Flashcards in LG 9 SG 6 Deck (46):
Q1 (b) What does the term ‘juvenile’ mean?
The term ‘juvenile’ means someone who has not yet attained the age of 18.
The juvenile’s first court appearance in respect of an offence will be the Youth Court. There are exceptional cases where the first appearance will be in the Adult Youth Court. Those exceptions are:
Where the juvenile is jointly charged with an adult.
The juvenile is charged with aiding and abetting an adult to commit an offence.
The juvenile is charged with an offence which arises out of circumstances which are the same as those which resulted in the charge faced by an adult accused.
Q1 (c) Are Fiona, Gillian and George classified as a ‘child’ or ‘young person?’
Child: someone under the age of 14
Young person: aged 14 – 17 inclusive.
Fiona (16): young person
Gillian (14): young person
George (11): child.
Q1(d) Detention & Training Orders
Under s 100 PCCSA 2000, offenders aged 12-17 may be sentenced to a “detention and training order” (“DTO”).
Available to youth courts & crown courts, not adult mags.
Offence must pass custody threshold: “so serious”
Minimum DTO 4 months. Maximum 24 months.
Half the order in custody; the other half under supervision. Fails to comply with supervision on release? Can be returned to custody to serve remaining balance.
No power to suspend a DTO (unlike adults who may receive a suspended sentence of imprisonment).
BCP: E7.15, E7.18
Q1 (e) How does the Youth Court determine age of a juvenile?
S99 (1) of the CYPA 1933, where a person is under 18 is brought before a court, the court is to make a ‘due enquiry’ as to his age and must take into account such evidence in the matter as maybe forthcoming at the hearing of the case.
The court is entitled to accept what the defendant or his parent/guardian says on the matter. Although in cases of doubt further inquiries may be undertaken.
Q 1 (f) Is this is a case where the juveniles must or may go the Crown Court for trial?
Youths charged with certain offences MUST go to CC
No plea taken by YC.
Sent to the Crown Court forthwith:
2. Charged with a firearms offence where the Firearms Act 1968 s51A applies (or using someone to mind a weapon) BCP D24.19
(Does not apply to Fiona, Gillian, George)
Q 1 (f) Is this is a case where the juveniles must or may go the Crown Court for trial?
If he is charged with a 'specified offence' the court must consider if he is likely to be found dangerous.
If it is clearly a case where he is likely to be found dangerous, then he MUST go to the Crown Court for trial. D24.40 (final para)
If he is not likely to be considered dangerous, he will remain in the Youth Court.
Could apply to Fiona, Gillian,George if deemed dangerous.
NB. Not quite the same as homicide/firearms offences where juvenile sent forthwith/no inquiry
Youths charged with certain serious offences MAY be sent by YC to CC
s91 PCC(S)A 2000 (sometimes known as “grave crimes”)
Offences punishable (in the case of an adult) with 14 years or more imprisonment
Listed in s91 itself: eg Sexual Offences Act 2003, s.3 (sexual assault), s.13 (child sex offences), s.25 and s.26 (familial sexual offences)
Court decided if youth found G “it ought to be possible to sentence him under s91” (ie ‘real possibility’ that a sentence in excess of 2 years will be imposed) BCP D24.27-29
Could apply to Fiona, Gillian, George: GBH life imprisonment/dwelling burglary 14 yrs imp. – will depend on whether long term detention a real possibility.
Plea before venue hearing (MCA 1980, s 24A)
Youth court passes sentence (max. 24 months DTO), or
If youth court thinks that Crown Court should have power to deal with juvenile under s 91, commits to CC for sentence under PCC(S)A 2000, s 3B; or
If youth is dangerous offender, commit to CC: PCC(S)A 2000, s 3C
BCP last para.D24.40
Not guilty plea:
Representations from prosecution and defence : whether sentence of over 2 years a “real possibility”.
Youth court declines jurisdiction (because it ‘ought to be possible’ to sentence juvenile under s 91): sends juvenile to Crown Court for trial under s51A, CDA 1998
Youth court accepts jurisdiction: trial in youth court. If finding of guilt in YC, power to commit to CC for sentence later if dangerous offender (PCC(S)A, s3C) or s.91 (PCC(S)A, s3B)
PBV hearing cont
Although the CCT just like the YC has the power to pass a DTO (max. 24 months) the provisions allowing a YC to send a youth to the CCT (whether automatic or under s.91) mean that the CCT can pass a longer sentence if necessary (i.e long-term detention under s.91 which allows for the max. sentence that could be imposed in the case of an adult offender; s.90 detention at H.M pleasure or dangerous offender sentences). Just because a YC has sent a matter to the CCT for trial or committed it for sentence does not mean that the CCT is bound to impose more than a DTO, but the option is there if required
Power of YC to commit offences to CC for sentence: PCC(S)A, 2000
s3B- Committal to CC for sentence of long-term detention (under s91 PCCSA 2000): If court is of the opinion that the offence or combination of offences is such that the Crown Court should have the power to deal with the offender under s91. Obviously only applies to s91 offences. Applies whether pleads G or finding of guilt after YC trial.
s3C Committal to CC for sentence under the dangerous offenders provisions. Violent/sexual offences, and applies whether pleads G or finding of guilt after YC trial
S4A Guilty pleas to an offence related to offence/s already sent to the CC for trial; Where youth has pleaded G, and has related offence awaiting trial at CC (NB only applies to s91 offences)
Q 1(e) Can youth court commit to CC for sentence?
PBV: youth pleads Guilty. YC decides Crown Court should have power to deal with juvenile under s 91, can commit for sentence PCC(S)A 2000, s 3B.
PBV: youth pleads Not Guilty. As this point, YC has power to send to CC for trial. And, if YC accepts jurisdiction, can later commit to the CC for sentence under s 3B if the three have findings of guilt after summary (youth court) trial
YC can also commit to CC for sentence after summary trial if the youth is a dangerous offender: If charged with specified offence (sexual/violent). S3C
(a)Billy: juvenile/Charlotte: adult
First court appearance: adult mags D24.6
(b) Billy’s mother cannot attend:
Billy is 13, and for under 16 yr olds the attendance of a parent/guardians is required. The JJ’s may adjourn the case
The court must order a parent/guardian to attend at all stages of proceedings unless it is unreasonable to do so.
Who can be present in the Youth Court?
The public are excluded from the courtroom of the Youth Court. The CYPA 1933 s47() stipulates that the only persons permitted to be present in the youth court are:
Members and officers of the court;
Parties to the case before the court and their representatives.
Witnesses and other persons directly concerned in the case
Bona fide representatives of news gathering or reporting organisations
Such other persons as the court may special authorise to be present.
Q2. (e) Scenario 1: Adult Going to Crown Court on indictable offence
Where the youth is:
charged jointly with the adult being sent CC for trial for the same or a related offence.
Then mags will proceed to Plea Before Venue (PBV) for youth
#1 Guilty plea= Mags have 4 options
Remit to YC to sentence (most likely)
Commit to CC for sentence if the offence is one to which s91 PCC(S)A applies, and if Mags decide that offence requires Long Term detention (not apply here: theft not punishable with 14 years or more and is not a listed sexual offence)
Commit to CC for sentence if dangerous offender (not apply here: theft not specified violent or sexual offence)
Mags powers of sentence?
Note these powers are limited to:
a referral to a youth offender panel (referral order); or
a conditional/absolute discharge; or
a fine up to £1000 (14-17 year olds) or £250 (10-13 year olds); or
a parental bind over (PCC(S)A 2000, s.8(6))
Mags need to decide if it is in the interests of justice for Billy to be tried at the CC with Charlotte.
If Mags decide it IS in interests of justice, Billy is sent to the CC for trial
If Mags decide it is NOT in the interests of justice to send Billy to the CC, there are two options for trial:
Adult Magistrates’ Court
but would normally remit him to the Youth Court for trial (s.29 (2) MCA 1980).
SC Guidance: necessary in interests of justice?
12.16 Any presumption in favour of sending a youth to the Crown Court to be tried jointly with an adult must be balanced with the general presumption that young offenders should be dealt with in a youth court.
12.17 When deciding whether to separate the youth and adult defendants, a court must consider:
young age of the offender, esp. if age gap between adult & youth substantial,
the immaturity and intellect of the youth,
relative culpability of the youth compared with the adult (minor role)
any lack of previous convictions of youth compared with adult
12.18 A very significant factor will be whether the trial of the adult and youth could be severed without inconvenience to witnesses or injustice to the case as a whole, including whether there are benefits in the same tribunal sentencing all offenders.
In most circumstances, a single trial of all issues is likely to be most in the interests of justice.
Scenario 2 & 3: Adult to stay in Mags’ Court
If both Adult & Youth plead Not Guilty
Jointly charged: must be tried jointly;
Aiding and abetting: may be tried jointly;
Linked Offences: may be tried jointly;
If Adult pleads Guilty, Youth pleads Not Guilty
Mags may try but will usually remit to Youth for trial
If youth found guilty after trial in mags or YC, can commit to CC for sentence if s.91 long term detention required or a dangerous offender.
If Youth pleads Guilty
Mags may sentence (limited powers), usually remit to the Youth Court. Can commit to CC for sentence if s91 long term detention required or a dangerous offender
Overall to recap:
Billy only MUST stay with Charlotte in 2 instances:
He must go to CC with Charlotte if she is being sent for trial, and he has pleaded NG to a joint/related indictable charge and it necessary in the interests of justice for him to be tried with Charlotte at CC,
Or if Charlotte has a Mags court trial, and Billy has also pleaded NG to a joint charge.
In all other instances, the Mags have a discretion, Billy himself has no “say” in where he is dealt with.
What this also shows is that there is only one situation where the trial of a juvenile may take place in an adult mags court, and that is where the juvenile is initially charged alongside an adult (D24.19)
Plea and Trial Preparation Hearings
Rule 3.13: the Crown Court -
(a) may conduct a ‘preparatory hearing’;
(b) must conduct a ‘plea and trial preparation hearing’;
(c) may conduct a further pre-trial case management hearing (and if necessary more than one such hearing) only where:
(i) the court anticipates a guilty plea,
(ii) it is necessary to conduct such a hearing in order to give directions for an effective trial, or
(iii) such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant.
Plea and Trial Preparation Hearings
Rule 3.13: the Crown Court - cont
Criminal PD I, para 3A.11: if a case is sent to the Crown Court for trial (on the basis that D will be pleading not guilty), a PTPH must be held within 28 days of sending. An indictment should be lodged at least 7 days in advance of the PTPH (para 3A.16). Additional case management hearings are discouraged (para 3A.21). Any case progression hearings should take place without courtroom hearings, using electronic communications (para 3A.24).
If D, having not done so before, indicates to his legal representative (after being sent to the Crown Court for trial) that he intends to plead guilty, the representative must inform the court, and the court will ensure that there is sufficient time at the PTPH for sentencing to take place (a pre-sentence report should, where necessary, be requested prior to the PTPH): para 3A.17.
Where the case is a complex, serious or lengthy one, instead of a PCMH, there may be a Preparatory Hearing under Criminal Procedure & Investigations Act 1996, s 29.
The main reason for having a Preparatory Hearing is if the judge is going to have to give a ruling in respect of which there ought to be the possibility of an interlocutory appeal.
Guilty to each count;
Not guilty to each count;
Guilty to one or more counts and not guilty to the other(s):
The prosecution have to decide whether to proceed with a trial of the ‘not guilty’ counts (or to ‘offer no evidence’, in which case D is acquitted, or ‘leave them on the file, marked not to be proceeded with without leave of the court or of the Court of Appeal’);
Guilty to an alternative (‘lesser included’) offence (Criminal Law Act 1967, s 6(1)):
If this plea is accepted, D is regarded as being acquitted of the original offence (s 6(5)).
The prosecution have to decide whether or not to proceed to trial on the original count.
Change of plea
The Judge can allow D to change plea from ‘not guilty’ to ‘guilty’ at any stage prior to the jury returning their verdict.
The Judge has a discretion to allow D to change plea from ‘guilty’ to ‘not guilty’ at any stage before sentence is passed. The application to do so must:
explain why it would be unjust for the guilty plea to remain unchanged;
indicate what, if any, evidence D wishes to call;
identify any proposed witness; and
indicate whether legal professional privilege is waived.
Abuse of process 2 types
R v Maxwell  4 All ER 941 (at ), Warren v Attorney-General for Jersey  1 AC 22 (at ), Crawley  EWCA Crim 1028 (at -):
It would be impossible to give the accused a fair trial, or
It would offend the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case, or it would undermine public confidence in the criminal justice system and bring it into disrepute if it did so (i.e. it would be unfair to try the accused).
Examples of abuse of process
Lengthy delay which causes prejudice to the accused;
Failure to secure evidence, or destruction of evidence;
Failure to honour an undertaking given to the accused;
Tactical manipulation or misuse of the court process;
Bringing justice into disrepute;
Abuse of executive power.
Crown Court trial: bail; presence of D
CPD III 14G.2: Bail during lunchtime/overnight adjournments is at the discretion of the judge [N.B. the presumption in favour of bail (BA 1976, s 4) still applies].
CPD III 14G.3: If D was on bail while on remand, he should not be refused bail during the trial unless there are positive reasons to justify refusal, e.g. a point has been reached where there is a real danger that D will abscond, either because the case is going badly for him, or for any other reason; or there is a real danger that he may interfere with witnesses, jurors or co-Ds.
CPD III 14.4: Once the jury has returned a guilty verdict, a further renewal of bail should be decided in the light of the gravity of the offence, any friction between co-Ds, and the likely sentence to be passed.
D must be present to enter a plea.
Rule 25.2(1)(b): the court must not proceed if D is absent, unless the court is satisfied both that D has waived the right to attend, and the trial will be fair despite D’s absence.
Trial in absence where D fails to attend
CPD III 14E.3: Proceeding in D’s absence should take place only if unavoidable. The court must exercise its discretion to try D in his absence with ‘the utmost care and caution’ (R v Jones  UKHL 5). Relevant circumstances include:
the conduct of the defendant;
the disadvantage to the defendant;
the public interest, taking account of the inconvenience and hardship to witnesses, and especially to any complainant, of a delay; if the witnesses have attended court and are ready to give evidence, that will weigh in favour of continuing with the trial;
the effect of any delay;
whether the attendance of the defendant could be secured at a later hearing; and
the likely outcome if the defendant is found guilty.
Even if the defendant is voluntarily absent, it is still generally desirable that he or she is represented.
Case study: securing attendance of witnesses
Your client is charged with assault. He says that he was acting in self-defence. The assault took place in a pub. One of the bar staff has said to your client, “I know that you didn’t start the trouble but I dare not come to court to say so - I would lose my job”.
Question: It is (a) possible, and (b) desirable, to compel the witness to attend?
Why is the witness reluctant?
Can he/she give relevant evidence?
Criminal Procedure (Attendance of Witnesses) Act 1965, s 2: the court may issue a summons if satisfied that:
the person likely to be able to give material evidence, and
it is in the interests of justice to do so.
Admissibility of hearsay evidence of ‘fearful’ witness: CJA 2003, s 116(2)(e).
Special measures, e.g. in-court screen, witness anonymity order, live link. YJCEA 1999, s 17 et seq; Coroners and Justice Act 2009, s 86 et seq.
Initial directions to J
CPD VI 26G.3:
To try the case only on the evidence and to remain faithful to their oath/ affirmation;
No internet searches for matters related to the trial;
Not discussing (face-to-face or online) any aspect of the case with anyone outside the jury;
Ignoring any media reports about the case;
Collective responsibility of the jury (R v Thompson  EWCA Crim 1623)
To bring any concerns, including concerns about the conduct of other jurors, to the attention of the judge at the time, and not to wait until the case is concluded.
Outline of a trial on indictment: r 25.9(2)
In the following sequence:
(a) where there is a jury, the court must (i) inform the jurors of each offence charged in the indictment to which the defendant pleads not guilty, and (ii) explain to the jurors that it is their duty, after hearing the evidence, to decide whether the defendant is guilty or not guilty of each offence;
(b) the prosecutor may summarise the prosecution case;
(c) the prosecutor must introduce the evidence on which the prosecution case relies;
(d) at the end of the prosecution evidence, on the defendant’s application or on its own initiative, the court: (i) may direct the jury (if there is one) to acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations;
(e) at the end of the prosecution evidence, the court must ask whether the defendant intends to give evidence in person and, if the answer is ‘no’, then the court must satisfy itself that there has been explained to the defendant … (i) the right to give evidence in person, and (ii) that if the defendant does not give evidence in person, or refuses to answer a question while giving evidence, the court may draw such inferences as seem proper;
(f) the defendant may summarise the defence case, if he or she intends to call at least one witness other than him or herself to give evidence in person about the facts of the case;
(g) in this order (or in a different order, if the court so directs) the defendant may: (i) give evidence in person, (ii) call another witness, or witnesses, to give evidence in person, and (iii) introduce any other evidence;
(h) a party may introduce further evidence if it is then admissible (for example, because it is in rebuttal of evidence already introduced);
(i) the prosecutor may make final representations, where: (i) the defendant has a legal representative, (ii) the defendant has called at least one witness, other than the defendant him or herself, to give evidence in person about the facts of the case, or (iii) the court so permits; and (j) the defendant may make final representations.
CC trial: prosecution case
Prosecution opening speech (R v Lashley  EWCA Crim 2016).
‘live’ evidence; or
statements (read to the jury with/without D’s consent):
CJA 1967, s 9 (with D’s consent);
CJA 2003, s 116 (without D’s consent);
Prosecution must call all the witnesses whose statements have been served on D, unless the statement is read or the witness is not credible;
Formal admissions (CJA 1967, s.10), put in writing.
Challenges to prosecution evidence:
PACE 1984, s 76 (requires a voir dire/trial within a trial);
PACE 1984, s 78 (can be dealt with on basis of submissions).
Submission of no case to answer
Galbraith  1 WLR 1039: there is no case to answer if either:
There is no evidence of an ingredient of the offence [but note the power to allow the prosecution to re-open their case]; or
The prosecution evidence ‘taken at its highest’ is such that ‘a jury properly directed could not properly convict upon it’.
Assume the prosecution witness(es) are telling truth,
Unless no reasonable jury could believe them (Shippey  Crim LR 767).
Defence case and closing speeches
Defence opening speech (if calling at least one witness as to facts other than/as well as D);
D testifies first unless the court directs otherwise (PACE 1984, s 79);
Note the risk of adverse inferences if D does not testify (CJPOA 1994, s. 35)
Prosecution closing speech (unless D unrepresented and called no witnesses as to the facts of the case apart from himself);
Defence closing speech.
Summing up by the judge
Rule 25.14(2), and (3): The court must:
Give the jury directions about the relevant law at any time at which to do so will assist jurors to evaluate the evidence;
In the summing up:
summarise for the jury, to such extent as is necessary, the evidence relevant to the issues they must decide;
give the jury such questions, if any, as the court invites jurors to answer in coming to a verdict;
direct the jury to retire to consider its verdict.
Main elements of summing up
Functions of judge and jury;
Burden and standard of proof;
Ingredients of (each) offence: explanation of the law involved and how it relates to the facts;
How to approach defences such as self-defence;
Such warnings as are appropriate, e.g.:
Separate consideration of counts and defendants;
Identification evidence (Turnbull);
Adverse inferences from silence;
Previous convictions (Hanson);
Good character (Vye).
Conclusion of summing up
CPD VI, 25K.1: At the conclusion of the summing up, the judge should direct the jury:
That their verdict must be unanimous in respect of each count and each defendant.
Not to think about “majority verdicts” unless and until given further directions.
That they will need to select one of their number to chair their discussions and speak on their behalf.
More than 1 D separately represented
Each prosecution witness:
x-in-chief by P;
XX by D1, then XX by D2;
re-exam by P.
D1’s case: opening speech, then D1 x-in-chief;
XX by D2, then XX by P;
re-exam by own counsel;
repeat for other witnesses for D1;
D2’s case: as for D1.
More than one defendant: jointly represented
Cross-examination of prosecution witnesses proceeds as in a trial with a single defendant;
Defendants testify in the order that their names appear on the indictment.
Case study: alternative verdicts
D is on trial for possession of a class A drug with intent to supply. After their retirement to deliberate, the jury send a note to the judge saying that they are not satisfied so that they are sure that D intended to supply the drugs to someone else but are satisfied that D was in possession of the drugs.
The judge invites submissions from you before giving further directions to the jury.
Question: what should you say?
Questions from jury after retirement
Gorman  1 WLR 545:
If the question is relevant to the trial:
the judge will state the nature and content of the note in open court, and
then seek submissions from counsel on the appropriate response;
Any response should be determined before the jury are brought back into court;
The response is given in open court.
Alternative verdicts: CLA 1967, s 6(3)
The jury may acquit D of the offence on the indictment but convict him instead of an indictable offence that is:
expressly included (i.e. deleting words to leave another offence) or
impliedly included (Metropolitan Police Commissioner v Wilson  AC 242);
The alternative must be one which really arises on the issues as presented at the trial;
Will the absence of a lesser alternative verdict oblige the jury to make an unrealistic choice between the serious charge and a complete acquittal in a way which would unfairly disadvantage D?
Compare adding a count to the indictment.
Only relevant in Crown Court trials (magistrates can’t do this).
A majority verdict is permissible after 2 hours 10 minutes (or such longer time as the judge thinks reasonable).
The majority verdict direction: the jury should continue to endeavour to reach a unanimous verdict but, if they cannot, the judge will now accept a majority verdict.
12 jurors: 11-1 or 10-2;
11 jurors: 10-1;
10 jurors: 9-1.
Taking the verdict:
Acquittal: it will not be known if it was unanimous or by majority;
Conviction: the jury must indicate how many voted ‘guilty’ and how many ‘not guilty’ (otherwise, the verdict is a nullity).
Watson Direction  QB 690
“Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but also collectively. That is the strength of the jury system. Each of you takes into the jury-box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily [ten of] you cannot reach agreement, you must say so.”
R v M  EWCA Crim 2590: the Watson direction is given in exceptional circumstances, and even then it can only be given as a last resort following a prolonged retirement after the majority verdict direction has been given.