Criminal Litigation

SRACC Code of Conduct 2011

Chapter 3 - Conflict of interests: 

E.g. when asked to represent 2 clients at the police station being interviewed about the same offence, there could be a conflict if one later pleads guilty. There could also be an issue with witness tampering regarding police station interviewing.

Chapter 4 - Confidentiality and disclosure:

Where these two duties conflict, protection of confidential information is paramount. A lawyer shouldn't continue to act for a client for whom the lawyer cannot disclose material information.

Chapter 5 - Your client and the court

A lawyer must not attempt to deceive or knowlingly or recklessly mislead the court. If a solicitor knows your client is going to lie to the police or court, a lawyer would need to explain to client that such a course cannot be pursued, would need to withdraw. If inadvertently misleads the court when becoming aware of it you must immediately inform the court. If the client doesn't consent, must cease to act. Suspicion isn't knowledge. 

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Brett v SRA [2014] (What if Pros provides incorrec

Overriding principle of safeguarding proper admin of justice and duty to court still stands, duty to court paramound, takes precedence over duty to client.

A lawyer is not under an obligation to correct incorrect information given by the prosecution or other party which could allow the court to make an incorrect assumption provided the lawyer doesn't indicate agreement with that information. If asked must correct. 

However, following new SRACC may be said that not correcting would not be upholding proper admin of justice and acting with integrity. Sensible to get client's permission and correct info. 

No wider obligation to disclose to court or prosecution fact or witnesses of assistance to other side, as you wouldn't be acting in best interests of the client (Principle 4) and breach of confidentiality

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What if?

What if a client admits guilty but wants to plead not guilty?

A defence lawyer may continue to act and represent client on a not guilty basis as it is a lawyer's professional duty to prove it's case beyond reasonable doubt. However, lawyer must not do anything that positively assert's client's innocence. If the client or another witness testifies that someone else committed the crime you would be misleading the court.

What if client has a defence but wishes to plead guilty?

Client might not want to stand trial even though he has a defence. It is the duty of a defence lawyer to point out the offence. If the client persists on pleading guilty because it is more convenient, can continue to act but client needs to be warned for mitigation we couldn't rely on the facts that constitute a defence. Should keep a note of advice given and ask client to sign a written statement.

What if a client is absent from trial?

Cannot tell court why client's aren't attending, court can't order you to waive privilege. Where client absconds, may tell court you are without instructions, may be appropriate to withdraw. Inform client he has a legal duty to attend, could commit offence and could be tried and convicted in absence.

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PACE

Supplemented by Codes that assist day to day implementation of PACE, practical guidance. Codes are not rules of law but breach of themm is admissable in evidence, whether evidence should be admitted. 

Code A - Police powers to stop and search in street

Code B - Police powers to search premises and seize property 

Code C - Detention, treatment and questioning of suspects at PS

Code D - ID procedures at PS

Code E - Audio recording of police interviews 

Code F - Video recording of police interviews 

Code G - Police powers of arrest

Code H - Detention, treatment and questioning of persons - terrorism

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PACE 2

Admissability of evidence obtained in consequences of an unlawful exercise of police powers and vulnerable to challenge. Can be challenged by defence under s.78 PACE 1984 on the basis it has an adverse effect on the fairness of proceedings.

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Arrest with a warrant (unusual nowadays)

Mags Court may issue warrant for arrest of a person - S1 MCA 1980 

Mags may issue warrant for arrest provided that:

- Person has, or is suspected of having committed an offence.

- Info relating to offence has been laid in writing 

- If suspect is aged 18 or over: 

        -> Offence indictable / punishable with imprisonment

        -> Suspect's address cannot be sufficiently established for service of summons

Orders arrest of accused and appearance before Mags Ct. 

To avoid defendant being held in custody unnecessarily, empowered to issue warrant 'backed for bail', empowers police to arrest but then release on bail subject to obligation to appear at mags at time specified on a warrant. s117 MCA (may surrender passport or regular reporting)

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Arrest without warrant

ss24 (power of arrest to police constables) and S24A PACE (citizens arrest)

Powers of Arrest by PO

Lawful arrest requires 2 elements:

- Grounds in s.24(1-3) must be met

- Necessity test must be complied with 

S24(1)

Constable may arrest without warrant:

a) anyone about to commit offence

b) anyone in act of committing offence 

c) anyone with reasonable grounds for suspecting about to commit offence or d) committing

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Arrest without warrant 2

S24(3)

If offence been committed, constable may arrest without warrant:

a) anyone guilty of an offence 

b) reasonable grounds for suspecting to be guilty 

When considering whether or not the suspicions of arresting PO was reasonable or not, attention will be paid to the information that was available to PO at the time as well as what was in mind of arresting officer.

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Necessity test s.24(5) PACE

As well as satisfying one of the grounds in s.24(1)-(3), officer must also prove he had reasonable grounds for believing an arrest was necessary for one or more reasons listed in s.24(5)

Reasons:

a) to enable persons name to be ascertained

b) same with address

c) prevent person in question:

     -causing physical injury to himself or any other person 

     -suffering physical injury 

     -causing loss/damage to property 

     -committing offence against public decency

     - causing unlawful obstruction of highway

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Necessity test s.24(5) PACE 2

d) protect child / vulnerable personf rom person in question

e) to allow prompt and effective investigation of offence or conduct of person in question 

f) prevent any prosecution for the offence from being hindered by disappearance of person in question 

Code G warns police absence of justification for exercising arrest may lead to challenge in court and claims against police for unlawful arrest and false imprisonment.

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s24A Citizens arrest

Indictable offences only

3 elements must be complied with:

- involvement in commission of an offence 

- necessity test 

- person who makes arrest must believe it isn't reasonably practicable for constable to arrest

Necessity test s24A(4)

a) causing physical injury to himself or any other person

b) suffering physical injury 

c) causing loss of or damage to property

d) making off before a constable can assume responsibility for him 

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Reasonable grounds test

Not defined by statute but has been considered in number of cases from which it is clear there is a 2 stage test, set out in O Hara v Chief Constable, Royal Ulster Constabulary [1997]

HL held test of reasonable grounds for suspicion fell into 2 parts:

1) must be actual suspicion on part of arresting officer 

2) reasonable grounds for that belief 

OBJECTIVE TEST 

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Procedure - Arrest

Requirements under s28 PACE must be complied with and must caution a suspect Code G, must be informed under arrest and informed of grounds. 

Failure to caution means an inference will not be drawn at trial from suspect's silence at any time before caution is correctly given. Could argue any evidence obtained before caution given has been unfairly obtained and is therefore inadmissable under s.78 PACE.

Street bail granted by police

S30A - where suspect arrested at scene of offence, suspect may be given 'street bail' without being taken to PS to be bailed. Required to attend PS at a later date, must be given written notice stating offence, time and date to attend PS. POA for failing to attend but not an offence for failing to answer police bail.

Conditional Street Bail

S30A-C enables PO to impose certain conditions at time street bail granted

Common conditions: residence, excl from particular place, non-contact with individual

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General powers Stop and Search under s1 PACE

S1 PACE - power to stop and search any person or vehicle in public place where the officer has reasonable grounds to suspect a person is in possession of stolen or prohibited articles or articles to which s1(7-8A) applies.

Para 1.4 Code A - primary purpose of stop and search powers is to enable an officer to allay or confirm his suspicion about individual possessing stolen / prohibited articles without exercising Powers of arrest.

Stop and search powers must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. 

Articles that can be searched for under s1 PACE 1984: 

- stolen articles                                        - article for criminal damage

- offensive weapons                                - prohibited fireworks

- articles made or adapted for use in burglary, theft, TWOC

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S1 PACE (Stop and search)

Reasonable grounds

2 stage test:

- Must have formed genuine suspicion that they will find an object

- Suspicion must be reasonable

Guidance

Can never be supported on generalisations or stereotypical images of people nor based on race / age / ethnic origin ot knowledge of persons previous conviction.

Groups para 2.6 Code A 

if reliable information that members of group/gang habitually carry knives or weapons or controlled drugs - may provide reasonable grounds to stop and search any person believed to be a member

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Place for Stop and search

Can be carried out in places which public has access

If suspect is in garden / yard / dwelling and officer has reasonable grounds to believe he does not reside in the dwelling and he is not there with express or implied permission.

Officer may stop and search for burglars

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Manner of Stop and Search

ss2(2) and ss2(3) - if officer not in uniform he should provide documents to prove he is a PO

should inform suspect of name, designated police station as well as grounds and object of search

Para 3 Code A - the cooperation of a person to be searched must be sought in every case, reasonable force should be the last resort 

May require suspect to remove only his outer clothing including jacket, gloves and coat. If grounds for more extensive search must be done in private

Must keep a record of search.

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Search in anticipation of violence s60

S60 CJPOA - stop and search where it is reasonably believed violence may take place in given area. 

Senior officer of at least rank inspector must give written authorisation specifying locality and time (usually 24 hour period) 

Officer may stop any pedestrian, vehicle, driver or passenger to search him or anything carried by him for offensive weapons / dangerous instruments. 

Power may be exercised without reasonable suspicion

s60AA CJPOA - power to demand removal of face coverings if reasonably believes person is wearing an item wholly or mainly for purpose of concealing identity.

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Road checks

S4 PACE - permits officer at least superintendent to give written authority for conduct of road check of all or any classes of vehicle in particular locality continuously or at given times during renewable 7 day period

Stop to ascertain whether vehicle is carrying a person:

- who has committed an offence other than a road traffic offence

- witnessed such an offence

- intending to commit such offence

- who is unlawfully at large

Wide powers to permit road block if officer has reasonable grounds indictable offence and for suspecting the person is or is about to be in the locality in which vehicles are stopped and for suspecting person responsible in that vehicle. 

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Search warrants Code B PACE

S8 PACE entitles PO to make app to a mag for warrant authorising officer to enter and search premises.

Officer must satisfy Mags that there are reasonable grounds for believing:

- indictable offence committed

- material on premises which is likely to be of substantial value to investigation of offence and

- material likely to be of relevant evidence

- items don't consist of or include items subject to legal professional privilege or exclude material or special procedure material

The app must specify one of the grounds under s8(3) 

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Search warrants Code B PACE

Where grounds satisfied, 2 types of search warrant may now be issued. 

1) Traditional specific premises warrant - authorising police to search address specified on warrant

2) All premises warrant - covers all premises owned / occupied by person named in app s8(1A) PACE - Permits multiple visits on multiple occasions to list of premises specified on warrant - subject to requirement that any second and subsequent visits must be authorised by officer

Entry and search must be completed within 3 months 

Must supply copy of warrant - must be 2 copies 

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Matters excluded from seizure under search warrant

i) Items excluded covered by legal professional privilege

S8 excludes these, which can include communications between professional legal adviser and his client. 

ii) Excluded material under S11 PACE 

a) personal records acquired or created in course of trade / business 

b) human tissue / tissue fluid taken for purposes of diagnosis / medical treatment  

c) journalistic material held in confidence

iii) "Special procedure" material

s14 - material under express / implied undertaking to keep it confidential

PO who requires this material must make app to Circuit Judge under s9(1) PACE

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Powers of Seizure given

s19 PACE - general power exercisable by PO who is lawfully on a premises to seize anything if he has reasonable grounds for believing:

- it has been obtained in consequence of the commission of an offence and necessary to seize to prevent it being concealed, lost, damaged, altered or destroyed

- evidence in relation to an offence which he is investigating or any other offence and necessary to seize to prevent above

PCSO's have same powers as constables within s19

s50 CJPA 2011 - extended powers to seize item and take it away from place of seizure to make further investigations about nature and composition, must not be reasonably practicable for matter to be determined on premises where goods discovered. 

s51 CJPA 2011 - seize items recovered from personal search, example personal computer, laptop or other large device. 

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Search of premises without warrant

SS17, SS18 and s32 PACE gives police number of powers to search premises without warrant

S17

Constable may enter and search premises to:

a) execute warrant of arrest / warrant of committal to prison

b) arrest person for indictable offence

c) arrest in respect of specified non-indictable offences

d) recapture person unlawfully at large and which he is pursuing

e) save life/limb or prevent serious damage to property

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Search of premises without warrant 2

s18 PACE deals with search of premises occupied or controlled by a person who is under arrest for an indicatable offence and permits search if reasonable grounds for suspecting evidence of an offence or connected to an offence. 

s32 PACE confers power to enter and search any premises which the suspect was in when arrested or immediately before he was arrested for evidence relating to the offence. 

Applies to indicatable offence and restricted by s32(6) which forbids such search unless there are reasonable grounds. In ever case, it is a question of fact. 

Common law powers - with permission of occupier, recommended obtained in writing

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Search of person after arrest

Ss32 and ss54 permit the police to search an arrested person in the following circumstances:

1) ss32(1) permits constable to search arrested person in any case where person has been arrested in place other than PS if he has reasonable grounds for believing the arrested person:

a) may present danger to himself or others

b) may have concealed on him anything which he might use to assist him or escape from lawful custody

c) may have concealed evidence relating to offence 

2) custody officer obliged to ascertain everything person has when brought to PS 

S54 - member of same-sex - ***** search. Only may be carried out in 2 circumstances:

   1: where custody officer thinks necessary to remove an article which detained person isn't allowed to keep in detention and officer believes he's concealing

   2: if tattoo could identify person for offence, identifying marks could be photographed

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S36 Custody officers

S36 PACE creates post of custody officer, must be a sergeant, responsible for arrested persons treatment from time of arrival at PS. Must ensure PACE and CODES are complied with. 

Must be independent of police investigation, must open and maintain custody record. 

Code C permits suspect's legal adviser to request copy of custody record - first document you should ask for as it may raise q's of admissability. (RECORD NOT OPENED FOR VA'S)

CO must inform suspect of his rights and give written notice.

CO must carry out risk assessment, whether in need of medical attention, needs interpreter, juvenile, has MH disorderor otherwise mentally vulnerable, triggering need for AA. 

After formalities, CO has duty to determine whether there is sufficient evidence to charge suspect with offence he's arrested for s37(1) PACE. 

Decision whether to charge or not for most part taken by CPS lawyer, some instances CO may make the decision. 

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S36 Custody officers 2

CO must determine if there is sufficient evidence as soon as practicable after arrested person arrives at PS.

If a suspect is charged, CO determines whether defendant should be granted bail pending first appearance for matter before the court. 

Key point: most cases not possible to making a charging decision immediately. 

Where CO determines he doesn't have sufficient evidence to charge, must release suspect with / without bail unless under s37(2) he has reasonable grounds detention without charge is necessary:

secure / preserve evidence relating to offence

obtain such evidence through questioning 

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Detention without charge - time limits

PACE imposes general time limit of 24 hours on suspect's detention without charge unless detained in connection with indictable offence

Max period for detention without charge for a summary offence is 24 hours - then must be released, either on bail or not bail or charged. 

S42 PACE  - suspect to be detained without charge for indictable offence is longer than 24 hours and up to max 96 hours provided certain conditions met. 

If at any time during detention without charge it becomes clear the grounds for detention have ceased to apply, CO has duty to order suspects immediate release from custody without bail unless need for further investigation

S42(1) SI may initially authorise detention without charge to 36 hours if necessary to secure or preserve evidence and indictable offence, justification must be in CR. Before 12 hour ext expires, police may apply to Mags for warrant of further detention - court must be satisfied being handled diligently and expeditiously

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Obligation for continual review of Det without cha

S40 PACE obliges review officer at least inspector who isn't directly involved to review detention no later than 6 hours after detention, further reviews every 9 hours (can be reviewed by telephone if not practicable for inspector to be present s40A (1)-(2)

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Suspect's rights at PS

Fundamental rights

- Right to adequately heated, clean and ventilated cell with access to toilet facilities

- Right to at least 2 light meals and 1 main meal in 24 hour period with regular refreshments

- Receive appropriate clinical attention if suffering from physical illness, injured or mental disorder

- in any 24 hour period, suspect must be allowed at least 8 hours continuous rest, preferably at night

- breaks during interview at normal meal times and short breaks every 2 hours 

- right to interpreter

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Suspect's right to inform someone of arrest

S56(1) entitled to inform friend, relative or other person

May be delayed where grounds in s56(2) (5) or (5A) apply:

arrested for indictable offence 

- officer of at least inspector authorises delay as has reasonable grounds to believe that telling a suspect's relative / friend could lead to interference with or harm to evidence, or interference with or physical injury to others, or lead to other suspected persons. 

Reason for delay must be given to suspect orally or in writing and noted on CR and if justified must not exceed 36 hours. 

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Suspects right to Legal Advice s58 PACE

Consultation must be in private either in person or on telephone. 

Same reason for possible delay as with the right to inform (s56)

Where suspect has not had the benefit of legal advice, s34(2A) CJPOA no adverse inferences can be drawn from suspect's silence when questioned by police or being charged

Police must remind suspect of this right at following stages of detention:

- immediately before commencement or recommencement of interview at PS

- before review of detention takes place

- after suspect's been charged if PO wishes to draw suspect's attention to written or oral statement

- if further questioning

- before ID parade and before intimate body sample required

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Interview under caution

Wherever held, it should be audio recorded Code E or recorded by police in writing. 

Non-taped interviews

accurate written record - suspect has to read and sign as correct, usually in officers' notebook, suspect's solicitor must also sign

Audio recording of interviews 

Governed by Code E - recorded interviews shall be made for indictable offences, discretion to interview in respect of summary only offences 

3 recordings made: working copy, one sealed and one given to interviewee.

Defence has right to access copy of recording

Comments made outside of interview

Must be timed and signed

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Interview

Fitness: if drunk or under influence of illicit substance, healthcare professional to determine suspect's fitness to be interviewed

Oppressive interviews

Para 11.5 Code C prohibits oppressive interviews, if obtained this way judge may exclude this.

An interview may be oppressive due to number of factors:

- physical environment of interview (must be properly heated, lit and ventilated)

- treatment of suspect

- style of police questions 

If defence or court raises admissability of suspect's confession, prosecution is required to prove beyond reasonable doubt the confession was not obtained by oppression

When during interview OIC reasonably believes there is sufficient evidence to provide realistic chance of conviction for offence, interview should cease immediately and CO should be informed

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Legal Adviser Role - Interview

Ensure suspect fully understands choices available to him, what to do in interview: answer q's and/or advance a defence, exercise right to silence or to put forward defence statement.

Ensure accurate record kept of interview

Ensure police act fairly at all times and comply with substantive provisions of PACE

Protect suspect from unnecessary pressure and distress

Protect vulnerable suspect

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Advising suspect what to do in interview

Prepared statement - then remaining silent

May protect suspect from having adverse inference being drawn, provided defence advanced at trial is the same. Any material departure from prepared statement likely to be subject to adverse comment and possible inference. 

NEVER ADVISABLE TO ANSWER SOME Q'S BUT NOT OTHERS. 

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What to do in interview - Answering Q's

Advantages

1) If has defence, can put it forward straight away and if the police accept it, they might not proceed further against him

2) If he puts his version and defence at future trial is the same, would avoid AI's being drawn under s34, 36 and 37 CJPOA

3) if admitting guilt, full credit will be given on sentence, some cases can result in a caution

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What to do in interview - Remaining silent

Would avoid falling into following traps:

- Wouldn't be at risk of saying something incriminating or admitting offence or giving police additional evidence they didn't have

- Can be rattled in interview and lose temper, can come across badly in trial if played

- Prevent police ambushing with something contradicting what he already said (like disclosing CCTV when he said he wasn't there)

- if police catch him lying in interview it can be used against him in trial 

Main disadvantage - risk of AI's

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Questioning after charge

Generally prohibited under Code C but exception Para 16.5 Code C where interview necessary:

- prevent or minimise harm or loss to some other person / public

- clear ambiguity

- if info came to light since charged or informed will be prosecuted

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Treatment of juveniles or other vulnerable suspect

No children under 10 should be held or arrested at PS as age of criminal responsibility is 10.

Police need to identify person responsible for their welfare to act as Appropriate Adult. Appropriate adult must be informed of grounds and place of detention as soon as practicable and asked to come to PS. Legal adviser should always check this has been done. 

Para 8.8 Code C - juvenile shall not be placed in a police cell unless no other secure accommodation available

For intimate samples, consent of parent or guardian required if under 14, if between 14 and 17 both his and parent/guardian's consent required.

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Role of appropriate adult

AA likely to be parent/guardian, social worker or another responsible adult (Estranged parent or person who may be involved in the crime as well as legal adviser all wouldn't be suitable)

- Ensure interview conducted fairly and to act as barrier

- Should be pro-active to ensure police don't take advantage of juvenile's youth innocence or inexperience

Mentallty disordered or mentally vulnerable suspects should get an AA also, which could be a specialist social worker

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Detention and q of those arrested - terrorism

PACE CODE H

No bail pre or post charge 

Cases must be dealt with expeditiously

If authorised by most senior PO, suspects may only be allowed access to solicitor in sight and hearing of designated officer if considered necessary for national security and suspect arrested under s41 TACT

Detention without charge permitted for up to 48 hours and then max 14 days if authorised by a judge. 

s22 CTA 2008 and Para 15 Code H - post charge q's

- post charge q's must be authorised by judge if satisfied it is a terrorist case, further q's are necessary and it will not interfere with prep of suspect's defence

- Judge can authorise further q's up to 48 hours

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Drug testing at PS

s63B PACE

Police can demand urine sample from suspect on arrest or after charge to test for Class A drug, if test is positive will be passed to court - affect decision of bail

Failure to give sample or consent to initial assessment or follow up treatment constitutes criminal offence under s63 C with max penalty 3 months - must be informed it would be an offence 

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Eyewitness ID - known and unknown suspects

CODE D

'Known suspects' - para 3.4 

suspect known when there is sufficient information known to police to justify arrest of particular suspect for suspected involvement in offence

suspect available if immediately or available or available within reasonable period of time and willing to take part in ID procedure

'Unknown suspects' - para 3.2

PO may take witness to particular neighbourhood or place if witness can identify suspect - Code D provides safeguards when taken to area. Detailed record of circumstances must be kept and police must not direct witnesses attention to particular individual

SHOWING PHOTOS TO WITNESS

Should be shown AT LEAST 12 photos at a time of similar type 

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Where suspect 'known' or 'available'

Should proceed to normal ID procedure 

Video ID preferred

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When must ID procedure be held?

a) if eyewitness identified a suspect / purported to have identified them 

b) eye witness available who expresses ability to identify suspect; or

c) reasonable chance of eyewitness being able to identify suspect 

and eyewitness in (a) to (c) hasn't been given opportunity to identify suspect in any ID procedure then it shall be held the suspect disputes being the person the eyewitness claims to have seen on a previous occasion, unless: not practicable or if there is no useful purpose

'no useful purpose' test:

where it is not disputed suspect already well known to witness who claims to have seen him commit the crime 'recognition case'

or 

where suspect admits to being at scene or account of what took place is not contradicted

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Types of ID procedures

Video ID Annex A Code D

code requires that video ID should take priority, however if not practicable ID parade 

witness shown images, together with moving images of 8 other people who resemble suspect, in terms of age, general appearance and position in life, if scar or tattoo efforts should be made to conceal location of feature on image

ID parades Annex B Code D

where witness sees suspect in line of others who resemble suspect, should consist of at least 8 people who resemble, if unusual physical feature steps can be taken to conceal feature on suspect and other members if suspect and solicitor agree, can say if any objections to participants, suspect can choose position in line

It is advisable for suspect to agree to such identification methods, otherwise their refusal may lead to AI's being drawn in court and police can use less favurable methods of ID like confrontation

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Types of ID procedures 2

Group ID Annex C Code D

witness sees suspect in informal group of people but outside of controlled environment of police station i.e railway station or shopping centre

Location chosen should be where others are walking by or waiting informally in groups so suspect is able to join and be seen by witness at same time as others in the group

Group ID can take place with or without suspect's consent 

Confrontation by witness Annex D Code D

When none of the other options available. 

Witness is taken to suspect and asked whether suspect is person in question. Consent not required before this can take place. 

Legal rep can make reps as to most appropriate ID

Failing to take part can lead to prejudicial ID procedure being adopted and AI's

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Body samples used for DNA Analysis

Intimate - s62 PACE

s65 PACE: includes blood, semen or other tissue fluid, pubic hair or dental impression

Can only be requested when:

- officer of at least inspector rank authorises

- reasonable grounds for suspecting person to be involved in recordable offence 

- reasonable grounds for believing sample would tend to confirm or disprove his involvement 

- suspect gives written consent

If intimate sample taken without relevant authority, police may be subjecting suspect to inhuman and degrading treatment under Artile 3 ECHR and right to privacy Article 8 

Where refuses to consent without good cause, s.62(10) PACE provides inferences may be drawn in future proceedings

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Non-intimate samples s63

S63 provides for non-intimate samples

Under S65 non-intimate samples are:

- sample of hair

- sample taken from nail / under nail

- saliva

- skin impression other than fingerprints

Can be taken where: 

- have suspect's consent 

- without consent if suspected for recordable offence

- necessary to assist in prevention / detection of crime

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Fingerprinting s61

Can be taken where:

- with consent in wiritng at PS

- without consent when arrested for recordable offence

- without consent when charged for recordable offence

- without consent where officer reasonably suspects person is committing / attempting to commit offence - removes need for person to be arrested where principal purpose for arrest is to confirm identity 

RECORDABLE OFFENCE - all offences punishable by imprisonment 

Reasonable force may be used

Sch2A PACE gives police power to req attendance at PS by person no longer in detention for purpose of taking biometric data, fingerprints or non-intimate sample, can arrest those who don't attend

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Retention of samples and data

s64 PACE police entitled to retain even when suspect is not charged or is acquitted

Was challenged under Article 8 S + Marper v UK [2008]  Ruled policy breached Article 8. Position now governed by Protection of Freedoms Act 2012

If suspect arrested for minor offences but never convicted, any DNA and fingerprints taken from suspect by police must be destroyed once fulfilled purpose for which they taken.

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Excluding illegally / unfairly obtained evidence a

Defence may submit under s78 PACE that such evidence could be excluded on the ground that it's admission would have adverse effect on fairnes of proceedings

s82(3) PACE common law powers to exclude evidence where it's probative value would be outweighed by prejudicial effect 

Defence may make submissions under s78 and/or s82(3) that evidence obtained as a result of breaches should not be put before court as part of prosecution case

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Proceeding against suspect

At conclusion of investigation, police may:

- release suspect without charge 

- release on bail

- charge

- caution

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Decision to charge

Shared between police and CPS depending on nature and seriousness

1) must be sufficient evidence to achieve realistic prospect of conviction

2) must be in public interest for suspect to be charged

If both satisfied, will be charged or served with postal requisition

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Where sufficient evidence to charge

s37(7) requires suspect must either be:

- released without charge and on bail or kept in police detention for purpose of enabling CPS to decide whether sufficient evidence to prosecute / caution him

- released without charge and on bail (pending further investigation)

- released without charge and without bail

- charged

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Criminal Procedure Rules 2015

All cases to be dealt with justly

To ensure this overriding objective is achieved, courts required to engage in robust and active management of cases

Court may impose sanctions on parties for failing to comply with rule/direction of court i.e. wasted costs orders, exclusion of evidence or refusal of request for adjournment

DPP v Hammerton [2009] - Mags Court upheld decision of mags court to refuse to allow CPS to substitute a less serious charge at a late stage and for no good reason, actions of CPS inconsistent with overriding objective

Common law offences - not created by statute i.e. murder and breach of peace

Statutory offences - theft, robbery and burglary by the Theft Act 1968

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Indictable offences

Any offence which may be tried in Crown Court and includes indictable only offences like murder and robbery and E-w offences like Theft.

Police may be able to use extended powers of detention over suspect at PS including detaining without charge for more than 24 hours and/or suspending right to legal advice under s58 PACE where appropriate conditions apply 

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Classification by trial venue

Summary Only offences 

less serious, Mags Court e.g. TWOC and Common assault

Triable Either-Way

middle ranked i.e. theft

decision about where it is to be tried is made at allocation hearing conducted under ss17-21 Mags Ct Act 1980

Indictable only

most serious i.e. murder and ****

prosecution would start in Mags but not remain there 

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Magistrates court

Except if charge is murder, determines whether accused should be remanded in custody or on bail when adjournment is required

Determines allocation for E-W offences

Sends indictable only offences to Crown Court under s51 Crime and Disorder Act 1998

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Youth Court

Juveniles appear here unless jointly charged with adult when they are likely to be tried in adult mags ct or when a juvenile is charged with 'grave crime' s91 PCC(S)A 2000

Each court has a youth court panel consisting of mags appointed because of suitability for dealing with juvenile cases 

Public are excluded from court proceedings

Court must consist of no more than 3 mags and must include at least one person of each sex (DJ can sit alone)

Proceedings and charge explained 

Bench records finding of guilt not conviction

Bench makes order upon finding of guilt not sentence

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Crown Court

sentences offenders who may have pleaded guilty and are sent for sentence by Mags

hears appeals by def or pros against refusal by mags ct to grant bail

hears appeals against conviction by mags and/or against sentences imposed by mags

judge decides matters of law and evidence, jury decides issues of fact, whether guilty or not guilty 

judge rules on admissability of evidence, jury determines how much weight should be attached

judge instructs jury on what matters must be proved by prosecution and where relevant by defence

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Abuse of process

Court can bring case to a halt if prosecution abuses it's powers. 

DPP v Humphrys [1977]

Decision to stay a case for abuse of process is a serious step, generally granted for 2 reasons: either def won't get fair trial or unfair to try defendant

Examples of abuse of process:

- entrapment by prosecuting authorities

- abuse of executive power

- failing to honour promise made to accused

- failing to secure / destroying evidence

- lengthy delay which causes prejudice

Burden of proof for abuse of process rests on accused - balance of probabilities

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Defendants costs order - acquitted def's

Legally aided acquitted def's costs met under rep order. 

If incurred expenditure in defence generally entitled to reimburse costs occurred in conducting defence out of central funds - such amount as court considers reasonably sufficient to compensate for costs incurred s16 Prosecution of Offences Act 1985

Provision on LASPO 2012 - amount payable to privately paying acquitted def out of central funds capped to Legal Aid rates for acquittals before Mags Ct

People who were refused CC Legal Aid because they are above financial eligibility threshold required to pay privately for costs of defence - if found NG can apply to reclaim defence costs from central funds - LA rates and would have to show refusal notice

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Defendants costs order - convicted def's

May be ordered to pay just and reasonable prosecution costs in respect of any kind of trial s18 POA 1985 whether or not they were publicly funded

Prosecution costs payable in event of conviction higher in Crown Court and substantially higher if found guilty after trial - consider when deciding whether to elect trial in CC

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Public funding in criminal cases LASPO 2012

Advice and assistance at PS: free representation at PS for all by duty solicitor or accredited solicitor of their own choice not subject to means testing. (DSCC) Fixed Fee, if long and complex may be able to claim more. 

Free standing advice and assistance: CRM1 and CRM2 e.g. attending client in office and providing letter of advice, also covers investigation by DWP - not available after charge, summons or requisition 

Advocacy assistance: CRM3 - narrow cases, includes representations before Mags Ct seeking to challenge warrant of further detention proceedings or pre-charge bail conditions and representation before CC in relation to appeal against various orders 

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Court Duty Solicitor Scheme

May pay privately, apply for Legal Aid or be represented under Court Duty (free)

Representation available if:

- in custody

- charged or summonsed in connection with imprisonable offence 

- applying for bail

- risk of imprisonment for failing to pay fine or obey court order

- those who appear before mags and wish to make bail app 

Duty scheme limited - does not involve trial or non-imprisonable offences 

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Applying for rep order

CRM14 eform

Interests of Justice (merits) test:

- automatically satisfied in case where accused charged with indicatable only offences tha is sent to CC 

- if summary or either way - interests of justice must be met 

if E-W doesn't meet the test but is sent to Crown court will auto satisfy

 

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Rep order may be granted only if the following app

- offence is such that if proved, defendant likely to lose his liberty / livelihood or suffer serious damage to reputation

- case involves substantial q of law

- def under mental / physical disability or inadequate knowledge of English such that def unable to follow proceedings or put his case

- defence will involve tracing or interviewing of witnesses or expert cross examination of prosecution witness

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IOJ test - likelihood of deprivation of liberty

If it is a serious offence

If has previous convictions

If breached suspended sentence or probation order which can increase sentence 

Seriousness and circumstances of offence should be taken into account including details of any aggravating circumstances

refer to sentencing guidelines and threshold tests for custodial sentences in s152 CJA 2003 Onus is on applicant to state why sentence is likely 

Test: whether real and practical risk of imprisonment or other form of deprivation of liberty, can include any sentence of imprisonment, immediate or suspended or detention in YOI

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IOJ test - loss of livelihood + serious damage to

loss of livelihood

Applicant must explain why this is likely

Public funding not normally granted where accused will be disqualified from driving under totting up procedure when applicant can show there is real risk of dismissal from employment 

serious damage to reputation

if of previous good character

likely to be satisfied where he occupies position of standing in the community like clergy, solicitor or doctor (special factors include religious/cultural background)

applicant with previous convictions unlikely to show a further conviction will seriously damage his reputation

may satisfy test where an effective plea in mitigation for any charge may lessen severity of both sentence and damage to reputation

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IOJ test - Substantial q of law / mental/physical

Substantial q of law

If there is a q of law client cannot be expected to deal with unaided

Point of law might relate for example to the substantive criminal law - challenge to admissability of evidence

Mental/physical ability 

Includes blindness, deafness, speech impairment or mental disorder/disability

Court may request medical report or certificate

Expert cross-exam 

If witness is an expert 

If PO needs to be cross-examined about breaches of PACE or ID witnesses

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IOJ test - Rep order desirable in interests of som

May apply where s34 YJCEA relevant. Where def charged with sexual offence shall not cross-examine complainant in person - same where s35 applies. 

s38 YJCEA provides for appointment of legal rep to cross examine a witness whom an unrepresented def is prohibited from cross-examining 

If def fails to do this, court may appoint rep for cross-exam 

Principle may also apply to other cases where alleged victim is young or frail, being cross-examiend by accused might put them under undue strain.

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Means test

Some applicants passported so not subject to means test. 

"passported applicants"

- applicants under 18

- applicants in receipt of any of following benefits: income support, income based JSA, pension credit, income related ESA, Universal credit - Must provide NI if 16+ or proof of benefit

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Means test - Mags Ct

assessment of income alone 

capital is not taken into account (unlike in CC)

"in or out scheme" 

In Mags, applicant will be subject to intiial means test to assess adjusted gross annual income 

- where gross annual income on intiial means assessment exceeds £22,325 - not eligible for Legal Aid 

- where gross annual income is £12,475 or less, eligible for LA, CRM15 doesn't need to be completed 

- where applicant means falls between the two threshold, full means test will be conducted. 

Full means test takes into account: if disposable income less than £3,398, will be LA

All Income, Tax and NI contributions, annual housing costs, annual childcare costs, annual maintenance to former partners and any children, an adjusted annual living allowance 

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Means test - Mags Ct 2

Proof of income maybe waived for employed/self-employed applicant who has been produced before Mags Court in police custody who is remanded into custody by Mags as cannot get financial info

Partners income included in assessment of means but not when partner has a contrary interest, where partner is:

- alleged victim

- prosecutionwitness 

- both def's and there is a conflict 

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Means test - Crown Court

Financial eligibility threshold - ensures wealthiest Crown Court def's who able to pay privately are not auto provided with Legal Aid at taxpayers expense.

Person who has disposable annual household income of £37,500 or more will be refused Legal Aid

2 ways in which decision to refuse LA may be reviewed:

1) mistake in calculation / admin error - inform court within 21 days of refusal notice

2) eligiblity review - if above threshold but can demonstrate he can't afford to pay privately - would apply to LAA via HMCTS on CRM16 within 21 days of date of refusal notice sent by court 

CRM16 asks for details of types of expenditure that aren't taken into account in means test and estimate of likely costs 

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Means test - Crown Court 2

Those whose annual household disposable income is below upper threshold of £37,500, contribution test. Assessed against applicant's income, capital or combination, providing additional info on CRM15 including capital assets 

"passported" applicants qualify automatically

No income contribution required if passes initial means test - annual disposable income less than £3,398

If disposable income exceeds this amount, he will have to pay contribution to costs towards costs of his defence. 

Contribution will be 90% of monthly disposable income for 6 months 

If acquitted, all income based payments under contribution notice will be refunded with interest

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Means test - Crown Court 3

If defendant convicted will have to pay defence costs from capital if he has £30,000 or more of assets, that is savings, equity in property, shares and premium bonds if costs not already covered by income contributions

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Appeal against refusal to grant Legal Aid

Refusal under merits test

Entitled to make further app and thereafter, if continued to be refused on grounds of failure to satisfy IOJ, applicant may appeal in writing to Mags, can be heard by bench of mags or DJ

Refusal under means test

No grounds of appeal to court where refusal made on basis of failure to satisfy means test

Applicants entitled to review of their app if there was admin error or haven't passed financial eligibility but generally unable to pay for defence costs HARDSHIP REVIEW CRM16

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What does a Legal aid order cover?

Mags Ct

Disbursements, CRM4, Prior authority

May also recover under early cover scheme or pre-order scheme despite being no rep order in place

Crown Court

Where rep order is granted to cover cases triable on indictment, order will cover costs of rep in CC, and will extend to obtaining advice when appealing against conviction and/or sentence to Court of Appeal

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Prima Facie Right to Bail - s4 Bail Act 1976

Rebuttable presumption in favour of bail at all stages of prosecution until conviction and after conviction where court adjourns case for reports.

Presumption puts onus on prosecution to show good reason why bail should be withheld

Presumption subject to s25 CJPOA 1994 applies where-

- person in any proceedings has been charged with / convicted of any of following offences: murder, attempted murder, manslaughter, ****/attempted **** and certain serious sexual offences

- that person previously convicted in UK of offences listed above

In these circumstances, police or court may grant bail only if satisfied there are exceptional circumstances to justify release on bail. 

When charged with murder, may not be granted bail except when ordered by CC judge.

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Grounds for refusing bail (stat grounds from BA)

- indictable imprisonable offence Para 2 - where substantial grounds for believing that the accused would:

a) fail to surrender to custody or

b) commit offence while on bail

c) interfere with witnesses or otherwise obstruct course of justice 

Para 1A: prevents court from remanding in custody for any of these reasons unless there is real prospect he'll receive custody if convicted

or not grant bail if: Para 2za - would commit offence or cause physical/mental injury or someone to fear this

Para 3 - not granted where satisfied he should be kept in custody for own protection

Para 4 - where already serving custodial sentence

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Bail - indictable imprisonable offence continued

Para 5 - where court satisfied it has not been practicable to obtain sufficient info for purpose of taking decisions req by BA

Para 6 - if having been released on bail he's been arrested for absconding or breaking bail conditions 

Para 6A - 6C applies where defendant is aged over 18, tested positive for Class A drug, substantial grounds for believing misuse of drugs contributed to offence and def doesn't agree to undertake assessment - court may not grant bail unless satisfied no significant risk of defendant committing offence on bail. 

Para 7 - bail need not be granted where case has been adjourned for enquiries / report and it would be impracticable without keeping him in custody

Majority of contested bail hearings relate to Para 2(1)(a)-(c) - risk of failure to surrender, commission of further offences while on bail and interference with witnesses or course of justice 

When court considers bail under Paras 2, 2A, 6, 6A and 6ZA has to regard to Par9 P1 Sch1BA

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Statutory factors Para 9 Part 1 Sch 1 BA

1) Nature and seriousness of offence and probable method of dealing with defendant

Court will have regard to aggravating features in commission of alleged offence and SG's which will apply in event of conviction

2) accused character, antecedents, associations, community ties 

Character can include pre-con's

3) accused record if previously granted bail

4) strength of evidence against accused

5) offences likely if on bail

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Grounds for refusing bail (summary only imprisonab

Part 1A Sch1 BA 1996

Need not be granted where:

- failed to surrender to custody after previously been granted bail and court believes he would do so again

- was on bail on date of offence and court has substantial grounds to believe if released would commit offence on bail

- likely to commit offence by engaging in conduct likely to cause another person physical or mental injury 

- should be kept in custody for own protection

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Grounds for refusing bail (non-imprisonable)

e.g. careless driving - Part II Sch 1 BA 1976

Aged 18 need not be granted bail if: 

- previously failed to surrender

- for own welfare and protection

- already in custody

- been arrested for absconding / breaking bail conditions 

Bail rarely refused for non-imprisonable offences 

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Procedure for bail app

Usual practice after court decided to adjourn case is for prosecution to state whether it opposes bail and if so make reps against bail being granted

Contested bail hearing takes form of minitrial. 

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Conditions attached to bail

Conditions imposed on grant of bail can include sureties, security by the accused or other misc conditions

Common conditions:

residence at particular address

curfew - electronic tagging / doorstep req

not to enter certain place

not to approach or communicate with named individual

Other less common include:

1) sureties - person who agrees to pay all or part of specified sum of money which may be forfeited if fails to surrender, only accepted if known to def, decide how much court considers depends on financial resources, character and prev convictions and proxmity to surety person

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Conditions attached to bail 2

2) security

- defendant or somebody on his behalf giving security for his release on bail 

- money paid in advance usually to solicitors who will hold money in bank

- should surrender passport 

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Obligations while subject to conditional bail

Failure to abide can lead to arrest and reappearance before court in custody (s7 BA

Power of Arrest  - reasonable grounds for believing person has broken or about to break bail condition 

Breach of bail conditions is NOT an offence itself BUT can lead to serious consequences for defendant - may be remanded in custody

OR, if court decides he should have another chance, may vary conditions so MORE stringent and provide less opportunity for further breach 

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Procedure where breach of bail alleged

Following a breach, must be brought before Mags CT within 24 hours excluding Sundays

Hearing must take place and Mags complete investigation and make decision within 24 hours 

Delay MUST result in automatic release 

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Varying court imposed bail conditions

ss8(a) and (b) BA 1976 - either side may apply to have them varied or for prosecution to have conditions imposed on granting of unconditional bail 

Defendant to apply - requires application to court that imposed conditions or CC if matter been sent there for trial / sentence

Circumstances can change meaning conditions impracticable or unworkable

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Further bail apps

Defendant is prevented from making further apps BUT court under duty to consider grant of bail at each hearing

App for bail can be made at first hearing - if refused at first hearing, app may be made at next hearing, can be based on same grounds as first 

If full argument not made by defendant at 1st hearing, opportunity to apply for bail is lost so if bail is refused at next hearing 2 opportunties are used - same applies if argument made at 1st hearing but not the 2nd, no right to second app at 3rd hearing.

Following 2 refusals to grant bail, further apps may be made but only if new arguments as to fact/law. -  includes change in circumstances i.e. new address

- new fact does not need to be exceptional in nature

- test - whether any new issues not before court 

- change in charge against def or change in strength of pros evidence

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Remand periods

Before trial where def refused bail in mags, can be remanded in custody for max 8 clear days.

s128 MCA  - on first or any subsequent occasion when mags court proposes to adjourn and remand in custody prior to sending to Crown Court or summary trial if defendant consents and has legal rep he may be remanded for up to 3 consecutive occasions in his absence, although case will be mentioned each week so mags may formally remand again. Must be produced on 4th Occasion.

s128A MCA - whether def consents or not, can be remanded for up to 28 days if previously been remanded, is now before court and court has fixed date for next 'effective' hearing - applies for second/subsequent remand.

Convicted defendant can be remanded in custody for up to 3 weeks (4 weeks if on bail) to prepare PSR report.

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Challenging bail decision - Appeal to Crown Ct by

When Mags hear full app for bail, courts must issue full argument certificate specifying reasons for decision - defendant entitled to copy.

Defendant may appeal to Crown Ct judge under s81 Senior Courts Act 1981

Appeals for refusal of bail usually dealt with within 48 hours of initial refusal - defence must give notice of intention to appeal to CPS

Appeal take place before CC judge and will take form of complete re-hearing

Appeal will be covered by existing rep order

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Challenging bail decision - Appeal to Crown Ct by

s1 Bail (amendment) Act 1993

Must give notice of appeal at conclusion of proceedings where bail was granted and before defendant released from custody, oral notice must be confirmed in writing within 2 hours after proceedings end 

Pending appeal mags must remand defendant in custody, court must hear it within 48 hours

Can also appeal to High Court against decision of CCJ to grant bail to person charged with or convicted for imprisonable offence

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Reconsideration of bail

s5B BA 1976 - court will reconsider granting of bail on app by prosecution. 

Applies only if offence is indictable only or triable either way

App must be based on info not available to court or police at last hearing - new info must have come to light

Court may vary conditions, impose new ones or remand in custody.  

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Absconding

s6 BA makes it offence for person released on bail in criminal proceedings to fail without reasonable cause to surrender to custody.

s7BA either immediate warrant or warrant backed for bail - abscond punishable by 3 months imprisonment or unlimited fine by Mags Ct or by 12 months custody or unlimited fine by Crown Court

If a defendant wants to show he had reasonable cause for failing to surrender he must surrender as soon as practicable - failure to do so would be an offence s6(2) BA 

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Custody time limits following refusal of bail

When the accused has been refused bail s22POA 1985 and PO(CTL)R 1987 - max period defendant may be kept in detention before completion of particular proceedings 

Once time limit expires, absolute right to bail

Summary offence - first court appearance and start of trial, time limit 56 days

Either way - first court appearance and start of summary trial or sending to crown court - 70 days

Indictable only - First court appearance and decision to send to CC 

Either way/indictable only - Sent to Crown Court - time sent to Crown Court - 182 days

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Extending custody time limits (bail)

Prosecution can apply to court for it to be extended beyond statutory limits where 1 or more following grounds under s22 POA applies:

- illness / absence of accused, necessary witness, judge or magistrate

- postponement if court ordered seperate trials

- some other good and sufficient cause

In addition to the above grounds courts have to be satisfied the prosecution is acting with all due diligence and expedition

Manchester Crown Court ex parte Mcdonald [1999]

Lord Bingham principles:

Defendant entitled to apply presumption of liberty set out in Art 5(3) ECHR - anyone arrested or detained for trial entitled to be tried within reasonable time or release pending trial 

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Manchester CC, ex parte Mcdonald [1999]

Prosecution to satisfy on balance of probabilities that one of the statutory grounds apply

Court will judge prosecutors conduct in light of requirement he has duty to bring case to trial as quickly as reasonable

Take into account nature and complexity of case, preparation that is necessary and conduct of defence

What amounts as good and sufficient cause is matter for court to decide on facts of case 

Staff shortage or sickness not acceptable reason for delay 

If different charge submitted, fresh custody time limit applies

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Sheffield Crown Court, ex parte Pothoff [2002]

Good and sufficient cause test satisfied where date was fixed for trial had been postponed because of inavailability of judge/court.

Court satisfied prosecution acted with necessary due dilligence

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Bail and HRA Art 5(3)

Prosecution bears overrall burden of justifying remand in custody by advancing good and sufficient public interest reasons which outweigh presumption of innocence and general presumption in favour of liberty

Judge must be entitled to take into account all relevant considerations in favour of and against granting of bail to ensure effective and meaningful judicial control over pre-trial detention

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Remand and bail for Youths

Bail Act applies to youths with certain exceptions

An exception - the 'no real prospect of custody' test does not apply

Court will have assistance of Youth Offending team to reach decision

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Remand provisions for Youths

Two places youth may be remanded

1) Local authority accommodation s91(3) LASPO 2012

2) Youth detention accommodation s91(4) LASPO 2012

if bail is refused, court considers whether YDA is required, if not Local authority accommodation and may impose conditions like electronic monitoring

if LAA not sufficient, may consider YDA - a secure children's home, secure training centre or a Young Offenders institution

Before remanding to YDA, must be satisfied one of two sets of conditions applies. Only one set of conditions needs to be applied. 

Court may consider to YDA only if decided there are grounds to remand under BA and LAA wouldn't be appropriate

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To remand a youth - 1st set of conditions

Must be at least 12 years old 

Offence charged with must be violent or sexual, or one that carries max sentence of 14years or more 

Court must believe only YDA is adequate to protect public from death or serious injury caused by serious offences

Must either be legally represented or not because of conduct or not financially eligible or failed/refused to apply

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To remand a youth - 2nd set of conditions

Must be at least 12 years old

Must appear to court will be real prospect they will be sentenced to custody for at least one of the offences 

Offence charged with must be violent/sexual or one that carries max sentence of 14 years or more 

Court must believe only YDA adequate to protect public

Must either be recent history of absconding or at least one of the offences must have been committed while on remand to either LAA / YDA 

Must be legally represented

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Discretion to try more than one written charge / i

Two or more info's laid against a person, info may be heard together 

Chief Constable of Norfolk v Clayton [1983] Mags should:

proceed with a joint trial if no objection by any party to the info being tried together

have submissions both from prosecution and from defence as to whether the matters should be heard together if any party objects to join trial 

hear info's together only if the info are linked by time or other common factors which means the IOJ are best served by joint trial 

have regard to whether the charges have a common factual origin and whether in all the circumstances of case, joint trial is just

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Laying info - time limits

s127 MCA 1980 - court may not try an info/written charge for summary only offence unless issued within 6 months of the offence - doesn't apply for Indictable offence or Either Way offence - not subject to the same rule unless the statute providing the offence lays down time limit of its own 

Where accused deliberately avoids service, cannot complain of delay 

Amending written charge/info

s123 MCA may be amended at any stage of the hearing - no objection should be allowed to any defect in either substance or form, provided the variation between evidence and info is slight and causes no injustice to defendant 

if variation substantial, court may allow amendement to be made and allow an adjournment if variation takes defence by surprise 

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Issuing summons

decision to issue a summons in case of private prosecution is judicial and not administrative 

mag/legal adviser must be satisified:

- info alleges offence known in law

- was served on court within time limit applicable for commencing prosecution

- court has jurisdiction 

- informant has necessary authority 

Summons or requisition may be served on individual by handing it to him or leaving it at an address or by sending 1st class post to an address where it is reasonably believed he will receive it, can be served electronically2

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Where accused fails to answer summons/requisition

If fails to appear in answer to requisition/summons alleging summary offence, court may: 

- adjourn

- try case in absence

- adjourn and issue warrant for arrest of accused provided offence is punishable by imprisonment or disqualification

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Single Justice procedure notice

Confined to summary cases that do not carry imprisonment 

Notice requires the person on whom it is served to notify court whether he intends to plead guilty or not guilty 

If intends to plead guilty, has to state whether prepared to be dealt with in accordance with single justice procedure set out in s16A MCA if he does, case can be dealt with 'on the papers' by single magistrate who can consider plea and evidence including any mitigating circumstances and impose penalty

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Proceeding in accused absence

s11 MCA if accused fails to appear at time and place fixed for trial, mags must proceed in absence unless it appears to court to be contrary of IOJ 

If absence of accused is explained by medical evidence, court must act judicially when exercising its discretion under s11 

If proceeding in absence, plea of NG guilty is entered on accused's behalf and prosecution then calls it's evidence. Normally guilty verdict follows but mags must acquit if prosecution cause is inadequate

When proceedings begin by issuing summons, Mags may not hear in accused's absence unless satisfied the summons were served on him in reasonable time before the hearing date or that he has previously appeared in answer to summons when case was adjourned.

 

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Where accused unaware of summons

s14 MCA assists accused who is completely unaware of existence of summons for example it is sent to the wrong address

accused may deliver to mags clerk a statutory declaration of his ignorance until after the date of commencement of trial of the proceedings - should be delivered within 21 days of accused gaining knowldge of the proceedings.

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Prosecution's disclosure of evidence obligation in

IDPC

Must be served as soon as is practicable, and in any event no later than beginning of first day of hearing 

initial details must include: summary of evidence on which prosecution case will be based and any documents prosecution also has to provide previous convictions

CrPR 8.4 - where prosecutor has not made information available to defendant, court must not allow him to introduce it until the defendant has had sufficient time to consider it 

initial disclosure enables accused to be advised about plea

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Pleading guilty by post (available all summary off

s12 MCA 1980 - available to those 16+ who are summonsed to appear before Mags to answer info alleging a summary offence

Procedure - 

Prosecutor serves summons with notice of how to plead guilty by post and consequences of doing so, serving brief statement of facts of alleged offence

Prosecutor informs court s12 procedure being offered

Accused if he wishes notifies clerk in writing that he wishes to plead guilty, may state any mitigating factors as to the offence/sentence/both

Clerk informs prosecutor of accused's intention

Trial involves proof of summons and s12 docs, facts and defence read to court, hears precon's then delivers sentence (at any time before trial can withdraw G Plea, Mags discretion to accept G Plea under s12 when mitigation discloses matters amounting to defence

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Pleading guilty by post (available all summary off

s11 MCA prohibits court in case in which defendant has pleaded guilty by post, from imposing:

- custodial sentence

- any sentence which require's accused consent i.e. community service or probation order

- conditional discharge requiring explanation

- disqualified from driving / rare for person to be disqualified in absence

- where person found to be a 'totter' under RTA court will not sentence but will seek to ensure person likely to be disqualified attends

- person likely to be disqualified should first be summoned to appear before court and if this fails, power to issue arrest warrant

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First appearance in Mags Court

If denied bail, will be brought before remand court in 24 hours

s86A(1) Courts Act 2003 - defendant must provide name, DOB, nationality if required at any stage - commit offence if fails to comply (false info or refusing without reasonable excuse) - max penalty 6 months 

If defendant enters guilty plea to summary only or either way offence, will either proceed to sentence immediately or adjourned for prep of PSR.

If defendant enters not guilty plea or doesn't indicate plea for either way offence, court will proceed to allocation hearing. 

TSJ - transforming summary justice: if NG plea, case management decisions to be taken at earliest stage, normally 1st hearing, court is required to take plea at 1st hearing 

Under TSJ, first hearings of cases listed as either GAP or NGAP

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First appearance in Mags Court 2

Defendants that have been kept in police custody make first appearance before remand court whatever the anticipated plea

First hearings for NG plea - robust case management by legal adviser, court will expect to set trial date and stick to it, determine issues to be tried and which witnesses are required 

Setting date for summary trial 

Where indicates NG plea for summary case, should normally be listed for trial within 6-8 weeks - may be longer if require expert evidence

All contested trials in Mags should be fully case managed at 1st hearing and disposed at 2nd.

CrPart 3 will require parties to confirm: 

Real issues in case

What evidence can be agreed and read out to court in accordance with s9 CJA

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Procedure at summary trial (pleading guilty)

Prosecution outlines case 

Defence solicitor may request PSR, if accepted, case will be adjourned for this, if no request made or isn't accepted, defence will make plea in mitigation

Court considers sentence and may adjourn to obtain PSR where offence punishable with imprisonment.

If accused remains silent or makes ambiguous plea, case proceeds as if pleaded NG

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Procedure at summary trial (pleading not guilty)

Prosecutor opens identifying relevant law, outlining facts and indicating matters likely to be in dispute

Court may invite defendant to identify what is in issue, to help it understand case

Examination, cross exam and re-exam of prosecution witnesses take place

Defence may make submission of no case to answer on basis prosecution evidence insufficient for any reasonable court to properly convict (court may decide this on it's own) - Prosecution must be given opportunity to respond

Court explains defendant has right to give evidence and potential effect of failing to do so, Defendant may introduceevidence

Prosecution may make final speech in support of its case, if defendant is represented or has called evidence 

Defendant has right to make final speech in support of his case 

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Procedure at summary trial (pleading not guilty) 2

Mags court usually retire before delivering court's verdict of guilty or not guilty, giving reasons

Where adjournment sought by prosecution, mags must consider both the interest of def in getting matters dealt with and interest of public

Where defence seeks adjournment mags must consider whether if it is not granted, he will be able to fully present his defence and if not able to do so the degree to which his ability to do will be compromised 

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Offences triable either way

Procedure where D indicates plea to E-w offence known as PLEA BEFORE VENUE - Mags will want to proceed to PBV at first hearing. App for rep order ought to have been submitted and processed. 

ALLOCATION HEARING - determines if EW offence ought to be tried, usually case will be adjourned following allocation hearing to the next stage of proceedings. 

PBV

D not expected to enter plea unless had IDPC and time to consider it. 

CrPR Part 9 - can either

- indicate G plea

- indicate NG plea

- no indication

- enter equivocal plea

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PBV

If indicates G plea - mags will proceed to sentence or adjourn - PSR

Where def indicates NG, no indication or equivocal plea: (if court uncertain about plea will proceed as NG)

Proceed to allocation hearing

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Allocation hearing

Mags will take into account: 

- submissions made by parties

- statutory factors s19 MCA 

- allocation guidelines from SC

- specific sentencing guidelines 

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Mode of trial statutory position (s19 MCA)

Mags must have regard to following to decide whether offence more suitable for summary trial or trial on indictment:

- nature of case

- whether circumstances make offence a serious charge

- whether powers of punishment in mags court would be sufficient 

- any other circumstances 

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Procedure at allocation hearing

Mags will invite P to disclose any pre-cons 

P and D invited to make reps as to which venue more suitable 

Mags will have regard to allocation guideline and any reps

Decision to accept summary jurisdiction based mostly on sentencing powers in regards to seriousness of offence charged 

If Mags accept jurisdiction they can still commit for sentence on conviction if sentencing powers in adequate 

Where mags accepts, D may seek indication as to whether non-custodial or custodial sentence will be imposed in event of guilty plea before deciding. Court not bound to give indication. If defendant indicates guilty plea, court may not impose custodial sentence unless it was indicated or the offence is a specified offence and he is committed for sentence as a dangerous offender. 

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Allocation - Aggravating factors Mags will conside

Where defendant acted in a pre-meditated way

Where victim of crime vulnerable 

where property damaged or stolen was of high value 

where def has pre-cons 

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Allocation hearing procedure

If Mags court accepts jurisdiction, D now has a choice, consent to trial in Mags or elect trial by jury 

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Special procedure - Criminal damage cases

Major exception to normal allocation procedure 

s22 MCA 

Where D charged with offence - S1(1) CDA unless it involves damage or attempted damage by fire, mags required to hear reps about value of goods involved

If value of goods less than £5000, mags treat matter as summary offence and D has no right to trial on indictment

If over £5000, treated as triable EW and requires allocation hearing

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Conversion of original decision from allocation he

s25(2) P may apply for EW offence that has been allocated to summary trial to be tried on indictment but the app must be made before summary trial beins and before any issues for summary trial are dealt with 

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Reasons D would choose mags trial

There can be a delay in Crown court proceedings which can adversely affect D especially if nervous or refused bail, delays much less common in Mags and a summary trial should be listed within 6-8 weeks of NG plea

Costs are considerably greater in CC and even if publicly funded may have a contribution order for P costs 

Less publicity, more reporters likely in CC

Ordeal tougher in CC

No need to serve defence statement in Mags - note do have to give notice of intended defence witnesses

Sentence likely to be more severe in CC especially after a long trial where D is not believed by the jury, Mags could commit for sentence in any event

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Reasons D would choose to be tried on Indictment

Possibly better chance of acquittal especially if there is contested police evidence 

Jury might return 'sympathy verdict

Judge legally qualified, better suited to deal with points of law and evidence

Seperation of function between judge and jury - arguments on admissability can be more effective 

Judge gives directions to jury in open court, we do not know what the mags take into account for their decision as they don't provide reasons

Appeal to Court of appeal preferred to a re-hearing by CC on appeal from Mags 

D has chance to use inevitable delay before trial to obtain some mitigating factors like getting employment, marrying or entering recovery programme

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Disclosure - used material

Should serve at a very early stage 

Summary hearings - IDPC no later than the day of the first hearing 

Indictable only - used evidence served in 'case sent' bundle after case sent to Crown Court 

Either way - in case bundle

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Unused material

Evidence collected by prosecution but not part of Prosecution case against the accused 

Duty do disclose particular categories of its unused material - arises when it serves the case

Either be 50/60 days after first appearance depending whether D is in custody Obligation continues to disclose unusued material until case is concluded. 

Disclosure of unused material regulated by Criminal Procedure and Investigations Act 1996 supplemented by Code of Practice (CPIA) 

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Police and disclosure

Obligations from police to record, retain and reveal to P material obtained in investigation

Unused material will be listed in schedule - MG6C - disclosure officer must be added to each investigation

If the officer believes material is sensitive it must be listed on seperate schedule for sensitive material - MG6D  'sensitive' - not in public interest to disclose i.e. national security, police information, location of surveillance positions and material about children

What point does obligation to disclose unused material arise?

1 - when E-W case sent to Crown Court

2 - If EW case to be tried in Mags or offence is summary only and NG plea has been entered

3 - offence triable on indictment - unused included in case sent bundle

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Disclosure process under s3 CPIA 1996 (3 stage pro

1) Initial disclosure by PL s3(1) disclosure of unused evidence which might reasonably be considered capable of undermining the case for P or assisting case of accused.

2) Defence statement s5 once P disclosed

3) P duty to continually review duty to disclose s7

Initial disclosure test to be applied by CPS under s3 is objective and requires P to decide which evidence might reasonably undermine P's case

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AG guide to disclosure

Consider it:

Might use it in cross-exam

It's capacity to support submissions that could lead to evidence exclusion, stay of proceedings and public authority acting incompatibly.

Capacity to provide explanation or partial explanation of accused's actions

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Service and content of defence statement

Failure to serve may lead to adverse comment and inferences being drawn by court under s11 CPIA

Must be served within 28 days of disclosure - time runs from date P purports to comply with its obligations under s3 CPIA - Can apply for extension

s6A Defence statement must include:

- nature of accused's defence including any particular defence which he intends to rely

- indicate matters of fact on which he takes issue with P

- set out in case of each matter why he takes issue with P

- indicate any point of view he wishes to take and authority he intends to rely on 

- set out any particulars of alibi (s6A2 CPIA) 

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Sanctions - defence statement

Required to be specific in detailing any defence to be relied on at trial

If a defence is deliberately sprung on P in course of trial, can lead to costs order being awarded if court is forced to grant adjournment for P to consider defence

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Witness notification (s6C)

D has to indicate whether intends to call any witnesses with their names, addresses and DOB

Purpose of this requirement to enable P to conduct pre-trial interviews with such witnesses in attempt to assess reliability and enables P to do background checks (if witnesses have criminal convictions)

Time limit for service of witness notification same for service of defence statement, if become aware of D witnesses later must notify P asap

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Sanctions against P for non disclosure

Decided on facts of each case

s8 CPIA D may apply to court for order that P should disclose materials in it's possession which might reasonably be expected to assist accused's defence as disclosed in defence statement

To succeed, accused must have reasonable cause to believe P material might reasonably be expected to assist defence 

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Disclosure regime for summary offences

Defence statement voluntary - time limit 14 days

Still must comply with witness notice requirements 

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Public interest immunity

Court will make final decision about this being granted.

App to court can be made in one of three ways

1 - P can notify defence of category of material over which PII is claimed, permits D to make representations to court about whether evidence should be disclosed in case. This should be adopted in all but most sensitive of cases. 

2 - P can notify defence about app to court but not about category of material over which PII claimed. D may still make reps to court about whether evidence should be disclosed or not

3- With most sensitive evidence - P will make app without notice (ex parte) D not informed unless court orders

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Disclosure and HRA

Art 6 does not require unlimited access to all P material

Breach of Art 6 may occur where police or P have failed to collate and retain 'unused' evidence in breach of their duties under CPIA

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s44 Children and Young Persons Act CYPA

Every court when dealing with a child or young person shall have regard to their welfare and take steps to remove them from undesirable surroundings

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Juveniles and Youth Court

General rule - D under 18 must be dealt with in Youth Court unless jointly charged with adult

Public not allowed to watch proceedings in YC

Mags in YC specifically trained for it

Juvenile has no right to elect CC 

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Exceptions for juveniles appearing in Youth Ct

Youth charged jointly with adult - will both appear in Adult's mag ct if charged with summary, unless adult pleads guilty and juvenile denies offence, court has discretion to remit juvenile to YC for trial - same for Ew Offence if tried in Mags

Youth appears with adult but charged on seperate information that alleges aiding and abetting adult or vice versa - mags have discretionary power to hold joint trial

Youth appears with adult charged with offence arising out of similar circumstances or connected with those giving rise to charge against adult i.e. juvenile charged with burglary - adult handling stolen goods

If adult mags start hearing case mistaking juvenile for adult, may proceed if fit to do so

If before trial juvenile reaches 18, YC has discretion to remit to adult mags for trial

When juvenile tried in adult mags, rules relating to attendance of parents and reporting restrictions apply

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PBV and allocation for young persons

s24A 

PBV applies where a possibility of a young person being tried in CC because they are charged with indictable offence to which s91 PCC(S)A 2000 applies or jointly charged with adult and Mags need to consider if in IOJ to send Youth to CC with adult

PBV under s24(A)(6) MCA

Will be asked what his plea likely to be - if indicate G Plea - Youth Ct will proceed to sentence

if court considers offence is one to which s91 PCC(S)A applies, (custodial sentence excess of 24 months is likely) can be COMMITTED to CC for sentence. 

If at PV indicates NG plea, Mags will conduct allocation hearing and court will hear reps from P and D

YC will also be aware of strong presumption that person under 18 should be tried summarily unless aggravating features in offence which justifyYC declining jurisdiction for Grave crime

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Trial of Youth on indictment

If Youth brought before Mags with indictable offence, will be tried summarily unless specific conditions apply s57A CDA

- if charged with murder or manslaughter or aged 16/17 years and committed an offence under s51A firearms, must be tried on indictment

- juvenile charged with grave crime which falls within s91 PCC(S)A 2000

Grave crime: any offence which in the case of an adult carries a term of imprisonment for 14 years or more - also applies to offences under ss13, 25 or 26 SOA 2003. 

Offences that carry 14 years or more - ****, robbery, causing death by dangerous driving 

Max Youth court can give is 24 months DTO, cannot impose DTO for those under 12, and if under 15 will only get a DTO if persistent offender.

Power to send to trial for 'Grave crime' will be exercised only where real prospect that young person will receive custodial sentence of 2 years or more. 

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Trial of Youth on indictment 2

s51(7) CDA 1998 - juvenile charged with adult 

1 - if adult sent for trial in CC, should conclude youth must be tried seperately in YC unless its in interests of justice to be tried jointly

2 - Factors that should be considered when deciding whether it's in interests of justice to send youth to CC include:

- whether seperate trials will cause injustice to witnesses or to case as a whole

- age of youth

- age gap between youth

- lack of maturity of youth

- relative culpability of youth compared with adult 

- lack of pre cons for youth

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Trial of Youth on indictment 3

- Court should bear in mind YC now have general power to commit for sentence following conviction - PCC(S)A

Where juvenile is a dangerous offender within the dangerousness privisions under CJA 2003, court must send juvenile for trial in CC

s51A CDA 1998 requires Mags to send juvenile for trial in CC where:

- juvenile charged with a specified offence as defined by s224(1) CJA 2003

- it appears to YC that if juvenile is found guilty of the offence there is a significant risk to public of serious harm by commission of further specified offences

includes violent offences such as manslaughter, kidnapping, offences under ss18 and 20 OAPA

in deciding 'dangerousness' take into account all available info about nature and circumstances of offence and offender, proper assessment unlikely until PSR which only occurs when convicted....

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Allocation close to 18th birthday

Guidance based on decision in Islington North Juvenile Court, ex parte Daley [1983] 

if under 18 when first appears in court and is charged with EW offence, but reaches 18 before allocation hearing he is to be treated as an adult in that he can refuse to plead in YC and elect trial in indictment or choose to be tried summarily before Adult court.

- where offence charged is triable only on indictment in case of adult, juvenile must be sent to Crown Court for trial if he is 18 before a plea is taken. 

- if YC has accepted summary jurisdiction before accused's 18th birthday, cannot be sent to CC for trial when he reaches 18

E.g. if juvenile charged at PS and appears before a Mags court and attains age of 18 prior to q of allocation being dealt with, has right to choose trial if wishes

Can be abuse of process for CPS to deliberately deal with issue of proceedings for Youth approaching age of 18 to ensure matter cannot be tried before YC 

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Sentencing of Children and Young people

Adults mag - more limited powers in sentencing options that it may impose under PCC(S)A 2000: fine, referral order, conditional/absolute discharge and disqualified from driving

CJA 2003 defines: serious offences / specified offences 

Distinction important in determining whether Crown Court has power to impose detention for life under s226 CJA or extended sentence under s228. 

Specified offence: sch15 CJA 2003 including specified violent offences and specified sexual offences 

Serious offence: which carries for adult a max sentence of imprisonment of 10 years

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Detention for life

s226(1) CJA 2003 - max 10 years and court feel there is a significant risk to members of public of serious harm of further specified offences committed by him, court must impose life sentence if seriousness of offence justifies it - IF DOESN'T JUSTIFY LIFE, EXTENDED OR DETERMINATE

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Extended sentence

s226B CJA 2003 - Provides where court may impose extended sentence on an offender under aged 18 where:

- offender convicted of specified offence

- significant risk to members of public of serious harm from commission of further specified offences and 

- court isn't required by s226(2) to impose sentence of detention for life and 

- court would impose custodial term of at least 4 years 

Where conditions met, court will set appropriate custodial term and further extended period of supervision which young offender required to serve on licence - the extended period is to protect the public 

2/3 of term served in custody before released on extended licence of up to 5 years for violent offences and 8 for sexual 

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Assessing dangerousness

s229 CJA 2003 - Lang and Others [2006]

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Detention and training order

Those not assessed as 'dangerous' main custodial sentence is DTO - normally won't be given until PSR undertaken

Available to Crown and Youth Court for offender up to age of 17

Available for:

- offender aged 15-17 convicted of imprisonable offence so serious only custody can be justified. 

- offender aged 12-14 who has been convicted of imprisonable offence so serious only custody can be justified and he is a persistent offender. 

"seriousness test" ordinary test under s152 CJA 

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Detention and training order 2

s102 PCC(S)A 2000 provides period of order should be one of 7 specific periods - 4,6,8, 10, 12, 18 or 24 months and will begin period of supervision halfway through sentence. 

Youth court not subject to normal custodial limit of 6 months (single offence) or 12 (for more than one that applies to EW offences in Mags

Where an offender breaches supervision of a DTO, s104 provides court may impose fine not exceeding £1000 or order return to custody

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Non custodial sentences for person under 18

Referral order can be imposed by Youth court / adult Mags court 

Would be referred to youth offender panel = 'contract' is agreed including interventions 

In some instances, referral order is a mandatory sentence, others it's discretionary 

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When a referral order is mandatory

s16 and s17 PCC(S)A 2000 - RO must be imposed where young offender:

- is sentenced for first time in connection with imprisonable offence

- no pre-cons 

- pleads guilty to an offence and any connected offence 

and absolute or conditional discharge or hospital order or custody isn't appropriate

RO must therefore be imposed on a 'first time' offender who pleads guilty to an offence that is not suitable for custodial sentence. 

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When a discretionary RO may be imposed

May choose to impose RO after considering young persons age, plea, seriousness of offence, pre-cons and disposals where young offender pleads guilty to an offence even if not first offence 

No limit to number of RO's repeat offender can receive 

May extend period of referral of up to 3 months if in interests of justice (SUBJECT TO 12 MONTH LIMIT)

Power to revoke RO if in interests of justice if youth is making good progress 

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Youth Community order or YRO

- number of requirements can be attached

- available in Youth or Crown Court 

- requirements that can be attached: 

Activity requirement, supervision requirement, unpaid work requirement, programme requirement, attendance centre requirement, prohibited activity requirement, curfew, exclusion, residence or Local Authority residence, mental health treatment or drug treatment, drug testing or education

if offence punishable by imprisonment court can combine order with intensive surveillance and supervision programme or required to go into foster care - MUST have crossed custody threshold and if under 15 must be classed as persistent offender and if have curfew or exclusion requirement - provision under sch1 CJA requires electronic monitoring

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Other orders

Reparation

To victims of crimes or to community at large 

Must be no more than 24 hours work, requires offenders consent and has to be under supervision of probation, social worker or member of YOT

Fines and compensation orders

Children aged 10-13 may be fined up to £250 and young persons (14-17) up to £1000 s135 PCC(S)A 2000 

Payable by parent or guardian unless cannot be found or unreasonable 

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Parental binding over

Court may order with consent of a parent/guardian to enter into a recognisance (up to £1000) to take proper care of young offender and exercise proper control over him s150 - if refused court can impose fine of up to £1000

these may last for up to 3 years 

Other option - absolute / conditional discharge and endorsement or disqualified from driving 

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Sending case to Crown Court

Once Mags Court has formally sent EW case to Crown Court, date will be set for D's first appearance before Crown Court at PTPH

Presumption of bail when sent to Crown Court (s4 BA 1976) -More likely to be opposed by P in indictable only offence because of seriousness of offence and greater risk of abscond 

PTPH should be held within 28 days of case being sent. Judge at PTPH will devise timetable for progression of case and impose deadlines for purpose of including deadlines for service of evidence. Normally set date for trial.

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Sending linked cases for trial at CC

If sent for trial in connection with EW offence - s51(3) CDA 1998 requires Mags to send any 'related' EW or summary only offence for trial on indictment.

EW is 'related' because it is founded on same facts or forms part of series of offences of same/similar characer

Related 'summary' - circumstances same or connected with indictable only and be punishable with imprisonment or disqualified

Where indictable only offence not pursued in CC, leaving only summary / EW, D will be required to plead, if plead guilty court may sentence immediately. If NG - allocation hearing. If NG to summary - remitted to Mags for trial

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Pre-trial disclosure of evidence in indictable onl

Once P serves case sent bundle, D should scrutinise with care the P witness statements, and other evidence to assess strength of case against D. Important for when advising whether to plead G/NG at PTPH.

Defence statement must be served within 28 days of initial disclosure.  

 

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App to dismiss offence triable on indictment

After P case served but before D is arraigned (normal plea taken at PTPH) under sch3 CDA, defence may apply in writing / orally with written notice of intention to court to dismiss charges 

Oral evidence may be given upon app for dismissal where it appears to judge interests of justice requires him to do so

Charges against D may be dismissed where it appears to judge there is insufficient evidence for jury to properly convict accused.

If charged dismissed by judge as result of app, further proceedings may only be brought by P by way of voluntary bill of indictment - exceptional procedure that can only take place at direction of HC judge 

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Public funding - Crown Court

If D has qualified for rep order before Mags Ct, this order will cover CC proceedings upon sending.

If D applied for rep order before Mags Ct but failed means test, may qualify for rep order but may be subject to contribution order or notice on income/capital. 

If D failed IOJ test initially but case subsequently sent to CC for trial, will qualify automatically in terms of IOJ

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Pre-trial hearings before CC

Increasingly common feature to ensure many of prelimanry issues are dealt with, enables parties to be better prepared for trial.

Better Case Management - Digital Case System - can upload and annotate case materials and present in court - take over paper files 

Under BCM, majority of cases listed for 1st hearing - PTPH, 28 days from case being sent to CC

Court would expect parties to provide info on relevant matters such as whether or not D will plead guilty, what is an issue or what will be his defence 

Both P and D have to complete PTPH form

If plead guilty at PTPH normally be sentenced a trial hearing  

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PTPH

Put charges to accused and determine their plea - could sentence at PTPH or adjourn for PSR

If pleading NG, parties required to inform court of following matters:

- issues in the case for example if stating acted in self-defence if charged with ABH

- names of witnesses who will have to give live evidence 

 - any exhibits / schedules 

- order of P witnesses 

- any point of law, legal authorities or evidential issues that will be put before court

- alibi evidence tat should have been disclosed

- estimated length of trial

- availability dates for witnesses 

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PTPH 2

Important for D solicitor to provide CPS with full list of P witnesses D requires to attend trial - standard case sent directions stipulate this should be done within 7 days of receiving disclosure of P's case as give;s police chance to check witness availability in advance of PTPH. 

At end of PTPH judge will normally fix date for trial

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Briefing counsel for PTPH

Trial advocates must be formally instructed / briefed  - should be sent ASAP and well before PTPH, should be prepared at same time as completing witness requirements 

Brief should contain:

- should contain a back sheet with details of the case, date and type of hearing, instructing details of solicitor on the right hand side. Left hand side of back page is left blank to enable counsel to hand write endorsements onto it.

Front page of brief should contain case hearing and numbered list of enclosures - depends on case but typically includes:

- def's proof of evidence                                         - expert reports if any

- draft indictment                                                    - rep/legal aid order

- case sent bundle and access to case on DCS 

- relevant correspondence with CPS

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Briefing counsel for PTPH 2

Brief should provide analysis of P case by cross referencing to P witness statements and other evidence that has been disclosued under pre-trial disclosure rules included on either brief or DCS

Any strengths/weaknesses in P case should be identified as should admissability of items of P evidence that may be challenged at trial

Brief should also contain summary of defence case and identify only strengths/weaknesses

Advocate must be clearly directed on what advice is sought, might be written requirements, points of evidence, advice on plea or assistance drafting a defence statement, attention should also be directed to factors might be raised in mitigation in event of client being convicted 

Brief will be sent to advocate who should respond within return date. Be mindful of key dates particularly when serving defence statement or notifying CPS which P witnesses are required to attend 

Failure to notify CPS of which P witnesses required may result in evidence being read at trial without their attendance 

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Prep hearings in serious, long or complex cases

Will take place before jury sworn, may seek to clarify difficult or contentious matters - will assist jury's comprehension of the issues, identify issues likely to be material to jury's verdict and expedite proceedings or assist judge's managemtn of trial

P may be required to give court and accused written statement which sets out:

- principal facts of P case 

- Witnesses who will give evidence to prove those facts 

- any exhibits relevant to those facts 

 - only proposition of law on which prosecutor intends to rely 

P may have to prepare evidence and any explanatory maerial to assist jury's compensation and give court and accused written notice of docs which they consider should be put into a jury bundle and any other matters which might be agreed between the parties 

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Prep hearings in serious, long or complex cases

Defence may be required by judge to give to court and P:

- written statement setting out in general terms nature of defence and principal matters in dispute with P case

- written notice of any objections to case statement

- written notice of any point of law or evidence which the accused wishes to take up and any authority upon which he intends to rely 

Where a party fails to comply with requirement for disclosure under s31 CPIA or departs from case disclosed, the judge may make appropriate comments and jury may draw proper inferences 

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Pre-trial rulings

ss39-43 CPIA - provides judge may make binding ruling as to admissability of evidence and or a question of law

Where such a ruling has been made, may be varied or discharged only where its in IOJ to do so and app to vary by any party to the case will not be heard unless there has been a material change of circumstances since making of the previous order. Also interim right of appeal to CA against the binding ruling. 

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Pre-trial hearings and reporting restrictions

Restrictions on reporting pre-trial hearings so that no report can be published until conclusion of trial 

More stringent than rules relating to reporting of preparatory hearings where certain details may be published

Party may apply to judge at pre-trial hearing for order lifting reporting restrictions 

If accused objects, reporting restrictions may be lifted only where in IOJ to do so 

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Indictable Only offences - course of proceedings

Police investigation of offence - PACE

Def charged or released without charge 

D makes 1st app in Mags Ct - Prelim issues including D's bail are dealt with. Mags will then send case to Crown Court forewith for trial under s51 CDA 1998

PTPH - if plead guilty, case may be adjourned for PSR. If indicated G plea in advance, then PSR should be available and can be sentenced at PTPH. If NG, proceeds to trial at CC

Crown court trial before judge and jury 

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Drafting Indictment

Heading 'Indictment' followed by name of place where CC sitting and name of case 

After name of case "Queen v ...'

Must include paragraph headed 'count'

Must be statement of criminal offence charged which:

= describes offence in ordinary language

= identifies any legislation that creats it 'theft contrary to Theft Act'

= identifies particular of conduct 

Can contain more than one count, required to be numbered consecutively 

Up to P to check indictment correctly presented and signed 

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Arraignment and pleas

Trial on indictment begins when D is arraigned - indictment read to him by Court clerk in absence of jury

Plea of NG

Judge will work through PTPH questionaire, may fix date, may be remanded or bailed. 

If court fix date, case adjourned to 'warned list' for trial for future period, normally over 1-2 weeks.

If bailed, CC will normally inform legal adviser's often with very little warning of trial date

Neither CC or CPS warns D of actual date for trial so legal adviser to make D aware 

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G plea to some but not all counts

If count alternative to another count to which accused has pleaded guilty, P would generally indictate it did not wish the former to be put.

If accused faces number of counts it's possible P having seen what pleas of guilty are entered will decide that public interest doesn't merit expense of trial - open to P to leave matter on file. Not formal acquittal but matters not proceeded with unless leave of appeal obtained.

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Other pleas

Involuntary pleas - pressure to make guilty plea by judge or counsel will result in quashing of conviction

Ambiguous pleas - 'guilty but didn't intend it' - is made, judge will attempt to find out what the accused really means (is he alleging lack of mens rea or putting forward mitigating circumstances)

If plea remains ambiguous, plea of NG will be entered on accused's behalf

At any stage of trial, accused may change plea to G

Plea of G can only be changed to NG only with judges consent. (usually through lack of legal advice)

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Indications of sentence

Goodyear [2005] - court held if D seeks sentence indication from judge, judges response to D doesn't constitute pressure on D to enter particular plea - If D doesn't ask for indication, it is only appropriate for judge to give indication of sentence if prepared to indicate the sentence would take a particular form ONCE INDICATION GIVEN IT IS BINDING IF PLEADS GUILTY 

Court gave guidance for providing indictation of sentence:

- Shouldn't be given unless required by D

- indication request shouldn't be made unless legal rep obtains signed authority from his client

- judge should refuse to consider indication if he hasn't been provided with written basis of plea agreed by P

- hearing should be held in open court 

- shouldn;t do anything that would constitute plea bargain

- Judge has discretion not to give an indication 

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Application of Goodyear [2005]

For dangerous offenders, considered in Kulah [2007] - while a Goodyear indication can be given, it needs to be explained to accused that as the necessary information for an assessment as to dangerousness isn't available, if in due course he is assessed as dangerous, determinate sentence indicated would become notional determinate sentence and actual length of sentence would be beyond judge's control

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Plea of guilty to lesser offence

Where arraigned on indictment for one offence, may lawfully be convicted of some other offence not charged in indictment. 

One of 4 factors must apply for a person to be found G of an offence not included in indictment.

There are that the allegations in indictment

- expressly amount to

- expressly include

- impliedly amount to 

- impliedly include 

an allegation of another offence - e.g. charged with s18, can be acquitted but charged under s20. 

If G Plea of lesser offence accepted by P, no need to empanel jury and court proceed to sentence

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Fitness to plead

Court will decide whether he is able to understand course of proceedings of trial, to be able to properly instruct those defending him and to understand nature and details of evidence to be adduced.

Q also asked as to whether D is able to give evidence himself if required 

Robertson [1968] - may be fit to plead even if he may act against own best interests 

If D contends D is unfit to plead, bears burden of proof proving unfitness on balances of probabilities. 

If P raises issue of unfitness to plead, and defence take issue, P must prove matter beyond reasonable doubt. 

Issue of fitness to plead determined by judge alone, hearing written and oral evidence from at least 2 medical practitioners, one of whom must be approved as having special experience in diagnosis or treatment of mental disorders. 

If unfit to plead, jury have to decide whether he did the act or whole omission specified

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Fitness to plead 2

If jury satisfied of the act/commission of offence, court may make following orders under s5 Criminal Procedure (Insanity) Act 1964:

- commit accused to hospital with or without restriction order

- discharge accused absolutely

- make guardianship order

- make supervision and treatment order 

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Double jeopardy

s75 CJA 2003 - Ended double jeopardy rules which prevented person who had been tried and acquitted from being retried for some offence.

General principle - 2 important pleas in bar that prevent accused being tried 

Autrefois acquit - prevents retrial in face of acquittal

- Autrefois Convict - prevents retrial based on same facts where previous trial resulted in conviction

Together they prevent person being tried twice in respect of same offence. 

s75 (1) CJA 2003 - abolishes Autrefois acquit rule in respect of certain serious qualifying offences that have resulted in acquittal following trial on indictment, allowing reopening of certain acquittals.

The 29 qualifying offences listed in Sch 5 CJA 2003: Manslaughter, murder, kidnapping, ****, serious sexual offences, certain drug offences, arson

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Double jeopardy 2

ss76-80 CJA 2003 Procedures must be followed by P 

1st step - seek written consent of DPP - must be NEW AND COMPELLING EVIDENCE and it's public interest to proceed app to CA

After having written consent, must obtain order from CA to quash acquittal and second order requiring re-trial

In considering interests of justice, CA must consider number of q's including:

- whether second trial can be fair

- whether new evidence could have been discovered earlier had investigator or P acted with due dilligence and how quickly authorities acted 

Only can make only one app to quash acquittal

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Objections to proposed evidence

Unless disputed item of prosecution evidence has been subject of a binding ruling at pre-trial hearing it'll fail to be considered at appropriate point in course of trial

Where it comes to a point the disputed material would otherwise be introduced, counsel for one side or other will invite judge to ask jury to leave court by saying point of law has arisen. Once jury retired, objection to evidence or q's will arise, judge will rule.

If evidence excluded, jury will hear nothing about it.

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Submission of no case to answer

At close of P case, defence can make this

Leading authority - Galbraith [1981]

- no evidence that supports the crime was committed by D

- some evidence but it is weak

- P case is such that a jury couldn't convict

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Whether trial can go ahead without D present?

ROSE LJ CA:

D has general right to be present at trial and to be legally represented

These rights could be waived, seperately or together, wholly or in part by D himself, might be waived when he knows where the trial was to take place and he deliberately/voluntarily absented himself and withdrew instructions from legal rep

TJ has discretion as to whether it should take place or continue in absence of D / legal reps

Discretion must be exercised with great care and only rare

Fairness to D is of prime importance but also fairness to P

HL Lord Bingham - generally desirable D is represented even if he has voluntarily absconded.

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Defence case - trial

If D elects to testify, D will be first witness to be called. At conclusion of his evidence will be cross-examined.

CLOSING SPEECHES

Jury may be given route to verdict which explains what the P has to prove before jury will convict

Defence advocate has last word

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Summing up

Judge directs jury to law and assists in considering facts, judge will stress it is for jury to decide facts 

Judge will summarise evidence and key issues 

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What if jury cannot reach a verdict?

S17 Juries Act allows for majority verdicts of 11:1, or 10:2 or if jury reduced to below 12, of 10:1 or 9:1. 

Jury reduced to 9 must be unanimous

If jury cannot reach a verdict, judge discharges it, not acquitted and may be retried - P decision. 

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Trial on indictment before judge not jury

s44 CJA 2003 allows P to apply - judge must allow app if following 2 conditions satisfied:

- evidence of real and present danger that jury tampering would take place

- likelihood jury tampering so substantial as to make it necessary in IOJ for trial to be conducted without a jury 

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Majority verdict

A majority direction may be given after at least 2 hours of jury deliberations, which is to deliver a verdicted based upon which jurors are not all agreed, must be at least 10 jurors. 

201 of 366

Admissibility of evidence

To be admissable, evidence must be relevant or probative of factual issue before court. No special rules deciding question of relevance - more common sense.

Evidence admissable unless excluded either under mandatory rule of exclusion or in exercise of court's discretion to ensure D enjoys fair trial.

Categories of evidence that are mandatory excluded:

- opinion evidence of a lay witness and the rule that protects against the disclosure of material protected by legal professional privilege

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Formal admission in criminal cases

Jury likely to hear admissions / agreed facts 

Facts agreed by P and D and they are based upon matters contained in served and unused material.

Jury may also be given schedules, certain doc exhibits and timelines.

Admissions are made in accordance with s10 CJA 1967.

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Legal burden of proof

P's responsible for proving D's guilt 

If P fails to prove one or more of elements of offence, D acquitted because P failed to discharge it's legal burden of proving D's guilty 

Exception of Woolmington principle where a legal burden of proof falls on D 

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Insanity

Where D submits that the accused was insane within meaning of M'Naghten rules at time offence was committed, defence has legal burden of proving on balance of probabilities that accused was insane.

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Express statutory exceptions

Some statutes parliament expressly placed legal burden of proof on D in respect of one or more of the facts in issue, for example s139 CJA 1998 - offence of possesion of knife in public. S139(4) not offence if D can prove he has a good reason of lawful authority for possessing knife. 

Defence holds the burden of proof for diminished responsibility. 

s101 MCA 1980 - important exception to general rule that legal burden of proof upon P

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Evidential burden of proof

General rule - party has legal burden of proving a fact in issue also has evidential burden. Only by tendering evidence to each fact in issue that a party will discharge its legal burden. 

Evidential burden satisfied by producing evidence in number of forms including oral testimony of witness in court.

Accused bears no burden at all other than tactical burden to raise doubt. 

When accused pleads the following defences, some evidence in support of D must be put before court: 

- non-insane automatism

- loss of self control

- self defence

- duress                         - intoxication

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Evidential burden of proof 2

Where def discharges its evidential burden, P assumes legal burden to disprove D. 

208 of 366

Standard of proof

Where legal burden of proof on defence i.e. where accused pleads insanity or diminished responsibility in murder case, the standard of proof is on burden of probabilities. 

Where accused only has evidential burden, does not have to satisfy anyone of truth of what he says, only has to provide sufficient evidence to satisfy judge - issue is to be left to jury

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Competent and compellable witnesses

Competent if evidence can be received by the court

Compellable if can be made to give evidence and will suffer penalty if wilfully refuses to testify. 

General rule - s53 YJCEA 1999 - all witnesses presumed to be competent to give evidence.

At every stage in criminal proceedings, all persons are competent to give evidence - whatever their age)

This presumption of competence can be rebutted if under s53(3) it appears to court he isnt a person who is able to : 'intelligible testimony'

- understand questions put to him as witness

- give answers to them which can be understood - able to understand between truth and fiction 

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Procedure deciding witnesses competence

s54(1) YJCEA 1999 - if question of witnesses competence raised, question will be determined by court 

s54(2) YJCEA 1999 - legal burden of proving witnesses competence on balance of probabilities with party calling witness

'special measures' may enable non-competent witness to become competent

s54(4) requires determination of witnesses competence will be made in absence of jury. Court may have benefit of expert evidence. 

Any q's put to witness whose competence is being determined by court shall be in presence of the parties s54(6) 

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Test - whether witness may give sworn evidence

s55 YJCEA - person is competent to give sworn evidence if he is at least 14 years old and has sufficient appreciation of solemnity of the occasion and of particular responsibility to tell truth involved in taking oath 

s56 YJCEA - person who is competent to give evidence but is not competent to give sworn evidence because he doesn't fulfill requirements of s55 may give unsworn evidence.

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Accused spouse / civil partner

s53 YJCEA and s80 PACE 1984

under s80(2) PACE - spouse / civil partner of accused is always competent and compellable to give evidence on behalf of accused unless spouse/CP jointly charged in proceedings s80(4)

s80(2A) PACE - spouse/CP of one accused is competent to give evidence on behalf of any co-accused charged in proceedings unless spouse/CP jointly charged in the proceedings. Spouse/CP only compellable if offence listed under s80(3) below

General rule - spouse/CP of accused is a competent but not compellable witness for P

s80(3) makes accused's spouse a compellable witness for P if accused is charged with:

- assault for injury or threat to spouse

- assault/injury/threat to person under 16

- sex offence of under 16

- attempting to or conspiring to commit / aid / abet 

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Special measures / vulnerable witnesses

Special measures can assist vulnerable or intimidated witnesses to give evidence at trials in the Crown Court.

Vulnerable witnesses s16 YJCEA 

- All child witnesses (under 18)

- any witnesses whose quality of evidence is likely to be diminished because they:

       - are suffering from mental disorder

       - have significant impairment of intelligence and social functioning

       - have physical disability or are suffering from physical disorder

s16 YJCAE - specifies Def's cannot be categorised as vulnerable witnesses.

All child witnesses can give evidence in chief by video recording s27 YJCEA and any further evidence by live link

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Special measures / vulnerable witnesses 2

If child witness opts out there is a presumption that he will give evidence in court from behind a screen. If doesn't want to use a screen, he can opt out subject to agreement of court. Ct will consider whether opting out would have an effect on childs evidence. 

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Intimidated witness

second category of witness - s17 YJCEA - might be entitled to special measures direction are those considered to be intimidated. 

Whether likely to suffer emotional trauma, intimidation or distress or whether unlikely to give best evidence without special measures. 

Complainant for sex offence auto falls into this unless witness informs court he doesn't want to be eligible for assistance. 

Also auto eligible for assistance to witnesses in proceedings related to 'relevant offences' in sch1A and knive.

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Making a special measures direction

s19 YJCEA

Should be made in writing to court in accordance with CrPr Pt 18. Can be made by P/D or court 

Court must be satisfied it will improve quality of witnesses evidence 

Use of screens

s23 (1) YJCEA - screen to prevent them from being seen by accused shouldn't prevent witness being seen by and seeing judge and jury or justices 

Witnesses should also be visible to advocates 

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Evidence by live tv link

Witnesses 

Held in Camberwell Green Youth Court ex parte D and Others [2003] - fact child witness gives evidence through live tv link under special measures direction granted under s19 YJCEA doesn't infringe D's rights under Art 6 and 16 ECHR

In deciding whether to give the direction, the court must consider all the circumstances of the case and list of statutory factors under s51(7)

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D's entitlement to special measures

ss33A - s33C YJCEA 

D by live TV link - Mags and CC

If D ault court must be satisfied that:

- giving evidence over live tv link would be in IOJ

- D unable to participate effectively as a witness and - has mental disorder within terms of MHA and has significant impairment of intelligence and social work. 

- Using live link will enable more effective participation on a witness

- If D under 18, court must be satisfied that: giving evidence over tv link would be in IOJ

- D's ability to participate effectively as a witness is compromised by level of intellectual ability or social functioning 

- using live link will enable more effective participation as witness

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ss33 BA or s33BB YJCEA

Permits accused to testify through an intermediary

For adult D court would be able to grant accused's application to be examined through intermediary where:

- accused suffers from mental disorder within MHA or other significant impairment of intelligence 

- accused for that reason unable to participate effectively in proceedings as witness giving oral evidence in court

- making of order necessary to ensure accused enjoys trial 

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Giving evidence in private

under s25 YJCEA - witness may be excluded from court 

Only if proceedings relate to sexual offence or reasons to believe D will intimidate witness 

Those who may not be excluded:

- accused

- accused's legal reps

- interpreter appointed by court to assist witness 

- Court reporter representing a news gathering organisation

s26 YJCEA removal of wigs

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s27 YJCEA Video recorded evidence in chief

Court has discretion not to allow if in circumstances of case it wouldn't be in IOJ to allow recording or part of it to be admitted. 

Court will consider any prejudice to accused that might result from witnesses evidence being heard in this way, weighed against desirability of showing recorded interview

Witnesses video recorded evidence in chief will not be heard by court if witness is unavailable for cross-exam when parties have agreed cross exam is necessary s27(4) YJCEA

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Video recorded cross exam or exam

Recording must be made in presence of judge or justices and legal reps acting

May be made in absence of accused.

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Witness anonymity orders

s86 Coroners and Justice Act 

Court can make a witness anonymity order to ensure identity of witness isn't disclosed

Order will specify type of special measures to be made to secure anonymity:

- withhold name

- using pseudonym name

- screening witness

- disguising witnesses voice 

- witness must be seen by judge/jury

- app for WAO can be by P/D

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Witness anonymity orders 2

Conditions for Making order:

Condition A - protect safety of witness or another person or prevent serious damage to property and their reasonable fear or prevent real harm to public interest

Condition B - regard to all circumstances would be consistent with D - fair trial

Condition C - important witness - if witness wouldn't testify without order or real harm to public interest if witness were to testify without order being made

In deciding whether above A-C are met, court must have regard to:

- D's general right to know witness identity

- extent to which witnesses credibility is a relevant factor

- whether evidence given by witness may be sole or decisive evidence

- whether witnesses evidence may be properly tested without identity disclosed

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Witness anonymity orders 3

Whether any reason to believe the witness:

- has tendency to be dishonest

- has motive to be dishonest (pre-cons and relationship to D)

Whether reasonably practicable to protect witness by any other means than WAO

Difficult to challenge anonymous witnesses credibility  - if necessary court could appoint special advocate to cross-examine anonymous witness

Courts overriding obligation - fair proceedings.

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Witnesses giving opinion evidence

Generally opinion evidence is inadmissable. Confine evidence to facts. 

2 important exceptions to general rule where opinion evidence will be heard. 

Facts personally perceived by witness - to state D was drunk e.g. or was speeding / the evidence cannot extend to guilt/innocence as that is strictly for Jury/Mags

- Expert witnesses - if Jury / Mags can form opinion without assistance of expert, expert opinion evidence inadmissable as unnecessary. 

Leading authority - Turner [1973] - CA - Psych evidence inadmissable on issue of provocation and credibility matter within ordinary human experience. 

Competency of expert witness - up to judge - taking into account education, academic qualifications and professional experience 

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Procedural rules - disclosure of expert witness

P or D who wants to introduce expert evidence must as soon as practicable give other party written statement of any finding/opinion that it proposes to adduce and copy of any ob test or procedure

If no disclosure, Judge may give leave to admit evidence 

No obligation on D to serve unfavourable report - protected by legal prof privilege

Unfavourable P expert would have to be disclosed in 'unused material'

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Corroroboration

Corroroboration warning clarified by CA in Makanjuola [1995] 

Judge may decide to direct jury to approach witnesses evidence with caution if considers witnesses unreliable or if may have had or bore a grudge 

These situations jury could look for supporting material 

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Trial safeguards - Turnbull guidelines

Evidence of eyewitness ID - court required to proceed with caution

Turnbull [1977] CA gave guidelines for treatment of cases wholly/substantially rely on which evidence if accused alleges witness mistaken in identifying him at scene of the crime 

Judge must direct jury to consider quality of evidence including:

- whether D is related or well known to witness

- length of time for which witness allegedly saw D

- lighting conditions at time of alleged sighting

- how far away witness was

- whether witness seen accused person before 

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Trial safeguards - Turnbull guidelines 2

Judge must direct jury to take account of length of time between alleged sighting and witness giving description to police

If quality of ID evidence is poor, the judge should withdraw case from jury unless there is other evidence that supports correctness of ID. If so judge can leave to jury warning them. 

Failure to give Turnbull warning in ID cases will almost inevitably lead to conviction being quashed. 

Key feature for direction isn't need for corroboration but warning to jury of need for special cautuon

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Leading questions

Not permitted during exam in chief

Are however permitted t very start of witnesses testimony for formal / introductory or where evidence is non-controversial

Prohibition on leading q's applies only for advocate calling witness (only exam in chief)

Permitted in cross exam

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Witness refreshing memory

May refresh memory from witness statement / proof of evidence about facts he is to testify by referring to any previuos statement he has made.

Before he can do this, following conditions must be satisfied with under s139(1) CJA 2003:

Witness must state in evidence that the doc records his recollection of the matter at time it was made 

Recollection of matter likely to have been significantly better at that earlier time than at time of trial

Document must have been written by witness or verified as accurate by him at time doc was made 

Doc must be handed to opposing advocate to inspect and may be handed to jury 

Both P and D witnesses may refer to previous written statements to refresh memories in witness box even if made some time after events in question

Where a witness relies on a note to refresh, advocate may inspect doc and cross-examine

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Admissability + value of witnesses prev consistent

Important exceptions to rule s120 CJA 

Allow previous consistent statements to be admitted as evidence of their truth in following circumstances:

- rebut allegations of fabrication

- docs used to refresh memory on which witness is cross-examined

- certain out of court statements covered by s120(4-7)

Out of court statement adds to evidence of witnesses not replace it 

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s120(4) previous witness statement

s120(4) allows for admission of previous witness statement where one of 3 conditions are satisfied:

1) Statement identifies or describes a person, object or place (previous ID)

2) witness does not remember matters dealt with in his statement and cannot reasonably be expected to remember them but at time statement was made matters are fresh in witnesses memory

3) witness claims to be person against whom an offence has been committed 

Under s120(7) evidence of any complaint that constitutes criminal offence will be admissable providing:

- complaint wasn't made as result of threat/promise 

- before statement is adduced the witness gives oral evidence in connection with it's subject matter 

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Unfavourable and hostile witnesses

These terms relate only to certain special situations which may arise with a party's own witnesses as the other sides witnesses are expected to be unfavourable. 

Statements are taken from witnesses and relied upon by defence taken by sol's - proof of evidence - witness whose evidence in court in generally in accordance with his statement is said to be 'coming up to proof' 

Unfavourable / hostile witness - witness who doesn't 'come up to proof' IMPORTANT DIFFERENCE 

UNFAVOURABLE - One who isn't coming up to proof and fails to prove some necessary fact. Such witness cannot be attacked by party calling them, nor can their previous statements be put to them to remind or correct them.Best can hope for is if witness unfavourable, that one of other witnesses can talk on same point and jury prefer later evidence. May be unfavourable because they are forgetful, foolish or mistaken.

s139 and s120(6) CJA may provide assistance by enabling witness to refresh memory from witness statement

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Hostile witness

One who is not desirous of telling the truth at instance of party calling them. 

Example - witness who has deliberately changed his evidence since his previous statement whether from a desire not to be involved, fear, malice etc

When advocate is examining in chief and finds witness is hostile, following procedure under s3 Criminal Procedure Act should be adopted.

Advocate will ask judge to send jury out of court and in their absence and that of the witness he will apply to judge for leave to treat witness as hostile. 

Judge will decide whether witness is hostile / merely unfavourable - try to assess by witnesses demeanour but may look at previous witness statement to judge extent of departure from that statement 

Jury are recalled and if judge has ruled witness is unfavourable, nothing much the advocate can do except hope for better results 

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Hostile witness 2

If judge rules witness is hostile, party calling him may with leave of judge prove he has made at other times a statement inconsistent with present testimony but before such proof can be given, circumstances of supposed statement must be mentioned and must be asked whether or not he has the statement.

Advocate cannot however attack witnesses credibility further by for example cross-examining him as to previous character and convictions

Under s119 where previous inconsistent statement is proved under s3 CPA 1865, statement becomes admissable as evidence of the matters stated, whether or not the witness agrees the previous statement is the truth.

Court entitled to prefer and act upon previous inconsistent statement in preference to witnesses oral testimony

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Crossexam - credibility of witness

3 exceptions to general rule where if witness denies issue relevant to credibility, other side may call evidence to rebut witnesses denial

1) witnesses alleged bias 

Having very close relations with the party - taking a bribe or having particular grudge against a party 

If allegation of bias is put in cross exam and denied, evidence in rebuttal may be called e.g. witness who can confirm they had a grudge 

2) witnesses own previous inconsistent statements 

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Previous convictions of witnesses

Since s100 CJA came into force, special rules apply to admission of non-def bad character, which clearly includes a witnesses pre-cons 

Admission of this evidence regulated by s100 which provides 3 gateways for admission of bad character evidence as defined by s98. 

Under s100(1) evidence relating to bad character of non-def will be admissable if, and only if, 

- it is important explanatory evidence 

- it has substantial probative value in relation to a matter which - is a matter in issue with proceedings or is of substantial importance in context of the case as a whole or

- all parties to the proceedings agree to the evidence being admissable 

Leave of court required before evidence may be admitted under A or B 

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Previous convictions of witnesses 2

Bad character defined in s98 as:

evidence of a disposition towards misconduct other than evidence which has to do with alleged facts of offence for which D is charged

evidence of misconduct in connection with investigation or prosecution of that offence 

s98 specifically excludes conduct related to facts of offence being tried it wouldn't be necessary for defence to seek leave to question investigating police officer for planting evidence on D or that he fabricated D's confession.

No leave required where D suggests witness committed crime as this would be questioning to do with alleged facts of offence.

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Previous convictions of witnesses 3

Where leave is required will be granted only if court is satisfied the bad character evidence should be admitted because:

- it's important as explanatory evidence 

- it has substantial probative value in relation to a matter raised in proceedings and is of substantial importance in context of case as whole

Important as explanatory evidence - s100(1)(a) Non-defendants bad character will be admitted as explanatory evidence where without it the court would find it impossible or difficult to properly understand other evidence in case and its value for understanding case as a whole is substantial

Some situations it will be necessary for party to give explanatory back info to offence whic may result in part or whole of witnesses 

s100(1)(b) permits evidence of non def bad character into evidence only where it satisfies test of 'substantial probative value'

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Previous convictions of witnesses 4

Evidence has substantial probative value in relation to a matter in the proceedings

s100 (1)(b) permits evidence of non-d bad character into evidence only where it satisfies test of 'substantial probative value' including evidence of credibility of witness

Substantial probative value test s100(3) sets out non-exhaustive list of factors for court to consider including:

- nature and number of events or other things to which evidence relates 

- when those events or things alleged to have happened / existed

- that its evidence of persons misconduct and its suggested that the evidence has probative value by reason of similarity between that misconduct and either misconduct.

Where court grants leave to allow P witness to be cross-examined about pre-cons or where q falls within s98, D with pre-cons opens himself up to having these precons made known to jury/mags.

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Protecting 'vulnerable witnesses' while giving evi

s36 YJCEA gives court power to prohibit an unrepresented D from personally cross-examining a witness in relation to a non-sexual offence

App for direction under s36 may be made by P or by court 

3 grounds to satisfy before court may make a direction under s36:

- appears to court the quality of the evidence given by the witness in cross exam is likely to be diminished if cross exam is conducted by accused in person

- quality of cross-exam likely to be improved if direction was given

- wouldn't be contrary to interests of justice to make a direction

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Protecting 'vulnerable witnesses' while giving evi

Court must have regard to number of issues including:

- any views expressed by witness

- nature of q's likely to be asked having regard to issues in the case 

- accused's behaviour during proceedings

- any relationship between witness and accused 

Where order made, court shoudl allow accused to make arrangements for legal rep to cross examine witness, if he refuses to do so court should appoint legal rep.

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Cross exam of complainant in sex offence

YJCEA 1999 - introduced many different reforms to course of witness testimony in prosecutions for sex offences 

Mainly includes mandatory ban on unrepresented D's conducting cross-exam of adult and child witnesses in **** and other specified offences under ss34-40. 

Provisions include:

- no person charged with sexual offence may cross-examine in person a witness who is complainant in connection with either that offence or any other offence with which that person is charged in some proceedings 

- no person charged with sex offence may cross-examine in person a protected witness in connection with that offence or any other offence 

'protected witness' is either the complainant or someone who is alleged to have been a witness to comision of sexual offence and: is a child / someone who shoud be cross examined by video recording or someone who should have been cross-examined in any other way

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Cross exam of complainant in sex offence 2

Questions that may be asked and evidence that may be raised in cross-exam of complainant in sexual offence are now governed by ss41-43 YJCEA and procedure to be adopted is set out in CrPR Pt22

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s41(1) YCJEA

General restriction on evidence that may be put before court / questions that may be asked about complainant's sexual behaviour with both accused and third parties

If defence wishes restrictions to be lifted it must apply to the judge for leave. App will be heard by in absence of complainant. Judge will announce decision in open court in absence of jury, giving reasons for his decision.

Restriction may be lifted by court where the court grants leave. Can only be granted where judge is satisfied a ground under s41(3) or s41(5) applies and a refusal might render 'unsafe' a conclusion of jury or court.

Cross exam as to sex history will NOT be allowed where sole purpose of putting evidence before court is to attack complaints character by submitting e.g. that she is a prostitute

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Circumstances where s41 restriction lifted

evidence of complainant's sexual history relevant to an issue other than consent:

- where relevant to issue other than consent 

- Lord Hope - number of isues that might fall within this section including where:

      - accused raises defence of honest beliefs, that is he may honestly but mistakenly have           believed the complainant was consenting to sexual act; or

      - it's alleged complainant is biased against accused 

      - complainant had reason to fabricate her evidence 

      - there was alternative explanation for physical conditions on which P relies to establish intercourse took place

 

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Circumstances where s41 restriction lifted 2

Evidence relates to complainant's sexual behaviour 'at or about same time' as subject matter of charge - s41(3)(b) YJCEA 

Lord Steyn - this can be used where complainant alleged to have invited accused to have sex earlier that evening and later during same evening after intercourse had taken place between complainant and accused and she alleges she was *****

Sexual behaviour relevant on basis of 'similar' sex behaviour

To rebust evidence of assertions about complainant's sexual behaviour:

any evidence adduced by P s41(5) provides defence with opportunity to rebut assertion made about complainants sexual behaviour

Effect of s41 YJCEA is to severely restrict D's ability to adduce evidence of complainant's sexual historyeither in relation to the D himself or other 3rd parties

To overcome protection afforded under s41(4) defence would have to show specific facts of complainant's sexual history had sufficient probativve force and so similar to conduct

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Re-examination

3rd stage of witness testimony - must be confined to matters including any new matters arising out of cross-exam

Tactical consideration - consider whether evidence of witness has been discredited in cross-exam or whether some points in support of witnesses evidence needs to be clarified

Available to repair damage done to witnesses credibility during cross-exam 

Leading q's not permitted as dealing with own witness

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Accused's privilege against self-incrimination

Right to silence 

Once chosen to give evidence on oath in support of defence, cannot refuse to answer q's in cross exam on ground it would incriminate him as to offence charged. 

No witness including D need answer any q's or produce docs/items at trial which would expose witness to probability of further prosecution

Statutory exceptions to privilege

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Right to silence

AI's may be drawn under s11 CPIA if defence statement not served or is defective in some way

Accused silence at PS - s34 CJPOA - where accused relies at trial on fact in his defence which he could reasonably have mentioned when interviewed under caution/charged.

Permits inferences to be drawn from facts he later relies on at court

s34(2A) adds AI may not be drawn from silence at PS unless he has been given opp to consult solicitor prior to being questioned/charged

AI cannot be sole reason for court finding accused guilty 

s34 CJPOA encourages accused who has defence to allegation made against him to disclose that defence at first reasonably opp - in police interview or on being informed he is to be charged 

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AI's Right to silence

May be drawn during questioning only when:

- proceedings against person for offence

- failure must occur during questioning under caution

- Q musr be directed trying to discover whether or by whom alleged offence had been committed

- alleged failure by D must be to mention any fact relied on his defence in proceedings 

- fact D failed to mention must be fact which in circumstances existing at time, he could reasonably have expectec to mention when questioned

'reasonableness' - q of fact for jury/mags to decide - depends on circumstances of each case

D may have to explain at trial reasons for being quiet

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Right to remain silent - reasonableness

Argent [1997] non-exhaustive list:

- time of day

- D's age

- D's experience of dealing with police 

- extent of disclosure by police of evidence against D

- mental capacity

- state of health 

- sobriety or tiredness of suspect

- any legal advice he might have been given

Court / jury must consider these facts subjectively from D's perspective at time of detention at PS. If at any time in all circumstances it wasn't reasonable for D to remain silent - AI's

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Safeguards - right to remain silent

Trial judge should provide directions to jury:

- under s38 CJPOA AI's cannot be sole reason for finding D guilty 

- AI's may not be drawn where police have delayed detainees access to solicitor under s58 PACE 

- An AI may be drawn only when, having listened to any explanation put forward by D for his failure to mention facts and being satisfied as sufficiently strong case against D is made out and jury or mags conclude the only sensible explanation for silence is because he had no answer to P's case at the time or none that would stand to scrutiny

- Jury/Mags should regard AI as providing additional support only in a situation where P's cse apart from D's silence is so strong as to call for answer from accused.

Condron [1997] remaining silent on legal advice isn't itself enough to prevent inferences being drawn

Where relied on prepared statement during police interview or upon charge and his defence at trial differs from that prepared statement in some way - AI may still be drawn under s34

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Refusal to account for certain objects and/or subs

s36 allows inferences to be drawn from accused's refusal to account for certain objects or substances or marks found on his person and on his footwear and clothing, or otherwise in his possession.

Can only be drawn if they were offered legal advice

s36 applies where during police interview the investigating officer informed accused he believed incriminating evidence implicated accused in a crime and asks accused to account for incriminating evidence and accused failed to do so.

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s37 CJPOA Refusal to account for ones presence at

Police must give suspect special warning

Allows AI's as appear proper in determining guilt of accused where it was reasonably believed by investigating officer that the accused's presence in place where he was found, and at that time, was attributable to his guilt of offence for which he was arrested and accused, on being so informed and asked to account for presence at that place and time - and failed to do so

Inferences may be drawn under this section even where accused doesn't put forward any defence. 

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Competence and compellability of accused

s35 - failure to give evidence at trial 

Def is competent but NOT compellable witness in his defence, and entitled not to testify at his own trial

Failure to testify can have evidential consequences 

If D doesn't give evidence the jury/mags should be directed in following terms in accordance with guidance laid down by CA in Cowan, Gayle and Riccardi [1995]

- Legal burden of proof remains in P

- D entitled to remain silent 

- Before drawing AI from D's silence, jury/mags have to be satisfied there is case to answer

- If Jury/Mags conclude only sensible explanation for accused's silence is that he has no answer to P

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s98 CJA Bad character evidence

BCE: 'evidence of, or disposition towards misconduct in his past' - 'misconduct' - commission of offence or other irresponsible behaviour

Includes pre-cons, evidence relating to offence with which he was charged but not convicted, relating to offence with which has been charged but acquitted and evidence which doesn't amount to criminal conduct but constitutes reprehensible behaviour

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Bad Character Evidence - 7 gateways

s101(1) 7 gateways through which BCE may be admitted as follows:

a) All parties agree to evidence being admitted

b) evidence adduced by D himself or given in answer to qu asked by him in cross-exam

c) it's important explanatory evidence

d) relevant to imporant matter between D's Prosecution

e) it has substantial probative value in relation to important matter in issue between D and Co-d

f) it's evidence to correct false impression given by D

g) D has made attack on another person's character 

D will often volunteer evidence when he realises it will be admitted under other gateways. Can demonstrate honesty. 

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BCE s101(1)(c)

Important explanatory evidence - 

Evidence of events that occurred close in time, place or circumstance to offence charged

Evidence necessary to complete account of circumstances of offences charged so as to make it comprehensible to jury 

Evidence of previous relationship beween D and alleged victim of offences charged 

Evidence to establish motive

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s101(1)(d) gateway - BCE

Important matter in issue between D and P 

For evidence to be admissable, must have relevance either to a fact in issue or to credibility of D 

Examples:

Where D has propensity to commit offences of kind with which he's charged, except where his having such a propensity makes it more likely he's guilty of offence 

Whether D has propensity to be untruthful 

'Propensity to commit offences of kind' - previously convicted of offence either of same description or same category as the one which he has been charged.

Discretion to exclude evidence under this where it's admission would have such an adverse effect on fairness of proceedings that court ought not to admit it.

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s101(1)(d) gateway - BCE

In exercising discretion, court must pay particular regard to length of time  between two matters to which evidence relates to and matters which form subject of offence charged 

Also relevant is D's propensity to be untruthful

Hanson [2005] - court explained general rule the fewer the pre-cons, less likely propensity will be established and it may be unfair to admit convictions where evidence against D is weak or convictions old.

CA advised judges how to direct jury on BCEP

- Jury shouldn't conclude D guilty or untruthful merely because of pre-cons

- although convictions might show propensity, doesn't mean he committed the offence 

- whether convictions show propensity for jury to decide

- Jury must consider what D said about his pre-cons

- Propensity only 1 relevant factor - must assess significance among all other evidence

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s101(1)(e) BCE

Important matter in issue between D and Co D - where 2 D's run cut-throat defences, each suggesting other is the guilty party 

Where 1 co-accused wants to adduce evidence of the other's propensity to be untruthful, s104(1) applies - this will only be allowed where nature and conduct of co-accused's D undermines defence of fellow co-accused.

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s101(1)(f)

Creating false impression

Accused 'responsible' for creating false impression through his own testimony in court through responses made to questions at pre-trial stage or through testimony of D witnesses or response of P witness through cross-exam

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s101(1)(g) BCE

Making attack on accused's person's character

Allows admission of bad character where D attacks character of any other person.

An attack made upon anyone whether or not they are a witness will open this gateway e.g. a suggestion a third party who isn't a P witness might have committed the offence with which D is charged would open this gateway

Authorities such as Selvey v DPP [1970] - what constitutes 'attack' - D loses his shield

Following situations amount to attack or another:

Allegation a P witness is biased, allegation the police have fabricated evidence, cross-examining P witness on any ore-cons they might have, accusing P witness of perjurys, accusing investigating officers of deliberately flouting

PRIOR TO BCE EVIDENCE IMPORTANT THAT RELEVANT GATEWAY IS ADMITTED 

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Safety principles - BCE

Under s101(3) - court has discretion to exclude evidence of bad character but that description is restricted to gateways (d)-(g)

Where would have an adverse effect on fairness on proceedings

- discretion triggered by defence 

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Issues with confessions taken by police

s82(1) PACE 'confession' - statement in which suspect admits liability for offence and any statement which may be less obvious admission of his involvement in offence. 

Grounds for excluding confession: Court will consider:

- legality of the police conduct in respect of the suspect's rights under Pace and COP 

- suspect's character traits and life experience including his age, sobriety, experience of dealing with the police 

- whether legal adviser was present when confession was made 

Factors will then be applied to legal grounds for excluding confession as defined by s76 and/or s78 PACE 

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S76 AND S78 PACE

S76(2) provides confession must be excluded at trial that if it was or may have been obtained by oppression of occued, or as a consequence of statement or action which in opinion of court renders confession unreliable.

Burden of proof for admissability of disputed confessions under s76 rests on P

s78(1) allows court to refuse to allow P evidence that would have adverse effect on proceedings 

Where D raises issue with admissability of confession, P have legal and evidential burden of proving it was obtained lawfully and that it should not be excluded under ss76(2)(a), ss76(2)(b) or s78

In Crown Court matter is described in Voir Dire in absence of jury. Judge will hear evidence about how admissions came to be made and will bear legal argument from both sides. 

In discharging legal burden to prove confession is admissable, P will initially call interviewing officer and custody officer to give evidence 

If confession excluded, jury will never know about it

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Confessions

If admissable, accused still entitled to raise some issues before the jury in attempt to persuade jury that confession carries little evidential weight.

s76 (2)(a) provides that oppression includes torture/inhuman/degrading treatment and use of threat of violence 

First important case - Fulling [1987] Accused questioned at PS by 'soft man, hard man' method, caused accused to be in distressed state, accussed confessed but at her trial she insisted admission was made to get out of police custody. 

TJ ruled confession was admissable and hadn't been obtained by 'oppression' 

Court held confession hadn't been obtained by oppression

When the oppressive conduct falls short of the factors provided for in s76(8) there must be deliberate misconduct by the police. 

SUBJECTIVE - strengths and weaknesses of suspect relevant to treatment if harsh, cruel

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Oppression - confessions

What amounts to oppressive conduct was found to have occurred in Abdullah and Miller [1994] 

CA in allowing appeal held that short of physical violence it was hard to conceive a more hostile and intimidating environment. No doubt police conduct was oppressive. 

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Confessions - unreliability

If anything said or done likely to render confession 'unreliable' it will be ruled inadmissable.

Key issue - unreliable not truth

Cannot be relied upon as truth

Judge or mags must examine all relevant circumstances of accused's detention and interrogation and take account of what was said or done to accused and terms of confession

Melvor [1987] - M refused legal advice contrary to s58 - court held that access to solicitor shouldn't have been refused and excluded M's confession

Physical condition and mental characteristics of accused are part of circumstances existing at time for purposes of s76(2)(b)

Vulnerability of accused and physical condition taken into account 

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Confessions - unfairness s78

Shouldn't be admitted using general discretion under s78

Deception made by PO that helped confession -adverse effect on proceedings

CA quashed conviction

Must be causal connection between the breach of suspect's legal rights and resulting confession, otherwise there is no unfairness Alladice [1988]

Importance CA attaches to suspect's access to a sol has been emphasised. 

Aspinall [1999] absence of an AA rendered confession unfair 

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Recurrent themes in confession cases - s76/s78

Denying access to Solicitor

Lying to suspect / tricking in some way

Failing to protect vulnerable suspect

Deliberately flouting PACE / Codes of Practice 

Failing to properly record interview, rendering police vulnerable to suggestion of putting word into D's mouth.

If confession ruled inadmissable, doesn't mean that evidence obtained as a result of confession must be excluded

Governed by ss76(4)-(5) - which permits other incriminating evidence discovered as a result of inadmissable confession, neither confession nor facts discovered will be admissable.

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Confession of Co-def

s76A inserted into PACE by s128 CJA 2003 - allows D to adduce as evidence on his own behalf if confession made by other D

The CoD who made confession may apply to court for it to be excluded on same grounds as app under s76, oppression or anything said or done which could render confession unreliable. 

Once Cod who made confession raises question of inadmissability, under s76A the confession may be admitted into evidence only if D who wishes to adduce confession in evidence can show on balance of probabilities that the confession wasn't obtained through oppression/conduct

Test is a balance of probabilities. - different to test under s76 which is beyond reasonable doubt. 

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Illegally / unfairly obtained evidence

Common law power to exclude evidence capable of prejudicing for trial 

Balancing exercise

Narrow and restricted approach, provided evidence is relevant and reliable it's admission isn't generally regarded as prejudicing D's right to fair trial 

Further option for D seeking to challenge unlawfully obtained P evidence is to apply for stay of proceedings on ground it constitutes abuse of process

Common situations of unlawful evidence gathering activities including where evidence has been obtained by unlawful search, entry/seizure or by entrapment. 

Principles to be applied reaffirmed by HL in Khan (Sultan)[1997] - HL reaffirmed test of admissability was relevance, provided evidence was relevant to fact in issue, would be ruled admissable even though obtained in illegal way

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Eyewitness evidence

Strict procedural safeguards under Code D PACE. If police obtains ID evidence in breach, D may apply to have evidence excluded under s78

For Judge/mags to determine whether admission of evidence would have such adverse effect on fairness it ought not to be admitted

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Entrapment

HL gave following guidance on entrapment under A-G's Ref (No.3 of 2000) [2001] 

Entrapment isn't substantive defence.

If D can show entrapment - courts may choose to exclude evidence under s78 to stay proceedings as abuse of process

Deciding whether conduct amounts to state-created crime, overall consideration is whether the conduct of the police or other law enforcement agencies is so seriously improper to bring admin of justice since disrepute. 

What is relevant:

- nature of offence

- reason for particular police operation

- nature and extent of police participation in crime 

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Hearsay

Statement, oral or written other than one made by a person while giving oral evidence in the proceedings to prove in the proceedings to prove truth of any fact stated in it. 

2 situations - hearsay evidence 

- a witness testifies about facts of which he has no personal knowledge because facts were communicated to witness by another person who is not in court

- B's written witness statement put before court because B unable to attend court to give oral evidence 

General rule - HE not admissable in criminal cases because common law requires witnesses to end court and give oral evidence about facts they have perceived - hearsay evidence cannot be cross-examined. 

General exclusionary rule - however admits hearsay in number of circumstances comprehensively codified by ss114-130 CJA 2003

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Hearsay evidence

Necessary for practitioners and students to identify section of CJA 2003 under which a statement may be admitted.

Vital point is whether words are repeated in order to persuade court of truth of what was said or merely to tell court words were spoken. - SUBRAMANIAN V PUBLIC PROS OF MALAYA [1956]

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Identifying hearsay statements

s115 (3) CJA 2003 possible to recognise Hearsay by asking 3 q's:

1) was statement made out of court?

2) was purpose of repeating statement in court to prove facts contained in statement are true?

3) was purpose of maker of statement:

cause another person to believe matter stated

cause a person to act or machine to operate on basis matter as stated

If answer to each of these q's is yes - statement is hearsay.

If no - non-hearsay

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Common law exceptions to hearsay rule s118

Public docs (s118(1))

Admissable to prove truth of matters e.g. in public register 

Doc must relate to public matter, been made in pursuance of duty of public officer, be intended a permanent record and be available for inspection by public.

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Res Gestae statements or 'spontaneous utterance'

'transaction' or 'series of events'

statements may be admitted if made at time or sufficiently contemporaneously with a particular incident (usually a crime)

May be admitted because no opportunity to fabricate such evidence so has special probative value 

Turnbull [1984] person to whom words had been spoken to could repeat them because they were part of res-gestae said so close in line with Q

Leading authority - Andreus [1987]

House reaffirmed principle that judge has to be satisfied that there is no possibility for the statement to be concocted/distorted and witnesses reaction to events were sufficiently spontaneous to afford real opp for reasonable reflection.

Often used in DV cases where complainant an unwilling witness - McGuiness v Public P for NI [2017]

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Statutory exceptions to hearsay rule

s114(1) admits HE:

by statute

common law

by agreement

interests of justice 

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Statements admissable under s9 CJA 1967

written statements are admissable in all criminal proceedings provided:

- they are signed

- they contain declaration in specified words as to their truth

- statement has been served on opposing party

- objection made to statement being put before court in witnesses absence 

If other party objects within 7 days to statement being used in witnesses absence, witness will be required to attend trial to give oral evidence

If only issue is if D responsible for crime and eyewitness account doesn't identify D, it is an example of what may be read under this section. 

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Unavailability exception s116

Admits both first hand oral and written statements of absent witnesses provided 3 conditions are satisfied, applies to both P and D 

1. Witnesses oral evidence would have been admissable had witness been available

2. Person who made statement is identified to court's satisfaction

3. One of the 5 conditions in s116(2) relating to unavailability of witnesses is satisfied:

 a) they're dead

 b) unfit to give evidence because of bodily/mental condition

 c) outside UK, not reasonably practicable to secure attendance

 d) cannot be found although reasonable steps taken 

 e) doesn't give oral evidence in proceedings out of fear. 

Where reason is either (a)-(d) admission of hearsay statement automatic. 

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Unavailability exception s116 2

If Non-attendance through fear - admissable where judge satisfied its admission is in IOJ

fear includes fear of death or injury to another personor financial loss

Fear requirement - only one where leave requirements are attached 

Court must be satisfied it is in IOJ and must have regard to:

- contents of statement

- to any risk it's admission/exclusion will result in unfairness to any party in proceedings

- in appropriate cases, fact special measures direction under s19 YJCEA could be made

- any other relevant circumstances

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Business exception (s117)

Provided oral evidence would have been admissable and requirements of s117(2) are satisfied. Requirements:

- doc or part containing statement created or received by person in course of trade

- person who supplied info contained in statement had or reasonably expected to have had personal knowledge of matters dealt with 

- each person (if any) through whom the info was supplied from relevant person to person in part a

e.g. invoices in garage

s117(4) where doc prepared for pending/contemplated criminal proceedings/investigation, added requirements of s117(5) must be satisfied, must be statutory reason for non-attendance of supplier of info

s116(2) - supplier of info cannot reasonably be expected to recollect matters dealt with in statement - length of time since 

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Business exception (s117) 2

S117(7) empowers court to direct a statement sought to be admitted under this exception isn't admissable where it's reliability is doubtful having regard to:

- it's contents 

- source of info contained

- way in what or circumstances info supplied/received 

- way/circumstances a document was created / received.

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Safety valve s114(d)

Gives court discretion to admit hearsay evidence which doesn't come within one of the s116 exceptions

Court may only admit if in interests of justice - Interests of justice a discretionary test - court will take into account factors in s114(2(a-i)

A) how much probative value statement has (if assuming true) or how valuable for understanding of other evidence in case

B) what other evidence has been or can be given on matter or evidence?

C) how important evidence is in context of case as whole

D) circumstances in which statement is made 

E) how reliable matter of statement appears to be 

F) how reliable evidence of making of statement appears to be 

G) Whether oral evidence can be given and if not, why 

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Safety valve s114(d) 2

H) amount of difficult involved in challenging statement 

I) Extent to which difficulty would prejudice party

Third party confession might be admitted under safety valve exception - Finch [2007]

CA overruled TJ in Y [2008] - hearsay contained in confession may be admitted under s114(d)

Hearsay admitted in Amin [2014]

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Safety valve s114(d) 3

Riat [2012] hearsay statement not required to be wholly verified from independent source.

Judge - to ensure hearsay could safely be held to be reliable, that involved looking at strengths and weaknesses, at tools available for jury for testing it and importance to case

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Framework - hearsay

1. Was there specific statutory framework or gateway permitting admission of HE? (ss116-118)

2. What material is there to help to test or assess hearsay?

3. Was there specific interests of justice test at admissability stage?

4. If no other justification or gateway, should it nevertheless be considered for admission on grounds admissaion was despite difficulties in the interests of justice?

5. Even if prima facie admissable, ought evidence to be ruled inadmissable? 

6. Although no rule to effect that where HE was 'sole or decisive' evidence in the case it could never be admitted, importance of evidence to case against accused was central 

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Safeguards under CJA 2003

s124 CJA allows for admission of relevant evidence relating to credibility of absent witness

Any matter that could have been put to witness to cross-exam had witness attended will be admissable, as will evidence of any inconsistent statement made by witness - might include pre-cons

s125(1) acknowledges potential weakness of some HE and authorises the court at any time after close of pros case to direct acquittal of D or order discharge of jury where:

- case against D based wholly/partly on statement not made in oral evidence in proceedings and

- the evidence provided by statement is so unconvincing that considering it's importance to case against D, his conviction of offence would be unsafe

Also under s126(1) court has general discretion to exclude HE if: court satisfied case for excluding statement, taking account of danger that to admit it would result in undue waste of time, substantially outweighs case for admitting it, taking account of value of evidence. 

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Multiple hearsay - s121

Admissable only if comprises a business doc admitted under s117 CJA or parties agree to it being admitted, or court satisfied value of evidence, taking into account how reliable statement appears to be is so high the IOJ requires it to be admitted - second safety valve

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HE and HRA

Case law of ECHR suggests hearsay doesnt automatically conflict with Art 6 right provided D is able to challenge the evidence effectively Kostovski v Netherlands [1990]

In Luca v Italy [2003] CA acknowledged there are a wide range of safeguards

But then.. Al Khawaja and Tahery v UK [2009] and [2011] 

ECtHR concluded admission of HE at trial violated Art 6(1), specifically Art 6(3)(d) - who doubted whether any counterbalancing factors would be sufficient to justify introduction in evidence of untested statement which was sole or decisive basis for conviction

Then.... Horncastle and others [2009] - considering practical effects of Al Khawaja case - court held that provided 'hearsay' safeguards in CJA 2003 were observed, wouldn't breach Art 6(3)(d) and Supreme Court strongly affirmed this approach. 

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Al Khawaja and Tahery v UK [2009] and [2011]

Where HE is sole/decisive evidence against a D, it's admission as evidence will not automatically result in breach of Article 6

However, counterbalancing factors including existence of strong procedural safeguards are required to permit fair and proper assessment of reliability of that evidence. 

In Alkhawaja's case counterbalancing factors were sufficient.In Tahery's case where the main P witness who provided uncorroborative eyewitness evidence had refused to give evidence out of fear, concluded counterbalancing measures weren't sufficient. 

For fear, Trial Judge must conduct enquiries to first determine whether there are objective grounds for fear and whether those objective grounds are supported by evidence. 

Before witness can be excused from testifying on grounds of fear, trial court must be satisfied all available alternatives such as witness anonymity and other special mesaures would be inappropriate. 

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Important for questions about hearsay - checklist

1. Define Hearsay evidence

2. State general rule regarding admissability of Hearsay Evidence 

3. Identify one or more exceptions under s114 Criminal Justice Act 2003 that might allow HE to be admitted 

4. Consider whether D can have a fair trial where HE admitted against him

HE - consider Article 6 - not able to cross-exam the witness - HE excluded unless it can be brought within a statutory exception

s114 CJA 2003 allows HE to be admitted under 4 sections 

s116 identified but unavailable i.e. died/too ill/left country

Special consideration for witnesses in fear

s117 - business docs and extends to multiple HE

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Important for questions about hearsay - checklist

s118 common law exceptions includes common law evidence 

also s118 - res gestae (spontaneous utterance) 'while caught up in dramatic event'

s114(2) - enables court to use discretion to include HE if in interests of justice 'SAFETY VALVE' 

If more than one statutory exception for HE available discuss both 

Fair trial argument: number of safeguards apply to HE 

- D can attack credibility of HE witness 

- Requirement of leave for witness in fear

- s78 PACE - can exclude P evidence if it's admission adverseley effect fairness. 

Vast majority case - CA and SC in Horncastle (2009) consistently held HE provisions CJA 2003 are compatible with Art 6

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Procedure following conviction at trial

P role to assist court in relation to it's powers and to relevant sentencing guidelines

P will read VPS and refer to court to his criminal history - may be app for P costs and compensation

D's advocate - plea in mitigation - if adjourned for PSR will refer until full sentencing hearing

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Procedure following G plea

P outlines circumstances based on evidence in witness statements and D's interview and/or agreed basis of plea.

P draws attention to pre-con's and relevant ones, if in breach of existing court order.

If offence involves injury or damage to property P should provide full details and hand applications for compensation.

P May make submissions ref sentencing guidelines - P will ask for ancilliary order and P costs

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Newton hearing - reason for it

Before enters G plea, good practise for D advocate to discuss basis of client's plea with P, on a G plea doesn't necessarily mean the accused accepts everything outlined by P e.g. pleading guilty to assault but denies using a weapon

P will then need to consider whether a G plea on such a basis can be accepted. If accepted written basis of plea should be agreed and signed. Even if they agree, judge can still sentence on that basis of fact if incorrect.

Where despite the G plea, there are disputed facts of offence and P and D cannot agree, and it would materially affect sentence, Newton hearing might be used to determine disputed fact.

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Newton Hearing - procedure

In Court Court, judge sits without jury for a Newton Hearing and P witnesses called. 

D may also give evidence and call witnesses.

Rules of evidence apply as do legal and evidential burdens of proof

Court will then decide whether P version if facts made out 

Where P case believed, D may lose some or all credit for pleading guilty 

If P fails to persuade, defence version will be accepted and judge will sentence on that basis

Basis of plea in mags should be in writing - no express requirement in Crown Court

If agreed basis of plea not signed by both judges can ignore it

Judge can decline to hear evidence about disputed facts if accused's case is absurd or obviously unreliable

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TIC

D can ask other offences to be taken into consideration - won't be convicted of other offences but will be taken into consideration when passing sentence.

Police will be asked to prepare schedule of these offences giving the time, date, place and surrounding circumstances - accused will be asked to agree

Mutual benefits:

For prosecution it enables them to clear up rate of crimes, for def although he receives a higher sentence because of the number of offences, knows he cannot later be prosecuted for these offences - the increase in sentence taking them into consideration would be substantially less than if convicted seperately

Doesn't apply to driving offences that carry endorsement / disqualification

Courts shouldn't allow offences of different nature than offence to be TIC and Mags shouldn't TIC indictable only offences 

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D's antecedents

Pre-cons aggravate seriousness of an offence

s156 - unless court feels it is unnecessary, must order PSR before imposing sentence or making community order with requirements 

Failure to obtain PSR doesn't invalidate a sentence - Armsarah [2000] - doesn't apply if of previous good character

Standard delivery report takes 3-4 weeks - more likely in Crown Court due to serious nature of offences - In mags FDR is ok 

Where there are issues about drug use or domestic violence, SDR likely 

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Medical/Psychiatric reports

Make hospital order s37 MHA 1983 / community order with MH requirement s207(3) CJA. 

Court must order medical report for any offender who appears to be mentally disordered before sentence in custody is passed s157 CJA 2003.

Where these reports are required, D may be remanded or bailed pending its prep

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Plea in mitigation

Persuade court offender should be dealt with as lenient as possible.

Advocate would:

outline range of disposals that the court may impose by referring to the Mags Ct sentencing guidelines

- Deal with issues raised by PSR

- Deal with circumstances of offence, identifying and explaining any aggravating factors and highlight any mitigating factors

- Refer to the D's personal circumstances including domestic background, work record, cooperation with police, and any attempts of restitution with victim. G plea entitles D to discount of 1/3.

- Suggest appropriate sentence

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Deferring sentence

s1 PCC(S)A 2000 gives court power to defer sentencing of offender, allowing court to assess offender's behaviour after conviction, including any reperation he might have made to victim of crime and any relevant change in offender's circumstances 

One reason for deferring sentence could be to allow offender to undertake a course of drug or alcohol rehabilitation

Max deferral period is 6 months which may be used only where the court considers that to do so is in interests of justice 

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Using sentencing guidelines - new approach

Court must start at Step 1 by determining offence category - done by assessing culpability and harm - guideline sets out examples of behaviour categorised as high, medium and low culpability 

Must decide upon category of harm - 1, 2, 3 

Once decided upon level of culpability/harm it can utilise table in step 2 to establish starting point and range for sentencing offence

Then court will consider aggravating and mitigating factors to move prospective punishment up or down

Once prospective sentence decided, will take following steps as set out:

- consider any factors that would result in reduction of sentence i.e. assistance given by P

- consider reduction for G plea

- consider totality 

- consider confiscation, compensation and other ancilliary orders

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Using sentencing guidelines - new approach 2

- Announce it's decision, and give reasons for it

- Consider whether or not to give credit for time spent on bail 

Cr Part 28 - sentencing procedures in special cases - applies where court decides not to follow relevant SF - if this is case court must explain why it's decided not to follow the guideline when it gives reasons for sentence its passed

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Sentencing purpose

s142 CJA 2003 court must have regard to:

- punishment of offenders

-reduction in crime

- reform and rehab of offenders 

- protection of public 

- making of reperation  by offender to persons affected by their offences 

Not a hierarchy

Hierachy of sentences: custody immediate or suspended - community sentence - fine - conditional discharge - absolute discharge. 

More serious the offence, higher up the scale the sentence is likely to be 

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Seriousness of offence

s143 CJA sets out parameters by which seriousness is determined: culpability / harm

Culpability

4 levels - all that relate to state of mind of offender - where an offender:-

1. Has intention to cause harm, with the highest culpability when an offence is planned. Worse the harm intended, the greater the seriousness

2. Reckless as to whether harm is caused that is, where offender appreciates at least some harm would be caused but proceeds, giving no thoughts to consequences even though extent of risk would be obvious to most people.

3. Has knowledge of specific risks entailed by his actions even though he doesn't intent to cause harm that results 

4. Guilty of negligence

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Seriousness of offence 2

Harm 

s143 CJA 2003 not only those offences where harm is caused but also whether neither individual / community suffers harm but risk of harm is present 

3 main types of harm:

1. to individual victims 

(a) types of harm caused / risked by different types of animal activity are diverse, victims may suffer physical injury, sexual violation, financial loss, damage to health or psych distress

(b) nature of harm will depend on personal characteristics and circumstances of victim, and the court's assessment of harm will be an effective and important way of taking into consideration impact of particular crime on victim 

(c) some cases no actual harm may have resulted and court will be concerned with assessing relative dangerousness of offender conduct, likelihood of harm occurring and gravity of harm that could have resulted

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Seriousness of offence 3

2. to community - economic loss, harm to public health, interference with admin of justice 

3. Other types of harm  

a) cruelty to animals causes significant harm to animal but human victim could also suffer psych distress and/or financial loss

b) Some conduct criminalised purely by ref to public feeding i.e. supply of prohibited drugs

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Assessing culpability and harm

Culpability should be initial factor in determining seriousness 

Harm must always be judged in light of culpability. Precide level of culpability will be determined by factors i.e. motivation, whether offence was planned or spontaneous

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Aggravating factors

Number of statutory aggravating factors that affect seriousness - identified in s143-146 CJA

s143(2) CJA 2003 - Pre-con's when necessary and time elapsed

s143(3) - court to treat fact any offence was committed while offender on bail as being an agg factor in determining seriousness

s145-146 - where offence racially/religiously motivated or motivated by hostility towards persons sexual/presumed sex orientation/disability

Agg factor - deliberate targeting of vulnerable victim

Guidance offers extensive but not exhaustive list of typical aggravating and mitigating factors 

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Mitigating factors

May demonstrate reduced culpability/harm

Greater degree of provocation than normal e.g. bullying resulting in assault

Mental illness/diversity

Youth/age

Fact offender played only minor role 

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G plea credit - sentencing discounts

s144 CJA sliding scale according to stage G plea is entered

Where entered at first opp, discount of up to 1/3 will be applied

Where plea indicated after trial dates set, discount up to 1/4

Where plea entered at door to court or after trial has begun, discount should be 1/10

Where the evidence is overwhelming, reduction of 20% recommended by SC guidelines, where D pleads G at first available opportunity. - If pleads G before trial but after number of hearings, reduction could be as low as 10% Coughlan [2017]

Credit for assisting authorities - ss71 and 75 Serious Crime and Police Act 2005 - D's sentence may be reduced where he is given evidence against another. 

Examined in AXN [2016]  - for police to decide themselves how much information to provide

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Sentencing options

4 categories of seriousness: discharges, financial penalties, community sentences, and custodial sentence

Recommended approach for sentencing courts is to begin by considering seriousness of offence utilising offence specific sentencing guidelines

Determine which sentencing threshold's have been crossed and indicate whether custodial, community or other sentence is most appropriate.

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Custodial sentence

Must be satisfied custody threshold is passed s152(2) CJA 2003

Court must pass custodial sentence unless it is of opinion that the offence or combination of offences and one or more offences associated with it are so serious neither fine alone or community sentence can be justified

Even if this threshold passed doesnt mean an immediate custodial sentence will be passed

1. Has custody threshold passed?

2. If so, is it unavoidable that a custodial sentence imposed?

3. If so can that sentence can be suspended?

4. If not, impose sentence that takes immediate effect for term commensurate with seriousness of offence?

Time spent on remand or electronically monitored curfew counts as time served 

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Custodial sentence 2

When released on licence, probation may impose requirements on D's licence to prevent re-offending and/or to protect public 

Mandatory Min sentences - s110 PCC(S)A 2000 - applies to anyone over age of 18 who is convicted of Class A drug trafficking offences and who has been convicted previously on 2 seperate occasions of such offences - must be sentenced to at least 7y

s111 CJA PCC(S)A 2003 - repeat offences of burglary with dwelling laying down minimum sentence of 3y for third conviction

s51A Firearms Act 1968 - mandatory minimum sentences for certain serious firearm offences - min custodial sentence of 5y for offenders that are 18 years or older and minimum of 3y for those 16 and older.

Further mandatory minimum sentence for possessing offensive weapon - min custodial sentence 6 months or DTO of 4 months if 16/17

For firearms, 'exceptional circumstances' where judge may decide not to impose minimum term - same to the ones above, circumstances that would make it unjust 

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Custodial sentence and legal rep

s83 PCC(S)A provides a court will not pass custodial sentence on person who isn't legally represented and hasn't previously been sentenced to that punishment by court in UK

Doesn't apply if legal rep was withdrawn because of D's conduct or where D having been informed of his right to legal advice has refused or failed to apply s83(3) or if D is financially ineligible for LA i.e. does not pass merits test 

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Suspended custodial sentences

May be imposed if 18y or older where custody threshold met. 

Available for sentence of up to 24 months 

In Mags available up to 6 months or 12 months for 2 or more offences 

Sentences of less than 14 days cannot be suspended 

Period of suspension can be between 6 months and 2 years s.189(3)CJA 2003

May be ordered by court to undertake requirements in community during supervision period - requirements similar to what can be given for community order

If fail to comply with requirements or commit further offence, court has number of options 

- can order the suspended sentence be activated for original custodial term or lesser term or amend order to extend period or impose more requirements

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Sentencing dangerous offenders

ss224-229 CJA 2003- can only be passed in Crown Court

'Serious' and 'specified' offences 

Specified offences sch15 CJA 2003 consists of violent/sexual offences - carry max penalty of 2 years imprisonment 

Serious offences are violent or sexual offences listed in schedule 15B - max life imprisonment or 10 years or more 

Dangerousness: whether D poses significant risk to members of public of serious harm including death or serious personal/psychological injury occasioned by commission of further 'specified' offences 

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Dangerousness s229 CJA

The court must:

- take into account all such info as is available as to the nature and circumstances of offence 

- may take into account all available info about nature and circumstances of any other offences of which offender has been convicted by court anywhere in the world 

- may take into account any info it has about any pattern of behaviour of which offences from the past 

- May take into account info it has before it about offender 

PSR and any psychiatric report, as well as pre-cons and mental condition important to assist court to determine whether someone is 'dangerous' within meaning of s229 CJA

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Life sentence for serious offence

ss225(1) and (2) CJA

Where offender aged 18 and over and is convicted of a 'serious offence' and 

- court considers offender's dangerous and 

- offence carries life sentence and 

- court considers seriousness of offence is such as to justify imposing sentencing of life 

Then they must impose a life sentence 

Unless offence is so serious that imprisonment for whole life term is justified, minimum term which offender will serve in custody must be set. Once served minimum term not released unless Parole Board is satisfied.

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Life sentence for second listed offence

s224A CJA 2003 - provides court must impose life sentence on persons 18+:

- must be convicted of offence listed in Part 1 Sch 15B CJA which includes, manslaughter, soliciting murder, GBH with intent, certian serious firearm offences and number of serious sexual offences. 

- must have been convicted of previous offences falling within sch15B for which he received life sentence 

Current offence must be such that the court would have imposed a sentence of 10y+

If conditions are fulfilled, court must impose life sentence, unless it is of the opinion there are 'particular circumstances' making it unjust to do so

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Extended sentence

When sentencing offender who a) is convicted of 'serious' offence and b) who satisfies definition of 'dangerous' and c) doesn't qualify for life sentence - court may impose extended sentences.

s226A CJA provides extended sentence may be passed where:

- 18 years old and convicted of specified offence

- court considers offender presents significant risk to members of public of serious harm through commission of further specified offences 

- court not obliged to impose life sentence 

- either condition A or B is met

Condition A - when current offence was committed the offender had pre-con for offence listed in Sch15B

Condition B - appropriate term for current offence is at least 4 years 

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Extended sentence 2

Offender normally released when served 2/3 

Custodial part has to be at least 12 months 

Extended period may be up to 5 years for specified violent offence and up to 8 years for specified sexual offence

Custodial term and extended period must not together exceed max term of imprisonment that may be imposed 

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Community orders

Threshold test s148(1)CJA - has to be serious enough

Requirements include:

Unpaid work, activity, programme, prohibited activity, curfew, residence, MH/drug treatment, supervision, attendance centre. 

Breach of community order normally be dealt with by summary proceedings except where D originally sentenced in Crown Court, then would be remitted to that court - ourt may impose additional requirements, fine for breach or may revoke and sentennce offender for oroginal offence.

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Fines

s164 CJA permits CC and Mags to fine a D where offence is not serious enough to merit community sentence or custody 

Crown courts power to impose a fine is unlimited.

MCSG provides starting point

Before making fine court must make enquiries about D's financial circumstances and consider seriousness s164

Mags must then set fine taking into account individual circumstances 

Fine may be reduced if D would suffer hardship

Priority always given to compensation order, ifwould struggle to pay both, compensation preferred 

Fine can be imposed with a community order, like disqualified from driving 

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Fines 2

Fine defaulties will be summonsed to appear before court, if not answered a warrant will be used for their arrest.

Various methods of enforcement:

- making attachment of benefits order

- making attachment earning order

- ordering distress warrant

- remitting all or part of fine

- ordering detention in precincts of court 

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Fines - enforcement

Where all methods of enforcement tried , court can order custody only in circumstances:

- D already serving custodial sentence

- Defaulter appears to have sufficient means to pay forewith 

- court satisfied the defaulter has wilfully refused to pay or neglected to pay - the period of impirsonment may be suspended pending regular payments 

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Discharges

Conditional or absolute discharges may be used in case of relatively trivial offences.

A court that does not want to punish offender at all may give absolute discharge.

May be appropriate in cases such as driving offences of strict liability where no real moral blame on defendant i.e. driver takes car to garage, drives away and breaks fail - tecnhically offence of driving with defective brakes but court wouldnt consider this offence blameworthy

COnditional discharge is a distilled version of a suspended sentence - if a offender doesn't reoffend during period of discharge, the conditional discharge lapses

If does offend will be dealt with for first offence. 

These discharges governed by ss12-15 PCC(S)A

An offender may be bound over to keep the peace a power which has it's origins in 14th century contained in s115 Mags Ct- where court believes a breach of peace might arise from future conduct - bound over to keep peace and be of good behaviour

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Ancilliary orders

Compensation order's 

under s130 PCC(S)A may instead or in addition to dealing with him in any other way, order him to pay compensation for any death, personal injury, loss or damage from offence 

No limit on amount imposed by Crown Court or Mags except that CO's in Mags court are limited to £5000 for offender under 18 

P costs

Common for courts to award some or all of P costs following conviction although priority given to O's and fines 

Amount sought by P depends on nature of offence and degree of prep P has to undertake

Court may order all or part of costs or make no order as to costs

Forfeiture orders - property which was used to commit or facilitate an offence - ancilliary to other sentences such as imprisonment or fines and are punitive rather than compensatory

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Criminal Behavioural Orders

Anti-social Behaviour, Crime and Policing Act 2014

- IPNA (Replaces ASBO) - civil

- CBO 

Standard of proof for IPNA is civil one - balance of probabilities, court must be satisfied that injunction needs to be made to prevent respondent from engaging in ASB and just and convenient to grant injunction

ASB defined under s2 ASBOPA 2014 as conduct likely to cause harassment, alarm/distress or conduct capable of causing nuisance / annoyance in relation to persons occupation of home or housing related nuisance.

Same section deals with CBO - Criminal Court has power to make a CBO where person convicted of offence.

2 conditions - order would prevent D engaging in ASB and satisfied beyond reasonable doubt that D has engaged in behaviour that caused/likely to cause harassment

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Criminal Behavioural Orders 2

Allows restrictive and positive requirements

Positive requirements: attending Alcohol Awareness classes or recreational activity to encourage more positive use of persons time

CBO shouldn't punish individual its used to prevent ASB 

Breach of CBO 

Cannot impose CBO if it is a deferred sentence or decided D should be granted absolute discharge. 

Breach is a criminal offence - those under 18 will take place in Youth court - max sentence 2 year DTO. Court has power to make DTO, YRO and RO.

Adult can receive max of 5y for Breach of CBO

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Other ancilliary orders

Restraining order - to prevent further offences and protect individual from harm

Most common for DV cases

Differ from other ancilliary orders as they are available whether D is convicted / acquitted

Change brought by amendment of Protection from Harassment Act 1997 by s12 DV Crime and Victims Act 

Other less common ancilliary orders:

- serious crime prevention order

- financial reporting order

- violent offender order

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Road Traffic Orders

Drink driving carries mandatory disqualification for minimum period 

Under RTA 1988 some offences carry fixed number of penalty points i.e. disobeying traffic lights

For dangerous driving, court may endorse offenders licence with between 3-11 points 

Where convicted of more than one driving offence and court imposes penalty points to each offence, as matter of general practice only the higher of 2 sets of points will be endorsed on D's licence - open to D to argue there are special reasons for not disqualifying him

Whittal v Kirby [1947] 'special reason' means mitigating circumstance not amounting in law to defence of charge but directly connected with commission of offence, one which court ought to take into account when imposing sentence.

More recent app of rule relating to special reasons - Jarvis v DPP [2001] 

Offence of dangerous driving objectively based on nature of D's driving - Driver's physical condition irrelevant (medical episode)

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Road Traffic Orders 2

D seeking to rely on 'special reasons' has legal burden of proof on balance of probabilities 

D will be disqualified from driving where he has had 12 or more penalty points endorsed on his licence during preceding period of 3 years from date of latest offence TOTTING

Where disqualified as a totter, all penalty points will be taken off his licence and when he has served period of disqualification he will have clean licence. Minimum period for disqualification of totter is 6 months 

Some offences like disqualified driving requires obligatory disqualification of driver for period of at least 12 months. Others like careless driving carry discretionary disqualification.

Where D faces discretionary disqualification, mitigation will be based on normal principles identifying effect of disqualification on D and circumstances of offence

Where disqualified as a totter, app for mitigation severely limited as D being sentenced on totality of offending of over 3 years - to reduce or avoid disqual. under totting up, must argue mitigating circumstances relevant to offence and may be relevant to D

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Road Traffic Orders 3

s35(4) RTOA 1998 specifically excludes D from submitting:

- offence trivial

- loss of licence would cause hardship (unless hardship exceptional)

any mitigating circumstances advanced and taken into account to avoid disqual under totting up procedure

Hardship - exceptional - regard to all circumstances - not just inconvenienced or experience reduction in quality of life - can extend to D's dependants.

Relevant factors - employment, other means of public or private transport and working hour requirements

D must usually give evidence on oath to substantiate claim of exceptional harship and where appropriate adduce evidence from employer about consequences of losing licencee, D can be cross-examined

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Road Traffic Orders 4

Open to court to consider disqual person who has pleaded guilty to careless driving or inconsiderate driving.

Carries variable point penalty of between 3-9 and in addition to imposing 9 points order D should be disqual from driving. More likely when person perpetrates fairly dangerous piece of driving and pleads guilty to having no insurance.

Drink driving - obligatory Disqual

If drives or attempts to drive while unfit through drugs or drives with excess alcohol or fails to provide specimen, court obliged to impose period of disqual for min period of 12 months - if convicted with one of these offences within preceding 10 years then on second occasion disqual must be for at least 3 years.

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Appeals - CCRC

Investigate miscarriages of justice, 2-3 cases each day

CA can order CCRC to investigate a case, conviction on indictment may be referred to CA by commission and this will then be treated as appeal by person convicted

Commission may also refer Mags court conviction or sentence to Crown Court s11 CAA

s13 CAA  provides commission shall not refer any convictions unless it considers real possibility they won't be upheld 

Referral in exceptional circumstances

Comission has power to obtain docs and direct officers to investigate and report s17-21 CAA and non disclosure of info to them may be an offence. 

CCRC often viewed as safety net when normal processes of appeal been exhausted but possibility of miscarriages of justice 

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Appeal from Crown Court

Can only do so with leave from Crown Court 

No leave to appeal against conviction required if trial judge granted certificate that case is fit for appeal

If had public funding for trial, extends to initial advice on appeal and drafting of grounds of appeal if advice is to pursue appeal

Within 28 days of conviction/sentence the appellant serves on Reg of Criminal Appeals a notice for app for leave to appeal with grounds of appeal - notice will be sent to Crown court at which he was sentenced who will forward to CA

If appeals against conviction, transcript should be provided either of judges summing up or perhaps part of evidence or even most of trial.

Papers will then be put before single judge who may either be Lord JUstice of Appeal or HIgh court judge sitting as matter of CA 

FILTERING STAGE - SJ CONSIDERS WHETHER LEAVE OUGHT TO BE GIVEN

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Appeal from Crown Court 2

If grants leave of appeal - would grant legal aid funding

If refuses leave appellant has 14 further days to serve notice upon Reg tht he wishes to renew app before full court.

Papers then put before full court which again considers papers usually without legal argument as public funding not available at that stage. 

If Reg in preliminary look at grounds considers appeal has prima facie chance of success, he may bypass SJ procedure, grant public funding himself and list app for leave to appeal hearing by full court and will also ask P to be represented

Court then while considering issue of leave usually treats app for leave as hearing of substantive appeal

If appeal lodged against conviction and then leave sought to amend grounds of appeal, CA won't auto grant leave to pursue different grounds - Direction for loss of time s29 CAA penalises appealant for pursue frivolous appeal

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Appeals - granting bail

CA has power to grant bail to appellant pending determination of his appeal and may be exercised by SJ when he considers the papers

For appeals of short sentence, every effort made by CA to bring case quickly 

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Possible outcomes of appeal to CA

Will allow appeal against conviction if it thinks conviction is 'unsafe' s2 CAA

Grounds for app against conviction can include:

- wrongful admissions or exclusion of evidence

- failure to properly exercise judicial discretion

- defects in indictment

- conduct of TJ

- errors in TJ summing up

- problems associated with jurors

CA may quash conviction and in effect order acquittal, quash conviction and order retrial and dismiss appeal

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Possible outcomes of appeal to CA 2

To decide whether conviction is 'unsafe' CA will hear legal argument from either side and exceptionally may hear from evidence under s23 CAA 1968

Fresh evidence only heard under s23 if:

- capable of belief

- capable of founding ground of appeal

- would have been admissable at original trial

- reasonable explanation for failure to adduce evidence

Common practice - for appellant to refer to specific legal/procedural errors that arose at trial and then supplement these specific claims with general ground that conviction is unsafe. 

Whether a conviction is 'unsafe' is subjective. CA judge Have I a reasonable doubt or lurking doubt conviction may be unsafe? If affirmative - appeal allowed. 

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Possible outcomes of appeal to CA 3

Pendleton [2002] HL - about whether conviction unsafe not whether D is guilty

CA must consider what effect the fresh evidence would have had on jurors if it had been heard at original trial - if it might have affected their decision to convict - conviction may be 'unsafe'

CA entitled to take into consideration:

- whether conviction unsatisfactory

- that court made wrong decision on point of law 

- material irregularity in course of trial

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Appeal against sentence

Leave required. 

Grounds on which appeal may be allowed:

- judge erred on matter of principle

- sentence manifestly excessive

- sentence wrong in law (will include a sentence that couldn't lawfully be passed)

Sentence wrong in principle or manifestly excessive covers number of different situations:

- Fact sentence merely severe won't be sufficient for it to be regarded as 'excessive' but if sentence is passed outside appropriate range of offence and offence in question, it might be considered 'excessive'

Another example - where there has been serious disparity in sentence between 2 or more co-accused where their circumstances are similar or where D was given expectation he would receive certain type of sentence.

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Appeal against sentence 2

Another example would be if there was a failure to obtain PSR or hold a Newton hearing when one clearly required

Under s11(3) CA doesnt have power to increase the sentence Reynolds [2007]

The AG may refer unduly lenient sentences to CA

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P Right of appeal

Rule against Double Jeopardy abolished under s75 CJA 2003, allowing P with consent of DPP to apply to CA to quash acquittal and order retrial where compelling new evidence emerges. 

This right of appeal relates only to acquittals in respect of serious offences listed. 

ss57 and ss58 CJA 2003 more general right of appeal o P against Judge's terminating rulings for example where Judge decides no case to answer - If CA reverses or varies judge ruling, case may resume or start afresh. 

Other examples of terminating rulings that may be appealed against are:

- a ruling the indictment be stayed for abuse of process

- successful plea of autrefois acquit/convict

- ruling that indictment discloses no offence punishable in English law.

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P Right of appeal Procedure

Following ruling, P must inform Court that it intends to appeal or request adjournment to consider whether to appeal. 

P must agree s58 CJA 2003 that if it fails to obtain leave of appeal or abandons the appeal an acquittal must inevitably follow

Leave to appeal usually sought from TJ but may be granted by CA - expedited or non-expedited

Trial may be adjourned or jury discharged pending appeal.

Under s61, CA may confirm, reverse or vary a ruling appealed against. If confirms ruling, D will be acquitted.

Where it varies or reverses the ruling it may order resumption of trial / fresh trial / acquittal of D

Appeals may be made only with leave of judge but could include appeal against decision by TJ to exclude confession evidence under s76 PACE or refusal to admit HE s114 CJA or Bad character evidence s101 CJA  - CA may confirm / reverse / vary

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P Right of appeal Procedure 2

In either case (appeals against terminating ruling or evidentiary ruling) CA may overturn ruling by TJ only if it is satisfied that:

- ruling wrong in law

- ruling involved in error of law/principle

- wasn't reason for judge to have made a ruling

Essential that the undertaking given by P that an acquittal must inevitably follow unsuccessful appeal must be given at same time as invoking right of appeal

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Appeal to Supreme Court

Under s33 CAA 1968 either P or D may appeal to SC from decision of Criminal Division of CA provided:

- CA certifies the decision involves a point of law of general public importance

- Either CA / SC gives leave to appeal - such apps for leave of appeal should be made immediately after court's decision or at latest within 14 days of decision s34 CAA

App should be made within 14 days 

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Appeals from Mag Court to Crown Court

Includes Youth Court

May appeal sentence and conviction at Crown Court 

Notice of appeal must be given in writing to clerk of Mags Court concerned and to prosecution within 21 days of sentence being passed. Doesn't need to be detailed 

Usually use a form of appeal 'D proposes to appeal on ground Mags erred in fact and in law in convicting them'

No filtering mechanism like with CA appeals and no discretion to refuse to accept appeal 

Discretion to extend time giving notice of appeal 

In case of person given custodial sentence in Mags court, app for bail under hearing of appeal may be made and if that is refused a further app may be made to Crown Court itself.

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Appeals from Mag Court to Crown Court 2

Appeals to Crown Court usually heard by Circuit Judge with 2 lay mags not involved in original case. 

Complete rehearing of case so either side may call fresh evidence which they didn't call in court below - new arguments on law may also be advanced. No jury.

Powers of Crown Court in disposing of appeal are that it may confirm, reverse/vary decision appealed against or remit matter to Mags with it's opinion. Only D may appeal to CC under this method.

D should be warned if appeal fails, CC may impose sentence that was available in Mags Ct

May result in D receiving more severe penalty subject to the max that the Mags Court could have imposed for the offence

Unsuccessful appeal may add result in D paying some or all of P's costs

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Appeal by way of case stated

Either party to proceedings before Mags Ct may challenge the decision of Ct by applying to Mags to state case for the opinion of the QB Div court on question of law s111 MCA 1980. 

Either side may call into question a ruling on a point of law

App by person aggrieved must be made to Mags within 21 days of acquittal / conviction

Woolls [2016] Although a 21 day limit is laid down for an appeal by way of case stated, court does have some discretion to extend it if the interests of justice so require 

Relevant Procedure - CrPr Part 35 App should be in writing and should identify question of law on which HC's opinion us sought. App is sent to Mags clerk. 

'Statement' of case should outline facts called into question, state facts which Mags found and then state the Mags finding on points of law in question, list any authority cited and finally pose question for HC

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Appeal by way of case stated 2

'case' is drafted by Mags Court in consultation with Mags

Drafts of case usually sent to parties who may suggest amendments

Final form of 'case' must then be sent to appellant who must lodge it at Crown Office of Royal Courts of Justice 

Notice must then be given to 'respondent' with copy of case

The hearing will be heard by at least 2 judges of QBD, the appeal takes the form of a legal argument for both sides based solely on the facts as found in the case.

Divisional Court may reverse, affirm or amend Mags decision, may remit matter back to Mags Court with it it's opinion (directing they continue hearing, convict/acquit) or may revisit case to diff bench of Mags 

Where appeals by way of case stated have been made, prevents later appeal to Crown Court of Mags decision

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Appeal by way of case stated 3

Where CC has considered appeal from Mags Court, however, an app may still be made to HC by way of case stated if it's believed CC in its appellate capacity, erred in law or acted in excess of it's jurisdiction. 

Costs may be awarded to either P/D out of criminal funds

No Power to ask CC to state case after trial on indictment - only appeal procedure is to CC

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Reopening case in Mags where it's interests of jus

s142 MCA 1980 - power to Mags to reopen case to rectify mistake if appears to court it's interests of justice - power can't be exercised if HC has already dealt with the case 

App may be made whether D pleaded G/NG at original trial and may be considered by same Mags who convicted D / different bench of Mags

Deciding whether to grant app, court will exercise it's wider discretion under s142 where in interests of justice. 

Factors include interests of court and inconvenience to other parties of re-opening case 

No time limit for making app under s142 but unreasonable delay will be taken into account

If conviction set aside, case reheard by different bench of Mags 

Common use - s142(2) to rectify obvious mistake made during D's trial - Also used to reopen cases where D has been convicted in his absence - speedier remedy than appeal to CC

s142(1) allows Mags ct to vary/rescind it's decision as to sentence if in IOJ

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App for JR

Open to party in criminal case where a public law body has exercised it's legal powers illegally or has acted irrationally

R on app of ... (Name of public body against whom proceedings brought)

Allen v West Yorkshire Prob Service [2001]

Div Court helpd appeals by way of case stated or through Jr not usually appropriate procedures for appeals against sentence

If sentence imposed by Mags is wrong the D should appeal to CC unless clear and substantial reasons for believing that appeal by way of case stated or JR would be appropriate.

Examples:

Where Court acts in excess of it's jurisdiction by failing to follow statute which confers jurisdiction

Acting in breach of rules of natural justice e.g. failing to follow adjournment req by D on proper grounds, failing to give proper time to prepare defence or where error of law apparent on face

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App for JR 2

Mandatory orders, prohibiting order, quashing order.

2 Parts

Stage 1 - permission to apply - following needs to be complied with: 

App on claim form with supporting docs

P to be named as interested party

Court which made decision that's being appealed against by D

File claim form with court 

Serve claim form on D 

D should return Ack of service within 21 days 

Court will then consider app for permission for applicant, D and interested parties attendance

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App for JR 3

Once permission granted, applicant may move onto second stage. 

D must submit written grounds for contesting app within 35 days after service of order granting permission

Applicant and D can agree outcome without need for hearing

If applicant and D cannot agree, hearing will be held.

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Appeals and HRA 1998

CCRC shouldn't auto refer case to CA because there has been a breach of ECHR. Instead following ruling in CCRC, commission should consider whether there is a real possibility the verdict wouldn't be upheld.

2 important cases for compability of ECHR 

Rowe and Davis v UK [2000] Breach of Art 6(1) which hadn't been cured by appeal process. Distinction between 'fairness' and 'safety' in reviewing convictions resulting from trial that the ECtHR had found it to be unfair

Clear that material irregularities had occurred that the convictions could not be regarded as 'safe'

Court declared such a decision wasn't declaration of innocence. 

Williams [2001] CA reaffirmed earlier principle from Rowe - where appellant's right to fair trial had been breached, ECHR wouldn't auto make conviction unsafe.

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