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Flashcards in Week 12 materials Deck (30):
1

Common Assault:
Summary only
Carries max 6 months
D19.56

Venue for trial?

Procedure?

Sentence?

Mags only
(can travel to CC, when attached to indictable offence

Enter plea before Mags

Mags Ct: max 6 months
CC: Max 6 months

2

Assault occasioning Actual Bodily Harm:
Either way
Carries max 5 years
B2.28

Venue for trial?

Procedure?

Sentence?

Mags or CC

Needs PBV and allocation

Mags 6 months
CC - max stat available - 5 years

3

S 18 Grievous Bodily Harm with intent:
Indictable only
(max:life imprisonment)
B2.65

Venue for trial?

Procedure?

Sentence?

CC only

Sending to CC

CC: life imprisonment

4

Q1 Bobby appears before the Magistrates on a charge of common assault (summary only). When asked to enter his plea, he replies, “Guilty but I was acting in self-defence”. What must the Magistrates’ do and why?
(max. 3 marks)

• Where a Defendant pleads guilty but immediately qualifies this by stating that he has a defence (1 mark); this is an equivocal plea. (1 mark)
• Court must not proceed to sentence (1 mark)
• The Mags must explain the law and ask him to enter his plea again ( 1 mark)
• If the plea remains equivocal, they must record a plea of Not Guilty on his behalf and there will be a trial. (1 mark) D12.100
• * POP QUIZ TIP*: Remember in the question you are asked to identify the legal issue as well as explaining what procedure will be followed i.e. remember that you are asked ‘why’ in the question

5

Q2: Explain what is meant by No case to Answer in Mags Court and the procedure for dealing with such an application? (max. 5 marks)

Crim PR, r24.3(c):
•NCTA may arise during a summary trial (1 mark)
•Test of NCTA: the mags may acquit the accused on the
ground that “ prosecution evidence is insufficent for any
reasonable court to properly convict” (1 mark)
•At conclusion of the prosecution case (1 mark) , the court
either at the request of the defence or of its own initiative
may consider if there is no case to answer (1 mark)
•The court must allow the prosecution to make
representations) (1 mark)
•If the court finds no case to answer, it must the acquit the defendant without proceeding to hear the defence case. (1 mark)

6

Q3: What is the role of the court legal adviser in a summary trial? (max. 5 marks)

Role is:
•Before hearing begins, draw court’s attention to issues in case (1 mark)
•To give the court legal advice (1 mark); this covers questions of law, mixed fact and law, procedure and practice
•Should advise in open court, but if advises the magistrate/s outside of court, must inform the parties of the advice given (1 mark)
•Assist the court in the formulation of its reasons (1 mark)
•To keep a written record of the decisions of the court and reasons (1 mark)
•Assist unrepresented defendant (1 mark)
•Make note of any oral evidence or representations (1 mark)
D22.77-78; LGS 2 PPTs

7

Q4: Give two examples of how evidence may be presented in a summary trial (max. 2 marks)

‘Live’ witnesses (1 mark) D22.37
Tender a written statement as evidence/Reading of witness statements:
each relevant part of statement must be read or summarised aloud, or court must read statement and its gist must be summarised aloud (1 mark) D22.38
Where facts are agreed between the parties/formal admissions can be made pursuant to s.10 CJA 1967 Crim PR r.37.6 (1 mark)

8

Workbook Q 1 (a) PBV: How will court determine his plea?

• Edward goes into dock, identified by the court’s legal advisor.
• Charge written down if not already been done/Charge read out to Edward.
• The court proceeds to PBV.
• PBV arises because of the e/w offence - The e/w offence is Dangerous
Driving (no need to memorise this classification).
• The legal advisor explains the PBV procedure.
• The DD charge is read out to Edward and he is asked to indicate his plea: G or NG.
• Summary matters are ignored whilst the court deals with PBV for the e/w matter.
• Edward will then enter his NG plea (what procedure is followed if Edward enters a G plea is dealt with in part (e))
• As he has entered a NG plea an allocation hearing has to take place.
• NB: If Edward gives no indication of plea, he will be treated as having entered a NG plea and will proceed to MOT. D6.6-7

9

Q 1 (b) Procedure and principles to determine where trial will take place?

Procedure:
• General procedure: D6.8/Prosecution influence on decision: D6.19
• Allocation procedure:
• Used to determine where the trial of an e/w offence will take place.
• Both the prosecution and the defence can make representations about whether the offence is more suitable for trial in the CC or MC.
• It is still the e/w offence of DD that is driving the decision-making.
• Prosecution representations first about where the trial should take place.
• The prosecution may inform the court of any previous convictions that are relevant to the allocation decision.
• The defence will then have an opportunity to make submissions: Normally brief/only case where submissions are valuable is where prosecution ask for trial on indictment but the defence want summary trial and so try to persuade the magistrates to accept jurisdiction.

10

Q 1 (b) Procedure and principles to determine where trial will take place?

Procedure cont.,
• After representations, magistrates come to their decision.
• If mags decide that summary trial more suitable, court explains:
– That Edward can consent to summary trial or elect trial in the CC; and
– That if he is tried in MC and convicted he can be committed for sentence to CC (committal for sentence: SGS 8).
• At this stage def may request indication as to sentence if were to he consent to MC trial and plead guilty at that stage:
– Mags not obliged to give indication.
– If they do, they must allow def opportunity to reconsider plea.
– If def wishes to change plea, PBV repeated.
– If def changes plea, custodial sentence can only be given if it was indicated.
– If indication given and def does not change plea, indication not binding.

11

Q 1 (b) Procedure and principles to determine where trial will take place?

Procedure cont.,
• If Edward consents to MC trial, a date is set for summary trial (the pleas to the summary matters can be taken at this stage)
• If Edward elects CC trial, the matter is sent to CC for trial (deal with sending later in course, including what happens to the summary only matters).
• If court decides trial on indictment more suitable, Ed sent to CC for trial.
Note:
• If mags decide summary trial not suitable, Edward sent to CC for trial and he has no choice as to venue.
• If mags decide summary trial suitable, Edward can choose his venue. He can consent to MC trial or elect CC trial.
• There can only be a summary trial for an e/w offence if both the magistrates and the defendant agree to it.
• The overall effect is that summary trial can be vetoed either by the court or the accused, but not the prosecution.

12

Q 1 (b) Procedure and principles to determine where trial will take place?

Principles:D6.16.
Allocation Guidelines/Guidance:
•Presumption in favour of summary trial for either-way offences unless mags’ court sentencing powers insufficient.
•Court should assess likely sentence in the light of the facts of the prosecution case.
•Therefore, prosecution version deemed correct.
•Can also take into account aspects of the case advanced by defence.
•Where case involves complex questions of fact or law, court should consider sending for trial.
•Co- defendants? “one up all up” D6.18

13

Q.1(c) Advantages/Disadvantages mags’ court trial

Advantages:
Limit on sentence – red herring as D can be
committed for sentence
Disadvantages:
•Separation of law and facts
•Service of papers
D6.20

14

Q.1(d) Sequence of summary trial

Prosecutor summarises pros case. D22.36
Prosecution evidence (‘live’ witnesses; witness stmts read; formal
admissions).D22.37; D22.38; D22.40
Submission no case to answer if appropriate.D22.49
Legal advisor: explains D’s right to give evidence D22.78
Defence evidence D22.60
Evidence in rebuttal if appropriate.D22.60
Pros final representations (certain circumstances) D22.60
Defence final representations D22.60
Magistrates decision. D22.67
Mags discretion re timing of rulings re admissibility D22.43
(LGS 2 PPTs; Crim PR r.24.3)

15

Q.1(e) Procedure if Edward enters GP

• Mags will either keep matter or commit to CC for sentence.
• If necessary mags will adjourn for pre-sentence reports.
• If GP after indication, custodial sentence only if indicated by court
• (we will return to procedure following GP/ committal for sentence in SGS 8)
D6.8, para (e)

16

Q.1(f) Failure to attend PBV hearing and/ or trial?

PBV/allocation: D6.9 Trial: D22.13
PBV:
Def MUST be present for PBV unless any of the following exceptions apply:
•D represented by legal representative;
•Due to D’s disorderly conduct it is not practicable for proceedings to be conducted with D present;
•Court considers it should proceed in D’s absence.
If D absent, representative will indicate plea. If G plea, court proceeds as if D had pleaded guilty. Otherwise court proceeds to determine allocation.
Trial:
•If D is 18 or over, court MUST proceed in absence unless contrary to interests of justice.
(under 18 – MAY proceed) (summons or written charge/requisition - must be satisfied served within reasonable time before hearing)

17

Question 2: David:
Special procedure for criminal damage

• Criminal Damage: e/way offence
• But if value is £5,000 or less Court will treat is as summary only.
• How decide value? Can take into account 2 or more criminal damage charges if “ form a series of offences of same or similar character” to arrive at aggregate value
D6.22-27

18

Question 3: Zara:
‘Low value shoplifting’

• Value does not exceed £200 is summary only.
• BUT: where D is 18 or over, court must give D opportunity of electing CCT trial.
• Unlike special procedure for Criminal Damage, D retains the right to elect CCT trial irrespective of the value.
• So, Zara can be tried in MC or CCT if she so elects. D6.29

19

Hearsay:

What is the statutory definition of hearsay?
Section 114(1) CJA 2003

What is the statutory definition of hearsay?
Section 114(1) CJA 2003
In criminal proceedings a statement not made in oral
evidence in the proceedings is admissible as evidence of
any matter stated if, but only if …[one of the exceptions
applies]…


CJA 2003, s115(2):
‘A statement is any representation of fact or opinion made by a person by whatever means (including a representation made in a sketch, photofit or other pictorial form.’



Elements-
a statement
not made in oral evidence in the proceedings
as evidence of any matter stated
NB. Twist [2011]: s114(1) only catches statement where matters are expressly stated


20

What is the difference between a statement which is hearsay and a statement which is original evidence?

Not every out of court statement is hearsay.
A statement will be original evidence, not hearsay where the person making the statement did not intend another to believe it or act on the basis that the statement is true.
Also, a statement will not be hearsay where it is not being adduced to for the purpose of proving the matter stated. Where an out of court statement is adduced for any other admissible purpose it is original evidence.

S115(3): The purpose of the person who makes the statement must have been
to cause another person to believe the matter stated; or
to cause another person to act or a machine to operate on the basis that the matter stated was true

21

Identify two of the well-established common law examples of out of court statements deemed to be ‘original evidence’ and not hearsay.

A) Statements relevant to a fact in issue
To show the state of mind, knowledge or belief of the maker of the statement
To show the state of mind, knowledge or belief of the hearer
To show that the statement was  
B) Statements as a fact in issue
A statement may also form the actus reus of an offence. e.g. a threat to kill on a charge of Threats to Kill contrary to s.16 of the Offences Against the Person Act 1861. The statement may take the form of an assertion (e.g. ‘I am going to kill you’), but they are not relied upon for the truth of the matter stated but simply to prove the words were spoken.  
This is not an exhaustive list. Any statement adduced other than to prove the matter stated will be original evidence.
They key is to identify the purpose for which the statement is sought to be adduced

22

By reference to the statutory definition of a statement, explain whether CCTV evidence is a statement?

Section 115(2) of the CJA 2003 defines a ‘statement’ ‘any representation of fact or opinion made by a person by whatever means (including a representation made in a sketch, photofit or other pictorial form.’

CCTV is created by a purely mechanical process, not made by a person. It does not meet the statutory definition of a statement. (see also R v Fowden [1982] Crim LR 588).

23

How is a statement identified as hearsay using the analysis in R v Twist [2011] 2 Cr App R 17?

In Twist, the CA endeavoured to sweep away problems associated with ‘implied assertions’. Hughes LJ stated at [para 19]:
In addressing these questions, we would strongly recommend avoidance of the difficult concept of the "implied assertion"...As we have sought to explain, it no longer matters whether a statement is analysed as containing an implicit (or "implied") assertion if the speaker's purpose does not include getting anyone else to accept it as true.
He then went on to propose a 3-question test to determine if a statement is caught by s115
i) identify what relevant fact (matter) it is sought to prove;
ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication);
iii) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.  
The test for hearsay, incorporating the approach taken in Twist is set out on the next slide.

24

Hearsay machine...

Identify the statement the party wishes to adduce in evidence


Is the statement made other than in oral evidence in the proceedings?



What matter does the party say the statement proves?


Is there actually a ‘statement’ of that matter in the statement


Was it a purpose of the maker:
to cause another to believe that matter; or
to cause another to act (or a machine to
operate) on the basis that it is true?

No:

Original
Evidence



Yes:

Hearsay

25

Concerning visual images, distinguish between hearsay and real evidence? 

If made by a person, a visual image may be a statement as defined by CJA 2003, s115(2).
If the visual image is not made by a person, it cannot be hearsay, it will be real evidence.
Where the visual image meets the statutory definition of a statement, the evidence will be hearsay if the person making the statement intended another to believe it or to act on the basis that the statement is true and the image is relied on to prove the matter stated.
If the person making the statement did not intend another to believe or act on the basis that the statement is true or if the visual image is not relied on for proving the matter stated but for some other admissible purpose, then it will be real evidence.

26

Q1

See Evidence SGS notes

Hearsay- proves ‘matter stated’ in the statement AND Dave’s intended another to believe what he said (the thief has red hair);

(b) Original evidence - proves Davinia is not mute. The fact that Davinia is able to speak is not a ‘matter stated’ in the statement.

(c) Hearsay- the statement proves the ‘matter stated’ (Joe was
the killer) AND Ali’s purpose in saying was to cause
George believe it;

(d) Original evidence- the statement proves the state of mind of hearer. Applying the second step above, there is no statement in Charlie’s threat of the matter sought to be proved, i.e. that Dave was frightened and acted under duress.

(e) Original evidence- relevant to state of mind of hearer, i.e. the effect of the solicitor’s advice on his decision whether to answer police questions. In the solicitor’s advice, there is no ‘statement’ that he decided to remain silent because of the advice.

(f) Original evidence- proving state of mind of maker of statement – not a ‘matter stated’;

27

q 1 continued

(g) Original evidence - adduced to prove link to guns (R v Lydon (1986) 85 Cr App R 221), not trying to prove ‘matter stated’;

(h) Hearsay- proving truth of ‘matter stated’ (car registration) AND purpose of speaker was to be believed;

(i) Hearsay- Pros want to prove truth of ‘matter stated’ (cigarettes are from Turkey) AND that was intention of the person who made the stamp;

(j) Original evidence- no statement of the matter sought to be proved;

(k) Original evidence – what Pros are trying to prove
(Stewart was touching Rachel) is not expressly stated
by Rachel. Her purpose - maybe she intended to alert the taxi driver - is thus irrelevant (s.115(3));

(l) Real evidence as not made by a person (see R v Wood (1982) 76 Cr App R 23 and s.115(2), “ made by a person…”);

(m) Real evidence (see R v Fowden [1982] Crim LR 588);

(n) Documentary hearsay (see s 115(2) and s 134) – Pros want to prove identity of robber and in order to do so want to show that the photofit, (a) matches Phil; and (b) is an accurate representation of the robber. The intention of the complainants is to provide an accurate description and make a photofit that matches the robber, and they intend this to be believed by the police.



28

Over-arching three-stage approach to the admissibility of hearsay:


(i) Identify whether the statement is hearsay;
(ii) If hearsay, consider whether admissible through exceptions;
(iii) Consider safeguards which may apply.
Take a 5 stage approach to identifying hearsay.
‘Original evidence’, so called: admissible if relevant.
Hearsay: inadmissible unless an exception applies

29


Sentencing remarks by District Judge John Temple:

Shaun Davis, you have pleaded guilty to one charge of shoplifting and one charge of possession of a bladed article. You have also asked me to take into consideration two other offences of shoplifting.

You have two previous convictions for offences of dishonesty. I note in particular your conviction for burglary some four years ago.

I am particularly concerned at the bladed article charge. There seems to be an epidemic of young people carrying weapons in this area and I am determined to do what I can to deter people from carrying weapons.

See SGC Guidance on Guilty Pleas http://www.sentencingcouncil.org.uk/publications/item/reduction-in-sentence-for-a-guilty-plea-definitive-guideline/): a guilty plea at the earliest reasonable opportunity may result in a reduction of one-third in the length of the custodial sentence or (e.g.) the number of hours of unpaid work under a community order or amount of fine. A guilty plea can also justify imposing a fine or community order rather than custody (in which case, there will be no further discount).

TICs: no separate penalty is imposed for offences that are taken into consideration, but there will be an increased penalty for the offences to which D has pleaded guilty. This is good for D because it reinforces his stated desire to start with clean slate (remorse); he won’t be prosecuted for those offences; and the increase in sentence will be less than the sentence that would be imposed for the offences separately. It is also good for police (it improves the ‘clear-up’ rate). See Sentencing Council Guidelines on TICs, http://www.sentencingcouncil.org.uk/publications/item/offences-taken-into-consideration-and-totality-definitive-guideline/) and Miles [2006] EWCA Crim 256.

Previous convictions are an aggravating factor (s 143(2) of the CJA 2003): their effect depends on the type of offence (how similar to the present offence?) and how long ago it was committed.

The purposes of sentencing under s 142(1) of the CJA 2003 include reduction of crime (including reduction by deterrence) and protection of the public. However, there should be evidence of prevalence: SGC Guidance (http://www.sentencingcouncil.org.uk/publications/item/overarching-principles-seriousness-definitive-guideline/) and Oosthuizen [2005] EWCA Crim 1978.

30


Your counsel has told me that you spend a lot of time looking after your sister, who is disabled. I suppose that amounts to some sort of mitigation .

Your counsel also invited me to adjourn for a pre-sentence report . It seems to me that such a report would add little and I therefore propose to dispense with the need for such a report.

I gave serious consideration to imposing a custodial sentence, and you should regard yourself as very lucky not to be going to prison.

I am going to make a community order which requires you to carry out 100 hours of unpaid work for the shoplifting charge and 200 hours for the bladed article charge. I am also imposing a fine of £500 in respect of that charge . I further order that you carry out 50 hours of unpaid work for each of the shoplifting charges that you invited me to take into consideration .

I also direct that you remain under the supervision of a probation officer for 3 years .

I warn you that if you re-offend, it is highly likely you will be sent to prison .

In mitigation, the advocate attempts to put the offence and the offender in the most favourable light – highlighting anything that makes the offence less serious and anything in the offender’s personal circumstances which goes towards explaining the offending or otherwise justifying lenient treatment. Good deeds can amount to ‘positive good character’ (cf. R v Howells [1999] 1 WLR 307). Also, the effect of any sentence on an innocent third party may be relevant.

A Pre-Sentence Report is required to determine whether the offence crosses the custody or community sentence threshold (and, in case of community sentence, what requirements are commensurate to the seriousness of the offence). However, where the offender has attained the age of 18, the court can decide that a PSR is ‘unnecessary’ (where the offender is under 18, this can only be done if there is an earlier PSR). See the Criminal Justice Act 2003, s 156.

There is no objection in principle to the imposition of a fine as well as another form of sentence.

The court must take account of the offender’s means before fixing the amount of the fine.

The maximum total number of hours of unpaid work that may be imposed is 300.

No separate penalty is imposed for TICs. See Sentencing Council Guidelines on TICs (http://www.sentencingcouncil.org.uk/publications/item/offences-taken-into-consideration-and-totality-definitive-guideline/) and Miles [2006] EWCA Crim 256.

This should be expressed as a ‘rehabilitation activity requirement’ (CJA 2003, s. 200A).

The maximum duration of a community order is 3 years.

A custodial sentence could be imposed only if the later offence crosses the custody threshold in s 152(2) of the CJA 2003, which states that a custodial sentence can be passed only if the offence(s) are ‘so serious that neither a fine alone nor a community sentence can be justified’.