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Flashcards in Sg 10 Deck (30):

a) Sending for trial (CDA 1998, s 51)

Where an adult appears before a magistrates' court:
charged with an indictable-only offence; or
charged with an either-way offence where the mode of trial hearing resulted in a decision in favour of trial on indictment; or
the court shall send him forthwith to the Crown Court for trial for the offence’.D10.1; D10.4-6
(related EWO/summary offences can be sent – summary must be punishable by imprisonment or disqualification)
Adult co-accused: must send for trial (if appears on same occasion)/may send (if appears on subsequent occasion). BCP D10.8


a) Sending for trial (CDA 1998, s 51)

Juvenile co accused

Juvenile co-accused:
Where mags court sends an adult to the CCT for trial and a juvenile is charged jointly with an indictable offence or charged with a related indictable offence, the court shall send the juvenile to the CCT for trial if in the ‘interests of justice’.
This applies whether juvenile appears in mags court on same or subsequent occasion – so always a discretion (compare to adult co-accused)
Where court sends juvenile for trial with adult, it may send the juvenile for any related EWO or summary offence (summary must be punishable with imprisonment or disqualification) D10.9


b) Summary offences: s.40, CJA 1988

s.40: certain listed summary offences can be included on and tried on indictment (common assault, driving while disqualified, taking a motor vehicle without the owner’s consent and criminal damage (value les than £5,000)).
TWOC and Drive Disqual listed in s 40
Must be related to the indictable offence to be added to indictment
Prosecution responsible for adding s.40 offences.
If convicted maximum sentence for the summary matters is that which could have been imposed by the mags


b) Summary offences cont.: s.51 (3) CDA 1998

Assault PC not listed in s.40 CJA 1988, BUT where the court sends an adult for trial under s.51, it shall also send him for trial for any related either-way or summary offence, provided the summary offence is punishable with imprisonment or disqualification.
Either-way matters can be tried on indictment.
Related summary matters cannot actually be tried on indictment. Summary offence sent to the CCT for trial under s.51 regarded as having been adjourned sine die ("without day" meaning without assigning a day for a further meeting or hearing).
If Edward pleads guilty/found guilty of EWO, CCT takes a plea from Edward on the s.51 summary offence (Ass PC). If pleads G can sentence (mags powers). If NG can try (as DJ) or remit to MC.
If Edward acquitted EWO, CCT has no power to deal with Edward (pros usually discontinues) D6.40; D10.6: D10.10


A few things to note about s.51

Where there are a number of either-way offences to be considered, the most serious EWO will drive the decision-making regarding MOT. If the most serious EWO is sent to the CCT, the others must follow under s.51.

If the defendant is charged with an indictable only matter, he will be sent forthwith to the CCT under s.51 and there will be no MOT for any related EWO to which he pleads NG, as they will be sent for trial automatically with the indictable-only offence. BCP D10.6


(c) (i) If Edward pleaded guilty to Dangerous Driving (consolidation SGS 8)

s 3 PCC(S)A 2000:
where a magistrates’ court has convicted an offender of one or more either-way offences and the court takes the view that the seriousness of the offence(s) is such that its sentencing powers are inadequate.
the magistrates’ court may commit the offender to the Crown Court to be sentenced.
The Crown Court can then pass sentence on the offender as if he had been convicted on indictment in relation to the either-way matter.
So, mags will consider the EWO first and decide whether dangerous driving should be committed for sentence pursuant to s 3.


(c)(ii) Can summary matters also be committed to CCT for sentence?

If the magistrates commit Edward under s.3 in respect of the either way offence, they may also commit him to be dealt with in respect of any other either way offence or summary offence under s. 6 PCC(S)A 2000 (BCP D23.55) .
Revision tip: compare this power to requirement under s 51 above: summary matter can only be sent for trial under s 51 if punishable by imprisonment or disqualification


(d) Prosecution duties of disclosure (consolidation from SGS 2)

Initial details will be served in the magistrates’ court (D5.19)
Then service of evidence upon which CPS intends to rely (copies of the documents containing the evidence on which charges are based)
As well as serving evidence upon which the prosecution intends to rely, there is a duty to disclose unused material pursuant to s.3, CPIA 1996: prosecution required to disclose previously undisclosed material if it ‘might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused’ (D9.15-16)
There is also a continuing duty to review disclosure (s.7A CPIA). (D9.24)
If the prosecution wishes to rely on evidence additional to that served when the case was sent, they will serve a notice of additional evidence on the defence (s.9 statements only admissible where all parties agree for them to be read). Where the defence dispute the contents of the statement, it may be possible to edit the statement or the witness will need to be called for cross-examination (D16.36; D16.52)


d) Defence duties of disclosure

Defence statement mandatory in Crown Court (s.5, CPIA 1996) (D9.29).
28 days from s.3 notice in Crown Court (D9.40)
Defence witness notice mandatory (s.6C, CPIA 1996). Separate requirement to defence statement.
28 days from the s.3 notice in Crown Court (D9.34)
Revision point: compare mags court - 14 day time-limit; defence statement not obligatory; def witness notice mandatory in MC and CCT


e) Early guilty plea procedure



f) Applications to dismiss

Accused may, after date he is served with documents containing the evidence on which the charges are based and prior to arraignment, make an application to dismiss the charge.
Application can be made orally or in writing.
Test: evidence ‘would not be sufficient for him to be properly convicted’.
BCP 10.23; D10.24 (first sub-para only); D10.27


g) Plea and Trial Preparation Hearingh) Preliminary Hearing



i) Abuse of process

Leading case: R v Beckford [1996] 1 Cr app R 94: two main grounds:
cases where the court concludes that the accused cannot receive a fair trial;
cases where the court concludes that it would be unfair for the accused to be tried.
The first grounds relates to the trial process itself, the second where the accused should not be standing trial at all as it is necessary to protect the integrity of the criminal justice system (irrespective of the fairness of the trial).
Edward: Possible application under ground one (loss CCTV)
Burden on defence to show abuse of process on the balance of probabilities. D3.66-68


j) Guilty plea to alternative at PCMH

Charge of Dangerous Driving read to Edward. 
Edward says “Not guilty to Dangerous Driving, but guilty to Careless Driving”.
The options: prosecution can accept or reject the alternative plea.
Reject plea: Matter proceeds to a contested trial on the Dangerous Driving. 
Accept plea: Treated as acquitted of DD and sentenced for lesser offence of Careless Driving. D12.79

If Dangerous Driving and Careless Driving had been in two separate counts:
Two options re Dangerous Driving:
Offer no evidence (verdict of not guilty recorded)
Ask judge to order that Dangerous Driving lie on the file not to be proceeded with without leave of Court of Appeal (not an acquittal) D12.81-83


k) Arraignment

The arraignment consists of the clerk of the court reading the indictment to Edward and asking him whether he pleads guilty or not guilty to the counts.
BCP D12.53


l) Failure to attend

Judge’s options:
Proceed in the absence, but must not proceed unless satisfied he has waived his right to attend and the trial will be fair despite his absence.
Notwithstanding this general rule, the accused’s presence may be dispensed with in exceptional circumstances:
As a result of the misbehaviour of the accused.
Where his absence is voluntary.D15.84; D15.88
The seriousness of the offence is not a relevant factor in deciding whether to proceed in absence.
Even if the accused absconds voluntarily, generally desirable that he should be legally represented D15.89 (1) and (2)
Issue a warrant for arrest, either backed or not backed for bail D7.98.
Put the matter back to give Edward time to arrive at court or adjourn and extend bail (D7.98).


m) Objections to prosecution evidence/Exclusion of evidence

Def counsel to inform prosecutor of objection before prosecutor opens case to jury.
Prosecutor makes no mention of disputed evidence in the opening.
At the point at which the interview is due to be read at trial, jury will withdraw so judge can consider matter.
If the admissibility of the interview raises collateral factual issues as to how it was obtained, then can hold a voir dire with evidence called to determine those facts (here the application will be submission based and deal with the admissibility of the relevant passages in the interview).
Parties make submissions
Judge announces findings and rules on disputed evidence.
The jury return.
If the judge ruled against the disputed evidence, the jury will know nothing about it (here the contentious passages of the interview will be edited out, before a copy of the transcript of interview is handed to the jury)
If it is ruled admissible, the defence are entitled to cross-examine on matters they raised in the voir dire, although then the XX goes to weight, not admissibility.D16.41


n) Speeches

Crown Court:
Opening speech:
Prosecution right to make one (D16.10)
Defence counsel has right to make one at start of defence case if intention to call evidence as to facts other than, or in addition to, the accused (D17.7)
Closing speech:
Both prosecution and defence have the right to make one.
Prosecution goes first
(D18.16; D18.18-20)


n) Speeches cont.

Mags court: 
Opening speech:
Prosecution has right to make, but will often not bother (D22.36 – syllabus section 8)
Defence has no right
Closing speech:
Prosecutor can make final representations if the accused is represented or (whether represented or not) the accused has called evidence other than himself (D22.60)
Defence has right to make final representations (D22.60 – syllabus section 8 - was D22.62 in BCP 2015)) 


o) Reading statementsp) Admissions

Reading statements: Where evidence not disputed by defence (so no need to cross-examine witness), the statement of the witness can be read to the jury by prosecution counsel under the provisions of s.9, CJA 1967. D22.38
Admissions: Usually the agreed facts will be written down in a document that is signed by both counsel. The facts will then be read to the jury (admissions are made pursuant to s.10, CJA 1967). D16.40


q) Submission no case to answer

Leading authority: Galbraith [1981] 1 WLR 1039: there is no case to answer if either:
(a) no evidence of an ingredient of offence; or
(b) prosecution evidence ‘taken at its highest is such that a jury properly directed could not properly convict upon it’ (but where the prosecution case depends of view taken of reliability of witness, matter should be left to jury).
If the prosecution does not have statement from the owner saying that they did not give their consent for the vehicle to be driven, then they are missing evidence on an element of the offence (first limb).
Procedure: in absence of jury, submission from counsel, if SNCA successful jury returns formal verdict of not guilty.
BCP D16.54-59


(r) SNCA fails and Edward sacks you. Can he still give evidence?

Yes, he can. 
The accused should always be told by the court at the end of the prosecution case of his right to give evidence, to call witnesses in his defence or to stay silent and call no evidence. 
It is particularly important that an unrepresented defendant should be informed of the inferences which may be drawn from a failure to give evidence. D17.18
Note: Where accused dismisses his legal representative and remains entitled to public funding, judge should allow adjournment for the accused to be represented. D17.17


s) Summing-up

Directions on the law and a summary of the evidence (where appropriate can be written). D18.24-25; D18.36
Standard directions include:
Functions of judge and jury
Burden and standard of proof
Separate considerations of counts and defendants
Ingredients of offence
Failure to answer questions/give evidence
Failure to call witness
Defences D18.25-35
Edward’s case: e.g. Good character, ID, alternatives.
Failure to give a direction: counsel should draw it to the judge’s attention. The jury can be redirected D18.21-23


t) Alternative offence/summing-up

The general rule:
“Where on a person’s trial on indictment for any offence except treason or murder, the jury find him not guilty of the offences specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence” D19.42 (you do not need to know the statute from which this rule derives, just the general principle)


t) Alternative offence/summing-up cont.

Judge not obliged to direct the jury about the option of finding Edward guilty of the alternative (here the alternative is not a separate count). D19.58
If, however, the possibility of Edward being guilty of the lesser offence has been obviously raised by the evidence, the judge should in the interests of justice leave the alternative to the jury.D19.58 
If the alternative appears on the indictment as a separate count, the judge should give directions in relation to that separate count (see above PPT on standard directions).


u) Majority verdicts

Majority verdict can be given after 2 hours and ten minutes.
After two hours and ten minutes, the timing of when the majority direction is given will depend on the length and complexity of the case. Judge will not automatically give the direction when the minimum time has elapsed, but may invite jury to retire again and try and reach a unanimous verdict.
Minimum majorities permissible are 11-1 and 10-2 (where there is a jury of 12) or 10-1 and 9-1 (where one or more jurors have been discharged). 
A jury reduced to nine must be unanimous. 
Where there is a majority verdict the foreman must state the number of jurors who agreed and dissented. 
BCP D19.35-6; D19.38-9


(v) Jury unable to reach verdict

Judge will discharge them from returning a verdict.
Accused is not acquitted, but may be tried by a different jury.
Whether to seek a retrial is at the discretion of the prosecution.
If a second jury cannot decide, the prosecution will usually offer no evidence at that point


(w) Costs

Defendant to pay prosecution costs:
Where a defendant is convicted, the court may order that he pays some or all of the prosecution costs.
D33.21 (first sub-par only)

What appears ‘just and reasonable’
D33.23 (first sub para only)


(w) Costs cont.

Guidelines on imposition of costs (ex parte Dove – this case and the guidelines therein are referred to on the syllabus)
An order should be made where the court is satisfied that the defendant has the means and the ability to pay.
Should not exceed sum reasonably incurred by prosecution.
Purpose to compensate prosecutor not punish offender
Should not be disproportionate to any fine.
Offender should disclose financial means to court
Court should allow submissions from offender re ability to pay.
D33.25 (only Dove from this para) 


x) Forfeiture

Where a person is convicted, court can order forfeiture of property connected with the commission of an offence.
The property must have been lawfully seized by the police.
It deprives the offender of their rights, if any, in the property.
It does not affect the lawful rights of any other person.
Before forfeiture, a proper investigation must be conducted into the matter.
When someone is convicted of dangerous driving forfeiture of the vehicle can be ordered.
So the police will have possession of the property and can restore the car to its rightful owner (who will then no doubt have to make an insurance claim for the damage) E18.1; E18.2;
NB. Another common example is forfeiture of drugs E18.7