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Flashcards in SGS 8 and 9 Deck (49):
1

Q1(a) Classification of Offences

Having possession of a controlled drug with intent to supply it to another = Either Way Offence.

Cannabis = Class B drug


B19.128-129

2

Q1(a) cont. Committal for Sentence under s.3

Section 3 PCC(S)A 2000:

Applies 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.
In such a case, 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.
BCP D23.30

3

Q. 1a) – How will the court decide the seriousness of the case?

Seriousness = Offenders culpability + harm which the offence caused, was intended to cause or might foreseeably have caused E1.7

Purpose of determining seriousness
Allows the sentencer to determine which thresholds have been crossed, indicate whether a custodial, community or other sentence is most appropriate and the length of custody, community requirements or amount of fine. i.e find the appropriate starting point for the sentence E1.7

4

Q.1b) Sentencing procedure in mags court

 Having heard a summary of the case & having told of any previous convictions as part of determining whether their sentencing powers are sufficient…
The prosecution will ask the court to consider any ancillary orders & costs. (Any TICs taken into account)
The court may adjourn for Pre-Sentence Report (with or without listening to full mitigation).
The court will consider any reports prepared for the defence (Pre Sentence Report, medical or psychiatric)
Plea in Mitigation from defence
Sentence passed.
Explain sentence in non-legal terms unless offender is absent and there are no members of the public present.
If the magistrates cannot reach a majority decision, they must adjourn for sentence to be reconsidered. D23.1-2, D23.6, D23.8-9

5

Q.1c) Sentencing procedure in CCT following committal

s.3 committal heard by Circuit Judge or Recorder
In open court so counsel must be robed.
Bail: no statutory presumption, but if on bail usually extended to CCT
Pros summary facts/antecedents.
Any Victim Impact Statement considered
Any TICs taken into account
After summary of facts and antecedents court considers any reports from the defence (PSR, medical, psychiatric) May adjourn for PSR (but usually will have been ordered at time of committal and judge will have read PSR before the hearing).
Plea in Mitigation from defence
Sentence passed with reasons.
D20.-4, D20.6, D20.45. D20.52-53

6

Q.1d) s. 4 PCC(S)A 2000

s. 4 applies where:
Magistrates have already sent an offence to the Crown Court for trial; and the defendant subsequently indicates that he will plead guilty to one or more related either-way matters.
In the interests of keeping everything together, these other matter(s) can be committed to the Crown Court for sentence under s. 4, but the Crown Court will only have the sentencing powers of the Magistrates’ Court unless:
(a) the mags court states that it also had the power to commit him under s.3 or
(b) the defendant is convicted for the offence for which he has been committed for trial. (BCP D23.42)


7

Q.1e) Power of committal after trial

s.3 applies where a defendant is convicted following a guilty plea or after trial.

D23.30

8

Q2. (a) Classification of Offence

Fraud is triable either way.


B5.5

9

Q. 2 – Martin Committal for Sentence

s. 3 PCC(S)A 2000 applies
AND
s. 6 of the PCC(S)A 2000
Primary committal under s.3 PCC(S)A 2000 (i.e. for sentence);
May commit for sentence any other either-way offence(s) or any summary only offence(s)
Mags must have convicted offender for matters to be dealt with under s 6.
In relation to the s.6 matters: Crown Court has same powers of sentence as mags. (BCP D23.55)

Martin: s.3 applies in relation to the Fraud offence (CCT can sentence has if
just convicted on indictment) and s. 6 applies in relation to the summary only
matters (CCT limited to mags powers)
NB: s.3, s.4 and s.6 all deal with offences being committed for SENTENCE

10

Appeals from the magistrates’ court

Possible avenues:

Appeal to the Crown Court (against conviction and/or sentence – def only)

Appeal to the Divisional Court by way of case stated

Judicial Review

S142 MCA 1980 (conviction or sentence) – often referred to as the ‘slip rule’.
BCP D29.1 7 D29.3

11

Appeal to the Crown Court – Procedure for appeal

Leave is not required (if notice is on time)
Notice is required in writing and must be given to the relevant magistrates’ court officer and every other party within 21 days of sentence/failure to make an order.

The notice should state whether the appellant is appealing against sentence / conviction / a failure to make an order. It should also summarise the issues.

If appealing conviction, the notice should specify the witnesses required and how long the trial lasted in the mags court and likely time estimate for the CC.
Any notice must also stipulate whether the appellant asked the magistrates’ court to reconsider the case.
D29.6

12

Q.3 Ben: appeal to CCT

Pros were under a duty to disclose unused material: (consolidation SGS 2)
Time limit to appeal: within 21 days of sentence (regardless of whether against conviction or sentence) (D29.6)
No leave required (D29.6)
CCT: circuit judge/recorder and two lay justices (D29.6)
Complete re-hearing (D29.7)
Parties not limited to evidence called in court below

13

Q.3: Ben: Procedure at appeal hearing

Court composed of a circuit judge or recorder and two lay justices who were not involved in the original proceedings.
Complete rehearing: fresh evidence can be called
Prosecution makes an opening speech and calls evidence and then the defence calls evidence and makes a closing speech.
The parties have the same right to speeches as in the mags court.
After the prosecution’s case the defence can make a submission of no case to answer.
After the defence make their closing speech the court announces its decision.
The information upon which the appellant was convicted cannot be amended by the CCT.


D29.3, D29.6-7

14

Q 3: Powers of CC upon appeal from Mags

S.48(2) Senior Courts Act 1981, the CCT:
(a) may confirm, reverse or vary any part of the decision appealed against; or
(b) may remit the matter with its opinion to the authority whose decision is appealed against: or
(c) may make such other order in the matter as the court thinks just, and by such order exercise any power which the said authority might have exercised.

15

Q 3: Powers of CC upon appeal from Mags

Thus,s.48 Senior Court’s Act 1981allows the court to:
(a) Quash conviction
(b) Remit case to Mags Court (eg equivocal plea).
(c) Vary sentence.

CC can increase sentence, but not beyond max Mags could have imposed (power exists even if appellant only appeals against conviction)
BCP D29.10

But is this the only or best avenue of appeal?
s142 MCA 1980

16

Q.3 Ben – s.142, MCA 1980 (mistake or ‘slip rule’

S 142(2) applies:
“Where a person is convicted by a magistrates’ court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct .”
In effect a power to rectify mistakes.

D22.70

17

Q.3 Ben – s.142, MCA 1980

142(1) of MCA 1980 operates in a similar way to s 142(2) and allows the Magistrates to rescind or vary its decision as to sentence if in the interests of justice. See BCP D23.23-24
s 142(1) should only be used to increase sentence in exceptional circumstances (D23.24).
s.142 can be used in relation to sentence, whether defendant pleads guilty or found guilty.

18

Q. 3 - Section 142 of MCA 1980 (mistake or ‘slip rule’

In Ben’s case:
Power to set conviction aside
Application to magistrates (same or different bench).
Re-trial by different bench
If Mags refuse to rectify: JR their refusal.

19

Q.3: Best route for Ben overall

s.142: allows rehearing in mags court and preserves a number of appeal options.
If s.142 successful and found guilty can still appeal to CCT.
If s.142 unsuccessful can JR refusal to set aside conviction.
OR Ben can challenge mags original decision to convict by way of JR (failure to disclose statement/breach of natural justice).
Case stated inappropriate (not erred in law or acted in excess of jurisdiction).

20

Q. 4 Francis

Can appeal to CCT, but is this the best approach at this stage?
Better to make an immediate application under s.142(2) inviting mags to set aside conviction.
If mags refuse to rectify, can JR their refusal.
OR can argue breach of natural justice because mags have not allowed Francis to present his case so JR.

21

Q.4 Judicial Review Procedure

Decisions of the magistrates’ court and some of the Crown Court (those not concerned with matters relating to trial on indictment) are susceptible to Judicial Review.

Judicial Review is dealt with by the Divisional Court of the Queen’s Bench Division of the High Court

Grounds for JR:
(a) Error of law on face of record.
(b) Excess of jurisdiction.
(c) Breach natural justice.

BCP D29.25, D29.7

22

Q.4 Judicial Review: Powers of High Court

Three main orders available
(a) Quashing orders (nullify)
(b) Mandatory orders (to compel).
(c) Prohibiting orders (prevent a course of action).

D29.25

23

Q.4 Best route for Francis overall

Immediate application under s.142
If refuse s.142 can JR refusal.
OR JR, but less immediate.
If mags refuse to reopen case could simply appeal to CCT.
Arguably case stated available (erred in law/exceeded jurisdiction and there has been final determination of case), but if pursues case stated loses right of appeal to CCT.

24

Q.5 - Appeal by way of Case Stated


s.111 MCA 1980
Available to Crown and Defendant (cf appeal to CC which is available only to “a person convicted by a mags court”) D29.1
Decisions as to questions of fact should not ordinarily fall to be remedied by way of Case Stated, save in very limited circumstances D29.18
. There must have been a final determination of the case
D29.38


25

Case Stated –Procedure

Case heard in Div. Court of Queen’s Bench Division.
The appeal in on a point of law, not a question of fact.
A document identifying the case stated is drawn up by the mags’ legal advisor in consultation with the mags.
Remedy available to prosecution and defence.
There must have been a final determination of the case in the mags court.
Case stated also available re sentence.
Constitution of court: usually 2 often 3 judges.

D29.18

26

Case Stated – Remedies

The Divisional Court may
Reverse;
Affirm or
Amend the decision of the magistrates’ court
The Divisional Court may also remit the case with its opinion or make any other order it sees fit.
The Divisional Court may quash an acquittal with a direction that the magistrates’ court convicts and sentences.
D29.24

27

Q.5 Best route for CPS

Cannot appeal to CCT as this option is not open to the prosecution.
S.142: no conviction to set aside.
Case stated best route: if successful, Div. Court would probably remit to mags with direction to continue the hearing or (more likely) to start trial afresh in front of different bench.
JR an option (acquittal based on erroneous interpretation of the law is beyond their powers) but unlikely here. JR seen as remedy of last resort.

28

Indictments


An indictment is a formal document, which sets out
the charge(s) on which the accused is to be
arraigned at the commencement of a trial on
indictment in the Crown Court. (D11.1 – you need
to know first sub-para only of D11.1)

29

CAJA 2009 s116



The CAJA 2009, s116 states that once the bill of indictment (draft) is preferred (served upon the court) it becomes an indictment. (D11.2)

Crim PR 10.1 still requires that a draft indictment should be endorsed by a court officer (date of receipt added), unless the court directs otherwise (D11.2)

30

How to serve a draft indictment


A draft indictment should be served on an appropriate officer of the CCT within 28 days of the date on which: 
a notice of transfer is given;
A High Court judge has directed or consented to the preferment of a voluntary bill of indictment; or
Copies of documents are served where a person is sent for trial under the CDA 1998, s.51.
D11.8

31

Q1 d
Errors in indictment

Error 1:
Count 1:
Statement of offence: the wording to describe the statement of offence is missing.

Issue involved:
The statement of the offence should describe the offence shortly in ordinary language, and, if the offence is statutory, should specify by section and subsection the provision contravened.
D11.23

Resolution:
Add the words: ‘contrary to section 8 of the Theft Act 1968’.

32

Errors in indictment

Error 2:
Count 2:
Count 2 is not labelled as Count 2.

Issue involved:
Each offence charged should be set out in a separate count. If there is more than one count, they should be numbered.
D11.23

Resolution
Add the words: ‘COUNT 2’

33

More errors in indictment

Error 5:

Error 3:
Count 3:
Particulars of offence: the description of the particulars of the offence is present, but the heading ‘PARTICULARS OF OFFENCE’ is missing.
 
Issue involved:
Each count should be divided into a statement of offence and particulars of offence.
D11.23

Resolution:
Add the words: ‘PARTICULARS OF OFFENCE’

34

Even more errors in indictment

Count 4:
The count is bad for duplicity and the dates don’t seem to match.
 
Issue involved:
Rule against duplicity states that each count must allege only one offence
D11.32 (you do not need to know any detail about this rule)
This count contains details of two offences: TWOC and dangerous driving.


Resolution:
Add the date after the name of the accused so that the particulars state: ‘Finlay Lewis on 7th November 2015 had with him a firearm, namely a shotgun with shortened barrel, with intent to commit an indictable offence.’

Error 4:
Also, under Count 3 the date of the offence is missing from the particulars.
Issue involved:
The particulars of offence should give ‘such particulars as may be necessary for giving reasonable information as to the nature of the charge’. This should include ‘such particulars of the conduct constituting the commission of the offence as to make clear what the prosecution alleges against the defendant’ D11.23
The count should state the date upon which the offence occurred, if known.
Normal practice is to give the day of the month, followed by the month, followed by the year.
Where the precise date is unknown it is sufficient to say ‘on or about’ a specified date or ‘on a day unknown’ before a specified date or ‘on a date other than the date in count 1’, or ‘on a day unknown between’ two specified dates. D11.28


35

Error 5

Error 5 cont.
Resolution:
Add an extra count to the indictment so that each offence can be charged separately in two separate counts.
Ask the CPS about the dates so that you, as counsel, can resolve what date needs to be inserted into the new counts.
Amendment by insertion of a new count is permitted under s.5, Indictments Act 1915, whether the count is in addition to or in substitution for the original.D11.104 
Evidential basis for a new count: not limited by the evidence disclosed at the time of sending. The question instead is whether the accused will be unfairly prejudiced by the amendment. The fact that the amendment raises something not revealed in the documents may be a ground for refusing the amendment. D11.105

36

Notes about indictments

Note the following re amending an indictment:

Power to amend:
Re formal defects in the wording of a count.
Re substantial defects such as divergences between the allegations in the counts and the evidence upon which the matter was sent for trial e.g. if it transpired in count 1 that only money was taken from the building society and not cheques, the count could be amended to reflect this.
 
D11.101

Note the following re amending an indictment:
Once served, the court can order any amendment necessary to meet the circumstances of the case, unless it would be unjust to do so (Indictments Act 1915, s5) D11.100

At any stage in a trial, whether before or after arraignment (even once the jury has retired, up to the point when a verdict is delivered).
D11.106 (you only need to know the first sub-para of the BCP reference)

37

Who is responsible for the indictment?

Prosecution counsel is responsible for the indictment (even when the CPS has drafted and served the indictment before counsel is involved in the case)
D11.6

38

Can you add a new count to an indictment?

Yes, an entirely new count can be added to an indictment.
D11.104

Evidential basis for new count: The power to amend is not limited by the evidence revealed at the time of sending. The question is whether the accused would be unfairly prejudiced by the amendment. The fact that the evidence was not there at the time of sending may be a reason to refuse the amendment or to allow it only together with an adjournment. D11.105

39

What rules for new count?

The addition of a new count must satisfy the rules of joinder:
This is governed by CPR r.10:

An indictment may include more than one count if the offences charged:-
Are founded on the same facts or
Form or are part of a series of offences of the same or similar character.
D11.63

40

Joinder of accused?

Joinder of accused: D11.71-75

‘Two or more accused may be joined in one indictment either as a result of being named together in one or more counts on the indictment, or as a result of being named individually in separate counts, albeit that there is no single count against them all’. 
D11.72

41

Where Lewis, Duke and Ella are jointly charged in relation to Count 1:

1g

Where Lewis, Duke and Ella are jointly charged in relation to Count 1:
There is no need to distinguish between the principle offenders and secondary parties on the indictment itself (the crown can distinguish roles in their opening speech to the jury).
The count need not expressly allege that the unlawful acts of each accused were done in the aid of the others, as it is implicit in the joint count (the judge will direct the jury about ‘joint enterprise’ in their summing up)
D11.73

42

Q1 h

Currently Count 4 is bad for duplicity. 
If the Crown resolves this and adds a separate count alleging that Ella took a conveyance without the consent of the owner then they are in a position where they have no loser statement from the owner of the Audi (no statement to say that the car belongs to them and they did not give consent for it to be taken).
This means that the Crown is missing evidence relating to elements of the offence.
The Crown has served the documents containing the evidence upon which the charges are based and the defendants have yet to be arraigned.
You should make an application for the charge of TWOC to be dismissed upon the basis that the evidence against Ella would not be sufficient for him to be properly convicted D10.23

43

Procedure on application for dismissal

Procedure on application for dismissal:
Application should be made after date when served with the documents containing the evidence upon which the charge is based, but before arraignment.
Can apply orally or in writing.
Can make oral application only if first give written notice of intention to do so.
Oral submissions can be made, but oral evidence cannot be adduced at an application for dismissal of a charge sent to the CCT for trial.
D10.23; D10.24 (first sub-para only)

44

Test on dismissal

Test on dismissal:
The evidence would not be sufficient for the accused to be properly convicted.
Where a case depends on inferences or conclusions being drawn by the jury, the judge must consider those inferences and conclusions and decide whether the jury could properly draw those inferences and come to those conclusions.

D10.23 & D10.27

45

Sexual assault

Sexual Assault: Triable either way.

B3.54
Need to memorise

46

Specimen or sample counts: D11.36-38 (syllabus section 6)

Specimen or sample counts: D11.36-38 (syllabus section 6)
(There is also a one-paragraph reference to sample counts in syllabus section 22/5th bullet on the curriculum: sentencing in the Crown Court, BCP D20.56)
 
‘Where a person is accused of adopting a systematic course of criminal conduct, and where it is not appropriate to allege a continuous offence or a multiple offending count, the prosecution can proceed by way of specimen or sample counts.
D11.36
The prosecution may decide to do this in Diana’s case.

Note about continuous and multiple offending counts referred to on previous power point:

Starting point: Rule against duplicity (each count may contain only one offence) requires that a count must allege that the offence occurred on one day (not several days).

47

Multiple offending counts

Note about continuous and multiple offending counts cont.:

Multiple offending counts: More than one incident of the commission of an offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission of the offence.
e.g. accused charged with theft. Evidence is that accused, on numerous separate occasions over a lengthy period, stole small sums of money or items of property, but it is not possible to say the precise days upon which each appropriation took place, it is possible to have a single count alleging that, on a day within the overall period, the accused stole all the relevant money or property.
D11.34

48

Returning to specimen counts, procedure

Returning to specimen counts:
Procedure:
The defence should be provided with a list of all the similar offences, which it is alleged that those on the indictment are samples of against Diana.
Evidence of some or all of these additional offences may in appropriate cases be led as evidence of system against Diana.
Or, the additional offences need not be referred to until after a verdict of guilty upon the sample offences against Diana.
D11.37

49

Potential problems with specimen counts

Potential problems re specimen counts:
Diana should not be denied her right to be tried by jury for offences for which she may ultimately be sentenced (D11.38 cross-references with D20.56, which is on the syllabus. D20.56 says that a schedule of TICs could be drawn up).
The indictment containing the sample counts must be drawn up in such a way that the accused knows the extent of the case against them. D11.38