Criminal Practice Flashcards

Question

What level of information must a solicitor be given before a person is interviewed?

Answer 1

Sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it, in order to allow for the effective exercise of the rights of the defence.

Answer 2

1) Answer all questions. 2) Use a prepared written statement handed to police before interview then 'no comment'. 3) Selective silence (rarely advised). 4) 'No comment'.

Answer 3

- Puts forward defence early, boosting credibility if evidential burden needed. - May prevent police pursuing further if weak evidence, or reduced sentence due to early guilty plea.

Answer 4

- Could easily self-incriminate, especially when young/vulnerable. - Police will look to 'trip you up' by revealing pieces of concealed information.

Answer 5

As it enables the client to place their version of events on record to avoid an adverse inference being drawn at trial.

Answer 6

No more than necessary to prevent the drawing of adverse inferences at trial; should all be in client's own words. Can be handed in to police either during the interview, or just prior to charge or kept on client's file. N.B. If defence solicitor feels the police case is particularly weak, may be better to hold back handing in the written statement until the police have actually decided to charge the client to prevent statement giving them additional information they use to charge client. N.B. Solicitor may retain statement on client's file if they doubt the accuracy of the instructions received from the client and are reluctant to disclose this to police as the account will not stand up to police scrutiny.

Answer 7

- Avoids self-incrimination or helping police. - Useful if police lack sufficient evidence to charge.

Answer 8

- May weaken credibility if used to hide the truth. - Risk of adverse inferences being drawn at trial from client's silence in interview if defence later raised.

Answer 9

- If the solicitor considers the case against the client to be weak, with police lacking sufficient evidence to prove allegation. - If the solicitor considers that the police have not provided adequate disclosure of the evidence they have against the client (N.B. particularly important if a co-accused has been arrested and police not prepared to disclose their role etc). - If the solicitor considers that the police may attempt to 'trip you up'. - The client is physically or mentally unfit to be interviewed, or the solicitor considers that the client would fail to give a good account of their case in interview. - The facts of the case are so complex, or relate to matters from so long ago, the client cannot reasonably be expected to provide an immediate response to allegations against them.

Answer 10

Explain to the client that this will not necessarily prevent adverse inferences from being drawn. Also, make a full written note of the reasons for the advice.

Answer 11

1) Carrying out an audibly record interview with the suspect about the suspect's alleged involvement in the offence(s). 2) Arranging for an identification procedure to be conducted by another officer. 3) Taking fingerprints from the suspect to see if these match those found at the crime scene. 4) Taking samples from the suspect to see if these match any samples obtained during the course of the police investigation.

Answer 12

Usually recorded on 2 or 3 tapes/discs or as one digital recording. If the recording is on tape/disc, the master tape/disc is sealed in the presence of the suspect at the end of the interview and will only be opened at trial if there is any dispute about what was said. One of the other tapes/discs is a working copy and will be used by the investigating officer to prepare a written summary/transcript of the interview.

Answer 13

1) If unable to appreciate the significance of questions or their answers or 2) If unable to understand what is happening due to effects of drink, drugs, or any illness, ailment, or condition (limited exception where interview needs to be held as a matter of urgency).

Answer 14

General rule = NO (means police should even stop an interview where client initially refused but now wants legal advice).

Answer 15

- Delaying of the right for up to 36 hours. - If the solicitor the suspect has asked to speak to either cannot be contacted or has declined to attend, and the suspect then declines the opportunity to consult a duty solicitor. - If a suspect asks for legal advice and changes their mind about this, the police may interview the suspect, provided; An officer of inspector rank speaks to the suspect to enquire about their reasons for their change of mind and tries to contact solicitor, with reasons and outcome of efforts to contact solicitor recorded in custody record. The suspect confirms in writing that they wish to proceed without a solicitor and do not want to wait for one. An officer of inspector rank gives written approval for interview to proceed in these circumstances. When the interview starts and the interviewer reminds the suspect of their right to legal advice, interviewer to ensure the following is recorded in the interview record; - Suspect's change of mind and reason (if given). - Confirmation of inspector's authority. - That solicitor will be notified if they arrive, and suspect can pause for legal advice.

Answer 16

Police must caution suspects 'you do not have to say anything. But..' Officer to also remind suspects of their continuing right to legal advice. (Must also be done after each break from police interviewing).

Answer 17

Significant statements and silences to be put to suspect before the start of the interview, with suspect able to confirm/deny/add to it during interview. No interviewer may try to obtain answers or elicit a statement by use of oppression (raising voice, shouting, threatening gestures, offering inducements to admit guilt). Suspects entitled to break from interview approx every 2 hrs. Solicitors able to intervene to seek clarification, challenge an improper question to their client or advise their client not to reply to particular questions. Interview must end when officer satisfied that all relevant questions have been asked or all relevant evidence obtained.

Answer 18

- The interview will be audibly recorded and all parties will be asked to identify themselves at the start of the interview. - The interview may be stopped at any time if the client requires further legal advice from the solicitor. - The solicitor will be present to protect the client's interests and may intervene if necessary. - If 'no comment', warn of police tactics and importance of remaining cool to ensure credibility is not lost in the eyes of jury/magistrates if recording is played out at trial.

Answer 19

Solicitor to ensure they are allowed to sit beside their client during the interview and must never allow the police to prevent them from being able to make eye contact with their client.

Answer 20

One that explains the role they will play during the interview and puts the police officer(s) conducting the interview on notice that the solicitor intends to play an active role. Also important to give client confidence in the solicitor's ability, and should be given at the start of every interview.

Answer 21

- The questioning techniques employed by the police are inappropriate or improper. - The police are behaving in an inappropriate manner. - The client would benefit from further (private) legal advice. - Unhappy about seating arrangements for interview. - Police are acting in oppressive manner. - Police are asking inappropriate questions as they are irrelevant, misrepresenting the law, misrepresenting the strength of the case against the client, speculative etc. - Reference to client's previous convictions. - Police offer inducements. - New information introduced that was not disclosed earlier.

Answer 22

If the investigating officer considers that the solicitors' conduct is preventing them from properly putting questions to the suspect (e.g. answering on suspect's behalf or writing down answers for suspect to quote). In this case, interview to be stopped and officer of at least superintendent rank to be consulted who will decide if solicitor should be removed or not. If removed, suspect must be given the opportunity to consult and have another solicitor present before interview commences.

Answer 23

Significant statements - one which appears capable of being used in evidence against the suspect at trial, in particular a direct admission of guilt. Significant silences - a failure or refusal to answer a question or to answer satisfactorily when under caution, which may allow the court to draw adverse inferences from that silence at trial. N.B. If the police officer fails to put a significant statement/silence to a suspect at the start of the interview, may result in the contents of that statement or the nature of the silence being ruled inadmissible at trial under s78 PACE.

Answer 24

- When a witness has identified or purported to identify a suspect or - A witness thinks they can identify the suspect but the suspect disputes being known to the witness. N.B. An identification procedure shall be held unless it is not practicable or would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. N.B. Police also have discretion to hold an eyewitness identification procedure if the officer in charge of the investigation considers it would be useful.

Answer 25

Yes; purpose of identification procedure is to test the reliability of the eyewitness' identification.

Answer 26

An identification officer (not below inspector rank who is not involved in the investigation) and must be held as soon as is practicable. Requires suspect being released on bail and requiring their attendance on date of procedure.

Answer 27

1) Video identification (most common, offered first unless not practicable or identification parade is more suitable). 2) Identification parade (rare). 3) Group identification (rare). 4) Confrontation by a witness (last resort used where suspect refuses others).

Answer 28

A witness must give a first description of the suspect before being shown any photographs (of individuals with previous convictions when trying to identify the person responsible for a crime). Prior, that witness' first description of the suspect must have been recorded. At least 12 photographs must be shown at a time; once a positive ID is made, no further witnesses should see the photos. Witnesses who ID from photos should later participate in a formal identification procedure. N.B. If a witness saw photos, the defence must be informed, and the witness cannot testify about identifying the suspect from the photos at trial.

Answer 29

Moving images of the suspect shown to witness alongside at least 8 others resembling the suspect as far as is possible in age, general appearance and position in life. Suspect and/or solicitor must be given opportunity to preview images prior and can raise objections to any images or participants; to be addressed by police through practicable steps (e.g. replacing image of a participant not resembling suspect with someone who does). Unusual features to be concealed or replicated on images of the other people but witnesses may request original after seen concealed/replicated images. Suspect cannot attend, solicitor may to ensure witness segregation and look for signs of procedure contamination.

Answer 30

They may be shown together with at least 12 others or procedure incorrect.

Answer 31

Communicate with each other about the case. See any of the images which are to be shown. See, or be reminded of, any photograph or description of the suspect, or given any indication as to the suspect's identity. Overhear a witness who has already seen the material.

Answer 32

Witness views the suspect in a line-up of at least 8 others who resemble the suspect. Unusual features to be concealed using plaster/hat. Suspect able to change position in line-up and may change between witnesses. Witnesses cannot communicate or see a line-up before attending the parade.

Answer 33

To help guard against any later dispute that the other members of the parade were not sufficiently similar to the suspect in age, general appearance and position in life.

Answer 34

Evidence will be admissible at trial but the judge will warn the jury to treat such evidence with utmost caution as identification should be based on appearance first and foremost.

Answer 35

Occurs when the witness sees the suspect in an informal group of people; may take place either with the consent and cooperation of the suspect, or covertly if the suspect does not consent. In selecting the location, the police must reasonably expect that the witness will see some people whose appearance is broadly similar to that of the suspect, and the suspect should be able to join any people and be capable of being seen with them by the witnesses.

Answer 36

Explain purpose and procedure to suspect. Explain the suspect's entitlement to free legal advice. Explain the suspect's right to have a solicitor or friend present. Explain that refusal may be used as evidence at trial and police may still proceed covertly. Explain that altering appearance between being offered an identification procedure and the time of procedure may be used as evidence at trial. Explain that the suspect or their solicitor will be provided with details of the description of the suspect as first given by any witnesses who are able to attend the procedure prior to it occurring.

Answer 37

To agree to such a procedure being carried out; if the witness attending the procedure cannot identify the client, the police may release the client without charge. Warn that if the client is not prepared to take part in a video identification, the police may hold a less satisfactory form of identification procedure, which makes it more likely the suspect will be identified as they will not be seen in a group of people who resemble them in appearance. Refusal to take part is admissible at trial, and court may draw an adverse inference from the refusal of a suspect to take part (refused because they thought they would be recognised by the witness(es) who would have attended the procedure).

Answer 38

Ask the witness if they have discussed the description of the offender with anyone, either before attending or whilst at the police station. Then, ask that a note of their concerns be made by the identification officer in the written record of the video identification procedure. N.B. Also ensure that any objections made to the conduct of the procedure are recorded in full by identification officer.

Answer 39

They are likely to be either re-interviewed in light of the positive identification and/or charged with the offence.

Answer 40

1) Juveniles (suspects aged between 10 and 17 inclusive). 2) Suspects who suffer from a mental health condition or mental disorder. 3) Suspects who are deaf, unable to speak or blind. 4) Suspects who cannot speak or understand English.

Answer 41

That she is under the care of a woman.

Answer 42

Find out the person responsible for their welfare and inform them as soon as practicable that the juvenile has been arrested, why they have been arrested and where they are being detained. N.B. This right CANNOT be delayed.

Answer 43

Obtain an interpreter or someone able to assist the suspect with communication. Ensure there is someone (e.g. appropriate adult, solicitor, relative) to help them check any documentation.

Answer 44

A person who attends the police station to provide assistance and support to a juvenile or suspect suffering from mental health condition/disorder. - Select parent/guardian first unless 'estranged'. - Social worker from local authority. - A responsible 18+ adult not connected to the police e.g. aunt. N.B. Can be removed from interview under same procedure as removing solicitors.

Answer 45

- A relative, guardian or other person responsible for that person's care or custody. - Someone experienced in dealing with vulnerable people. - Some other responsible adult.

Answer 46

All solicitors, police officers, interested parties (e.g. witnesses, victims, anyone involved in investigation) and anyone who the juvenile has made an admission to. N.B. Also an estranged parent who the juvenile has expressly objected to their presence.

Answer 47

No as not bound by same duty of confidentiality a solicitor is. Could therefore disclose anything under cross-examination.

Answer 48

- To support, advise and assist the suspect during questioning. - To ensure the suspect understands their rights whilst at the police station, and the role played by an appropriate adult in protecting those rights. - To observe whether the police are acting properly, fairly and with respect for the rights of the suspect. - To assist with communication between the suspect and police. N.B. Not to provide legal advice and can ask for a solicitor even if suspect declines if they deem it to be in best interest. N.B. Should not answer questions on behalf of a suspect but can intervene in interview for clarification.

Answer 49

The caution must be repeated in the appropriate adult's presence.

Answer 50

That their purpose is; - To advise the person being interviewed. - To observe whether the interview is being conducted properly and fairly. - To facilitate communication with the person being interviewed.

Answer 51

Consent from the juvenile and their parent/guardian.

Answer 52

Consent from the juvenile's parent/guardian (rather than juvenile themself).

Answer 53

Consent given in the presence of an appropriate adult.

Answer 54

The suspect will normally be remanded into the care of the local authority rather than at the police station pending their first appearance before the youth court.

Answer 55

1) If it is impracticable to move the suspect to local authority accommodation. 2) If the juvenile is aged 12+, there is no secure local authority accommodation available and keeping them in other local authority accommodation would not be adequate to protect the public from serious harm from them. N.B. If either of the above are satisfied, the juvenile must be kept separate from adult suspects and must not be detained in a cell unless it is not practicable to supervise the juvenile other than in a cell.

Answer 56

- Community resolutions (primarily aimed at first-time offenders who have admitted guilt). - Youth cautions. - Youth conditional orders based on offence severity.

Answer 57

Where; - Sufficient evidence to charge. - Offender admits the offence. - Not in the public interest to prosecute or give a youth conditional caution. N.B. A youth caution given to a person aged 17 or under must be given in the presence of an appropriate adult. N.B. Take into account seriousness of offence when considering whether youth caution is available.

Answer 58

- Sufficient evidence for realistic prospect of conviction. - Offender admits the offence and consents to the caution. - Conditions are explained (with appropriate adult present if under 17), and a written agreement is signed. N.B. Conditions are aimed at rehabilitation, reparation and punishment; must be capable of completion within; - 16 weeks of date of original offence where a summary-only offence. - 20 weeks of date of original offence where an either-way or indictable offence. N.B. Failure to comply with conditions = prosecution for the original offence.

Answer 59

That they do not persuade a client to agree to such cautions when the client is adamant that they did not commit the offence.

Answer 60

Avoids the client being charged with the offence and having to appear at the Youth Court. Such cautions are not criminal convictions.

Answer 61

Record of such cautions is retained by police; includes fingerprints, photos, DNA. Forms part of a client's criminal record and may appear on background checks that may need disclosing to future employers. Police must refer the client to the appropriate Youth Offending Team who will assess the client and arrange for them to participate in a possible rehabilitation programme. Breach of conditions can lead to prosecution. If a sexual offence; triggers sex offenders register notification. Can be cited in court proceedings.

Answer 62

When a suspect is silent when questioned under caution prior to charge. A failure to mention facts later relied on in defence that suspect could reasonably have been expected to mention at interview (means s34 may be satisfied even if a defendant has answered every question put to them). N.B. Where the defendant failed to mention the fact, the questioning had to be directed to trying to discover whether or by whom the alleged offence had been committed.

Answer 63

By a defendant placing their factual defence on record when interviewed by the police; written statement prepared on client's behalf. Adverse inferences cannot be drawn if, having handed in the statement, the defendant then refuses to answer questions from the police based on the contents of the statement.

Answer 64

When a failure to account for objects, marks or substances on the defendant's person, clothing, footwear, in possession or at place of his arrest arises when interviewed by the police. Special caution required; suspects must be informed of the potential for adverse inferences and the specific facts they are being asked to explain/details of the offence in question. N.B. Applies even if no defence raised at trial as the inference arises from the defendant's failure to account for the object, substance, or mark at the time of interview. - Likely inference is that the defendant had no explanation for the presence of the object, substance, or mark that would have stood up to police questioning.

Answer 65

When a failure to account for presence at a particular place at or about the time the offence was committed. Special caution required; suspects must be informed of potential for adverse inferences to be drawn from silence. N.B. Applies even if no defence raised at trial as the inference arises from the defendant's failure to account for their presence at a particular place at or about the time of the offence at the time of interview. - Likely inference is that the defendant has no explanation for their presence at that particular place at or about the time the offence was committed, or no explanation that would have stood up to police questioning.

Answer 66

No; defendant has an absolute right to remain silent and the caution given before interview should reflect this.

Answer 67

Level of disclosure by the police (if the absence of meaningful disclosure means that a solicitor is unable to properly advise their client). Nature of the case (if material police have is particularly complex or relating to events that occurred a long time ago). Personal circumstances of the suspect (solicitor considers suspect to be ill, mentally disordered or vulnerable etc).

Answer 68

Yes; if the prosecution has raised issues which call for an explanation from the defendant, should the defendant then fail to give evidence, the court will be entitled to infer from that failure that the defendant either has no explanation, or no explanation that will stand up to cross-examination.

Answer 69

The burden of proof remains on the prosecution throughout. The defendant is entitled to remain silent. Before drawing an adverse inference from the defendant's silence, the court had to be satisfied that there was a case to answer on the prosecution evidence. An adverse inference from the defendant's failure to give evidence cannot on its own prove guilt. No adverse inference could be drawn unless the only sensible explanation for the defendant's silence was that he had no answer to the case against him, or none that could have stood up to cross-examination.

Answer 70

The court are provided with a discretion to direct that an adverse inference is not drawn where it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence. -- N.B. Applied strictly.

Answer 71

That the court is only likely to exercise its discretion to exclude prosecution evidence under s78 if there is something unreliable about about the evidence which the police have obtained, which in turn means that it would be unfair to allow the CPS to rely on such evidence. If the evidence is relevant to the charge faced by the defendant, and there is nothing in the way in which it has been obtained which casts doubt on its reliability, the evidence is unlikely to be excluded under s78, even if the police have breached the provisions of PACE and/or the Codes of Practice when obtaining it. Applications to exclude prosecution evidence under s78 should only be granted if the breaches are 'significant and substantial', includes; - Evidence obtained following an illegal search. - Identification evidence. - Confession evidence. - Evidence obtained from the use of covert listening and surveillance devices. - Evidence obtained in 'undercover' police operations.

Answer 72

The discretion given to a trial judge to exclude evidence under s78 where the admission of that evidence would otherwise lead to unfairness, ensures that a defendant will receive a fair trial.

Answer 73

No; although possible to challenge the admissibility of such evidence under s78, the preferred approach is to invite the court to exercise its common law power to stop the case on the basis that it would represent an abuse of process to allow such a prosecution to continue. Consider the following when deciding whether or not to stay proceedings for an abuse of process; - The nature of the investigation - the more intrusive, the harder the courts should scrutinise it. - The nature of the offence. - The nature of the police involvement - how did they behave, how persistent. - The level and extent of supervision of the undercover officers.

Answer 74

That they cannot then attend an interview to represent the client if they intend to deny having committed the offence. Duty for solicitor to not mislead the court. If the client insists on giving false information in interview, the solicitor should decline to act for 'professional reasons' due to ongoing duty of confidentiality to the client.

Answer 75

Ask the officer to clarify why they consider this to be the case, but stress to the officer that ultimately it is the decision of the solicitor alone as to whether a conflict exists.

Answer 76

Decline to act for the second suspect and inform the police that this suspect should receive separate legal advice to prevent breach of SRA Code of Conduct.

Answer 77

Withdraw from the case completely; inappropriate to continue to act for 1 as the solicitor would be in possession of confidential information from the other which could not be passed on to the one the solicitor is representing. N.B. Only if the solicitor is able to act for 1 client without putting at risk their duty of confidentiality to the other (rare) may they continue to represent the first client.

Answer 78

If the solicitor has obtained the other client's consent (preferably in writing) to disclose this information. Both clients are putting forward consistent instructions. The solicitor considers it in their client's best interests for the information to be disclosed. N.B. Solicitor must still have regard to overriding duty to not mislead the court.

Answer 79

If the solicitor considers it is in their own client's best interests for such information to be disclosed (rare). If so, solicitor should first explain their reasoning to the client and obtain their authority (usually in writing) to disclose the information.

Answer 80

To make client aware of all material information which solicitor has knowledge. Subject to limited exceptions where; - Disclosure is prohibited by national security or prevention of crime. - Client gives informed consent (in writing) to the information not being disclosed. - You have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed. - The information is contained in a privileged document that has been mistakenly disclosed to you.

Answer 81

1) Summary-only (held in Magistrates Court). 2) Either-way. 3) Indictable-only (held in Crown Court only).

Answer 82

- Motoring offences. - Criminal damage (where value of property damaged. <£5,000 unless caused by fire or done to a memorial). - Battery. - Simple assault. - Low value theft (where value goods stolen <£200).

Answer 83

- Fraud. - Theft. - Burglary. - Arson. - Assault occasioning ABH. - Wounding/inflicting GBH.

Answer 84

- GNM. - Robbery. - Aggravated burglary. - Aggravated arson. - Murder. - Rape.

Answer 85

Aims to speed up proceedings before magistrates' courts; - Common presumption - plea will be entered into at first hearing. - Guilty pleas - sentence on same day unless pre-sentence report needed. - Non-guilty pleas - trial date set within 6-8 weeks. N.B. The CPS should provide sufficient information at the first hearing to ensure the hearing is effective.

Answer 86

Defendant enters plea. - If guilty, CPS will tell magistrates case facts and previous convictions (if relevant); solicitor will give plea in mitigation on defendant's behalf. Then, sentenced for offence straight away or adjourned for a pre-sentence report. (If disputes arise, a 'Newton Hearing' may be scheduled to resolve factual discrepancies before sentencing). - If not guilty, adjourned for trial date and case management directions issued for both prosecution and defence to comply with before trial.

Answer 87

Defendant enters plea before venue hearing. - If guilty, magistrates to determine whether they should sentence the defendant or whether defendant should be committed to Crown Court due to magistrates' insufficient sentencing powers. - If not guilty, allocation is considered.

Answer 88

The defendant has the right to elect trial by a judge and jury in Crown Court or consent to summary trial.

Answer 89

Sent to Crown Court immediately.

Answer 90

Whether to release the defendant on bail or remand them in custody prior to the next hearing.

Answer 91

If an adult defendant enters a plea of not guilty when they will still be given the opportunity to elect trial in the Crown Court.

Answer 92

Yes; claimed by solicitors as a fixed fee.

Answer 93

Provided if defendant satisfies both interests of justice and means test; covers all work done by the solicitor in connection with those proceedings in Magistrates/Crown Court (if case transferred). When the case concludes, the defence solicitor will claim costs incurred by the representation order from the LAA.

Answer 94

1) Interests of justice test - the defendant must show that it is in the interests of justice that they receive public funding to cover the cost of their legal representation. 2) Means test - the defendant must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation. N.B. To apply, defendant must submit online application form CRM14.

Answer 95

1) Likelihood of losing liberty, livelihood or suffering serious reputational damage if a matter is decided against an individual. 2) Whether proceedings involve a substantial question of law. 3) Whether the individual may be unable to understand proceedings or state their own case. 4) Whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual. 5) Whether it is in another person's interest for defendant to be represented.

Answer 96

Discuss each factor with their client and if the factor is relevant to the client's case, tick the appropriate box on the form CRM14 and give supporting details.

Answer 97

- Liberty = if defendant charged with an offence likely to result in a custodial sentence. -- Could be because offence itself is serious and/or defendant has a bad criminal record which will be used as an aggravating factor, making present offence more serious. -- Solicitor to effectively present the prosecution case against their client 'taken at its most serious' to justify why client should receive public funding. - Livelihood = always applies to any defendant in employment who is likely to face a prison sentence; and those defendant's who may not face prison sentence but will lose employment if convicted e.g. bus driver convicted of road traffic offence. - Serious damage to reputation = only applies to defendants with no previous convictions or convictions for minor offences (consider vicar, school governor etc).

Answer 98

- If there is disputed identification evidence and the court needs to apply the Turnbull guidelines to such evidence. - If there is a possibility that the court may draw adverse inferences under ss34, 36, 37 CJPOA from defendant's refusal to answer questions at the police station. - If either the prosecution or defence are seeking to persuade the court to admit hearsay evidence under s114 CJA 2003. - If the defence are seeking to use ss76/78 PACE to argue that a confession made (or allegedly made) by the defendant should be excluded.

Answer 99

- Mental or physical disability. - Poor knowledge of English (defendants from overseas). - Age (particularly old or young defendant). - Vulnerability.

Answer 100

If defendant wishes to call a witness to support a defence of alibi, or say defendant was acting in self-defence. Such witnesses will need to be traced and a statement taken from them. If a witness needs to be cross-examined to determine a question of law or to decide on the admissibility of a particular piece of evidence, or if the evidence given by the witness is complex or technical.

Answer 101

When it would be inappropriate for a defendant to represent themself as they would need to cross-examine prosecution witnesses in person e.g. where defendant charged with sexual/violent offence.

Answer 102

- Applicants who receive income support etc, and universal credit. - Applicants under 18.

Answer 103

Completion of Form CRM15 + provide court with necessary financial details.

Answer 104

An initial means test; considers applicant's income and expenses, but not capital.

Answer 105

Calculates the applicant's disposable income; done by deducting the following from the applicant's gross income; - Tax and NI. - Annual housing costs. - Annual childcare costs. - Annual maintenance to former partners and any children. - Adjusted annual living allowance.

Answer 106

Appeal the decision either by adding further details to their original Form CRM14 and resubmitting this, or by requesting an appeal.

Answer 107

No, but can request a review on grounds of financial hardship.

Answer 108

In Magistrates, legal aid is either free or not available whereas in the Crown Court, defendants' may have to contribute to costs even if they qualify.

Answer 109

Depends largely by; - Offence classification. - Plea entered into by defendant. - Level of detail provided by the CPS of the prosecution case. - Whether public/private funding has been secured. Given the CJSSS aims (above), magistrates will be keen to progress the case at the first hearing, so CPS should make sufficient disclosure to enable defendant to enter a plea and defence prepared to do so (means solicitor needs to have had chance to discuss details of prosecution case with defendant/ strength of it and advise on plea to enter). N.B. Rare cases where defendant may not be in position to enter plea due to e.g. funding issues not finalised etc so case will need adjourning here.

Answer 110

Obtaining funding from the LAA to pay for the work they will do on their client's behalf. Obtaining details of the prosecution case from CPS. Taking a statement from the client. Advising the client on the strength of prosecution evidence and the plea to enter. Informing the client of advantages/disadvantages of each court. Applying for bail (where necessary).

Answer 111

Yes; usually provided in a digital format.

Answer 112

- A summary of the circumstances of the offence, and - The defendant's criminal record (if any).

Answer 113

- A summary of the circumstances of the offence. - Any account given by the defendant in interview, whether contained in that summary or in another document. - Any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial/sentence. - The defendant's criminal record (if any). - Victim impact statement (if available).

Answer 114

1) The client's response to the prosecution case. -- Note any points of dispute and add the note to the client's statement. -- Check that the transcript of the audibly recorded interview is accurate. -- Are there grounds on which an application may be made to the court to exclude the interview record from being used in evidence at trial? 2) The strength of the prosecution case. -- Although it is client's decision as to the plea they enter, solicitor to advise client if the prosecution case is overwhelming, and remind them of credit for entering early guilty plea. 3) Whether is it necessary to obtain any further evidence in support of the defendant's case. 4) Where the client has been charged with an either-way offence and is pleading not guilty, if given the choice, whether they should elect to be tried in the Magistrates' court or before a judge and jury in the Crown Court.

Answer 115

- Greater % chance of acquittal (juries perceived to be more sympathetic than 'case-hardened' magistrates). - Better procedure for challenging admissibility of prosecution evidence (judge can conduct 'mini-trial' if dispute arises separate to jury and then choose if evidence is admissible). -- If judge rules the evidence to be inadmissible, the evidence will not be placed before the jury. -- N.B. If such an issue were to arise in magistrates, the magistrates themselves would decide as they resolve all matters of law and fact. This could cause prejudice. - More time to prepare a case for trial.

Answer 116

- Limited sentencing powers (12 months maximum for single either-way offence). N.B. Magistrates' retain power to commit defendant to the Crown Court during or after trial if facts emerge that make the offence more serious than first appeared and render magistrates sentencing powers inadequate. - Speed and stress (trial takes place sooner and is less formal for e.g. first time offenders). - Lower prosecution costs (less work goes into preparing a case trial for magistrates). - If granted legal aid in the magistrates' court, a defendant is not required to contribute towards his defence costs whereas defendant may be liable to contribute to these in the Crown Court. - No obligation to serve a defence statement either to the court or CPS.

Answer 117

Solicitor will need to be very careful to not mislead the court. - Involves not being able to assert a false defence. - Can cross-examine prosecution witnesses and put the prosecution to proof of their case, and make a submission of no case to answer but if dismissed by the magistrates, solicitor then cannot act for client for 'professional reasons'.

Answer 118

Reduction in sentence from the court for entering a guilty plea. - At first hearing = 1/3 (maximum). - After first hearing = 1/4. - Day 1 trial = 1/10.

Answer 119

1) The charge will be read out to the defendant by the court's legal adviser, who will also check that the defendant's solicitor has received IDPC. 2) The legal adviser will then tell the defendant that they may indicate to the court how they would plead if the matter were to proceed to trial (defendant under no obligation to indicate plea). - Legal adviser will also tell defendant that if they indicate a guilty plea, they will then be treated as having pleaded guilty before the magistrates' who may either sentence them or commit them to Crown Court for sentence. 3) The legal adviser will then ask the defendant to indicate their plea.

Answer 120

Treated as having been tried summarily and convicted. CPS representative will outline the case facts to the magistrates and tell them about any previous convictions the defendant may have. The defendant's solicitor will then give a plea in mitigation on the defendant's behalf. Magistrates to then decide if their sentencing powers are sufficient, or if the defendant should be sentenced by a Crown Court judge. - Done by looking at Magistrates' Court Sentencing Guidelines and considering whether any aggravating/mitigating factors make offence more/less serious.

Answer 121

They will either sentence the defendant straight away or adjourn the case for a pre-sentence report before sentencing the defendant (or adjourn if Newton hearing is needed). If the case is adjourned for sentence, the defendant will be released on bail or remanded in custody prior to the sentencing hearing.

Answer 122

Defendant will be committed to Crown Court and will be remanded either in custody, or on bail.

Answer 123

1) The defendant is sent to the Crown Court for a related offence. 2) The defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a related offence. 3) The defendant is charged jointly, or charged with a related either-way offence with a youth defendant who is sent to the Crown Court for trial.

Answer 124

With the allocation hearing in respect of the offence to which the defendant has indicated a not guilty plea.

Answer 125

1) Serious/complex fraud cases certified by the DPP. 2) Child witness cases involving assault, child cruelty, sexual offences to avoid prejudice to the child's welfare. 3) Related either-way offences (same defendant). 4) Related either-way offences (co-defendant).

Answer 126

1) A remand in custody. 2) A remand on bail with conditions attached. 3) A remand on unconditional bail.

Answer 127

No more than 8 clear days at a time. - Where there are successive remands in custody, the defendant needs to be brought before the court on every 4th remand, provided they have consented to this and have legal representation.

Answer 128

- If it has previously remanded them in custody for the same offence, and - They are before the court, and - It can set a date to remand them to on which it expects the next stage of proceedings to take place.

Answer 129

70 days before trial for an either-way offence. 56 days before trial for a summary-only offence. N.B. Prosecution may apply (orally or in writing) to extend time limits where there is good and sufficient cause to do so and it has acted with due diligence and expedition. - N.B. A written notice of intention must be served on the court and the defendant not less than 2 days before the hearing in the magistrates' court.

Answer 130

The defendant must be released on bail till his trial.

Answer 131

A prison or remand centre. -- N.B. Magistrates' court can remand a defendant to police custody for up to 3 days if this is necessary for the purposes of making enquiries in relation to offences other than the offence for which the defendant has been charged. -- A defendant made subject to such a remand must be brought back before the magistrates as soon as the need to make enquiries has ceased.

Answer 132

Yes; for any period of time, subject to the defendant's consent.

Answer 133

Yes; before sentence (for preparation of pre-sentence reports) for successive periods of not more than 3 weeks.

Answer 134

Defendants who have been committed to the Crown Court for sentence. Defendants who are appealing against conviction or sentence. Defendants charged with the most serious types of offence. Presumption of bail removed; only if exceptional circumstances exist may the court grant bail. - Murder, attempted murder, manslaughter, rape, attempted rape, other serious sexual offences.

Answer 135

Only a Crown Court judge may grant bail. The magistrates' court must transfer the defendant to the Crown Court (in custody) and the judge must make a decision within 48 hours. N.B. Bail may not be granted unless the court is of the opinion that there is no significant risk of the defendant committing (whilst on bail), an offence likely to cause physical or mental injury to another.

Answer 136

That there are substantial grounds for believing that the defendant will, if released on bail; - Fail to surrender to custody. - Commit an offence whilst on bail, or - Interfere with a witness in the case (or obstruct the course of justice). N.B. High threshold (won't be satisfied if the court only believes the defendant may do any of these 3 things).

Answer 137

1) The nature and seriousness of the offence (and probable sentence the defendant will receive for it). 2) The character, antecedents, associations and community ties of the defendant. -- Defendant's criminal record may be raised, 3) The defendant's record in respect of previous grants of bail in criminal proceedings. 4) The strength of the evidence against the defendant.

Answer 138

Most likely to be used by CPS to argue that defendant will fail to surrender to custody when charged with a serious offence.

Answer 139

Likely to be relevant where the defendant has a history of committing the same (or similar) types of offences as that with which they have been charged, or the defendant's previous offending is ongoing (e.g. shoplifter stealing to fund a drug habit). Argument that there are substantial grounds for believing that the defendant will commit further offences if they are released on bail. Associations; -- If defendant is known to associate with other criminals (e.g. gang), CPS may use this to suggest there are substantial grounds to believe that they may commit further offences if released on bail. -- If witness is known to defendant (e.g. domestic assault), CPS may use this to suggest there are substantial grounds to believe that the defendant may attempt to interfere with the witness (e.g. to change their story). Community ties; -- If defendant is unemployed, has no relatives in the local area and is of no fixed abode for e.g., the CPS may argue that there is nothing to keep them in the area and nothing to prevent them from absconding.

Answer 140

If the defendant has previous conviction(s) for the offence of absconding, the CPS is likely to raise this to suggest that there are substantial grounds for believing that the defendant will fail to surrender if granted bail in the current proceedings.

Answer 141

The court will grant the defendant unconditional bail.

Answer 142

- Surety (solicitor can never stand as one; court unlikely to accept a person who has a criminal record or no financial means). - Securities. - Report to police station. - Residence. - Curfew. - Non-communication with prosecution witnesses. - Not to enter specified address. - Surrender passport (only likely in cases where the defendant is known to have criminal contacts/substantial assets outside UK). - 'Tag' electronic monitoring (EM; must be used alongside another bail condition e.g. curfew; high threshold).

Answer 143

Either; 1) Prevent defendant from absconding. -- Surety. -- Securities. -- Reporting to police station. -- Residence. -- Curfew. -- Surrender passport. 2) Prevent defendant committing a further offence whilst on bail. -- Reporting to police station. -- Residence. -- Curfew. -- Not to enter specified address. -- Non-communication with prosecution witnesses. 3) Prevent defendant from interfering with witnesses. -- Non-communication with prosecution witnesses. 4) Ensure that the defendant makes himself available for the purpose of obtaining medical or other reports. 5) Ensure that the defendant keeps an appointment with his solicitor. 6) Ensure the defendant's own protection, or in the case of a defendant under 18, his own welfare/interests.

Answer 144

No, but provides police with a power of arrest and to bring defendant before magistrates court within 24 hours. They then decide whether to remand the man in custody or grant bail pending a next hearing.

Answer 145

To suggest bail conditions and present evidence to support bail e.g. job offers, housing arrangements. The magistrates may hear evidence from other persons in support of the defendant's application for bail e.g. prospective employer or someone able to provide defendant with accommodation. Magistrates then make their decision.

Answer 146

Defendant is entitled to make 1 further application to Magistrates' Court and then must raise new legal or factual argument after 2nd full application (e.g. surety becomes available or employment offer has been made). N.B. When considering bail application, Magistrates can hear evidence from other persons in support, specify bail conditions (if granted) and assess surety suitability.

Answer 147

Yes. N.B. If defendant has been sent or transferred to the Crown Court, any further applications to be made there.

Answer 148

Yes; -- Oral notice of a bail appeal must be given at the conclusion of the proceedings in which bail was granted, and before defendant is released from custody. -- This notice must be confirmed in writing and served on the defendant not more than 2 hours after telling the court of the decision to appeal. -- The Crown Court must hear the appeal as soon as possible and in any event not later than 2 business days after the appeal notice was served.

Answer 149

- Notice of application. - 'Certificate' of full argument (reasons for the refusal or reasons for imposed bail conditions). - Record of defendant's previous conviction documents (if applicable).

Answer 150

1) Failing without reasonable cause to surrender to custody. 2) Having a reasonable cause for failing to surrender to custody but then failing to surrender as soon as it was reasonably practicable to do so.

Answer 151

Court may either sentence him immediately or adjourn sentence until the conclusion of the substantive proceedings.

Answer 152

1) Evidence must be relevant to the facts in issue in the case. 2) Evidence must be admissible.

Answer 153

Must present sufficient evidence to the court to justify a finding of guilt (beyond reasonable doubt) and to show that the defendant has a case to answer (before the defendant has adduced any evidence). Failing this, defendant's solicitor will be entitled to make a submission of no case to answer and ask the court to dismiss the case.

Answer 154

Must place some evidence before the court if raising a specific defence; easily done by entering the witness box and giving details of the defence.

Answer 155

A discretion to exclude evidence upon which the prosecution seek to rely if 'the admission of such evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.' Commonly raised by defendant's solicitor where the police breach the rules for holding an identification procedure or hold no ID procedure at all (breach of Code D). N.B. If the court declines to exercise its discretion under s78, solicitor to consider how, in cross-examination, to undermine the quality of the evidence of the original sighting of the defendant which the witness claims to have made, and what representations to make to the court in respect of Turnbull.

Answer 156

The witness picks out the defendant informally, or The witness identifies the defendant at a formal identification procedure at the police station, or The witness claims to recognise the defendant as someone previously known to them.

Answer 157

Where a prosecution witness visually identifies the defendant as the person who committed the crime, but the defendant disputes that identification.

Answer 158

Where the judge points to the jury the danger of relying on identification evidence, and the need for special caution when such is relied upon. -- Very easy for an honest witness to be mistaken as to identity, and will direct the jury (before they retire to consider their verdict) to examine closely the circumstances of the original sighting, taking into account relevant factors when considering the quality of the identification evidence. Given when the judge considers the quality of the original sighting to be good OR poor but supported to suggest that the identification by the witness is reliable (supporting evidence e.g. confessions, fingerprints, adverse inferences).

Answer 159

The judge directs the jury to acquit the defendant (usually follows a submission of no case to answer made by defendant's advocate).

Answer 160

- Length of the observation. - Distance. - Lighting. - Conditions. - How much of the suspect's face did the witness actually see? - How clearly does the original description given by the witness match the actual physical appearance of the defendant?

Answer 161

1) To undermine the credibility of the evidence which that witness has just given in examination-in-chief. 2) To obtain favourable evidence from the witness that supports the client's case. 3) To enable a party conducting the cross-examination to put their case to the witness.

Answer 162

Admissibility - whether the evidence can be used at all in the case. Cogency - the weight to be attached to evidence (usefulness of it).

Answer 163

Yes; means there will be a case to answer.

Answer 164

'A statement, not made in oral evidence, that is relied on as evidence of a matter in it.' N.B. A statement is defined as 'any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.'

Answer 165

A witness reporting at trial what they had been told by another person. A statement from a witness being read out at trial instead of the witness attending court to give oral evidence. A police officer repeating at trial a confession made to them by the defendant. A business document being introduced in evidence at trial.

Answer 166

First-hand hearsay is information a witness personally observed or experienced, while multiple hearsay refers to the situation where information is relayed through more than 1 person before it is recorded. N.B. The circumstances in which a statement containing multiple hearsay is admissible in evidence are more limited than when a statement only contains first-hand hearsay.

Answer 167

1) Under a statutory provision. 2) Under a common law rule preserved by s118. 3) All parties to proceedings agree to it being admissible. 4) The court is satisfied that it is in the interests of justice for it to be admissible.

Answer 168

Cases where a witness is unavailable (applies to first-hand hearsay if any of the below 5 conditions are satisfied). -- The relevant person is dead (e.g. gives signed statement to police describing accident witnessed and is later killed). -- The relevant person is unfit to be a witness because of his bodily or mental condition. -- The relevant person is outside the UK and it is not reasonably practicable to secure his attendance. -- The relevant person cannot be found, although such steps as it is reasonably practicable to take to find him have been taken. -- Through fear the relevant person does not give oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence. Business and other documents (makes both first-hand and multiple hearsay in certain documents admissible). -- The document (or the part of it containing the statement) must have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. -- The person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with, and -- Each person (if any) through whom the information was supplied from the relevant person mentioned in a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office. N.B. Above section commonly used to ensure the admissibility in evidence of business records. - E.g. shop receipt for gun purchase after X charged with armed robbery. - E.g. entry in a ledger. Previous inconsistent statements of a witness. Previous consistent statements by a witness. Statements from a witness which are not in dispute. Formal admissions.

Answer 169

Any of the 5 above conditions to be satisfied OR further requirement; that the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).

Answer 170

Most important are; - Evidence of a confession or mixed statement made by the defendant. --- Means that a confession made by a defendant will be admissible in evidence against the defendant. - Evidence admitted as part of the res gestae. --- Provides that a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded.

Answer 171

Primary question for judge to ask himself; can the possibility of concoction or distortion be disregarded? To answer this, judge had to first consider the circumstances in which the particular statement was made to satisfy himself that the event was so unusual or dramatic as to dominate the thoughts of the victim so that his utterance was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection. In order for the statement to be sufficiently spontaneous, it had to be so closely associated with the event which had excited the statement that it could be fairly said that the mind of the declarant was still controlled by the event. Quite apart from the time factor there might be special features in a case which related to the possibility of distortion. As to the possibility of error in the facts narrated in such a statement; if only the ordinary fallibility of human recollection was relied upon that went to the weight to be attached and not to the admissibility of the statement and was therefore a matter for the jury.

Answer 172

Catch-all provision that gives court wide discretion to admit hearsay evidence if in the interests of justice to do so. Court to consider array of factors alongside defendant's right to a fair trial under Art6 ECHR.

Answer 173

Yes; provided that; - It is signed and dated. - It contains a statement of truth. - A copy has been served before the hearing on the other parties in the case. - None of the other parties has objected within 7 days.

Answer 174

Parties must give notice of their intention to adduce or oppose hearsay evidence using prescribed forms within time limits set by CrimPr, with the court able to modify such requirements. Court has flexibility to dispense with written notice, allow oral notice, or adjust time limits for giving notice.

Answer 175

Only to cases where; - It is in the interests of justice for the hearsay evidence to be admissible. - The witness is unavailable to attend court. - The evidence is multiple hearsay. - Either the prosecution or the defence rely on business document rules for the admission of a written witness statement prepared for use in criminal proceedings. N.B. These procedural rules will not apply if the hearsay evidence is admissible under any of the preserved common law exceptions to the rule excluding hearsay evidence; significance of this being that if the hearsay evidence to be adduced at trial does not fall within any of the 4 sections above, the party seeking to rely on that evidence will not need to serve on the other party notice of its intention to rely on such evidence.

Answer 176

At pre-trial hearings, such as case management hearing/pre-trial review in the magistrates' court or a specific pre-trial hearing to resolve disputes e.g. PTPH in Crown Court.

Answer 177

'Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.' N.B. Anything said by a defendant that constitutes an admission of any element of the offence with which they are subsequently charged, or that is in any way detrimental to their case, will satisfy the definition of a confession.

Answer 178

Yes; to prove the truth of its contents (to prove defendant's guilt) as an exception to the rule excluding hearsay evidence.

Answer 179

Where a confession includes a statement which is favourable to the defendant. The whole statement will be admissible at trial as an exception to the rule excluding hearsay evidence. E.g. 'I did have sex with her, but only because she consented'.

Answer 180

Yes; also if the co-defendant has pleaded guilty at an earlier hearing and is giving evidence for the prosecution at the trial of the defendant, any evidence given implicating the defendant in commission of the offence will be admissible in evidence against the defendant (the one making the confession).

Answer 181

That they did make the confession, but it should not be admitted in evidence (s76 or s78), or That they did not make the confession, and that the person who claims that the confession was made was either mistaken as to what they heard or has fabricated evidence of the confession (s78 only).

Answer 182

By representing to the court that the confession was or may have been obtained; 1) By oppression of the person who made it, or 2) In consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof (unreliability). -- N.B. More common basis.

Answer 183

The court must not allow that confession to be used as evidence by the prosecution, unless the prosecution proves beyond a reasonable doubt that the confession was not so obtained.

Answer 184

Includes 'torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)'. E.g. in audibly recorded interview at police station, defendant was bullied and hectored into making a confession.

Answer 185

Something must have been said or done (usually by the police) which might have caused defendant to make a confession for reasons other than the fact that they had actually committed the offence and wanted to admit guilt. Does not require deliberate misconduct by the police but usually involves a breach of Code C e.g.; -- Denying a suspect refreshments or appropriate rest periods between interviews. -- Offering a suspect an inducement to confess. -- Misrepresenting the strength of the prosecution case. -- Questioning a suspect in an inappropriate way. -- Questioning a suspect who the police should have known was not in a fit state to be interviewed either due to drink/drug consumption or a medical condition/ailment. -- Threatening a suspect. -- Denial of access to legal advice.

Answer 186

So that the suspect is either not in a fit state to answer questions properly, or makes admissions in interview simply to get out of the police station as soon as possible or to obtain rest/refreshments (may be particularly relevant if the suspect is suffering from a illness/ailment, even if the police are not aware of this condition).

Answer 187

No; causal link needed between the breach and unreliability of the confession subsequently mad. Consider whether if the defendant had been allowed access to legal advice, they would not have made a confession; usually won't work for experienced criminals who are fully aware of their rights when detained at the police station.

Answer 188

A defendant can adduce evidence under s76 PACE that a co-defendant has made a confession where both defendants plead not guilty and are tried jointly. N.B. Defendant to only do this if the co-defendant's confession doesn't also implicate the defendant. However, if the co-defendant who made the confession represents to the court that his confession was obtained as a result of oppression, or in circumstances rendering it unreliable, the court must exclude the evidence of the confession (even if the court believes the confession is true), unless the court is satisfied on the balance of probabilities that the confession was not obtained in such a way.

Answer 189

Courts have a more general discretion to exclude prosecution evidence (includes evidence of a confession) if the court considers that the admission of the confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. N.B. s78 may be relied on either when the defendant admits making a confession but claims that the confession is untrue OR when the defendant denies making the confession at all.

Answer 190

Only if these breaches are both significant and substantial. - Often cases where suspect has been denied access to legal advice (allowing CPS to rely on such evidence would have an adverse effect on the fairness of the proceedings). N.B. Overlap between court's discretion here and the duty of the court to exclude a confession under the 'unreliability' ground in s76.

Answer 191

Usually applies to confessions allegedly made by the defendant when questioned by the police outside the police station. Exclusion if police breached Code C PACE provisions by; - Failing to make an accurate record of defendant's comments as the police would not then be able to substantiate that such comments were in fact made by the defendant. - Failing to give defendant an opportunity to view the record of their comments and to sign this record as being accurate, or to display the accuracy of the record as defendant would then be deprived of the opportunity to challenge the accuracy of the police record. - Failing to put the confession to the defendant at the start of his subsequent interview at the police station, as the whole point of doing this is to ensure defendant has the opportunity to confirm or deny 'on the record' what they are alleged to have said.

Answer 192

Something said by a suspect in the presence and hearing of a police officer or other member of police staff outside a formal police interview that appears to be capable of being used in evidence against the suspect, particularly a direct admission of guilt. Usually; - Just before or at time of arrest. - On the way to police station following arrest. - Whilst at the police station. Yes; such a statement falls within statutory definition of a confession. N.B. At start of formal interview, police required to put to suspect any significant statements and then ask whether they confirm or deny that earlier statement or add anything further.

Answer 193

Determined by the trial judge in the absence of the jury at a voir dire (trial within a trial), involving evidence from the interviewing officer as to how the confession was obtained if made during interview, defendant if confession made outside police station and possibly audio recordings to be played. Prosecuting and defence counsel will then make submissions to the judge on whether or not the confession should be excluded in the light of the evidence given before judge makes their ruling. - If deemed to be admissible, interviewing officer will give evidence of the confession to the jury. - If deemed to be inadmissible, confession is excluded entirely. N.B. Defendant will still be able to attack the credibility of the confession (either when giving evidence or when police officer is being questioned) in an attempt to persuade the jury to attach little or no weight to it.

Answer 194

Typically addressed when the interviewing officer gives evidence. N.B. If the defendant seeks to exclude evidence of the confession under s76 PACE, the magistrates must also hold a voir dire. N.B. If the defendant raises submissions under both s76 and s78, both arguments should be dealt with at the same voir dire. N.B. If the defendant seeks to rely only on s78, no requirement to hold a voir dire; challenge to the admissibility of the confession may be left either to the close of the prosecution case, or to the end of the trial.

Answer 195

No; although the CPS will not be able to tell the court that such facts were discovered as a result of the confession made by the defendant.

Answer 196

'Evidence of, or a disposition towards, misconduct' other than evidence connected with the offence for which the defendant has been charged. N.B. Misconduct defined as the 'commission of an offence or other reprehensible behaviour' (covers more than just existence of previous convictions. N.B. If the alleged misconduct by defendant is connected to the offence with which he has been charged, this will not fall within the bad character definition and will thus be admissible in evidence without need to consider bad character test.

Answer 197

No; the prosecution must adduce other evidence to substantiate their case before the jury or magistrates can then take bad character into account.

Answer 198

Through one or more of the 7 'gateways' set out in s101. a) All parties to the proceedings agree to the evidence being admissible. b) The evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it. c) It is important explanatory evidence. d) It is relevant to an important matter in issue between the defendant and the prosecution (most important gateway relied upon by prosecution). e) It has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. f) It is evidence to correct a false impression given by the defendant. g) The defendant has made an attack on another person's character.

Answer 199

Allows a defendant to introduce evidence of their own bad character. Examples of when may be done; -- If defendant only has very minor previous convictions and do not want the jury or magistrates to think that, because they are not adducing evidence of their own good character, they may have extensive previous convictions OR -- If defendant pleaded guilty on previous occasions but are pleading not guilty to the current matter. This shows acceptance of guilt when they have committed, so are pleading not guilty here as they genuinely have not committed this one.

Answer 200

Only the prosecution may adduce evidence of the defendant's bad character under this gateway; only likely to be used in limited circumstances. Evidence is important explanatory evidence if; -- Without it, the magistrates or jury would find it impossible or difficult properly to understand the case and -- The value of the evidence for understanding the case as a whole is substantial (more than merely trivial or marginal). N.B. Case law makes clear that where the evidence is clearly understandable without evidence of bad character, it should not be admitted. N.B. If the prosecution can establish that the test for admitting evidence of the defendant's bad character through this gateway is satisfied, the court has no power under the CJA to prevent the admission of this evidence.

Answer 201

Only the prosecution may adduce evidence of a defendant's bad character under this gateway. Important matters in issue between the defendant and prosecution include; - the question whether the defendant has a propensity to commit offences of the kind with which he is charged (except where his having propensity makes it no more likely that he is guilty of the offence); AND - the question whether the defendant has a propensity to be untruthful (except where it is not suggested that the defendant's case is untruthful in any respect).

Answer 202

First, the CPS must satisfy the court that establishing such propensity makes it more likely that the defendant committed the offence. By evidence that he has been convicted of; -- An offence of the same description as the one with which he is charged or -- An offence of the same category as the one with which he is charged (sexual offences against children under 16 and theft categories (theft, robbery, burglary, aggravated burglary, handling stolen goods, making off without payment, aiding/abetting/counselling/procuring any of above offences etc) are the only 2 prescribed by SoS). N.B. Subsection does not apply where significant time has passed since the conviction, and it would thus be unjust for it to be applied. Other offences not falling in the same category/description may be used to demonstrate such propensity if there are significant factual similarities between the offences; look for a propensity to use the same weapon. -- Does defendant's history of offending show a propensity to commit offences? -- If so, does that propensity make it more likely that defendant committed the current offence? -- If so, is it just to rely on convictions of the same description or category, having in mind the overriding principle that proceedings must be fair. N.B. Only if the answer to each of the above 3 questions is yes, should the convictions be allowed in evidence. N.B. The fewer the number of previous convictions defendant has, the less likely it is that propensity will be established (1 previous conviction will not; except for unusual behaviour cases e.g. sexual abuse of children).

Answer 203

Only where the manner in which the previous offence was committed demonstrates that the defendant has such a propensity (e.g. by making false representations in offences of perjury or fraud; not offences where dishonesty involved) or The defendant pleaded guilty to the earlier offence but was convicted following a trial at which the defendant testified and was not believed (offences of any conviction can fall within this part). N.B. Offences that show a propensity to be untruthful may be raised in evidence by CPS to demonstrate that X has a propensity to be untruthful and therefore show that the victim's evidence at trial is more likely to be truthful than X's. N.B. Offences of any description may also fall under this section of gateway d) if the defendant pleaded not guilty, testified but was convicted following a trial at which the court disbelieved their version of events, since this will demonstrate that the defendant has been found by a court to have been untruthful on a previous occasion.

Answer 204

Very similar test to that for unfairly obtained evidence under s78 PACE but difference here is that the court must exclude the evidence if the test is satisfied (as opposed to having discretion). Courts likely to exercise the power in the following 3 situations; 1) When the nature of a defendant's previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative. 2) When the CPS seeks to adduce previous convictions to support a case which is otherwise weak. 3) When the defendant's previous convictions are 'spent' (not automatically excluded, court could still choose not to exclude the evidence but consider length of time between).

Answer 205

By one defendant to admit evidence of another defendant's bad character. Cannot be used by the CPS. A co-defendant is likely to want to admit evidence of a defendant's bad character to demonstrate that the other defendant has a propensity to be untruthful (and thus to undermine the credibility of the evidence given by that defendant) OR -- A co-defendant may introduce evidence of a defendant's previous similar offences to show a propensity for the current offence. -- The previous convictions must be relevant to an important matter in issue and must be more than marginally or trivially relevant. To show that the other defendant has a propensity to commit the kind of offence with which they have been charged (thereby suggesting that it is the other defendant, rather than co-defendant who committed the offence). -- Only admissible if their defence undermines the co-defendant's defence. -- Typically arises in 'cut throat' defences, where defendants blame each other for the offence. -- Relevant convictions include offences involving dishonesty (e.g. perjury, fraud) or cases where the defendant lied in court and was disbelieved. -- If admissibility requirements are met, the court has no discretion to exclude under the CJA.

Answer 206

Only the prosecution may adduce evidence of a defendant's bad character under this gateway. A defendant will give a false impression 'if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.' This may be done if the assertion is; -- Made by the defendant in the proceedings (e.g. when giving evidence in the witness box, or in a defence statement served on the CPS). -- Made by the defendant when being questioned under caution by the police before charge, or on being charged. -- Made by a witness called by the defendant. -- Made by any witness in cross-examination in response to a question asked by the defendant that is intended to elicit it. -- Made by any person out of court, and the defendant adduces evidence of it in the proceedings. Evidence introduced through this gateway is used to counteract such an impression.

Answer 207

Only the prosecution may adduce evidence of a defendant's previous convictions under this gateway. If the defendant attacks the character of another person e.g. witness/co-defendant/dead person/person CPS do not intend to call to give evidence; evidence of defendant's own bad character may be admitted; attack may be made when defendant is being questioned at police station or in defence statement which is served on the CPS. - Usually someone who will be attending court to give evidence. Evidence attacking another person's character is evidence to the effect that the other person has; -- Committed an offence or behaved in a reprehensible way. N.B. Courts to give wide interpretation to this gateway.

Answer 208

Court must exclude evidence that would otherwise be admitted under this gateway if, on an application by the defendant, the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Answer 209

Gateways d) and g). Bad character evidence under the others is automatically admissible if the requirements are satisfied.

Answer 210

Yes; contamination may occur if witnesses have colluded in order to fabricate evidence of the defendant's bad character.

Answer 211

If the CPS wishes to adduce evidence of defendant's bad character, notice of this intention to be given both to the court and other parties in the case. Prescribed form must be used, with a written record of the previous convictions the party giving the notice or making the application is seeking to adduce being attached to the form (time limits for parties to serve any notice or make any application). If a defendant opposes the introduction of evidence of their bad character at trial, the defendant must apply to the court for such evidence to be excluded; with time limit.

Answer 212

Under s100; a) If it is important explanatory evidence (admissible only with leave of the court). b) It has substantial probative value in relation to a matter which (admissible only with leave of the court); - Is a matter in issue in the proceedings. - Is of substantial importance in the context of the case as a whole. c) All parties agree to the evidence being admissible (leave of the court is not required). N.B. Provision will commonly be used by the defence when applying to adduce bad character evidence of the complainant; but these provisions are wider and can be relied on by both the defence and prosecution and apply to any witness giving evidence or other person.

Answer 213

Rarely used in practice. Similar to gateway c); evidence will be important explanatory evidence if; -- Without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and -- Its value for understanding the case as a whole is substantial.

Answer 214

Most likely to arise when defendant seeks to adduce evidence of the previous convictions of a witness for the prosecution in order to support an allegation that either; -- The witness is lying or has fabricated evidence against the defendant, or -- The witness themselves is either guilty of the offence with which the defendant has been charged or has engaged misconduct in connection with the alleged offence. In weighing up the probative value and potential prejudicial impact of this evidence, courts must have regard to; -- The nature and number of the events, or other things, to which the evidence relates, and -- When those events or things are alleged to have happened or to have existed. N.B. Different approach to establishing a propensity to be untruthful here than under s101 as previous convictions of a witness which demonstrated a propensity to be dishonest (as opposed to untruthful) may nevertheless be admissible to undermine the credibility of the witness.

Answer 215

Evidence obtained following an illegal search. Identification evidence. Confession evidence. Evidence obtained from the use of covert listening and surveillance devices. Evidence obtained in 'undercover' police operations.

Answer 216

CrimPR have introduced this system with a formal set of case management directions with which the parties must comply. These directions include an obligation on the prosecution to disclose their unused material to the defence who in turn may be required to provide the prosecution with a defence statement.

Answer 217

Usually at the same hearing at which the defendant enters their plea of not guilty (and after the plea before venue/allocation hearing for an either-way offence) or sometimes at a subsequent hearing. Called a case management hearing. N.B. The case management directions are standard directions (issued on a Magistrates' Court Trial Preparation Form) but court may vary if necessary. - They allow the parties 8 weeks to prepare the case for trial or 14 weeks when expert evidence is required.

Answer 218

1) Securing the attendance of a witness at trial. 2) Defence witness obligations. 3) Expert witnesses/evidence. - To be obtained as soon as possible; if the defendant's case is funded by way of a representation order, the defendant's solicitor should obtain prior authority from the LAA to instruct the expert.

Answer 219

- Prudent solicitors do this by obtaining a witness summons from the magistrates' court; especially when witnesses are reluctant to attend court to give oral evidence. - Issued if court is satisfied that the witness can give material evidence in the proceedings and it is in the interests of justice for a summons to be issued. - The defendant's solicitor will usually ask for a potential defence witness to confirm in writing that they will attend court. If a negative response is received or no response (more likely), the solicitor should then write to the court requesting that it issue a witness summons.

Answer 220

A defendant must serve on the CPS a notice setting out the names, addresses and dates of birth of any witnesses they intend to call to give evidence; enables the CPS to check whether any defence witnesses have previous convictions, although there is nothing to stop the CPS (via the police) interviewing these witnesses. The time limit to comply is 28 days from the date on which the prosecutor complies, or purports to comply with initial duty of disclosure. Obligation is relevant to both magistrates' and Crown Court, and thus exists in addition to the obligation to serve a defence statement to all cases where a defendant pleads not guilty in the magistrates' court or any case sent to the Crown Court for trial. Failure to comply with these provisions could result in the inference provisions of s11 of the CPIA 1996 being applicable. N.B. Unlike civil proceedings, there is no requirement for a defendant in a criminal case to serve on the CPS all copies of the statements taken from the witnesses whom they intend to call to give evidence at trial. - Only exception to this is reports from any expert witnesses whom the defendant wishes to call to give evidence at trial (these must be served on the CPS).

Answer 221

If the defendant's solicitor wishes to call an expert to give evidence at trial, they must serve a copy of the expert's report on the CPS in advance of trial. An expert witness is unlikely to require a witness summons, but the defendant's solicitor must check the expert's availability to attend trial so that the trial can be fixed on a date when the expert is available to attend court. Documentary evidence which may be used at trial e.g. plans or photos of the place where the alleged crime occurred. Such should be verified by a witness statement from the person who prepared the plan or took the photographs. Obtaining unused material from the CPS; - Any evidence CPS has in its possession but which it does not propose to rely upon at trial is 'unused material'. - N.B. Remember any evidence which will subsequently be relied upon at trial will be supplied to the defendant's solicitor as part of the IDPC.

Answer 222

No; a written statement from a witness will be admissible at trial provided s9 CJA 1967 is satisfied; - It is signed and dated. - It contains a perjury declaration/statement of truth. - A copy has been served before the hearing on the other parties in the case. - None of the other parties has objected within 7 days. N.B. The statement may only contain matters which would have been admissible if the witness had given oral evidence at court. N.B. S9 witness statements should only really be used for evidence which is not in dispute. N.B. If the party receiving a statement served in this form wishes to challenge the admissibility of anything said in the statement, or to cross-examine the maker of the statement, it should object in writing within 7 days.

Answer 223

In addition to giving case management directions, magistrates' courts will also expect the characteristics outlined in the TSJ to be applied by all practitioners who work in magistrates' courts. They include; - Early and effective case preparation. --- To promote early engagement between defence, prosecution and court. --- To allow defence solicitors sufficient time to prepare the case. --- For the CPS to ensure file ownership at this stage. --- For the CPS to include contact details of the allocated lawyer in the case within the IDPC to enable the defence to directly contact the prosecutor. --- For IDPC to be published onto Common Platform a minimum of 5 days before the first hearing. --- An expectation that the CPS and defence will engage before the first hearing wherever possible. --- For the use of TEAMS meetings to be considered to enable such early engagement. - Disclosure of unused material. --- Disclosure requirements to be complied with by police in accordance with the Attorney General's Guidelines. --- In anticipated not guilty cases, early provision of unused material within the IDPC. - Clear expectations of effectiveness at first hearing. -- In Not Guilty plea cases, for all parties to ensure that there is. --- robust case progression, with clear identification of trial issues. --- clear indication of witness requirements. --- remote support and participation of police staff and other investigative bodies, to enable issues to be dealt with in real time, rather than have to adjourn. --- availability of and facilities for the defence to view multi-media evidence to be provided at court. --- use of indications of sentence (Goodyear directions) in appropriate cases. -- In cases to be sent to the Crown Court, for all parties to ensure that there is. --- an understanding that to obtain maximum credit for plea it is essential that, for either way offences, a guilty plea is entered at the Magistrates' Court. --- an understanding that for indictable only offences, that there is an unambiguous indication of guilty plea recorded on the BCM form. - Clear expectation of trial readiness. --- To achieve this, there will be ongoing robust case progression on all contested cases, with clear identification of trial issues. --- Ongoing support and participation from police. --- Ongoing indication of witness requirements (by all parties).

Answer 224

They will set a date for the PTPH at the Crown Court, or a date for a preliminary hearing in the Crown Court if such a hearing is necessary, and will remand the defendant either on bail or in custody to appear at the Crown Court. Unless a preliminary hearing is to take place at the Crown Court, the magistrates will also give a set of standard case management directions for the CPS and defendant's solicitor to comply with prior to PTPH taking place. The magistrates will give the defendant a notice specifying the offence(s) for which they have been sent for trial and the Crown Court at which they are to be tried. A copy of the notice will also be sent to the relevant Crown Court.

Answer 225

If either the magistrates decline jurisdiction, or the defendant elects Crown Court trial at the allocation hearing.

Answer 226

If the offence is founded on the same facts as the either-way offence, or Is part of a series of offences of the same or a similar character. N.B. If defendant pleads guilty to the summary-only offence, Crown Court can sentence for it but its sentencing powers are limited to those of the Magistrates. N.B. If defendant is acquitted of the either-way offence or pleads not guilty to the summary-only offence, this offence must be remitted back to the Magistrates' for trial.

Answer 227

If there are case management issues which the Crown Court needs to resolve. The trial is likely to exceed 4 weeks. It is desirable to set an early trial date. The defendant is under 18 years of age. There is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing. N.B. A preliminary hearing must take place within 10 business days of the date on which the magistrates send the case to the Crown Court.

Answer 228

To enable the defendant to enter their plea and, if the defendant is pleading not guilty, to enable the judge to give further case management directions for the CPS and the defendant's solicitor to comply with prior to trial. Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take place within 20 business days after sending.

Answer 229

The defendant will be arraigned; means that the count(s) on the indictment will be put to the defendant who will either plead guilty or not guilty. If the defendant pleads guilty to some counts but not guilty to others, the jury at the defendant's trial will not be told about the counts to which a guilty plea has already been entered (so they are not in any way prejudiced against the defendant). If the defendant agrees with the CPS to plead guilty to certain counts if the CPS does not proceed with other counts, the CPS will offer no evidence in respect of these other counts at the arraignment and the judge will order that a verdict of not guilty be entered. - The CPS will also offer no evidence at the arraignment if since the case was sent for trial, further evidence has become available which leads it to conclude that there is no longer a reasonable prospect of securing a conviction. - In this case, the judge will again order that a not guilty verdict be entered, and the defendant will be formally discharged. As an alternative to offering no evidence, the CPS may ask that a count 'lie on the court file' (may happen where there are several counts on the indictment and the CPS evidence in respect of each count is strong). If the defendant is prepared to plead guilty to the more serious counts, the CPS may agree to lesser counts being left on the file; potentially reopening with court leave.

Answer 230

The judge will either sentence immediately, or adjourn sentence for the preparation of pre-sentence reports (e.g. medical reports or reports from the Probation Service) or a Newton Hearing (where the defendant pleads guilty but disputes the specific factual allegations made by the prosecution witnesses. In such a situation, it will be necessary to determine the factual basis on which the defendant will be sentenced; defendant will either be released on bail or remanded in custody pending either the sentencing hearing or the Newton hearing.

Answer 231

Yes; defendant must specifically ask for such an indication. If the judge gives an indication and the defendant then enters a guilty plea, the indication given by the judge will be binding.

Answer 232

The judge will consider if any further directions are necessary to prepare the case for trial (over and above those given by the magistrates' court when the case was sent to the Crown Court). To determine whether further directions may be necessary, the judge will require the prosecution and defence advocates present at the PTPH to be in a position to supply the following information; - A summary of the issues in the case. - Details of the number of witnesses who will be giving oral evidence at trial and the estimated length of the trial. - Whether the transcript(s) of the defendant's police interview(s) require editing. - Whether a defence statement has been served and if so, whether there is any issue as to the adequacy of the statement. - Whether the prosecution will be serving any additional evidence. - Whether there is any dispute as to the adequacy of disclosure of unused material by the prosecution. - Whether any expert evidence is to called and if so, whether any additional directions are needed for this. - Whether any further directions are necessary concerning hearsay or bad character evidence. - Whether special measures are required for any witnesses. - Any facts which can be formally admitted. - Any points of law or issues concerning the admissibility of evidence which are likely to arise at trial. - Dates of availability to attend trial of the witnesses and the advocates.

Answer 233

At the PTPH; either fix a date or place the case in the 'warned list' (a list of cases awaiting trial that have not been given a fixed date for the trial to start). - Solicitor will be notified shortly before the trial starts. At the conclusion of the PTPH, the defendant will either be released on bail, or remanded in custody pending his trial.

Answer 234

Yes; at any time before the jury return their verdict. - May be likely where defendant admitted guilt but pleaded not guilty in the hope that a successful submission of no case to answer could be made at the end of the prosecution case but before the defendant needed to give evidence.

Answer 235

In the CPIA 1996 and supplemented by some judicial protocols.

Answer 236

The CPS is required to serve on the defendant all the evidence on which it wishes to rely at trial to prove the defendant's guilt. In addition to this evidence, the prosecution will also have a quantity of 'unused material' such as statements from witnesses whom the CPS does not intend to call to give evidence at trial. The CPS is expected to retain this material and in the event of the defendant entering a not guilty plea, the CPS must disclose any such material to the defendant if the material satisfies the s3 test; disclose all material if it 'might reasonably be considered capable of undermining the case for the prosecution... or of assisting the case for the accused.'

Answer 237

Records of the first description of a suspect given to the police by a potential eyewitness if that description differs from that of the defendant. Any information provided by the defendant which indicates an innocent explanation for the offence. Material casting doubt on the reliability of a witness e.g. previous convictions. Material casting doubt on the reliability of a confession. Any statements from witnesses which appear to support the defendant's account.

Answer 238

It is ongoing; CPS must apply this test to any further material it receives after making initial disclosure. The CPS must also consider the need to make further disclosure in the light of any information received from the defence about the nature of the defence case.

Answer 239

They will request disclosure of any 'missing' items when drafting the defence statement.

Answer 240

The solicitor may apply to the court to request the specific disclosure of such items; application may be made only if the defendant has provided a defence statement.

Answer 241

In addition to having non-sensitive items of unused material, the CPS may also have 'sensitive' items which it does not wish to disclose. Examples include; - Material relating to matters of national security or intelligence. - Material relating to the identity of police informants or undercover police officers. - Material revealing techniques and methods relied upon by the police e.g. covert surveillance techniques used. - Material relating to a child witness. If such material satisfies the test for disclosure under s3 CPIA, the CPS can withhold the material only if protected by 'public interest immunity'. - Decision of the court as to whether disclosure can be avoided on the grounds of public interest immunity; CPS must make an application to the court for a finding that it is not obliged to disclose the relevant material.

Answer 242

The onus switches to the defendant's solicitor. In the magistrates' court, if the defendant enters a not guilty plea and decides to serve a defence statement, they should do so within 10 business days of the CPS making initial disclosure of any unused material it has; the defence statement will be served on the CPS and a copy of the statement sent to court. -- Defendant's solicitor to consider serving one on the CPS only if they think that the CPS will, in the light of the information disclosed in the statement, be in a position to disclose additional unused material that may assist the defence case. -- Rare for defence statement to be served on the prosecution in the Magistrates' Court as the possible advantage of gaining additional disclosure from the CPS is outweighed by the disadvantage of giving away too many defence case details prior to the trial when no obligation to. In the Crown Court, time period is 20 business days from service of unused material by the prosecution. -- Obligation to serve a defence statement here. N.B. If the case is particularly complex and 10/20 days will be insufficient, the defence may apply to the court for a longer period within which to serve the defence statement.

Answer 243

By the court being able to draw an adverse inference against the defendant if a defence statement is not provided.

Answer 244

Must be a written statement which; - Sets out the nature of the defence, including any particular defences on which the defendant intends to rely (e.g. alibi, self-defence). - Indicates the matters of fact on which the defendant takes issue with the prosecution and why they take such issue. - Sets out particulars of the matters of fact on which the defendant intends to rely for the purposes of their defence. - Indicates any points of law (including any point as to the admissibility of evidence) that the defendant wishes to take at trial, and any legal authority on which the defendant intends to rely for the purpose. - In the case of an alibi defence, provide the name, address, DOB of any alibi witness. N.B. Defence also under continuing duty to update the defence statement if the details to be given under any of the above are to change before trial.

Answer 245

No; deemed to be given with the authority of the defendant unless contrary can be proved. Defendant's solicitor should therefore ensure that the defendant sees and approves a copy of the defence statement before served; usual practice is for defendant's solicitor to sign the original statement that is served and for defendant to sign a copy of the statement which will be kept on the solicitor's file.

Answer 246

Failing to provide a defence statement at all. Late service of the defence statement. Serving an incomplete defence statement. Serving a defence statement that is inconsistent with the defence put forward at trial. Failing to update a defence statement. N.B. If any of these faults occur, the court or with leave, any other party may make such comments as appear appropriate, and the court/jury may draw such inferences as appear proper when deciding whether the defendant is guilty.

Answer 247

That the CPS must review its initial disclosure of unused material and determine if there is any further unused material in its possession which, in light of the matters contained in the defence statement, might now be deemed capable of undermining the case for the prosecution or of assisting the case for the defendant.

Answer 248

Yes; may ask court for an order that the CPS disclose material provided the defendant has reasonable cause to believe that there is prosecution material which should have been, but has not yet been, disclosed. The defendant will only be allowed to make such an application if they have set out in detail in their defence statement the material which they consider the CPS has in its possession which it has not subsequently disclosed.

Answer 249

The prosecution. N.B. Must always present their case first and persuade the court beyond a reasonable doubt of the defendant's guilt.

Answer 250

Apply in writing as soon as is practicable after becoming aware of the grounds for making such an application.

Answer 251

1) Opening speech by solicitor from CPS. 2) Prosecution witnesses called in turn to give evidence; complainant called first; each witness will be examined in chief by the prosecuting solicitor and then cross-examined by the defendant's solicitor. The prosecuting solicitor may then choose to re-examine the witness. 3) Possible submission of no case to answer by defendant's solicitor. 4) Defence witnesses called in turn to give evidence; defendant called first; each witness will be examined in chief by the defendant's solicitor and then cross-examined by the prosecuting solicitor. The defendant's solicitor may then choose to re-examine the witness. 5) Prosecuting solicitor may make a closing speech where the defendant is represented, or the defendant has introduced evidence other than his own (whether represented or not). 6) Closing speech by the defendant's solicitor. 7) The magistrates retire to consider their verdict. 8) The magistrates deliver their verdict. 9) If the defendant is found guilty, the magistrates will then either sentence the defendant immediately, or adjourn sentence until later if they wish to obtain pre-sentence reports on the defendant. If acquitted, the defendant will be formally discharged by the magistrates and told that they are free to go.

Answer 252

The prosecutor 'setting the scene' by; - Telling the magistrates the factual details about the charge which defendant faces, the relevant substantive law and what the prosecution will need to prove to secure a conviction. - Reminding the magistrates that prosecution has the burden of proving beyond a reasonable doubt that defendant is guilty and defendant is entitled to an acquittal unless magistrates are sure of guilt. - Outlining what the prosecution case consists of, telling the court which witnesses will be called and summarising the evidence to be given to these. - Referring the magistrates to any points of law which they anticipate may arise during the trial (e.g. Turnbull guidelines if the case consists of disputed identification evidence or ss76/78 PACE 1984 if there is disputed confession evidence).

Answer 253

Unless the witness is a child under 14, such evidence will be sworn evidence which means the witness will either take an oath or affirmation, in which they promise to tell the truth. Each prosecution witness (starting with the complainant) to be asked questions by the prosecutor before cross-examination by defendant's solicitor and possible re-examination. Any prosecution witness not being called to give evidence (e.g. s9 written statements or hearsay evidence to be read out) will have such statements read to the court by the prosecutor. If defendant was interviewed at the police station, an interview summary or full transcript will be read out to the court unless defendant's solicitor objects to this. If objection raised, audio recording of the interview to be played to the court.

Answer 254

Cases where prosecutor seeks to place evidence before the court which defendant's solicitor considers inadmissible e.g. under PACE, the magistrates will usually hold a voir dire (trial within a trial) hearing to determine the admissibility of the particular piece of evidence in dispute. This voir dire will involve witnesses giving evidence on matters relevant to the admissibility of the evidence and after this has been done, the prosecutor and the defendant's solicitor will make legal submissions as to the admissibility of the disputed evidence. -- If the magistrates decide that the evidence is inadmissible, the prosecutor will not be allowed to make any further reference to such evidence during the course of the trial. -- If the magistrates rule the evidence to be admissible, it may then be produced by the prosecutor as part of the prosecution case (N.B. defendant's solicitor will still be entitled to attempt to undermine the reliability or cogency of such evidence during the trial). N.B. Difficulties faced by defendant's solicitor when conducting a voir dire in the magistrates' court as magistrates decide matters of both law and fact, so even if they decide the piece of prosecution evidence to be inadmissible, the magistrates will still be aware of the existence of that item which may prejudice. - To overcome problems at trial with magistrates being aware of the existence of an item of prosecution evidence, even if they have decided that such evidence is inadmissible, many magistrates' courts now hold pre-trial hearings (before a different bench of magistrates to the bench who ultimately conducts the trial) to determine the admissibility of disputed evidence.

Answer 255

Where the prosecutor fails to satisfy the evidential burden. A submission of no case to answer will be made by the defendant's solicitor if either; - The prosecution has failed to put forward evidence to prove an essential element of the alleged offence (e.g. failing to prove for theft that bike belonged to another person), or - The evidence produced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable, that no reasonable tribunal could safely convict on it. --- N.B. Difficult to be successful here as not much prosecution evidence is actually required to get past this halfway stage. N.B. If the magistrates accept a submission of no case to answer, the charge against the defendant will be dismissed. N.B. If the magistrates reject the submission of no case to answer, the defendant may then present their case and call witnesses (no entitlement by prosecution to conviction yet just due to satisfying evidential burden).

Answer 256

A defendant is a competent witness for the defence but is not compellable (can give evidence on his own behalf but not obliged to). Prior to trial, defendant's solicitor should always discuss with defendant whether or not they should give evidence in their own defence; possible reluctance if young, or fear their story won't stand up to cross-examination by the prosecutor. In the normal course of events, necessary for defendant to give evidence (e.g. defendant who is raising defence such as self-defence or alibi has evidential burden of placing some evidence of this defence before the court). A defendant who answered questions (or provided a prepared written statement) at police station will also have credibility enhanced by repeating this in witness box; enables their solicitor to say that defendant has put forward a consistent defence since first being arrested, during their closing speech. A defendant who fails to give evidence on their own behalf at trial is likely to find that court draw an adverse inference from such a failure. - Court entitled to infer that defendant has no defence to the charge, or no defence that will stand up to cross-examination.

Answer 257

Adv; - Avoids s35 adverse inferences. - Dispute/put in context evidence of prosecution witnesses. - Enhance credibility if gives same account as in police interview. - Explain his conduct e.g. why he made a confession to the police. Disadv; - Could incriminate himself in witness box. - Account may not stand up to cross-examination.

Answer 258

Defendant first if they are to give evidence on their own behalf and then others as in same way as prosecution witnesses.

Answer 259

Prosecution now has right to make closing speech but should only be exercised in more complex cases where it will be of assistance to the court. Defendant's solicitor has choice in magistrates' court as to whether to make an opening or closing speech; usually will given tactical importance of having the last word after all the evidence has been presented to the court. Gives opportunity to sum up the case from defence POV and point out all weaknesses in the prosecution case and remind court of all points in the defendant's favour. - Should be short and to the point. - Refer back to opening speech, highlighting where the prosecution case has 'come up short' on what it aimed to prove. - May need to cover up evidential issues e.g. give Turnbull warning or seek to undermine credibility of evidence. - Remind magistrates that CPS bears the burden of proving beyond a reasonable doubt that defendant is guilty of offence with which he is charged and defendant entitled to acquittal if guilt cannot be proved. PERSUASION.

Answer 260

Decision made by majority - usually 3 magistrates. When the magistrates return to court after deciding upon the verdict, the defendant will be asked to stand and will be told by the chairperson of the bench that they have been found guilty or not guilty.

Answer 261

Largely due to the split functions between the trial judge and the jury. The jury (12 members of the public) decide any matters of fact which are in dispute and will ultimately decide on the defendant's guilt or innocence. The judge will resolve any disputes that arise over points of law during the course of a trial and will direct the jury as to the relevant law which they must apply to the facts of the case when they retire to consider their verdict.

Answer 262

1) Jury sworn in 'empanelled' 2) Opening speech by prosecution to jury. 3) Prosecution witnesses called in turn to give evidence. Complainant called first; each will be examined-in-chief by the prosecutor, cross-examined by the defence advocate and then re-examined by the prosecutor if necessary. 4) Defence counsel may make a submission of no case for defendant to answer. 5) Defence counsel opening speech (if defence intend to call witnesses in addition to defendant). 6) Witnesses for defence called to give evidence. Defendant called first if choosing to; each to be examined-in-chief by defence advocate, cross-examined by prosecutor and re-examined by defence advocate if necessary. 7) Prosecuting closing speech to jury. 8) Defence advocate closing speech to jury. 9) Before jury retire to consider their verdict, judge will give their 'summing up' to the jury on directions on the law and summary of the evidence. - Common ground of appeal raised by defendants following conviction is that the judge has misdirected the jury on a point of law or evidence. 10) Jury retire to consider their verdict in private. - Unanimously but 11:1 or 10:2 verdict also accepted if after max 2hrs 10mins unanimity not possible. - If any jurors have been discharged during the trial, the majority verdict requirements reflect this until 9 remain and only a unanimous verdict is acceptable. 11) If a majority verdict cannot be reached within a reasonable timeframe, the judge will discharge the jury and the prosecution is likely to request a retrial before a new jury. 12) If jury finds defendant not guilty, defendant will be discharged by the judge. 13) If jury finds defendant guilty, judge will proceed to sentence defendant either immediately or adjourn sentence for pre-sentence reports to be obtained.

Answer 263

The legal elements of the offence(s) on indictment. An outline of the evidence the prosecutor intends to call. An explanation of the operation of the burden and standard of proof in a criminal case.

Answer 264

Randomly selected 12 members of the public between 18-75, whose names are on the electoral roll for the local area and who have resided in the UK for at least 5 years. Certain persons are ineligible for jury service (e.g. those suffering from a mental disorder) and certain classes of people are disqualified from being jurors (e.g. anyone currently on bail in criminal proceedings and many with previous convictions that required serving a custodial sentence).

Answer 265

When arguments on points of law arise, a 'voir dire' will be held. Normal practice for defence to notify the prosecutor prior to trial of any items of prosecution evidence which they will seek to challenge the admissibility of at trial. This allows the issue to be dealt with at a hearing prior to the trial date. Where the issue arises during presentation of the prosecution case, the judge will ask the jury to retire to consider the voir dire.

Answer 266

a. The burden and standard of proof. b. The legal requirements of the offence. c. Any other issues of law and evidence that have arisen during trial (e.g. a Turnbull warning in case of disputed ID evidence, or direction as to drawing of adverse inferences). 1. Succinct summary of the issues that the jury has to decide. 2. Accurate summary of the evidence and arguments raised by both prosecution and defence. 3. Correct statement of the inferences a jury is entitled to draw from their conclusions about the facts.

Answer 267

Heavily prescribed process culminates in the magistrates/district judge or a jury of peers reaching their verdict; results in either passing of a sentence or an appeal against any conviction/sentence.

Answer 268

Sir/Madam.

Answer 269

Your Honour.

Answer 270

'My friend' or 'my learned friend' if they are a barister.

Answer 271

Bow to judge or magistrates when entering and leaving and stand up when judge or magistrates leave or enter the court. Must stand up when you address the court or examine witnesses as a criminal advocate unless; - When representing a juvenile client in the youth court. - Where defendant appears via videolink from prison. - Where a witness appears via securelink (usually due to special measures). - Where witnesses are located far from court e.g. police officers and need to give evidence via videolink. - Where an advocate has requested to appear over videolink. - When making a bail appeal before a judge in chambers in Crown Court. No food or use of electronic devices (in contempt of court if pics/videos taken).

Answer 272

To allow a witness to tell their story; advocate conducting it to ask questions that enable the witness to repeat their version of events which that witness has provided earlier in their witness statement. Difficulty with it is that the advocate is not allowed to ask leading questions (those which are suggestive of the answer). Instead, open, non-leading questions (usually starting with who, what, where, when, how) enable the witness to place their account before the court in their own words.

Answer 273

1) To enable the party conducting the cross-examination to put their case to the witness. 2) To undermine the credibility of the evidence which that witness has just given in examination-in-chief. 3) To obtain favourable evidence from the witness that supports your case. N.B. Usually done by asking a witness 'closed' or leading questions to try and keep better control of what the witness will say and generally can be answered with a yes/no or provide the witness with the required answer.

Answer 274

Should only be in relation to matters that have arisen in cross-examination and as with examination-in-chief, only open, non-leading questions are allowed. N.B. Normal to re-examine a witness to clarify any confusion which may have arisen following cross-examination and/or to try to repair damage caused by such cross-examination.

Answer 275

All persons are competent to give evidence at a criminal trial and all competent persons are also compellable (witness can be compelled to testify by the court issuing a witness summons; failure to attend or refusal to answer questions = contempt of court).

Answer 276

People unable to understand questions put to them as witness and give answers to them which can be understood. - Children (age not determinative but cannot give sworn evidence unless over 14). - Those with a defective intellect (may be able to give unsworn evidence if judge decides that they are competent to).

Answer 277

The accused is not a competent witness for the Crown; this means that co-accused will not be either. The accused is competent as a witness for the co-accused, but not compellable. The accused is competent to give evidence in his own defence but never compellable. - N.B. Adverse inferences may be drawn where an accused chooses not to testify. Assuming the spouse is not also an accused, the question of their competence is dealt with by s80 PACE.

Answer 278

1) The Attorney General may file a nolle prosequi (a formal notice abandoning the prosecution). 2) An order may be made for separate trials but note that in such a case, a co-accused from the first trial may be called at the second, but not vice versa. 3) The accused may be formally acquitted, e.g. if the prosecution offers no evidence. 4) The accused may plead guilty and may then give evidence for the Crown against a co-accused; usually considered desirable that the accused should be sentenced first before giving evidence.

Answer 279

They are only compellable for the Crown in the limited class of 'specified offences' which are; - Where the offence charged involves an assault or injury or threat of injury to the spouse or a person who was under 16, or - Where the charge is a sexual offence, or such an attempted offence involving a person under 16 or aiding and abetting such offences. For any other offence, the spouse cannot be compelled to testify for the Crown, but they may still choose to do so. N.B. Same rule also applies where same sex couples have taken part in a formal civil partnership ceremony; treated as if they were spouses. - A spouse is compellable for the accused. - The spouse is only compellable in the same limited class of specified offences for the co-accused. - Spouses are never compellable for the other where spouse is a co-accused. N.B. If spouses are no longer married at the date of the trial, it is as if they were never married for purposes of establishing their compellability; meaning can be compelled.

Answer 280

- Children aged under 18. - Those suffering from a mental or physical disorder, or having a disability or impairment which may affect their evidence. - Those whose evidence is likely to be affected by their fear or distress at giving evidence in the proceedings. - Complainants in sexual offences. - Those who are witnesses in specified gun and knife crimes. N.B. Sexual offences victims automatically eligible here.

Answer 281

To ensure that the defendant is not deprived of the opportunity to cross-examine the witness.

Answer 282

- Screens to ensure the witness does not see the defendant. - Clearing people from the court so evidence can be given in private. - Judge and barristers removing gowns and wigs in Crown Court case. - Allowing a witness to give evidence from outside the court by live television link. - Allowing a witness to be examined in chief before the trial and a video recording of that examination-in-chief to be shown at trial. - Allowing a witness to use communication aids. - Allowing an approved intermediary e.g. interpreter or speech therapist to help a witness communicate when giving evidence at the court.

Answer 283

The trial judge must warn the jury that this will not in any way prejudice them against the defendant or give rise to any suggestion that defendant has behaved improperly towards the witness.

Answer 284

Duty of defence solicitor to act in their client’s best interests and ensure that the prosecution discharges the onus placed upon it to prove defendant's guilt. - But, remember Principles 1 (uphold ROL and proper administration of justice) and overriding duty not to mislead the court. Preparing defendant to give evidence involves the solicitor telling their client what is likely to happen at the trial prior to it, and supplying them with a copy of their witness statement to read before trial commences. - N.B. Be careful not to ‘coach’ clients by rehearsing how evidence to be given etc.

Answer 285

Sentencing Act 2020 consolidates the existing sentencing legislation in England and Wales through a Code, without changing the substantive law on sentencing.

Answer 286

1) The punishment of offenders. 2) The reduction of crime (including its reduction by deterrence). 3) The reform and rehabilitation of offenders. 4) The protection of the public. 5) The making of reparation by offenders to persons affected by their offence. N.B. The court need not have such regard if the sentence is fixed by law (e.g. murder, subject to sentence of life imprisonment) or offences subject to a statutory minimum.

Answer 287

Key role in ensuring that when a court passes sentence it does so in a structured and consistent way. Prepared and updated by the Sentencing Council (comprised of 8 judicial members and 6 non-judicial members). In drawing up the guidelines, the SC must have regard to; - Current sentencing practice. - The need to promote consistency in sentencing. - The impact of sentencing decisions on victims of crime. - The need to promote public confidence in the criminal justice system. - The cost of different sentences. - Their effectiveness in reducing re-offending.

Answer 288

One of the key concepts a sentencing court is to consider when passing sentence. s63 Sentencing Act 2020 requires that a court consider; - The offender's culpability in committing the offence, and - Any harm which the offence; --- Caused. --- Was intended to cause, or --- Might foreseeably have caused. N.B. Types of harm may include physical injury, sexual violation, financial loss, damage to health and psychological distress.

Answer 289

1) Where the offender has the intention to cause harm, with the highest culpability being when an offence is planned. The worse the harm intended, the greater the seriousness. 2) Where the offender is reckless as to whether harm is caused. This covers situations when the defendant appreciates that some harm would be caused but goes ahead, giving no thought to the consequences even though the extent of the risk would be obvious to most people. 3) Where the offender has knowledge of the specific risks entailed by their actions, even though the offender does not intend to cause the harm that results. 4) Where the offender is guilty of negligence.

Answer 290

1) Previous convictions - if committed recently and/or are for a similar type of offence. 2) Offences committed on bail - if the offender was on bail in respect of another offence at the time of the current offence. 3) Racial or religious aggravation - any such motive for committing the offence. 4) Hostility based on sexual orientation or disability - any such hostility towards the victim.

Answer 291

- Offences that are planned or premeditated. - Offenders operating in groups or gangs. - The deliberate targeting of vulnerable groups (e.g. elderly or disabled victims). - Offences committed whilst under the influence of drink/drugs. - The use of a weapon. - Deliberate and gratuitous violence or damage to property, beyond that required to carry out the offence. - Offences involving the abuse of a position of trust. - Offences committed against those working in the public sector or providing a service to the public. - In property offences, the high value of property to the victim. - Failure to respond to previous sentences.

Answer 292

- Offences where the defendant has acted on impulse. - When the defendant has experienced a greater degree of provocation than normally expected. - Defendants who are suffering from mental illness or physical disability. - If the defendant is particularly young or old (particularly in the case of young offenders who are immature and have been led astray by others). - The fact that the defendant played only a minor role in the offending. - Defendants who were motivated by genuine fear. - Defendants who have made attempts to make reparation to their victim.

Answer 293

The full 1/3 discount will only be available where a guilty plea is indicated at the 'first stage of proceedings'; - on a guilty plea at the first hearing in the magistrates' court. - on a guilty plea at the first hearing in the magistrates' court where the case is then committed for sentence to the Crown Court. - on indication of a guilty plea in the magistrates' court to an offence triable only on indictment, followed by a guilty plea at the first hearing in the Crown Court. Maximum 1/4 discount where guilty plea is indicated after this first stage in proceedings (e.g. at PTPH). Maximum 1/10 discount where guilty plea is entered on the first day of trial. 0 discount where guilty plea entered during trial. N.B. Applies to all defendants 18 or over and to all cases in the magistrates' and Crown Courts.

Answer 294

When an offender is being sentenced, the court will take into account both the offence they are being sentenced for and any associated offence (offence for which the defendant has been convicted in the same proceedings or for which they are to be sentenced at the same time, or an offence which the defendant has asked the court to take into consideration when passing sentence).

Answer 295

Optional but offences should be of a similar nature to, or less serious than the offence(s) for which defendant has been convicted. Likely to be in defendant's interests that all matters outstanding against them should be dealt with at the same time; the way court deals with such depends on the context of such offences - may increase the severity of the sentence but may not. - Advantage to the defendant = 'wipes the slate clean'. - Advantage to the police = large number of TICs improves their clear-up rates without the need to commence a fresh prosecution against the defendant.

Answer 296

8-step approach to arrive at its sentence; steps 1,2,4 are usually the key steps that determine the sentence the court will impose. Step 1 - Determining the offence category. - Category 1 reflects both greater harm or enhanced culpability. - Category 2 reflects either greater harm or enhanced culpability. - Category 3 involves lesser harm and lower culpability. Use exhaustive list of factors for the offence in question to identify category and once done, the court is required to use the corresponding starting point sentence which will be further shaped by the later steps. Step 2 - Shaping the provisional sentence; starting point and category range. - Refer to aggravating and mitigating factors to fine-tune the sentence by providing context to the offence. - Sentencer also required to consider the relevant statutory thresholds. Step 3 - Consider any factors which indicate a reduction in sentence, such as assisting the prosecution. - Step allows the court to reduce the sentence where the offender has provided assistance to the police (rare in practice). Step 4 - Reduction in sentence for guilty plea. Step 5 - Imposing an extended sentence. - List of circumstances where possible e.g. classified as a dangerous offender. Step 6 - Totality principle. - Ensure the overall sentence is proportionate. Step 7 - Compensation and other ancilliary orders. - Court is reminded of their duty to consider whether or not to order the offender to pay compensation and also make any other appropriate orders e.g. confiscation, destruction, forfeiture. Step 8 - Giving reasons. - Includes court explaining to the offender the effect of the sentence that has been passed, the effect of non-compliance with the sentence and to identify the definitive sentencing guidelines followed in reaching the sentence passed.

Answer 297

Where a court is sentencing an offender to a custodial sentence for 2 or more offences. - Concurrent sentence = the custodial terms are deemed to be served at the same time. - Consecutive sentence = one custodial sentence will start after the other has finished.

Answer 298

Where the 2 offences arise out of the same incident or facts (occurred at the same time in relation to the same victim). There is a series of offences of the same or similar kind. Examples; - A single incident of dangerous driving resulting in injuries to multiple victims. - Repetitive small thefts from an employer. - Robbery with a weapon where the weapon has been taken into account in categorising the robbery.

Answer 299

Where the offences arise out of unrelated facts or incidents. Where the offences committed in the same incident are distinct, involving an aggravating element that requires separate recognition. Where offences are of the same or similar kind but the overall criminality will not be sufficiently reflected by concurrent sentences. Examples; - Where the offender commits a theft on 1 occasion and a common assault against a different victim on a separate occasion. - Where one of the offences is a Bail Act offence such as failing to surrender. - Where offences of domestic abuse or sexual offences are committed against the same individual.

Answer 300

1) Consider the sentence for each individual offence, referring to the relevant sentencing guidelines. 2) Determine whether the case calls for concurrent or consecutive sentences. When sentencing 3 or more offences, a combination of concurrent and consecutive sentences may be appropriate. 3) Test the overall sentence against the requirement that the total sentence needs to be just and proportionate to the offending as a whole. 4) Consider and explain how the sentence is structured in a way that will be best understood by all concerned.

Answer 301

The penultimate stage in the sentencing process; defendant has the opportunity to present mitigation before the sentencing court then considers and imposes its sentence. N.B. In practice, one of the most frequent and important function of defence advocates. N.B. The plea in mitigation usually just involves a speech by the defence advocate, but can also include the calling of character witnesses on behalf of the defendant or introducing character letters to speak of the defendant's generally good character.

Answer 302

To try and persuade the sentencing court to impose upon the defendant the most lenient sentence which the court could reasonably be expected to give for that offence. Loosely structured into 4 parts; 1) The likely sentence - defendant's solicitor may begin by identifying the likely sentence. - Research the likely range of sentences which will be in the court's mind and identify the starting point for each to ensure the sentence proposed as part of plea in mitigation is less than these. 2) The offence - defendant's solicitor could then address the circumstances of the offence, minimising the impact of any aggravating factors and stressing the importance of any present mitigating factors. 3) The offender - defendant's solicitor could emphasise any personal mitigation which the defendant may have. 4) The suggested sentence - conclude with the defendant's solicitor suggesting to the court the type of sentence which he considers would be most appropriate for the court to impose. - Should be lower than the likely sentence and reflect all the mitigating factors which the defendant's solicitor has placed before the court. - Must be realistic, at the lower end of sentences court has in mind.

Answer 303

Age of defendant; - Courts more likely to be sympathetic if defendant is young and immature or impressionable, or of age but it is their first offence and they acted out of character. Health of defendant; - If evidence to suggest that defendant is a drug addict or alcoholic, may be used to suggest to the court that a sentence designed to help the defendant overcome this addiction e.g. rehabilitation may be more appropriate than a custodial sentence. - A defendant suffering from long-term illness or injury and mental illness at the time of the offence is likely to receive some sympathy from the court. - N.B. Avoid using intoxication as mitigation as courts view it as aggravating factor. Cooperation with the police/early guilty plea; - Appropriate reduction in sentence based on when entered. - Assisting the police in their enquiries should also be raised here e.g. naming others involved in the crime or revealing whereabouts of stolen property. Voluntary compensation; - A defendant who voluntarily makes good the damage which they caused, or who makes a voluntary payment of compensation to their victim, is likely to receive credit for this (particularly if of limited means). Remorse; - Evidence of true remorse is effective mitigation. Mere apology by the defendant's solicitor on behalf of his client is unlikely to have much effect but positive steps taken to tackle the problems which caused him to commit the crime will e.g. voluntarily seeking treatment for drug addiction which caused theft. Character; - If no previous convictions or strong reason for offending e.g. financial crisis may indicate a one-off offence. - In such circumstances, defendant's solicitor may call character witnesses to give evidence as to the defendant's previous good character. Family circumstances; - Stable home/job and supportive family can show readiness for rehabilitation. - Troubled family backgrounds may mitigate if linked to offending. Low risk of re-offending; - Pre-sentence report from Probation Service addresses this risk; if low, highlight his in plea in mitigation to support argument that defendant's offending was one-off.

Answer 304

- Custody. - Suspended sentence. - Community sentence. - Fine. - Discharge (conditional or absolute).

Answer 305

Most offences which carry a custodial sentence allow the sentencing court a discretion as to whether a custodial sentence should be imposed, and the length of any such sentence. - N.B. Limited exceptions where an offence carries either a mandatory sentence or a mandatory minimum term of imprisonment. Where the court has a discretion whether or not to pass a custodial sentence, it must apply the threshold test in s230 Sentencing Act 2020; - The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence. Only if the custody threshold is passed, may the court impose a custodial sentence; not automatically imposed. - N.B. where the custody threshold has just been passed, a guilty plea or a very strong personal mitigation may make a non-custodial sentence more appropriate. ' N.B. The custody threshold test does not apply where an offender fails to express a willingness to take part in a community sentence, even if offence defendant is charged with would normally be dealt with by e.g. low-level community order. If the custody threshold is passed and the court decides to impose a custodial sentence, the court must consider the length of the custodial sentence.

Answer 306

12 months.

Answer 307

Can sentence a defendant to a term of imprisonment up to the maximum permitted for that offence. - Rare in practice.

Answer 308

Young offender institution.

Answer 309

Impose one of the following forms of custodial sentence; 1) Automatic life imprisonment. 2) Discretionary life imprisonment. 3) An extended sentence of imprisonment.

Answer 310

A defendant will normally be released automatically halfway through their sentence. Adult defendants who receive a custodial sentence of up to 2 years (for an offence committed after 1 Feb 2015) will be automatically released at the halfway point and will then be on licence in the community to the end of the sentence. - Upon release, they must have a period of post-sentence supervision to ensure that they are supervised for a period of 12 months beginning on the day they leave custody. Adult defendants who receive sentences of over 2 years will also usually be released automatically after serving half their sentence and the remaining half is served on licence in the community, unless classified as an 'offender of particular concern' (usually terrorism, child sex offences). - For such an offender, they will not be entitled to automatic release on licence after serving half the sentence but can instead apply for parole and may then be released at any time from this halfway point up until the end of their sentence. - They will then be released on licence and subject to similar supervision.

Answer 311

A custodial sentence of at least 14 days but no more than 2 years (or 12 months in the case of the magistrates' court) may be suspended for at least 6 months and not more than 2 years. - The period during which the sentence is suspended is called the 'operational period'. Will be imposed only if the court initially decides that the custody threshold has been met, but then considers that particular circumstances exist which justify the suspension of the sentence.

Answer 312

Court likely to order the defendant to comply during a specified period with one or more requirements falling within s287 of the Sentencing Act 2020. The supervision period must end no later than the end of the operational period. N.B. Requirements are the same as those the court may require a defendant to comply with when imposing a generic community order.

Answer 313

The sentence of imprisonment will not take effect unless either the defendant fails to comply with any requirements which have been imposed or, during the operational period, the defendant commits a further offence and the court sentencing the defendant for the 'new' offence orders that the original sentence of imprisonment is to take effect. If a defendant is found either to be in breach of a requirement or to have committed a further offence during the operational period, if the suspended sentence was imposed by the magistrates' court, they may be dealt with for the breach either by magistrates' or Crown Court. If the suspended sentence was imposed by the Crown Court, any breach may generally be dealt with only by the Crown Court.

Answer 314

One of the following; a) Order the custodial sentence originally suspended to take effect unaltered. b) Order the custodial sentence to take effect, but for a shorter period of time and/or substitute a lesser custodial period. c) Amend the original order by imposing more onerous community requirements on the defendant, or. d) Amend the original order by extending the operational period, or by extending the supervision period. An order of a) or b) must be made unless court considers that it would be unjust to do so in view of all the circumstances. - E.g. if defendant is coming to the end of the supervision period (having complied with the requirements imposed) or in the case of defendant being convicted for a further offence, the new offence is a minor matter or is a completely different type of offence to the offence originally committed. - Court to also take into account time elapsed since the original offence was committed and any change in the defendant's circumstances.

Answer 315

The term of imprisonment for the original offence will be consecutive to the sentence imposed for any new offence.

Answer 316

Activate a suspended sentence and order it to run consecutively with any additional sentence imposed for the new offence.

Answer 317

s204(2) Sentencing Act 2020 - the court must not make a community order unless it is of the opinion that; - The offence or - The combination of the offence and one or more offences associated with it, was serious enough to warrant the making of such an order.

Answer 318

Unpaid work requirement - between 40-300 hours within 12 month period (most common). Activity requirement e.g. finding work, repairing damage caused. Programme requirement e.g. courses to address defendant's offending behaviour (sex offending, anger management, substance misuse). Prohibited activity requirement - requires defendant to refrain from taking part in specified activities. Curfew requirement - tagged to ensure defendant remains at place of residence at set times. Exclusion requirement - EM to ensure compliance with defendant being prohibited from entering a place or places e.g. city centre, type of establishment e.g. pub or shop for a period not exceeding 2 years. Residence requirement - requires defendant to live at a certain place as specified in the court order. Mental health treatment requirement (defendant to agree to it). Drug rehabilitation requirement (defendant to agree to it). Alcohol treatment requirement (defendant to agree to it). Supervision requirement - requires defendant to attend meetings with the Probation Service to promote defendant's rehabilitation and monitor progress for up to 3 years. Attendance centre requirement - can only be imposed on defendants under 25; requires defendant to attend an attendance centre for a total of between 12 and 36 hours. Foreign travel prohibition requirement.

Answer 319

Due to extremely wide scope of potential requirements a court may impose, the SC has identified 3 sentencing ranges (low, medium and high) within the community sentence band, and a court considering the imposition of such a sentence must also decide into which band the particular offence(s) with which it is dealing falls.

Answer 320

The defendant will first receive a warning from the officer from the Probation Service who is supervising the defendant's compliance with his generic community order. If, within the following 12 months, the defendant again fails without reasonable excuse to comply with the requirements of the order, the officer will report this matter to the court which imposed the order in the first place, and the defendant will be required to appear before that court. If the court is satisfied that the defendant has, without reasonable excuse, failed to comply with the requirements of the order, the court must; - amend the order so as to impose requirements on the defendant which are more onerous e.g. increasing the amount of unpaid work the defendant is required to complete, or - revoke the order completely and re-sentence the defendant for the offence, but without taking into account the usual custody threshold, or - where the defendant has wilfully and persistently failed to comply with the order, the court may revoke the order and impose a custodial sentence. This can be done even if the original offence was not punishable by way of a custodial sentence.

Answer 321

The magistrates may either allow the original generic community order to continue or, if in the interests of justice having regard to the circumstances that have arisen since the original order was made, they may; - revoke the order (done if the magistrates are imposing a custodial sentence for the 'new' offence, since an offender in prison cannot comply with a community sentence), or - revoke the order and re-sentence the defendant for the original offence as if they have just been convicted of it. If this is done, the court must have regard to the extent to which the defendant has complied with the original order.

Answer 322

Legal procedure used when a defendant pleads guilty to a charge but disputes the factual version of events presented by the CPS. If the dispute concerning the correct version of events may have a bearing on the type of sentence the court imposes, the court must either accept the defendant's version of events, or allow both the CPS and defendant to call evidence so that the court can determine the true factual circumstances of the offence on which the defendant's sentence will be based.

Answer 323

By agreeing a version of events upon which the defendant will be sentenced; known as a 'basis of plea' and will usually be instigated by the defence. - A document that sets out the defendant's factual version of events to an offence which the defendant accepts they are guilty of. The purpose of the basis of plea from the defence perspective is to remove various aggravating features of the case which would lead to a higher sentence and which the defendant does not accept are an accurate reflection of what actually happened.

Answer 324

The sentence will proceed on the version put forward by the defence.

Answer 325

Then there will be a Newton hearing to determine the factual basis upon which the defendant will be sentenced. N.B. Sentencing judge is the final arbiter on whether or not a basis of plea is accepted and is entitled to reject a basis even if accepted by the prosecution.

Answer 326

1) If they pleaded guilty, they may appeal against the sentence they received. 2) If they pleaded not guilty, they may appeal against any resulting conviction and/or the sentence they received. N.B. The appeal will usually be heard by a recorder or a circuit judge who will sit with an even number of magistrates (usually 2 but up to 4 on appeal).

Answer 327

No; but can appeal to the High Court on a point of law by way of case stated, as can the defence.

Answer 328

Yes; on the basis that the magistrates made errors of fact and/or law. An appeal against conviction in the Crown Court is a full rehearing of the case (another trial). The CPS and the defendant will need to call all those witnesses whose evidence they seek to rely upon.

Answer 329

Yes; on the basis that the sentence imposed by the magistrates is excessive. Crown Court should carry out a full rehearing of the issues and take an independent view of what the correct sentence should be, rather than simply reviewing the sentence passed by the magistrates' court.

Answer 330

A defendant wishing to appeal from the magistrates' court to the Crown Court must file a notice of appeal with both the magistrates' court and the CPS not more than 15 business days from the magistrates passing sentence. The clerk to the magistrates' court will send the notice of appeal to the relevant Crown Court, and the Crown Court will arrange a date for the hearing of the appeal to take place. If the defendant files their notice outside the 15 business days, a Crown Court judge does have the discretionary power to extend this time limit. N.B. If the defendant is appealing against a custodial sentence, the magistrates may grant bail to the defendant pending the appeal to the Crown Court; no presumption of bail though.

Answer 331

May confirm, reverse or vary the decision. Has the power to impose on the defendant any sentence, as long as it is a sentence which the magistrates' court had the power to impose. - Means defendant appealing a sentence imposed by the magistrates' court may have it increased if the Crown Court take a more serious view of the case. Both the CPS and the defendant are then able to appeal to the High Court by way of case stated against any decision or order made by the Crown Court following an appeal from the magistrates' court.

Answer 332

Both the CPS and defendant can appeal from a decision of the magistrates' court to High Court by way of case stated if; 1) the decision which has been made by the magistrates is wrong in law, or 2) the magistrates have acted outside their jurisdiction. Arguments often raised in an appeal by way of case stated are that; - the magistrates misread, misunderstood or misapplied the law. - the magistrates decided to hear a case when they did not have the jurisdiction to hear it. - the magistrates made errors in deciding the admissibility or otherwise of evidence. - the magistrates erred in their decision following a submission of no case to answer.

Answer 333

Party wishing to appeal must apply to the magistrates' court within 21 days of the relevant decision being made by the magistrates' court; usually done by writing to the clerk to the magistrates' court. The application must identify the question of law on which the aggrieved party seeks the view of the High Court; following receipt of this letter, the magistrates must then 'state a case' for the opinion of the High Court. To do this, the clerk to the magistrates, will prepare a draft 'statement of case' that will; -- specify the decision in issue. -- specify the question(s) of law or jurisdiction on which the opinion of the High Court will be asked. -- Include a succint summary of; --- the nature and history of the proceedings. --- the court's relevant findings of fact and --- the relevant contentions of the parties. -- if a question is whether there was sufficient evidence on which the court reasonably could reach a finding of fact, specify that finding and include a summary of the evidence on which the court reached that finding. Once initial draft has been prepared, the clerk to send this to the CPS and defendant's solicitor to enable them to suggest any necessary amendments. Once a final version of the statement of case has been agreed, the clerk will send this to the party making the appeal. That party must then lodge this with the High Court and give notice to the other party that this has been done.

Answer 334

Heard by the Divisional Court of the Queen's Bench Division and normally by 3 judges. No evidence is given by witnesses and the hearing will be confined to legal argument based on the agreed facts set out in the statement of case. The Divisional Court has the power to reverse, vary or affirm the decision made by the magistrates' court; it may also remit the case back to the same magistrates' court with a direction to acquit or convict the defendant, or to remit the case to a different bench of magistrates (if the case needs to be reheard). Both the CPS and defendant are able to appeal to the Supreme Court in respect of any decision or order made by the High Court following an appeal to the High Court by way of case stated. - Any such appeal must be on a point of law only and leave to appeal must be granted by either High Court or Supreme Court. - Appealing to Supreme Court is usually the best approach to adopt**.

Answer 335

1) Appeal against conviction - Defendant may appeal against their conviction if either the Court of Appeal grants leave to appeal, or the trial judge grants a certificate that the case is fit for appeal. 2) Appeal against sentence. - Defendant may appeal against the sentence they received if either the Court of Appeal grants leave to appeal, or the judge who passes sentence has granted a certificate that the case is fit for appeal against sentence.

Answer 336

If the Court of Appeal considers a conviction to be 'unsafe', it must allow the appeal; in all other cases, Court of Appeal must dismiss the appeal. N.B. This means that a conviction may be upheld even if there was an error or mistake at the defendant's trial in the Crown Court, if the Court of Appeal considers that, had the mistake not been made, the correct and only reasonable verdict would have been one of guilty. N.B. However, in small number of cases, Court of Appeal may allow an appeal and quash a conviction even if the court is satisfied that the defendant did commit the offence for which they were convicted. - E.g. when there has been an abuse of process committed by the police or the prosecuting authorities such as 'bugging' a privileged conversation between defendant and solicitor.

Answer 337

1) A failure by the trial judge to direct the jury correctly as to; -- The burden and standard of proof. -- The substantive law concerning the offence(s). -- The fact that it is for the jury rather than the judge to determine what the facts of the case are (although the judge will remind the jury of the prominent features of the evidence when summing up, it is the jury's responsibility to judge the evidence and decide the relevant facts). -- The fact that the jury should try to return a unanimous verdict (and the judge will notify them when the time has arisen when the judge may be prepared to accept a majority verdict). -- The jury's power to convict the defendant of any lesser offence which there was evidence to support. 2) The trial judge wrongfully admitted or excluded evidence e.g. -- The judge wrongfully admitted evidence of a disputed confession or the defendant's previous convictions. -- The judge wrongfully excluded hearsay evidence which would have assisted the defendant's case. 3) The trial judge failed to administer the correct warnings to the jury e.g. -- The judge failed to give a 'Turnbull' warning in a case of disputed identification, or a corroboration warning where the defendant alleges that a witness has a purpose of his own to serve in giving evidence against the defendant. -- The judge failed to give a proper direction to the jury as to the drawing of adverse inferences from the defendant's silence. 4) Inappropriate interventions from the trial judge - e.g. the judge constantly interrupted defence counsel during the cross-examination of a prosecution witness. 5) A failure by the trial judge when summing up the case to the jury to; -- Deal with the essential points of the defence case. -- Identify any inconsistencies in the prosecution case. -- Summarise the evidence on which the jury may properly rely in order to convict the defendant. 6) Fresh evidence - even if a trial has been conducted properly, the defendant may argue his conviction is unsafe if fresh evidence comes to light which casts doubt upon his guilt. -- E.g. a new witness may come forward to substantiate an alibi which was disbelieved by the jury. -- Fresh evidence will not in itself render a conviction unsafe; issue before Court of Appeal is whether the fresh evidence is such that, had it been placed before the jury, the verdict might have been different. N.B. At the end of trial, defence counsel will normally prepare a written advice on the merits of an appeal against conviction which should be in accordance with the instructions contained in the brief.

Answer 338

Rare for defendant to ask trial judge to certify that the case is fit for appeal; usual method is for the defendant to seek permission to appeal from the Court of Appeal direct. Within 28 days of the conviction, the defendant must serve their appeal notice, together with the draft grounds of appeal, on the Registrar of Criminal Appeals at the Court of Appeal. - The grounds are a separate document prepared by defence counsel, setting out the detailed arguments as to why the conviction is unsafe. On receipt of these documents, the Registrar will obtain a transcript of the evidence that was given at trial and of the judge's summing up to the jury. - The Registrar will then put the case papers before a single judge, who will determine whether permission to appeal ought to be granted (filter stage to weed out appeals with no chance of success). - If permission is granted, the single judge will also grant the defendant public funding for the hearing of the appeal. Hearing will then take place before the full Court of Appeal, which will comprise a 3-judge panel. Court will hear oral arguments from the parties, and fresh evidence if that evidence; -- appears to be credible. -- would have been admissible at the defendant's trial and -- there is a reasonable explanation for the failure to adduce this evidence at the defendant's trial.

Answer 339

Permitted to do any of the following; -- quash the conviction and acquit the defendant e.g. if new evidence has come to light which the court considers would have led to the defendant's acquittal had such evidence been available at the defendant's trial. -- quash the conviction and order that a retrial take place e.g. if the conviction is unsafe because the judge failed to direct the jury properly when summing up the case. -- allow part of the appeal and dismiss other parts of the appeal (if the defendant was appealing against conviction for more than 1 offence). In such a case, the court will probably re-sentence the defendant in respect of the offences for which his conviction was upheld. -- find the defendant guilty of an alternative offence (in which case the court will probably re-sentence the defendant). -- dismiss the appeal (must be done unless the court considers that the conviction was unsafe). N.B. If the court decide that the conviction was unsafe, the Court must then decide whether to order a retrial.

Answer 340

Essentially the same as that for an appeal against conviction; defendant either requiring a certificate from the sentencing judge that the case is fit for appeal, or the defendant seeking permission from the Court of Appeal to proceed. N.B. Rare for the sentencing judge to grant a certificate and most defendants will seek permission of Court of Appeal to proceed. If latter is done, a notice of application for permission to appeal together with draft grounds of appeal must be sent to the Registrar of Criminal Appeals at the Court of Appeal within 28 days of the sentence being passed. - Draft grounds of appeal will state why it is being considered that the sentence passed down by the Crown Court is either wrong or excessive. Assuming leave to appeal is granted by the single judge, the appeal will then be considered by a 2 or 3 judge panel, with the appeal usually confined to legal submissions on what the appropriate sentence (or sentencing range) is in the particular case.

Answer 341

Only if; -- the sentence passed by the trial judge is wrong in law (e.g. trial judge were to pass a sentence that they did not have the power to pass). -- the sentence passed by the trial judge is wrong in principle (e.g. trial judge passes a custodial sentence when the offence was not serious enough for such). -- the judge adopted the wrong approach when sentencing. Examples; --- If the judge increased the sentence because the defendant had pleaded not guilty. --- If the judge failed to give the defendant an appropriate discount for entering a guilty plea. --- If the judge should have held a Newton hearing before determining the facts of the offence upon which the sentence was to be based. --- If the judge failed to take into account (or failed to give sufficient credit for) any relevant offence or offender mitigation put forward by the defendant. -- in the case of co-defendants, there is an unjustified disparity in the sentence each defendant receives, particularly where both defendants appear to have been involved equally. -- the sentence passed is manifestly excessive (most common ground of appeal in practice). N.B. After the defendant has been sentenced, defence counsel will normally provide written advice on the prospects of a successful appeal against sentence in accordance with the instructions contained in the brief to counsel.

Answer 342

May confirm a sentence passed by the Crown Court or quash the sentence and replace it with an alternative sentence or order as it thinks appropriate. Cannot however, increase the sentence imposed by the judge in the Crown Court. N.B. A loss of time direction may also be made if the defendant makes an appeal against sentence that is deemed to be without merit.

Answer 343

Yes; Attorney-General is able to refer such a case to the Court of Appeal, which in turn has the power to increase the sentence. - May only refer if the offence is an offence triable only on indictment or is a specified either-way offence and the Court of Appeal has given permission. If the referral is successful, the Court of Appeal will quash the sentence passed in the Crown Court and pass the sentence it considers appropriate. - N.B. Any sentence imposed by the Court of Appeal must be a sentence that could have been passed in the Crown Court.

Answer 344

- Murder and attempted murder. - Manslaughter. - Kidnapping. - A number of sexual offences under the Sexual Offences Act including rape, attempted rape and assault by penetration. - Various offences in relation to Class A drugs. - Arson endangering life or property.

Answer 345

Where the CPS can satisfy a two-fold test; 1) The evidential test. -- Requires there to be 'new and compelling' evidence of the defendant's guilt that has arisen since the original trial. 2) The interests of justice test. - Court of Appeal should have particular (but not exclusive) regard to the following factors; --- whether existing circumstances make a fair trial unlikely. --- the length of time since the offence was allegedly committed. --- whether it is likely that the new evidence would have been adduced in the earlier proceedings, but for the failure of the police or prosecution to act with due diligence and expedition, and --- whether, since the earlier proceedings, the police or prosecutor have failed to act with due diligence or expedition.

Answer 346

To prevent offending by children and young persons. N.B. youth court must also have regard to the welfare of the juvenile.

Answer 347

Responsible for coordinating the provision of youth justice services in their particular local area. Assist the youth court with the following matters; - investigating and confirming the personal circumstances and previous convictions of juveniles. - providing support for juveniles who are granted bail. - preparing pre-sentence reports. - administering any non-custodial sentence imposed by the youth court.

Answer 348

Any juvenile appearing before the youth court aged under 16 must be accompanied by their parent/guardian during each stage of proceedings, unless the court is satisfied that it would be unreasonable to require such attendance. For juveniles aged 16 or 17, the court has a discretion as to whether to make an order requiring the attendance of the juvenile's parent/guardian. N.B. Parents/guardians who attend the youth court may an active role in the proceedings; court will want to hear their views (particularly in relation to sentencing) and may direct questions to them.

Answer 349

- the district judge/youth justices. - court staff (such as the court clerk and usher). - the juvenile and his parent/guardian. - the CPS representative. - the juvenile's solicitor. - a representative from the YOT. - members of the press. N.B. Press are restricted in what they are allowed to report about a hearing before the youth court; cannot report the name, address or school or any other details which are likely to lead to the identification of the juvenile or any other child or young person (e.g. witness) involved in the case. - Restrictions automatically end when a child reaches 18. N.B. Lifelong reporting restriction is allowed in respect of a victim or witness who is under the age of 18 during proceedings. N.B. Only in extreme public interest may restrictions be lifted and identity of offender under 18 be revealed.

Answer 350

In the same way as in the magistrates' court; representation orders are applied for in same way and determined by LAA applying the same interests of justice test (but taking into account the age of the juvenile). - For means test, all juveniles under 18 will be automatically eligible.

Answer 351

Deals with cases involving defendants aged between 10 and 17 inclusive. Children aged 10 and over are subject to the criminal law in the same way as adults; conclusive presumption exists that children under 10 cannot be guilty of committing a criminal offence. N.B. 'Children are juveniles aged between 10 and 13 inclusive. N.B. 'Young people' are juveniles aged between 14 and 17 inclusive. N.B. Slight difference between juveniles at police station (a suspect who is or appears to be under 18) vs juveniles in the youth court (a juvenile who is under 18). N.B. Some juveniles appearing before the youth court are classified as 'persistent young offenders' (PYOs). - Juvenile who has been sentenced on 3 separate occasions for one or more recordable offences (one which a juvenile may receive a custodial sentence). - A juvenile who is a PTO will have their case expedited so the youth court may deal with them as quickly as possible.

Answer 352

A district judge or a bench of youth justices.

Answer 353

Layout of the court room is less formal than the magistrates' court, with all participants in the case sitting at the same level rather than there being a raised dock or bench. Solicitors remain seated when addressing the court. Juveniles (and any child witnesses) are usually spoken to and referred to by their first name. Witnesses 'promise' rather than 'swear' to tell the truth; child witnesses under 14 must give unsworn evidence. N.B. Emphasis on there being as much communication as possible between the magistrates (who receive special training before being able to sit in the youth court), the juvenile and his parent/guardian. N.B. Whether or not standard directions have been issued, trial will follow same procedure as trial in adult magistrates' court.

Answer 354

If a juvenile is charged with an offence when aged 17, but turns 18 prior to their first appearance in the youth court, the court does not have jurisdiction to deal with them and the case must be dealt with in the adult magistrates' court. If convicted, the juvenile will be subject to the full range of sentencing powers which the magistrates' court may exercise. If a juvenile makes his first appearance in the youth court before their 18th birthday, but turns 18 whilst the case is ongoing, the youth court may either remit the case to the adult magistrates' court or retain the case. If the youth court retains the case, it will have the full range of sentencing powers that the adult magistrates' court would have were it dealing with the juvenile.

Answer 355

Most trials of juveniles should take place in the youth court; 5 circumstances where a juvenile's case must or may be sent to an adult court (magistrates' or Crown Court). 1. Homicide offences - must be dealt with in the Crown Court. 2. Firearms offences - where the juvenile has attained age of 16 at the time of the alleged offence, case must be sent to the Crown Court. 3. Grave crimes - offences for which an offender aged 21+ may receive a custodial sentence of 14 years or more e.g. robbery, rape, s18 GBH. - youth court may accept jurisdiction in a case involving a grave crime or send such a case to the Crown Court for trial (only if it considers that its maximum sentencing powers - 24 month detention and training order will be insufficient in the event that the juvenile is convicted). 4. Specified offences - offence of violence or a sexual offence. - case may be sent to the Crown Court but only where they can properly be regarded as a 'dangerous offender' (if it appears to the court that the criteria would be met for the imposition of automatic life imprisonment, discretionary life imprisonment or an extended sentence). 5. Jointly charged with an adult; - adult's case dealt with in Crown Court = juvenile may also be sent to the Crown Court where this would be regarded as necessary in the interests of justice. - adult's case dealt with in magistrates' court = juvenile to be also tried in magistrates'; remit to youth court if juvenile convicted unless propose to deal with matter by fine or discharge which can be done themselves.

Answer 356

Applies to the cases above where the court may send the juvenile's case to the Crown Court - 3,4,5. If the juvenile indicates a guilty plea, the youth court will either sentence the juvenile or send them to the Crown Court for sentence where they believe their sentencing powers would be inadequate. If the juvenile indicates a not-guilty plea, a similar allocation procedure will be followed to that in the magistrates' court for an either-way offence (send to Crown Court where they believe sentencing powers are inadequate - detention and training order max 24 months). - Key difference; juvenile does not have a right of election. If the youth court accepts jurisdiction, the trial must take place in the youth court.

Answer 357

- On bail (with or without conditions). - Into local authority accommodation. - In the case of 17 year olds, into custody. N.B. In deciding whether to grant bail, youth court to consider a report from YTO providing details of the juvenile's antecedents and also their record in relation to previous grants of bail.

Answer 358

The juvenile may be remanded to local authority accommodation or to youth detention accommodation.

Answer 359

A remand to local authority accommodation is a remand to accommodation provided by or on behalf of a local authority. 10-11 year olds may only be remanded on bail or to local authority accommodation; cannot be remanded to youth detention accommodation. N.B. If a juvenile reaches the age of 12 during the course of a remand, it is possible that they may then be remanded to youth detention accommodation at the next court appearance should the relevant 4 conditions be met.

Answer 360

Starting point = best interests and welfare of the child to be considered and s158 presumption that children between 12-17 will be remanded into local authority accommodation rather than youth detention accommodation. 1) The juvenile must be aged 12-17. 2) The juvenile must usually have legal representation. 3) The offence will need to either; -- be a violent or sexual offence or one for which an adult could be punished with a term of imprisonment for 14 years+ and that it is ‘very likely’ the child will receive a custodial sentence for the present offence or -- juvenile to have a ‘recent and significant history’ of absconding whilst remanded to local authority accommodation or youth detention accommodation or -- a ‘recent and significant history’ of committing imprisonable offences whilst on bail or remand to local authority accommodation or youth detention accommodation. 4) The court must believe a remand to youth detention accommodation is necessary either to protect the public from death or serious personal injury occasioned by further offences committed by the juvenile or to prevent the commission by the juvenile of further imprisonable offences and the risk cannot be managed in the community.

Answer 361

Similar to that in the adult magistrates' court. - The CPS representative will give the facts of the case to the magistrates (assuming the juvenile has pleaded guilty rather than having been convicted following a trial) and the juvenile's solicitor will then give a plea in mitigation. - The court is also likely to want to hear from the juvenile's parents or guardian before deciding the appropriate penalty. N.B. A key document in the sentencing process is the pre-sentence report prepared by the YOT. - This report, often guided by the court's indicated sentence, assesses the juvenile's suitability for that sentence and heavily influences the court's decision. - The court may adjourn proceedings to allow time for the report or request a same-day 'stand down' report if a YOT member is present.

Answer 362

As with adult offenders, a sentencing court is required to apply the relevant sentencing guidelines provided by the Sentencing Council. However, the approach taken is different to adults. Overarching principles - Section 1: General approach; -- Statutory requirements (1.1). --- Courts must consider a) the principal aim of youth justice (preventing offending), and b) the welfare of the child/young person. -- Individualised sentencing (1.2-1.4). --- Sentencing starts with seriousness of offence but must focus on the individual child, aiming for rehabilitation. --- Custody is a last resort, only appropriate if the offence is so serious that no other sentence suffices. --- Avoid unnecessary criminalisation; promote responsibility, restorative justice, and reintegration. -- Culpability and development (1.5-1.6). --- Children's maturity, emotional state, impulsivity, peer pressure and external influences reduce culpability. --- Their developmental age is as important as their chronological age. --- Sentences should minimise stigma and support the chance to learn and reform. Determining Sentence (Section 4); -- Key factors (4:1). --- Youth justice aims (prevent reoffending), welfare, age (chronological, emotional, developmental), seriousness, risk of reoffending, and potential future harm). -- Seriousness assessment (4.2-4.4). --- Sentence and restrictions on liberty must be proportionate to the seriousness. --- Assess culpability and harm (actual, intended, or foreseeable). -- Culpability factors (4.5). --- Includes planning, role in group, force used, and awareness of consequences. --- Children generally sentenced less severely than adults due to their reduced understanding, vulnerability and susceptibility to pressure. --- Consider mental health, learning difficulties, and external influences. -- Harm assessment (4.6). --- Consider physical/psychological harm, loss and damage - including what was intended or could have foreseeably occurred. -- Aggravating/Mitigating factors (4.7). --- Must adjust seriousness accordingly, but avoid double-counting if factors are part of the offence definition.

Answer 363

When a juvenile who pleads guilty to an offence (which carries a possible custodial sentence) and who has never previously been convicted or bound over by a court, unless the court is proposing either to impose a custodial sentence or to make an absolute discharge. Cannot be made unless the juvenile pleads guilty to the offence with which they have been charged, although the court does have the power (not obliged to do so however) make a referral order if the juvenile has entered a mixed plea. N.B. The court may also make a second referral order in exceptional circumstances. If the court makes a referral order, the juvenile will be referred to a 'youth offender panel', comprising a member of the YOT and 2 community volunteers. At the meetings, the panel will speak to the juvenile and their family with a view to; - stopping any further offending. - helping the juvenile right the wrong they did to their victim. - helping the juvenile with any problems they may have. The panel will agree with the juvenile a 'youth offender' contract' - programme of behaviour designed to prevent the juvenile re-offending and will last between 3 and 12 months. - The terms of the contract are agreed between the juvenile and the panel members, rather than by the youth court.

Answer 364

Equivalent of a generic community order for adult offenders; allows the court to include 1 or more requirements to achieve punishment for the offence, protection of the public, reduction in re-offending and reparation (for a period of up to 3 years). N.B. Requirements are similar but not identical to the requirements that can be attached to an adult community order.

Answer 365

The only type of custodial sentence that the youth court has the power to impose. Should not impose such unless it is of the opinion that the offence (or combination of the offence and one or more offences associated with it) is so serious that neither a fine alone nor a community sentence can be justified for the offence, and the court must also consider whether a YRO with intensive supervision and surveillance is appropriate. - Court would also need to state the reasons why such a YRO was inappropriate. Age restrictions - cannot be imposed on juveniles aged 10 or 11; for ages 12-14, only if the juvenile is a persistent young offender; ages 15+, no restriction. N.B. Unlike an adult offender, the youth court has no power to suspend a DTO for a juvenile. Length - must be at least 4 months and no more than 24 months. - should be the shortest term proportionate to the offence. N.B. DTO can only be imposed after receiving a YOT report that considers custody. Structure of DTO - First half served in custody (young offender institution), second half in community under YOT supervision, possibly with electronic monitoring. Breach - breaching supervision can lead to further punishment.

Answer 366

The same as is available to a defendant who is convicted or sentenced by the adult magistrates' court, as the youth court is a type of magistrates' court.

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