details are not known to D).

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Time limits for defence statement and list

Magistrates’ court cases:14 days from the day on which the prosecutor complies/purports to comply with s. 3.

Crown Court cases: 28 days from the day on which the prosecutor complies/purports to comply with s. 3.

The court may extend the relevant period, but:

oD must apply within the relevant period; and oThe court must be satisfied that it would be unreasonable to require compliance within the relevant period.

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If the defence fail to comply

Adverse comment + adverse inferences where:

oNo statement is given (Crown Court cases); oThe statement given late; oThe statement sets out inconsistent defences; oD relies at trial on a defence not mentioned in the defence statement; oD relies at trial on an alibi without having given full particulars in the defence statement.

Case law establishes:

oThere is no power to exclude defence evidence; oFailure to comply is not contempt of court.

R (Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin)

R v Rochford [2010] EWCA Crim 1928

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Material not in the possession of prosecution

Third party disclosure is achievable by seeking a witness order:

oCriminal Procedure (Attendance of Witnesses) Act 1965 (Crown Court), or

oMCA 1980, s. 97 (magistrates’ courts).

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Public Interest Immunity

Is the disclosure test satisfied? If so, is there a real risk of serious prejudice to an important public interest if full disclosure of the material is ordered?

oNo: full disclosure should be ordered.

oYes: can D’s interest be protected without full disclosure (e.g. provision of documents in edited/anonymised form)? oIf limited disclosure may render the trial process unfair to D, fuller disclosure should be ordered even if this may lead to P discontinuing the case to avoid having to make that disclosure.

Appointment of ‘special counsel’ may be necessary.

See R v H [2004] UKHL 3

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Either way: trial/allocation

Two stages:

1.“Plea before venue”

2.Allocation/mode of trial

Stage one: indication of plea (“plea before venue”):

“Guilty”: D is regarded as having pleaded guilty; the court proceeds to the sentencing stage;

Not guilty”/no indicationdetermination of allocation/ mode of trial (stage two).

Westminster City Council v Owadally[2017] EWHC 1092 (Admin): A guilty plea must be entered by the defendant personally, not by the advocate.

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Stage two: Determining

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Sentencing Council Allocation Guidelines

Either-way offences should be tried summarily unless:

vThe outcome would clearly be a sentence in excess of the court’s powers for the offence(s) concerned (after taking into account personal mitigation and any potential reduction for a guilty plea); or

vFor reasons of unusual legal, procedural or factual complexity, the case should be tried in the Crown Court (e.g. a very substantial fine is likely).

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Allocation Guidelines 2

In cases with no factual or legal complications, the court should bear in mind its power to commit for sentence after a trial, and may retain jurisdiction notwithstanding that the likely sentence might exceed its powers.

All parties should be asked by the court to make representations as to whether the case is suitable for summary trial. 

The court should assess the likely sentence in the light of the facts alleged by the prosecution case, taking into account all aspects of the case including those advanced by the defence, including any personal mitigation to which D wishes to refer.

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The allocation decision

If the magistrates decline jurisdiction, D is sent to the Crown Court for trial; If the magistrates accept jurisdiction, D is asked whether (s)he consents to summary trial; Before choosing, D can seek an indication of the sentence (whether custodial or not) that would be passed if (s)he pleads guilty then:

qIf an indication is given and D wants to change plea, the PBV procedure is repeated (D indicates a guilty plea, and the court proceeds to the sentencing stage);

If D does not consent to summary trial, the case must be sent to the Crown Court for trial.

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Co-accused: “one up, all up”

Where the court deals with two or more Ds who are charged jointly:

oThe court must explain that, if it sends one of them to the Crown Court for trial, it must also send any other D who is charged with the same (or a related) offence to which (s)he indicates a not guilty plea; oIf the court has allocated one D to a magistrates’ court for trial, and then sends another D to the Crown Court for trial, the court must deal again with each D it has allocated for magistrates’ court trial.

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Presence of D: plea before venue

D must be present unless:

oD is legally represented, and

oThe court considers that, by reason of D’s disorderly conduct before the court it is not practicable for proceedings to be conducted in D’s presence, and

oThe court considers that it should proceed in D’s absence.

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Presence of D: allocation/mode of trial

D must be present unless:

oThe court considers that, by reason of D’s disorderly conduct before the court, it is not practicable for the proceedings to be conducted in D’s presence; or

oD is legally represented, the representative signifies to the court D’s consent to the proceedings being conducted in D’s absence, and the court is satisfied that there is good reason (e.g. illness) for proceeding in D’s absence.

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Crown Court trial?

Higher chance of acquittal;

Better for points of law, especially admissibility of evidence (since triers of law and fact are split), but note magistrates’ court has power to make binding pre-trial rulings;

Prosecution witness statements are served on defence (but the defence can obtain these anyway);

Risk of a higher sentence if convicted.

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Magistrates court?

Lower chance of acquittal (e.g. magistrates are said to be more likely to believe the police, and become ‘case-hardened’);

Trial is shorter, less formal (and cheaper – relevant if D is not legally aided);

Limit on sentence: 6 months for one either-way offence (12 months aggregate for two or more either-way offences) BUT magistrates can commit for sentence under PCC(S)A 2000, s 3, if they think their powers are insufficient.

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Special rules for criminal damage

If the value involved (cost of repair/replacement) does not exceed £5,000, the case must be tried summarily.

If it is a series of offences of the same/similar character, and the total value of the damage does not exceed £5,000, the case must be tried summarily.

If the value involved exceeds £5,000, the court must determine allocation in the ordinary way (so D can elect Crown Court trial).

The court is not required to hear evidence when assessing value.

MCA 1980, s. 22: Special rules for criminal damage.

R v Canterbury Justices ex p Klisiak [1982] QB 398: no requirement to hear evidence of the value involved.

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Low-value shoplifting

Low-value’ shoplifting is triable only summarily.

oLow value = the value of the stolen goods does not exceed £200; oMultiple offences of low-value shoplifting are aggregated.

BUT where a person accused of low-value shoplifting appears before the court, the court must give the person the opportunity of electing Crown Court trial for the offence; 

If D elects to be so tried, the case must be sent to the Crown Court for trial.

MCA 1980, s. 22A: Low-value shoplifting

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Summary Trial

“(a)  the prosecutor may summarise the prosecution case, identifying the relevant law and facts;

(b) to help the members of the court to understand the case and resolve any issue in it, the court may invite the defendant concisely to identify what is in issue;

(c)  the prosecutor must introduce the evidence on which the prosecution case relies;

(d)  at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court: (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations;

Rule 24.3(3) sets out the sequence of events to be followed in a summary trial.

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Summary Trial 2

(e)  the justices’ legal adviser or the court must explain, in terms the defendant can understand (with help, if necessary): (i) the right to give evidence, and (ii) the potential effect of not doing so at all, or of refusing to answer a question while doing so;

(f) the defendant may introduce evidence;

(g)  a party may introduce further evidence if it is then admissible (for example, because it is in rebuttal of evidence already introduced);

(h) the prosecutor may make final representations in support of the prosecution case, where: (i) the defendant is represented by a legal representative, or (ii) whether represented or not, the defendant has introduced evidence other than his or her own; and

(i) the defendant may make final representations in support of the defence case.”

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Preparation for Trial Hearings

Directions for an effective trial.

Ensure D understands credit for a guilty plea.

Take a plea (or whether D is likely to plead guilty or not guilty).

Unless D pleads guilty, ensure D understands that, at the trial:

oThey will have the right to give evidence; oIf they do not attend, the trial is likely to take place in their absence; and oIf released on bail, failure to attend court when required to do so is an offence (Þarrest and punishment), and bail may be withdrawn.

Preparation for Trial Hearings: r. 3.27

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Pre-trial rulings

A magistrates' court may, before the start of the trial, make a ruling on the admissibility of evidence, or any other question of law, provided: oIt has given the parties an opportunity to be heard, and oIt is in the interests of justice to make the ruling.

The ruling is binding until the case is disposed of.

A magistrates’ court may discharge/vary a ruling if:

oThere has been a material change of circumstances, oIt has given the parties an opportunity to be heard, and oIt appears to the court that it is in the interests of justice to do so.

MCA 1980: s. 8A: Pre-trial rulings

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Delay: abuse of process

Where delay amounts to abuse of process, the court may dismiss the case.

Deliberate delay is likely to amount to abuse of process.

Otherwise, the court has a discretion not to proceed if there has been (i) inordinate or unconscionable delay due to the prosecution's inefficiency, and (ii) prejudice to the defence from the delay is either proved or to be inferred.

See Brentford Justices ex p Wong [1981] QB 445

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Trial in absence of D

Where D has attained the age of 18, the court must proceed in D’s absence if he fails to attend unless it appears to the court to be contrary to the interests of justice.

oThe court shall not proceed in the absence of D if it considers there is an acceptable reason for D’s failure to appear.

oNote: if the offence is triable either way, D must usually be present at the allocation hearing in order to give consent for summary trial.

MCA 1980, s. 11: Trial in absence of Defendant

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Trial in absence of D

Where D has attained the age of 18, the court must proceed in D’s absence if he fails to attend unless it appears to the court to be contrary to the interests of justice.

oThe court shall not proceed in the absence of D if it considers there is an acceptable reason for D’s failure to appear.

oNote: if the offence is triable either way, D must usually be present at the allocation hearing in order to give consent for summary trial.

MCA 1980, s. 11: Trial in absence of Defendant

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Summary trial: more detail

P may make an opening speech; D may be asked to clarify what is in issue; P’s evidence is then presented:

o‘Live’ witnesses: a witness other than a party or expert witness must wait outside the courtroom before testifying; each witness must take an oath or affirm;

oWitness statements: the court must read the statement and, unless the court otherwise directs, if any member of the public (including any reporter) is present, each relevant part of the statement must be read or summarised aloud.

CJA 1967, s. 9: Reading written witness statements in place of live testimony.

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D objections to prosecution evd

Any defence objections to prosecution evidence are usually made under:

oPACE 1984, s. 76 (confessions): there has to be a ‘trial within a trial’ on the admissibility of the confession; or oPACE 1984, s. 78 (any prosecution evidence): the court has a discretion to hear evidence. oThe court has a discretion as to when to determine the question of admissibility.

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Submission of no case to answer

After the close of the prosecution case, the defence may make a submission of no case to answer:

oTest: “the prosecution evidence is insufficient for any reasonable court properly to convict”; oThe prosecutor must be given an opportunity to make representations; oNote the possibility of the prosecution being allowed to re-open their case.

Tuck v Vehicle Inspectorate [2004] EWHC 728: Prosecution being allowed to re-open their case after a submission of no case to answer has been made.

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Defence case

The defence call their evidence:

oD usually has to testify first; oThere is a risk of adverse inferences if D does not testify.

Prosecution evidence in rebuttal (very unusual). The prosecution may make a closing speech if: oD is legally represented, or oWhether represented or not, D has called any witnesses (other than D). The defence make a closing speech. The court considers the verdict.

If a submission of no case to answer is not made, or is unsuccessful, the defence case is presented.

PACE 1984, s. 79: D to testify first.

CJPOA 1994, s. 35: Adverse inferences if D fails to testify.

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Possible verdicts in summary

Guilty or not guilty. oIf D is convicted, the court must ‘give sufficient reasons to explain its decision’.

o No power to convict of a ‘lesser included’ offence unless specific statutory provisions apply [compare Crown Court].

o If D is charged with alternative offences and is found guilty of the more serious one, the court should give no verdict on the lesser alternative.

Lawrence v Same [1968] 2 QB 93): no power to convict of an alternative offence. R (Dyer) v Watford Magistrates' Court [2013] EWHC 547 (Admin): Where D is charged with alternative offences, no more than one conviction should be recorded.

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Role of court legal adviser/clerk

Before the hearing begins, drawing the court’s attention to the issues in the case;

Giving the court legal advice (if necessary, attending the members of the court outside the courtroom to give such advice, but informing the parties of any advice given outside the courtroom);

Assisting the court in the formulation and recording of its reasons; Assisting an unrepresented defendant;

Making a note of the substance of any oral evidence or representations;

vBUT must not play any part in making findings of fact.

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Statutory sentencing purposes

üPunishment of offenders;

üReduction of crime (including reduction by deterrence);

üReform and rehabilitation of offenders;

üProtection of the public;

üMaking of reparation by offenders to persons affected by their offences.

CJA 2003, s. 142

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Adjournments after conviction

Magistrates’ courts:

■4 weeks if remanded on bail, or

■3 weeks if remanded in custody (see s. 10(3) MCA 1980)

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Sentencing Procedure

Prosecutor summarises the facts of the offence (if necessary);

Defence plea in mitigation;

Possible adjournment for pre-sentence report;

Either-way offences: possible consideration of committal for sentence to the Crown Court.

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Summary offence in the Mags: guilty

  • Guilty Plea
  • Prosecutor summarises facts
  • Court may adjorn for a pre-sentence report
  • Plea in mitigation
  • Sentence is passed
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Either way Mags: guilty

  • Guilty Plea
  • Prosecutor summarises facts
  • Decision: Are Mags Ct sentencing powers sufficient?
    • Yes
    • Court may adjourn for a pre-sentence report
    • Plea in mitigation
    • Mags Ct sentences D
      • No
      • Mags Ct Commit D to Crown Ct for sentence
      • Possibly adjourn for PSR
      • Prosecutor summarises facts
      • Plea in mitigation
      • Crown Ct judge sentences D
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Sentencing guilty verdict Mags

  • Trial
  • Guilty Verdict
  • Decision: Are Mags Ct sentencing powers sufficient?
    • Yes
    • Court may adjourn for a pre-Sentence report
    • Plea in mitigation
    • Mags Ct sentences D
      • No
      • Mags Ct commits D to Crown Ct for sentence
      • Possibly adjourn for PSR
      • Prosecutor summarises facts
      • Plea in mitigation
      • Crown Ct judge sentences D
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Sentencing Crown (committal, plea, verdict)

  • D committed for sentence by the Mags Ct or pleads guity/ is found guilty in Crown Ct
  • Court may adjourn for a pre-sentence report
  • Prosecutor summarises facts (unless sentence being passed immediatly after guilty verdict)
  • Plea in mitigation
  • Sentence is passed
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Pre-sentence Reports

Can be in writing or oral.

A PSR is required in order to consider: oCustody: the seriousness of the offence and what term is commensurate with that seriousness;

oCommunity sentence: the seriousness of the offence and restrictions on the offender’s liberty are commensurate with that seriousness.

Dispensing with a PSR: oAdults: If the court decides a PSR is ‘unnecessary’; oUnder 18s:

If the court decides a PSR is ‘unnecessary’ and a previous PSR is available.

If the offender appears to be mentally disordered, a medical report must be obtained.

 CJA 2003, s. 156

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Victim Personal Statement

Gives victims a formal opportunity to say how a crime has affected them.

Should be considered and taken into account by the court prior to sentencing.

The opinions of the victim as to what the sentence should be are not relevant (unlike the consequences of the offence on them).

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‘Newton’ Hearings

Where D pleads guilty but there is a  significant difference between the prosecution version of the facts and the defence version (where D is guilty on either version),

Written basis of plea from defence, given to prosecution to accept or not. Then goes to judge to decide if there will be a Newton in any event

the judge may either:

Accept the defence version, or

Hear evidence, and then making a finding of fact as to which is the correct version;

But cannot accept the prosecution version without first hearing evidence, unless the defence version is ‘manifestly false’.

Newton (1982) 77 Cr App R 13

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‘Newton’ hearings (2)

Standard of proof: beyond reasonable doubt.

Both counsel have a responsibility to alert the court to the need for a Newton hearing.

If the difference between versions is, in effect, an allegation that D committed an additional offence, a jury should be empanelled to try that offence.

Note that the Newton principle applies in magistrates’ courts as well.

Summary of key principles: R v Underwood [2004] EWCA Crim 2256.

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Goodyear: Indications of Sentence

Any advance indication of sentence should normally be confined to the maximum sentence if a guilty plea were to be tendered at the stage at which the indication is sought.

oThe judge should not give an advance indication of sentence unless one is sought by D.

oThe judge retains an unfettered discretion to refuse to give an indication.

oAny sentence indication should normally be sought at the PTPH. oOnce given, indication is binding on the judge (not Mag) who gave it and on any other judge who becomes responsible for the case.

Goodyear [2005] EWCA Crim 888

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Goodyear 2

An indication should not be given where there is a dispute as to the basis of plea. oIf there is an agreed basis of plea, it must be put into writing (and is subject to approval by the judge).

The judge should never be invited to give an indication on the basis of a ‘plea bargain’.

If, after a reasonable opportunity to consider the indication, D does not plead guilty, the indication ceases to have effect.

The fact that D sought an indication is inadmissible in any subsequent trial should s/he maintain a ‘not guilty’ plea.

The defence advocate: Should not seek an indication without written authority from D; and Must ensure that D fully appreciates that: oS/he should not plead guilty unless guilty; and oThe A-G may be able to refer an unduly lenient sentence to the Court of Appeal.

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Sentencing Council Guidelines

The court ‘must’ follow any sentencing guidelines relevant to the offender’s case unless ‘satisfied that it would be contrary to the interests of justice to do so’. Three types of Guideline: oGeneral principles;

oSpecific offences (Crown Court);

oMagistrates’ Court Sentencing Guidelines.

Court of Appeal guideline judgements (where no Sentencing Council Guideline exists).

Duty to follow Sentencing Council Guidelines: CoJA 2009, s 125.

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The structure of the Guidelines

Determine the offence category (based only on the factors set out in the guideline).

That enables identification of the starting point and the category range.

Then consider upward or downward adjustment, having regard to factors which increase or reduce seriousness or reflect personal mitigation.

Then, consider any factors which indicate a reduction, such as assistance to the prosecution.

Then, reduction for guilty plea (if appropriate).

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Statutory factors in sentencing

The offender’s culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused’.

Aggravating factors in the CJA 2003:

Offence committed while D was on bail for another offence [even if D was subsequently acquitted of that other offence];

Racial/religious aggravation;

Disability; sexual orientation; transgender identity.

Seriousness of offence:  CJA 2003, s. 143

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D’s previous convictions

The court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be so treated having regard to:

oThe nature of the offence to which the conviction relates and its relevance to the current offence; and

oThe time that has elapsed since the conviction.

Previous convictions:  CJA 2003, s. 143(2)

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Prevalence

There must be supporting evidence;

The level of harm caused in a particular locality must be significantly higher than that caused elsewhere;

The circumstances must be exceptional; and

It must be just and proportionate to increase the sentence in the particular case being sentenced

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Guilty pleas

In determining the sentence to impose on a D who has pleaded guilty, the court must take into account:

oThe stage in proceedings at which offender indicated intention to plead guilty; and oThe circumstances in which the indication was given.

A guilty plea usually results in a reduced sentence.

Guilty pleas:  CJA 2003, s. 144.

See Sentencing Council Guideline on Guilty Pleas: https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-Sentence-for-Guilty-plea-Definitive-Guide_FINAL_WEB.pdf

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Why give a reduction in sentence?

A guilty plea:

oNormally reduces the impact of the crime upon victims;

oSaves victims and witnesses from having to testify; and

Is in the public interest in that it saves public time and money on investigations and trials.

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Other mitigation

Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should be considered separately and prior to any guilty plea reduction, as potential mitigating factors. 

The strength of the evidence should not be taken into account when determining the level of reduction.

The reduction applies only to the punitive elements of the sentence.

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Sliding scale discount

Maximum of one-third reduction where guilty plea is indicated at the first stage of the proceedings.

Maximum of one-quarter where guilty plea is indicated after the first stage of proceedings.

Sliding scale of reduction thereafter from one-quarter to a maximum of one-tenth on the first day of trial, having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date.

Further reduction, even to zero, if the guilty plea is entered during the course of the trial.

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Appendices to Guideline

Summary offences: 1/3 reduction if D pleads guilty when the plea is taken (thereafter, sliding scale from 1/4 to 1/10).

Either-way offences: 1/3 reduction if D pleads guilty at PBV (1/4 if D indicates a not guilty plea at PBV but pleads guilty at the first Crown Court hearing; thereafter, a sliding scale down to 1/10).

Indictable-only offences: 1/3 reduction if D indicates a guilty plea in the magistrates’ court and pleads guilty at the first hearing in the Crown Court;

If D pleads guilty at the first hearing in the Crown Court but did not indicate a guilty plea in the magistrates’ court, the maximum reduction is 1/4.

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Discount - not just custody length

The reduction can take the form of imposing one type of sentence rather than another (e.g. reducing a custodial sentence to a community sentence, or reducing a community sentence to a fine).

In such a case, there should normally be no further reduction on account of the guilty plea.

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Exceptional cases

Where the court is satisfied that there were particular circumstances which significantly reduced D’s ability to understand what was alleged, or otherwise made it unreasonable to expect D to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.

If D’s version of events is rejected at a Newton hearing, the reduction should normally be halved. oWhere witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.

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Offences taken into consideration (‘TICs’)

Does not count as a conviction

oNo separate sentence is passed in respect of TICs.

The court should pass a sentence in respect of the offences to which D had pleaded guilty which reflects all the offending behaviour (including the TICs).

The presence of TICs should generally be treated as an aggravating feature that justifies an upward adjustment from the starting point (aggravating feature);

BUT the frank admission of a number of offences is an indication of D’s remorse (and therefore mitigation).

Sentencing Council Guideline on TICs: https://www.sentencingcouncil.org.uk/publications/item/offences-taken-into-consideration-and-totality-definitive-guideline/

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Specimen/sample counts

D should not be sentenced for an offence unless: oIt has been proved by a guilty plea or verdict, or

oD has asked the court to take it into consideration.

If D admits a course of offending, no problem.

If D denies a course of offending, the prosecution will have to charge sufficient offences fairly to reflect the criminality of the offending (to enable the court to pass an appropriate sentence).

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Discharges

Absolute discharge (no penalty is imposed).

Conditional discharge for specified period of up to 3 years (no penalty unless D re-offends during that period):

oBreach of conditional discharge: D can be re-sentenced for the original offence (as well as being sentenced for the later offence).

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Fines

Fixing the amount of a fine:

1.What fine is appropriate given the seriousness of the offence?

2.Is there personal mitigation which enables the fine to be reduced?

3.Should the actual fine be higher or lower because of the offender’s means?

Fines: CJA 2003, s. 164

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Maximum fines

Crown Court: oUnlimited amount;

oTerm of imprisonment in default is fixed when a fine is imposed.

Magistrates’ Courts:

oOffences that are triable either way: unlimited amount;

oSummary offences:  based on “levels” (no maximum aggregate where the court is sentencing for more than one offence).

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Community orders

Maximum duration: 3 years;

The offence(s) must be ‘serious enough to warrant such a sentence’;

The restrictions on liberty must be commensurate with the seriousness of the offence(s);

The requirements must be such as are most suitable for the particular offender;

The components must be compatible with each other;

The court may have regard to any period of remand in custody in connection with offence.

Community orders: CJA 2003, s. 177

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Punitive element in a community order

A community order must include at least one requirement imposed for the purpose of punishment, or the court must also impose a fine;

oUnless there are exceptional circumstances relating to the offence or the offender which would make it unjust to do so.

Sentencing Council: It is a matter for the sentencing court to decide which requirements amount to a punishment in each case.

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The ‘pick-and-mix’ menu (1)

■Unpaid work requirement (40-300 hours);

■Rehabilitation activity requirement (supervision by probation officer and/or specified activities, which may include restorative justice) – usually in addition to other requirements;

■Programme requirement (systematic set of activities);

■Prohibited activity requirement (prohibition on participation in specified activities);

■Curfew requirement (2-16 hours per day; max 12 months);

■Exclusion requirement (prohibition from entering specified places);

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The ‘pick-and-mix’ menu (2)

■Residence requirement (residing at specified place);

■Foreign travel prohibition requirement;

■Mental health treatment requirement (in-patient or out-patient);

■Drug rehabilitation requirement (in-patient or out-patient);

■Alcohol treatment requirement (in-patient or out-patient);

■Where the offender is aged under 25, attendance centre requirement;

■Electronic monitoring requirement (mandatory where a curfew/exclusion requirement is included).

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Breach of community orders (1)

First stage: Warning from the probation service;

Second stage: Summons to attend court (no discretion to issue a second warning;

Breach must be proved, beyond reasonable doubt (if not admitted).

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Breach of community orders (2)

If failure to comply without reasonable excuse is proved:

the court must do one of the following:

Amend the order to impose more onerous requirements;

Revoke the order and re-sentence (a custodial sentence may be imposed even if the original offence did not cross the custody threshold, if the offender has wilfully and persistently failed to comply with the requirements of the order);

Impose a fine up to £2,500.

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Commission of further offences

If the order was made by a magistrates’ court, a magistrates’ court can revoke the order, or revoke and re-sentence for original offence.

If the order made by the Crown Court, the magistrates can commit the offender to the Crown Court (on bail or in custody), and Crown Court may then revoke the order, or revoke and re-sentence for original offence.

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Custodial sentences

The court must not pass a custodial sentence unless it is of the opinion that the offence(s) was so serious that neither a fine alone nor a community sentence can be justified for the offence.

Custody threshold: CJA 2003, s. 152

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Proviso to custody threshold

The custody threshold does not prevent the court from passing a custodial sentence if the offender fails to express willingness to comply with a community order requirement which requires an expression of such willingness [i.e. mental health treatment, drug rehabilitation or alcohol treatment].

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Sentencing Council Guidance

1.Has the custody threshold been passed?

2.Is it unavoidable that a sentence of imprisonment be imposed?

3.What is the shortest term commensurate with the seriousness of the offence?

4.Can the sentence be suspended?

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Sentencing Council Guidance 2

The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable.

Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (= punishment) + addressing the rehabilitation of the offender to prevent future crime.

For offenders on the ‘cusp’ of custody, imprisonment should not be imposed where there would be a disproportionate impact on dependants.

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Length of custodial sentence

The custodial sentence must be for the shortest term that in the opinion of the court is commensurate with the seriousness of the offence(s).

R v Ollerenshaw [1999] 1 Cr App R(S) 65: When a court is considering imposing a comparatively short period of custody (12 months or less), it should generally ask itself, particularly where D has not previously been sentenced to custody, whether an even shorter period might be equally effective in protecting the interests of the public, and punishing and deterring the criminal.

Length of custody: CJA 2003, s. 153

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Other considerations for custodial sentences

Concurrent or consecutive – a single series of incidents, or unrelated offences?

Totality: it is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences.

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Magistrates’ custodial powers

Imprisonable summary offences:

Up to 6 months per offence;

Maximum 6 months in total.

One either-way offence:

Up to 6 months per offence;

Two or more either-way offences:

Up to 6 months per offence;

Maximum aggregate of 12 months in total.

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Time on remand

The number of days for which the offender was remanded in custody in connection with the offence counts as time served by the offender.

oRemand on bail with electronically-monitored curfew for at least 9 hours per day:

D receives credit at the rate of a half a day for every day spent subject to a qualifying electronically monitored curfew.

Time on remand: CJA 2003, s. 240ZA

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Release on licence

Automatic release on licence once the prisoner has served one-half of the sentence.

The licence remains in force for the remainder of the sentence (i.e. the second half).

Where the sentence is less than 2 years, the offender must comply with ‘supervision requirements’ during the ‘supervision period’, which begins with the expiry of the sentence, and ends 12 months after the offender has served the requisite custodial period (i.e. 12 months after the half-way point of the sentence).

Early release should not be taken into account when deciding what sentence to impose.

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Suspended sentences

Custodial sentence of 14 days – 2 years;

Suspended for 6 months – 2 years (‘operational period’); Additional requirements [the same as those which may be included in a community order] may be added:

§Carried out during the ‘supervision period’, which must end not later than operational period;

A suspended sentence can be pa**ed only if the offence pa**es the custody threshold.

Suspended sentences: CJA 2003, **. 189-193

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Use of suspended sentences

A suspended sentence MUST NOT be imposed as a more severe form of community order.

A suspended sentence is a custodial sentence.

Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available.

If not, a non-custodial sentence should be imposed.

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Breach of suspended or re-offending

If the offender:

Has failed, without reasonable excuse, to comply with any of the community requirements of the suspended sentence order, or

Is convicted of an offence committed during the operational period of the suspended sentence order

Breach of suspended sentence or re-offending: CJA 2003, Sch 12

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Options for Court



Activate the suspended sentence with the custodial period unaltered [usually served consecutively with the sentence for the ‘breach’ offence]; or Activate the suspended sentence but with a shorter period of custody; or

Impose a fine of up to £2,500; or

Amend the order by: oImposing more onerous community requirements, oExtending the supervision or operational period (but not beyond 2 year cap or below minimum 6 months).

vThe court must activate the sentence unless “unjust” to do so in view of all the circumstances.

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Relevant factors

To what extent has D complied with the community requirements?

How close to the end of the operational period was the new offence committed?

Does the new offence itself merit a custodial sentence?

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Mandatory minimum sentences

Mandatory minimum of 7 years for 3rd conviction of trafficking in class A drugs unless particular circumstances relating to any of the offences or to the offender would make this unjust.

Mandatory minimum of 3 years for 3rd domestic burglary conviction unless particular circumstances relating to any of the offences or to the offender would make this unjust.

In both cases, a guilty plea may reduce the sentence below the statutory minimum, but not below 80% of that statutory minimum of 7 or 3 years.

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Dangerous offenders

Some sentences, such as “extended sentences”, are available where D is convicted of a specified offence and the court decides that Dis “dangerous”:

oThere is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.

Extended sentences: CJA 2003, s. 226A

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Assessment of dangerousness

The court:

Must take into account all available information about the nature and circumstances of the offence;

May take into account all available information about the nature and circumstances of any other offences of which D has been convicted;

May take into account any available information about any pattern of behaviour of which any of these offences forms part; and

May take into account any available information about D.

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Compensation orders

Compensation for any personal injury, loss or damage resulting from an offence or TIC.

A court must consider making a compensation order in any case where it is empowered to do so (and must give reasons if it decides not to make a compensation order).

Such amount as the court considers appropriate, having regard to any evidence and representations by D or P.

Unlimited amount in the case of adult offenders.

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Other ‘ancillary’ orders

Deprivation order: forfeiture of property used for the purpose of committing/facilitating the commission of any offence; oDrugs cases: forfeiture of anything related to the offence.

Sexual Offences Act 2003: notification requirements.

Proceeds of Crime Act 2002: confiscation orders – the court determines whether D has benefited from criminal conduct and, if so, how much; a confiscation order is made for the amount of D’s benefit, or the value of D’s assets (if less).

Deprivation/forfeiture order: Powers of Criminal Courts (Sentencing) Act 2000, s. 143; Misuse of Drugs Act 1971, s. 27

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Basis of plea

  • Agreeing to guilty plea on facts that deviate in some way from the prosecution case
  • Could still have a Newton hearing if their is a difference in material facts for sentencing but it has to be raised by the prosecution
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Terminology: Youths

“Juvenile”/“young defendant”: An accused who has not attained the age of 18 (i.e. 17 or under);

Must be 10 or over (because of the age of criminal responsibility):

oChild: under 14;

oYoung person: 14-17.

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Youth Court: key points

The Youth Court has jurisdiction where the defendant is under the age of 18.

The Youth Court can try indictable-only offences except homicide (i.e. murder/ manslaughter).

Juveniles (unlike adults) have no right to elect Crown Court trial.

The basic procedure in the Youth Court is the same as the adult magistrates’ court, but there are some important differences.

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Youth Court

Exclusion of the public;

Terminologyo E.g. use of first names for D and young witnesses;

No dock;

Attendance of a parent/guardian:o D under 16: The court must order attendance unless it would be unreasonable to do so;o D 16/17: The court may do so;

Youth Court justices receive additional training;

Media can attend, but:

oAutomatic reporting restrictions protect the identity of D and any young witnesses.

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Exceptional situations (1)

Crown Court trial where the juvenile is charged with:

Homicide (i.e. murder or manslaughter);

An offence to which PCC(S)A 2000, s. 91, applies (long term sentence);

An offence to which a mandatory minimum sentence applies (e.g. Firearms Act 1968, s. 51A);

A ‘specified offence’ under the CJA 2003, but only if a sentence under the ‘dangerous offender’ provisions (CJA 2003) is likely.

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Exceptional situations (2)

Trial in the Crown Court or in an adult magistrates’ court where the juvenile is charged with an adult.

vWhere there is an adult co-accused, the first appearance for both defendants is in an adult magistrates’ court.

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s.91

An offence comes within section 91 where:

• it is punishable with 14 years imprisonment or more for an adult (but is not a sentence fixed by law);

• it is an offence of sexual assault, a child sex offence committed by a child or young person, sexual activity with a child family member or inciting a child family member to engage in sexual activity; or

• it is one of a number of specified offences in relation to firearms, ammunition and weapons which are subject to a minimum term but, in respect of which, a court has found exceptional circumstances justifying a lesser sentence.

https://www.sentencingcouncil.org.uk/wp-content/uploads/Sentencing-Children-and-young-people-Definitive-Guide_FINAL_WEB.pdf

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Crown Court trial: PCC(S)A 2000, s. 91

D will be sent to the Crown Court for trial only if the court considers that, if D is found guilty, ‘it ought to be possible to sentence him [under s. 91]’: o A ‘real prospect’ of  a s. 91 sentence being imposed by Crown Court.

There is a strong presumption against sending juveniles to the Crown Court for trial unless it is clearly required.

Bear in mind the power to commit to the Crown Court for sentence.

More than one D: the position of each must be considered separately.

Real prospect : R (H,A,O) v Southampton YC [2004] EWHC 2912.

Separate consideration: R (W and M) v Oldham Youth Court [2010] EWHC 661.

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Plea before venue hearing where s. 91 applies

Guilty plea:

■The Youth Court passes sentence, or

■Commits the juvenile to the Crown Court for sentence.

Not guilty plea:

■Representations from the prosecution and defence on whether a sentence of over 2 years is a real possibility:

oYouth court accepts jurisdiction: trial in the youth court.

oYouth court declines jurisdiction: the juvenile is sent to the Crown Court for trial.

Plea before venue in s. 91 cases: MCA 1980, s. 24A

Committal for sentence in s. 91 cases: PCC(S)A 2000, s. 3B

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Committal for sentence: s. 91 cases

Where PCC(S)A 2000, s. 91, applies, the Youth Court may commit a juvenile to the Crown Court for sentence where s/he oIndicates a guilty plea at ‘plea before venue’ hearing, or oIs convicted following summary trial.

Powers of Criminal Courts Act 2000, s. 3B.

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Juvenile and adult charged together (1)

Juvenile pleads guilty:

The magistrates’ court passes sentence, or

Remits the juvenile to the Youth Court for sentence.

Juvenile pleads not guilty:

The juvenile is sent to the Crown Court for trial IF it is ‘necessary in the interests of justice’ to do so.

The Crown Court cannot remit the juvenile to the Youth Court if the adult subsequently pleads guilty in the Crown Court.

R (W and R) v Leeds Crown Court [2011] EWHC 2326: No power to remit to youth court

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Sentencing Council Guideline (1)

If an adult is sent for trial to the Crown Court, the youth should be tried separately in the youth court unless it is in the interests of justice for them to be tried jointly.

Relevant factors:

oWhether separate trials will cause injustice to witnesses;

oThe age of the juvenile;

oThe age gap between the juvenile and the adult;

oThe lack of maturity of the juvenile;

oThe relative culpability of the juvenile compared with the adult and whether the alleged role played by the juvenile was minor; oLack of previous convictions on the part of the juvenile.

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Sentencing Council Guideline (2)

Where the court decides that the case is suitable to be dealt with in the youth court it must warn the child or young person that all available sentencing options remain open and, if found guilty, the child or young person may be committed to the Crown Court for sentence. 

For children aged 10 or 11, and children/young people aged 12 – 14 who are not persistent offenders, the court should take into account the normal prohibition on imposing custodial sentences.

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Adult magistrates’ court: sentencing options

Very limited powers,

e.g. oAbsolute/conditional discharge;

oFine; oAncillary orders (e.g. costs; compensation);

oReferral order.

OR

Remit to the Youth Court for sentence.

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Juvenile and adult charged together (2)

A plea is taken from the juvenile:

Guilty’:

The magistrates’ court passes sentence (note their limited powers); or

The juvenile is remitted to the Youth Court for sentence.

Not guilty’:

The juvenile is tried in the adult magistrates’ court; or

The juvenile is remitted to the Youth Court for trial.

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Juvenile and adult charged together (3)

A plea is taken from the juvenile:

Guilty’:

■The magistrates’ court passes sentence; or

■The juvenile is remitted to the Youth Court for sentence.

Not guilty’:

■Joint charge: the juvenile MUST be tried in the adult magistrates’ court;

■Aiding/abetting, or a linked charge: the juvenile MAY be tried in the adult magistrates’ court (or remitted to the Youth Court for trial).

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Dangerous offenders: ‘specified offences’

Sending to the Crown Court for trial, or committing to the Crown Court for sentence where a juvenile pleads guilty or is found guilty:

Only if it appears to the court that the criteria for the imposition of an extended sentence would be met:

oThere is ‘a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences’, and the appropriate custodial term would be at least 4 years.

PCC(S)A 2000, s. 3C: power to commit for sentence (dangerous offenders).

CJA 2003, s. 226B: extended sentences

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Sentencing Young Offenders

Statutory duty to have regard to:

Ø The principal aim of the youth justice system, namely to prevent offending by children and young persons; and

Ø The welfare of the offender.

CDA 1998, s 37(1)

C&YPA 1933, s 44(1)

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Detention and Training Orders (DTOs)

Must be an imprisonable offence, minimum age: 12; 

If aged 12-14 at the date of conviction, the juvenile must be a “persistent offender”; 15 upwards = minimum 4 months, maximum 24

The custody threshold criteria have to be met (so serious);

Minimum length:  4 months; maximum length: 24 months; oDetention for the first half of the order;

oSecond half: the juvenile is released but is under supervision for the rest of the order;

Youth Court and Crown Court powers on DTOs are identical.

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Youth Rehabilitation Orders (1)

Activity requirement;

Supervision requirement;

Unpaid work requirement (if D aged 16/17 at date of conviction);

Programme requirement;

Attendance centre requirement;

Prohibited activity requirement;

Curfew requirement;

Exclusion requirement;

Residence requirement; Local authority residence requirement;

Criminal Justice and Immigration Act 2008, s. 1

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Youth Rehabilitation Orders (2)

Mental health treatment requirement;

Drug treatment requirement;

Drug testing requirement;

Intoxicating substance treatment requirement; and

Education requirement.

If offence imprisonable:

YRO with intensive supervision and surveillance; or

YRO with fostering.

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Fines and discharges

Fine:

o14 – 17 year olds:  maximum fine £1,000;

o10 – 13 year olds:  maximum fine £250.

Absolute or conditional discharge.

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Referral Orders (1)

Attend meetings of the youth offender panel + a contract for a programme of behaviour aimed at preventing re-offending by the offender.

Mandatory where:

oA youth court or adult magistrates’ court is dealing with an offender under the age of 18;

oThe court is not minded to impose a custodial sentence, a hospital order, or absolute or conditional discharge;

oThe offence is punishable with imprisonment;

oThe offender pleaded guilty to the offence and to any connected offence; and

oThe offender has no previous convictions.

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Referral Orders (2)

Discretionary where:

oThe compulsory referral conditions are not satisfied;

oThe offender pleaded guilty to the offence or, if the offender is being dealt with for the offence and for any connected offence, he has pleaded guilty to at least one of those offences.

Compliance period: 3 – 12 months.

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Plea of guilty to an alternative offence

■Guilty to an alternative (‘lesser included’) offence that is not on the indictment (but same factual scinario):

o If this plea is accepted, D is regarded as being acquitted of the original offence. If not can't later sentence on the admitted alternative offence.

o The prosecution have to decide whether or not to proceed to trial on the original count.

See Criminal Law Act 1967, s 6(1)

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Change of plea

■The Judge may allow D to change plea from ‘not guilty’ to ‘guilty’ at any stage prior to the jury returning their verdict.

■The Judge may allow D to change plea from ‘guilty’ to ‘not guilty’ at any stage before sentence is passed.

oThe application to do so must explain why it would be unjust for the guilty plea to remain unchanged.

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What if D is ‘unfit to plead’?

■Unfit to plead = unable to comprehend the course of the proceedings so as to make a proper defence.

■If D is found unfit to plead and a jury determines that D did the act/omission alleged, the court may:

oMake a hospital order

oMake a supervision order

oOrder an absolute discharge.

■If D is found fit to plead, the trial takes its usual course.

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Abuse of Process: the two categories

Ø It would be impossible to give the accused a fair trial, or

ØIt would offend the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case, or it would undermine public confidence in the criminal justice system and bring it into disrepute if it did so (i.e. it would be unfair to try the accused).

See, for example, R v Maxwell [2011] 4 All ER 941 (at [13]), Warren v Attorney-General for Jersey [2012] 1 AC 22 (at [22]), Crawley[2014] EWCA Crim 1028 (at [17]-[18]).

EG of potential abuse include: Lengthy delay which causes prejudice to the accused; Failure to secure evidence or destruction of evidence; Failure to honour an undertaking given to the accused; Tactical manipulation or misuse of the court process; Entrapment; Bringing justice into disrepute; Abuse of executive power.

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Presence of defendant

■D must be present to enter a plea.

■The court must not proceed with the trial if D is absent, unless the court is satisfied both that:

oD has waived the right to attend, and

oThe trial will be fair despite D’s absence.

■If D is absent because of illness, the judge must either adjourn the case or discharge the jury (so that the trial starts again later).

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Trial in absence where D fails to attend

■The court must exercise its discretion to try D in his absence with ‘the utmost care and caution’.

■Relevant circumstances include:

oD’s conduct;

oDisadvantage to D;

oThe public interest, including inconvenience and hardship to witnesses;

oThe effect of any delay; oWhether D’s attendance could be secured at a later hearing; and

oThe likely outcome if D is found guilty.

See Crim PD III para 14E.3 and R v Jones [2002] UKHL 5; [2003] 1 AC 1.

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securing attendance of witnesses

Your client is charged with assault.  He says that he was acting in self-defence. The assault took place in a public house.  One of the bar staff has said to your client, “I know that you didn’t start the trouble, but I dare not come to court to say so - I would lose my job”. 

Question: It is (a) possible, and (b) desirable, to compel the witness to attend?

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Witness Summonses

■A witness summons may be issued if:

oThe person likely to be able to give material evidence, and

o It is in the interests of justice to do so.

See Criminal Procedure (Attendance of Witnesses) Act 1965, s. 2.

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Outline of a trial on indictment: r. 25.9(2)

(a) where there is a jury, the court must (i) inform the jurors of each offence charged in the indictment to which the defendant pleads not guilty, and (ii) explain to the jurors that it is their duty, after hearing the evidence, to decide whether the defendant is guilty or not guilty of each offence;

(b) the prosecutor may summarise the prosecution case;

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Outline (cont’d)

(f) at the end of the prosecution evidence, the court must ask whether the defendant intends to give evidence in person and, if the answer is ‘no’, then the court must satisfy itself that there has been explained to the defendant (i) the right to give evidence in person, and (ii) that if the defendant does not give evidence in person, or refuses to answer a question while giving evidence, the court may draw such inferences as seem proper;

(g) the defendant may summarise the defence case, if he or she intends to call at least one witness other than him or herself to give evidence in person about the facts of the case;

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Outline (cont’d)

(h) in this order (or in a different order, if the court so directs) the defendant may: (i) give evidence in person, (ii) call another witness, or witnesses, to give evidence in person, and (iii) introduce any other evidence;

(i) a party may introduce further evidence if it is then admissible (for example, because it is in rebuttal of evidence already introduced);

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Submission of no case to answer

Galbraith [1981] 1 WLR 1039: There is no case to answer if either:

Ø There is no evidence to prove an ingredient of the offence [but note the power to allow the prosecution to re-open their case]; or

Ø The prosecution evidence ‘taken at its highest’ is such that ‘a jury properly directed could not properly convict upon it’.

o Assume the prosecution witness(es) are telling truth, unless no reasonable jury could believe them.

[Will need to know case name for assesments]

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Defence case and closing speeches

■Defence opening speech (if calling at least one witness as to facts other than/as well as D);

■Defence evidence:

oD testifies first unless the court directs otherwise;

oNote the risk of adverse inferences if D does not testify.

■Prosecution closing speech (unless D unrepresented and called no witnesses as to the facts of the case apart from him/herself);

■Defence closing speech.

Adverse inferences: CJPOA 1994, s. 35

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Directions by the Judge

■The judge must: oGive the jury directions about the relevant law at any time at which to do so will assist jurors to evaluate the evidence; oSummarise for the jury, to such extent as is necessary, the evidence relevant to the issues they must decide.

■‘Early’ directions.

■‘Split’ summing up.

■Written route to verdict (such questions, if any, as the court invites jurors to answer in coming to a verdict).

CPD VI Trial 26K:  Early provision of directions, where this will assist the jury in their approach to the evidence and/or evaluating the evidence as they hear it (e.g. where ID is in issue); Written route to verdict (a series of questions that lead the jury to the appropriate verdict – should be provided unless the case is so straightforward that it would be superfluous; Split summing up, i.e. provision of  some directions prior to closing speeches may avoid repetitious explanations of the law.

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More than one defendant: separately represented

Each prosecution witness:

oX-i-C by P;

o** by D1, then ** by D2;

oRe-X by P.

Defence cases:

oD1’s case: opening speech, then D1 X-i-C;

o** by D2, then ** by P;

oRe-X by own counsel;

oRepeat for other witnesses for D1;

oD2’s case: as for D1.

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alternative verdicts

D is on trial for possession of a class A drug with intent to supply.  After their retirement to deliberate, the jury send a note to the judge saying that they are not satisfied so that they are sure that D intended to supply the drugs to someone else but are satisfied that D was in possession of the drugs. 

The judge invites submissions from you before giving further directions to the jury.

Question: What should you say?

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Magistrates’ Courts: rectifying mistakes

■Power to set aside a conviction or vary a sentence.

■The application is made to the magistrates’ court (it does not have to be the original bench).

■If a conviction is set aside, there will usually be a re-trial by a different bench.

■An application to vary sentence can be made whether D pleaded guilty or was found guilty.

■Applies only where there has been an error of law or obvious mistake (‘slip rule’).

■No time limit, but delay is relevant in deciding whether to grant the application.

MCA 1980, s. 142

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Procedure (cont’d)

■The notice must say whether D asked the magistrates’ court to reconsider the case.

■The respondent (i.e. the prosecution) must serve a respondent’s notice.

■The appeal can be abandoned without permission if notice is served before the hearing has started (otherwise permission is needed).

■The Crown Court may conduct a ‘preparation for appeal hearing’ if necessary in order to give directions for the effective determination of the appeal.

Preparation for appeal hearings: see r. 34.7.

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Powers of the Crown Court

■Dismiss the appeal (i.e. uphold the conviction and/or sentence);

■Quash the conviction;

■Vary the sentence (the court should form an independent view as to the correct sentence);

■The Crown Court can increase the sentence up to the maximum the magistrates’ court could have imposed, and can alter the sentence even if D appeals only against conviction.

Sentence: Swindon Crown Court ex p Murray (1998) 162 JP 36

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Case stated or judicial review

■Judicial review is regarded as remedy of last resort.

■Judicial review is particularly appropriate where a procedural error is alleged (e.g. unfairness in the way the justices conducted case).

■Case stated is more appropriate where it is alleged the justices have misdirected themselves in law.

See R(P) v Liverpool City Magistrates [2006] EWHC 887; R (Kracher) v Leicester Magistrates' Court [2013] EWHC 4627

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Appeal against conviction

Leave is required unless the trial judge certifies that the case is ‘fit for appeal’ (certificates should be given only in exceptional cases).

■The notice of appeal against conviction must be lodged with the Registrar of Criminal Appeals within 28 days from the date of conviction.

oAn application to extend time may be made if there is good reason.

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Single ground of appeal: conviction unsafe

■ Defects in the indictment.

■ Errors during the course of the trial (e.g.): o Wrongful admission/exclusion of evidence; o Wrongful rejection of submission of no case to answer; o The conduct of the trial judge.

■Errors in the judge’s summing up to the jury (e.g.) o Misdirection on law; o Wrongful withdrawal of issues from the jury; o Misdirection on the facts; oImproper comments by the judge.

■ Alleged jury irregularities

■ Inconsistent verdicts.

See CAA 1968, s 2.

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Fresh Evidence

■ The Court of Appeal may hear fresh evidence if ‘necessary or expedient in the interest of justice’.

■ Factors to consider: o Is it ‘capable of belief’ (credibility)?

o Does it afford a ground of appeal (relevance)?

o Would it have been admissible (admissibility)?

o Is there a ‘reasonable explanation’ for the failure to adduce it at trial?

■ Key question: whether, in the light of the fresh evidence, the conviction is unsafe [i.e. whether it might reasonably have led to an acquittal].

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Drafting the grounds of appeal

■ The notice of appeal must identify each ground of appeal on which the appellant relies, concisely outlining each argument in support; summarise relevant facts; identify any relevant authorities.

■ The grounds of appeal should set out the relevant facts concisely in one document (the intended readership is the Court; its purpose is to enable the single Judge to grasp quickly the facts and issues in the case).

■ Counsel should not settle or sign grounds unless they are reasonable, have some real prospect of success and are such that s/he is prepared to argue them before the Court.

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Procedure (cont’d)

■ Refusal of leave to appeal can be challenged by renewing the application to the court.

■ If leave is granted on some grounds but refused on others, the grounds upon which leave was refused can be argued only with the leave of the court.

■ The appeal may be abandoned without leave before any hearing takes place; thereafter, leave is required.

■ A skeleton argument must be served if the case involves a complex or novel point of law.

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Directions for loss of time

■ The court may direct that some or all of the time spent in custody as an appellant shall not count as part of the sentence served by the appellant.

■ Appropriate where the court it considers that a renewed application is wholly without merit.

■ The mere fact that counsel has advised that there are grounds of appeal will not necessarily prevent a direction being made.

■ The single Judge will indicate if the Court should consider a direction if the application is renewed; but the Court may make a direction whether or not such an indication has been given by the single judge.

See CAA 1968, s. 29.

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Appeal against sentence

■Leave is required unless the trial judge certifies that the case is fit for appeal:

oCrown Court judges should certify cases only in exceptional circumstances.

■Time limit: grounds of appeal must be lodged within 28 days from the date of sentence.

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Grounds for appeal against sentence

■ No statutory grounds for appeal, but case law suggests that the appeal will be upheld if:

o The sentence is wrong in law;

o The sentence is wrong in principle;

o The sentence is manifestly excessive;

o The judge took a wrong approach to sentencing;

o There were procedural errors;

o The offender has a legitimate sense of grievance.

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Sentence: powers of the Court of Appeal

■ The Court of Appeal can dismiss the appeal against sentence or quash the sentence.

■ Where the sentence is replaced with a different one, the appellant must not be dealt with more severely on appeal than he was dealt with by the court below, taking the case as a whole.

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Variation of sentence by the Crown Court

■A sentence imposed by the Crown Court may be varied or rescinded by the Crown Court within the period of 56 days from the day on which the sentence was imposed.

■Only the judge who passed the original sentence can exercise this power.

PCC(S)A 2000, s 155

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Evidence: prelim, burden of proof & witnesses

10 Preliminary evidential matters 

1. basic principles of evidence 2. tribunals of fact and law 3. common law powers to exclude evidence and discretionary power to exclude under section 78 of PACE 

1. Examinable material on basic principles of evidence will consist offacts in issue, formal admissions, relevance, circumstantial evidence, and real evidence. The relevantmaterial is addressedin paragraphs F1.1, F1.3, F1.11, F1.18, the first paragraph of F8.45and F8.50 of Blackstone’s Criminal Practice 2018 .

2. Examinable material on tribunals of fact and law will consist ofthe general principles in a trial on indictment and summary trial. The relevantmaterial is addressedin paragraphs F1.32 and F1.38 of Blackstone’s Criminal Practice 2018.

3. Examinable material on the court’s powersto exclude evidence will consist ofgeneral principles of the common law discretion to exclude evidence and of the discretionary power to exclude evidence under section 78 of PACE. The relevantmaterial is addressedin paragraphs F2.7, F2.8-10 and F.2.36,of Blackstone’s Criminal Practice 2018

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key concepts in evidence

 

• Facts in issue

• Evidence   

• Proof

• Formal admissions

• Law of evidence

• Admissibility

• Relevance

• Exclusionary rules & exclusionary & inclusionary discretion

• Weight

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Preliminary evidential matters (2)

Law of evidence: body of rules, principles and discretions which determine whether a particular fact may be admitted as evidence.

• Admissibility: whether a piece of evidence is ‘acceptable’/can be received into evidence.  It must be relevant and not be excluded under an exclusionary rule or discretion.

• Relevance: evidence is relevant if it is logically probative or disprobative of a fact in issue.  In deciding whether something is relevant, ask the questions, ‘could the evidence properly influence the decision of the tribunal of fact on a particular point?'

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Preliminary evidential matters (4)

Exclusionary rules:prevent the admission of otherwise admissible evidence. Exclusion is mandatory if the rule applies. 

Example- rule against hearsay is an exclusionary rule (but subject to numerous exceptions), exclusion of confessions obtained by oppression or something said or done which is likely to render it unreliable (PACE 1984, s 76(2)(a)&(b))

Exclusionary discretion: exclusion not mandatory, but may occur by the exercise of judicial discretion. 

Examples- discretion to exclude evidence which is more prejudicial than probative (common law), confession evidence obtained by improper or unfair means after the commission of the offence (common law), evidence that would have such an adverse effect on the fairness of the trial that it ought not to be admitted (PACE 1984, s 78; see also CJA 2003, s 101(3) in respect of bad character evidence)

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Preliminary evidential matters-types of evidence

• Direct evidence:speaks for itself in proving a fact in proving a fact in issue.  No inference needs to be drawn. Example:  evidence of an identifying witness that he saw D, who he  knew, commit the crime.

• Circumstantial evidence:inference is drawn to prove the existence of another fact in issue. Example:murder weapon with accused’s fingerprint.

• Real evidence: usually a material object produced for inspection and courtdraws an inference from itsown observation ofit.

Examples:many varieties ofreal evidence,including physical appearance ofpeople or animals,demeanour,tone ofvoice on a tape recording,or ‘views’,ieinspection or viewing of a location or objectout ofcourt.

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Views as real evidence

§ Should be attended by judge, parties,advocates,jury and shorthand writer.

§ Should take place before conclusion ofthe evidence

§ Judge must produce ground rules for the view (Crim PD VI, para 26) containing details of what the jury should be shown, who is allowed to speak, what will be said, precautions preventing any witness communicating with the jury, and providing the jury with an opportunity to ask questions.

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Types of evidence

Collateralfacts:

These are facts which are not facts in issue, but are facts which affect collateral matters. Principally collateral facts affect: (i) the admissibility of evidence and (ii) the weightofevidence.

In respect of (i) (admissibility), examples are evidence of oppression in relation to a confession (see PACE 1984, s 76(2)(a)), or evidence on the issue of whether a witness is competent. These collateral facts are also referred to as ‘preliminary facts’. In respect of (ii) (facts affecting the weight of evidence) an example is facts affecting credibility (eg the witness’s bad character or mental illness affecting reliability).

Such facts do not directly prove a fact in issue, nor are they facts from which the existence ofanotherfactinissue may be inferred.

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Tribunal of fact and law

 On trial on indictment, matters of law are for the judge and questions of fact are for the jury. Where a judge sits without a jury in a trial on indictment, obviously the judge is the tribunal of fact and law.  This is also the situation in the magistrates’ court, where the lay bench or district judge are tribunals of fact and law.

• Examples of questions of law for the judge: fitness to plead, challenges to jurors, discharging the jury or a juror, competence, the admissibility of evidence, the withdrawal of an issue from the jury (eg the defence of self defence or loss of control), submissions of no case to answer, jury directions, bail, costs, leave to appeal, questions relating to the law in a foreign jurisdiction (see Administration of Justice Act 1920, s 15).

• Examples of questions of fact: whether D is genuinely standing mute, credibility and weight, the existence or non-existence of a fact applying the burden and standard of proof.

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Legal burden and evidential burden

• Legal burden: obligation to prove a fact in issue to the appropriate standard of proof.

• Evidential burden: obligation to adduce sufficient evidence on a fact(s) in issue to satisfy the judge that such issue should be considered by the tribunal of fact. Is there sufficient evidence to justify, as a possibility,  favourable finding by the tribunal. Sometimes referred to ‘as getting past the judge’.

• In a criminal case, the jury (DJ/Bench in the mags court) decide whether the legal burden is discharged, and judge decides on the evidential burden. 

• Raising issues about the evidential burden in a trial: may be raised through applications to dismiss as evidence of an essential element of the offence is missing, submissions of no case to answer at the end of the prosecution case, or where court raises the issue of its own volition. 

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Burden and standard of proof

General rule:in a criminal case, the burden to prove all elements of offence is on prosecution (Woolmingtonv DPP [1935] AC 462).  Upholds presumption of innocence.

Standard of proof where the prosecution bear the burden should be explained to the jury using the concept of ‘sure’ rather than ‘beyond reasonable doubt’.

See The Crown Court Compendium (Burden and standard of proof).

See also R v Majid [2009] EWCA Crim 2563 as an example of the kind of difficulties which can be encountered by judges if the standard of proof is explained by reference to both ‘sure and ‘beyond reasonable doubt’ and by drawing distinctions with the concept of ‘being certain’.

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Evidential burdens on the defence

• There is an evidential burden in respect of common law defences of self defence, duress, insane automatism and intoxication.  Also in respect of certain statutory defences, such as loss of control (see Coroners and Justice Act 2009, s 54).

• The evidential burden means that D must adduce sufficient evidence to raise the defence (‘get past the judge’).  If the burden is discharged then the prosecution bear the legal burden of disproving the defence to the standard of sure.  If the evidential burden born by D in respect of a defence is not discharged, the judge will rule as a matter of law that the defence is not open to D.

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Legal burden on the defence

• Statute has sometimes sought to impose a legal burden on D, called a ‘reverse burden’ in evidence (egHomicide Act 1957, s 2(2),in respect of the defence of diminished responsibility). Standard is balance of probabilities. An issue arises as to whether such burdens are compatible with ECHR, Article 6:part of the right to a fair trial is presumption of innocence.

• Courts approach the issue on a case by case basis and where imposing a legal burden on defence is found to be in breach of Article 6, it will be read down so as to impose only an evidential burden.

• In deciding the issue, the courts apply the principles set down in AG Ref (No 4 of 2002) [2005] 1 AC 264

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