Criminal

Classification of offences

All criminal offences fall into one of three categories; triable on indictment only, either way or summary.

Indictment only offences

These are the most serious, such as murder, manslaughter, rape and robbery, which must be heard in the Crown
Court. Although the first hearing will be in the magistrates’ court, where all criminal cases start, the magistrates will
then send the case to the Crown Court.

An offence is triable on indictment only if the statute creating it provides only for a penalty on conviction on
indictment. Common law offences are indictment only offences UNLESS they are listed in schedule 1 of the
Magistrates’ Court Act 1980 as an offence triable either way.

Either way offences

Either way offences, for example, theft and assault occasioning actual bodily harm, can be heard in either the
magistrates’ court or the Crown Court. The case will start off in the magistrates’ court and the magistrates will then
decide whether to keep the case or to send it to the Crown Court for trial because it is too serious for them to deal
with. Even if the magistrates are prepared to hear the case, the defendant has the right to elect trial by a judge and
jury in the Crown Court. We shall be looking at this procedure (allocation) in Large Group 28.
An offence is triable either way if it is listed as such in schedule 1 of the Magistrates’ Court Act 1980 or the statute
creating the offence specifies one penalty on summary conviction and a different penalty if convicted on indictment.

Summary offences

These are the less serious, for example, common assault and various road traffic offences, and can only be heard in
the magistrates’ court.

The offence is summary if the statute creating the offence provides for a maximum penalty imposable on summary
conviction but does not provide for a penalty on conviction on indictment.

The Police and Criminal Evidence Act 1984 (PACE) (see 3 below) often makes reference to police powers being
exercisable where an indictable offence has been committed or there is reasonable suspicion that it has. An
indictable offence is any offence which can be heard in the Crown Court; either way as well as indictment only
offences.

Criminal Procedure Rules 2013 (CrimPR)

CrimPR govern proceedings in all criminal courts. In some respects these mirror the Civil Procedure Rules. Key
points to note are as follows:

• Overriding objective is ‘that criminal cases be dealt with justly’;

• Participants in criminal cases must prepare and conduct cases in accordance with the overriding objective;
• The court must further the overriding objective by actively managing cases;
• Active case management includes:
o early identification of the real issues;
o early identification of the needs of witnesses;
o setting a timetable for the case;
o monitoring progress through the case progression officer;
o discouraging delay;

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 o encouraging participants’ cooperation; and
o making use of technology.

CrimPR, and the Consolidated Criminal Practice Direction which supplements them, are on the Justice website
(www.justice.gov.uk). Post session, access the CrimPR on line. Read Parts 1 and 3 and make additional notes on the
meaning of the overriding objective, the duties of participants and the court, case progression officers and their
duties and the court’s case management powers.

Funding the Defence

The public funding of criminal defence work is administered by the Legal Aid Agency (LAA).

Only firms which have a contract with LAA can obtain public funding to represent defendants in criminal
proceedings.

Work done at the Police Station

Any suspect who has been arrested and detained in the police station has the right to free legal advice. The Police
Station Advice and Assistance Scheme allows solicitors and accredited and probationary police station
representatives to advise and assist individuals who have been arrested at the police station. The police station will
have a duty solicitor scheme and solicitors on its rota may be called out to advise if the person arrested does not
have his own solicitor. All cases are referred in the first instance to the Defence Solicitor Call Centre. If the offence is
triable on indictment only, the individual’s solicitor or the duty solicitor will be contacted. In straightforward cases,
however, the free advice available will be limited to telephone advice from Criminal Defence Direct (CDD).

Work done outside the Police Station prior to Charge

Public funding is available under the Advice and Assistance Scheme, provided the solicitor is satisfied that there is
sufficient benefit to the client to justify the work being done. This is means tested.

Representation at Court

Limited assistance at court, free of charge, can be provided under the court duty solicitor scheme, which operates in
a similar way to the police station duty solicitor scheme. If this is not sufficient, the defendant must apply for a
representation order. Court staff administer this scheme on behalf of the Legal Aid Agency and the application is
made to the magistrates’ court before which the defendant is due to appear.

The applicant must satisfy both a merits and a means test before the representation order is granted.

Merits (‘interests of justice’) test:

A representation order will be granted only if it is in the interests of justice for the defendant to have his costs paid
from public funds. The criteria which must be taken into account when deciding if this test is satisfied are set out in
s.17(2) Legal Aid, Sentencing and Punishment of Offenders Act 2012.

In summary, these can be summarised as follows:

 If any matter in the proceedings is decided against the defendant, would he be likely to lose his liberty or
livelihood or suffer serious damage to his reputation?
 Does the case involve a substantial question of law?
 Might the defendant be unable to understand the proceedings or state his case (eg through lack of
knowledge of English or through mental or physical disability)?
 May the defence involve the tracing and interviewing of witnesses or the expert cross examination of
prosecution witnesses?
 Is it in the interests of another person for the defendant to be represented?

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The applicant must indicate which of the criteria he believes apply to his case and explain why. Any other reason
why it is in the interests of justice that legal aid should be granted should also be put forward in the application.
There is a completed CRM14 (the application form which is required in all applications for legal aid in criminal
proceedings) in the Butcher case study in the manual, at page 341. In particular, question 29 addresses the interests
of justice test.

Means Test

Automatic qualification: Applicants on certain state benefits (income support, income-based job seeker's allowance,
income related employment and support allowance or a guaranteed state pension credit) will automatically qualify
financially for criminal legal aid, as will those under the age of 18.

Initial means test

All other applicants for a representation order must complete a financial statement (CRM15). Court staff will look at
the applicant’s gross annual income and then adjust this by a weighting which takes into account his family
circumstances. If the applicant’s annual adjusted income is under £12,475, he will be qualify for criminal legal aid; if
it is over £22,325, he will not.

Full means test:

If an applicant's income is between £12,475 and £22,325, the full means test will be applied. The applicant's annual
disposable income is calculated by deducting from the gross annual income tax and National Insurance, annual
housing costs, annual childcare costs, annual maintenance to former partners and any children and an adjusted
annual living allowance. To qualify for criminal legal aid, the applicant’s annual disposable income must not exceed
£3,398. If a defendant qualifies for legal aid in the magistrates’ court, he will get free legal representation; in the
Crown Court he will have to contribute to his defence costs.

Police Investigative Powers

Most powers exercised by the police are granted to them by PACE. PACE also empowers the Home Secretary to
issue Codes of Practice to provide detailed guidance as to how these powers should be exercised and a criminal
investigation conducted and the respective rights and duties of members of the public and the police.

As we shall see in later sessions, a breach or breaches of the PACE Codes may result in evidence being excluded from
trial.

Powers outside the Police Station

Stop and search

S.1 PACE - A police officer has the power to search any person or vehicle for stolen or prohibited articles (eg an
offensive weapon) or any article to which s.1(8A) applies (eg with a blade or point) provided he has reasonable
grounds for suspecting that he will find such an article. A stop and search can be carried out in any place to which, at
the time of the search, the public has access.

See also Code A: PACE Code of Practice for the Exercise of Police Officers of Statutory Powers of Stop and Search;
Police Officers and Police Staff of Requirements to Record Public Encounters. Paragraphs 2.2 – 2.11 provide
guidance on what is required for ‘reasonable suspicion’.

Arrest

For an arrest to be valid, there must be a power of arrest and the arrest must be carried out in the proper manner.
Otherwise, the detention following the arrest will be unlawful.

S.24 PACE gives police officers the power of arrest in respect of any criminal offence provided certain conditions are
satisfied. A police officer may arrest anyone in the act of committing or about to commit an offence or who he has
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reasonable grounds for suspecting to be committing or about to commit an offence. If an offence has been
committed, or a police officer has reasonable grounds for suspecting an offence has been committed, he may arrest
anyone who is guilty of that offence or who he has reasonable grounds for suspecting to be guilty of it.

Even where grounds exist, the power of arrest is exercisable only if it is necessary – see s.24(5) PACE and Code G:
PACE Code of Practice for the Statutory Power of Arrest by Police Officers, paragraphs 2.4 – 2.9 (the necessity
criteria).

A person must be told as soon as practicable that he is under arrest - s.28 PACE. See also Code G 3; information to
be given on arrest.

As soon as there are reasonable grounds to suspect a person of an offence, he should be cautioned before being
questioned. A suspect must also be cautioned on arrest, unless this is impracticable or he was cautioned
immediately beforehand. For the wording of the caution, see Code C: PACE Code of Practice for the Detention,
Treatment and Questioning of Persons by Police Officers, paragraph 10.5.

In addition to the police power in s.24 PACE, the court can issue a warrant for a person’s arrest for an indictable or
imprisonable offence under s.1 Magistrates Court Act 1980, and may do so, for example, if a defendant fails to
attend court.

There is also a common law power of arrest to prevent a breach of the peace which may be exercised by any person;
not just by a police officer.

s.24A PACE provides a limited power for persons other than police constables to arrest for indictable offences (a
‘citizen’s arrest’).

Entry, Search and Seizure

See Code B: PACE Code of Practice for Searches of Premises by Police Officers on Persons or Premises.

Search with a search warrant – s.8 PACE

A police officer can apply to the magistrates’ court for a warrant to enter and search premises. The magistrate must
be satisfied that there are reasonable grounds for believing that:
• An indictable offence has been committed;
• There is material on the premises likely to be of substantial value to the investigation of the offence;

• The material is likely to be relevant evidence;

• It does not consist of or include items subject to legal professional privilege, excluded material or special
procedure material (see ss.10 – 14 PACE for definitions); and

• It is not practicable to communicate with any person entitled to grant entry to the premises or to grant
access to the evidence, entry will not be granted unless a warrant is produced or the purpose of the
search may be frustrated or seriously prejudiced unless a police officer arriving at the premises can
secure immediate entry.

Entry and search to effect an arrest - s.17 PACE

A police office may enter and search any premises for the purposes of:
1. Executing an arrest warrant;
2. Arresting someone for an indictable offence;
3. Recapturing a person unlawfully at large who he is pursuing; or
4. Saving life or limb or preventing serious damage to property.
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For all but the last of these purposes, the police officer must have reasonable grounds for believing the person he is
seeking is on the premises.

S.17(6) preserves the common law power of the police to enter premises to deal with or prevent a breach of the
peace.

Search After Arrest

Of the person: s.32 PACE: A police officer may search the person arrested if he has reasonable grounds for believing
that person

• May present a danger to himself or to others; or

• Might be concealing evidence relating to an offence or which he might use to assist him to escape custody
(but only to the extent reasonably required to discover it).

The search is limited to the removal of outer clothing only but can include a search of the mouth. Intimate searches
can only be carried out at the police station (or hospital of GP surgery etc) and if the criteria in s.55 PACE are
satisfied.

Of the premises where the arrest took place: s.32 PACE: In the case of indictable offences only, a police officer can
enter and search premises in which the arrested person was at or immediately before his arrest for evidence relating
to the offence for which he has been arrested.
Of premises occupied or controlled by the person: s.18 PACE: Again, in relation to indictable offences only, a police
officer may enter and search any premises occupied or controlled by the arrested person, provided he has
reasonable grounds for suspecting there is on the premises evidence relating to the offence or some other indictable
offence which is connected or similar to it.

Normally, written authorisation from an officer of the rank of inspector or above is required. However, the search
can be carried out before taking the suspect to the police station if his presence ‘is necessary for the effective
investigation of an offence’, in which case an inspector should be informed as soon as practicable thereafter.

See Code B 6 for the conduct of searches.

Powers of seizure – s.19 PACE

A police officer lawfully on any premises may seize anything on those premises if he has reasonable grounds for
believing that it has been obtained in consequence of the commission of any offence or is evidence in relation to an
offence and it is necessary to seize it to prevent it being concealed, lost, damaged, altered or destroyed. Anything
seized can be retained ‘so long as is necessary in all the circumstances’ – s.22 PACE.

See Code B 7 for the procedure on seizure and retention of property.

Police Investigatory Powers - At the Police Station

Unless the arresting officer decides to grant street bail, an arrested person must be taken to a police station as soon
as practicable after the arrest (s.30(1A) PACE) and brought before the custody officer. The custody officer is
normally a police officer holding at least the rank of sergeant and must not be involved in the investigation of the
offence. He is responsible for authorising the detention of the suspect and supervising his welfare whilst he is in
police custody and for maintaining the custody record.

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See Code C.  custody officer to decide whether to charge , release or detain or questioning. Detention – s.41 – 44
PACE maximum period without charge is 24 hours for indictable offence and can extend to 36 hours.

Detention

The custody officer must determine whether there is already sufficient evidence to charge the suspect with the
offence for which he has been arrested. If there is, he will be charged straightaway. If there is not, he should be
released, either on bail or without bail, unless the custody officer has reasonable grounds for believing that detaining
him without charge is necessary to secure or preserve evidence relating to the offence or to obtain such evidence by
questioning. Then, the custody officer may authorise the suspect to be kept in police detention. See s.37(3) PACE.

Permitted periods of detention

The initial maximum period of detention without charge is 24 hours. This period begins when the person under
arrest first arrives at the police station – s.41 PACE.

If the offence is indictable, this can be extended up to a period of 36 hours on the authorisation of an officer of the
rank of superintendent or above who has reasonable grounds for believing detention without charge is necessary to
secure or preserve evidence or to obtain such evidence by questioning the suspect and that the investigation is being
carried out diligently and expeditiously – s.42 PACE.

The police must obtain a warrant of further detention from a magistrates’ court to detain a suspect any longer –
ss.43 and 44 PACE (96 hours).

Detention reviews

A suspect’s detention must be reviewed periodically to ensure that the grounds justifying the initial detention still
apply. If they do not, and no other grounds exist which would justify continued detention, the suspect must be
released immediately.

Before charge, reviews are carried out by officers of the rank of inspector or above who are not directly involved in
the investigation (after charge this is done by the custody officer). The first review must take place no later than six
hours after the custody officer first authorised detention and the second review no later than nine hours after the
first. Subsequent reviews must take place at intervals of not more than nine hours. Reviews may be conducted over
the telephone. See ss.40 and 40A PACE.

Detainees’ rights

Right to have someone informed of the arrest – s.56 PACE

Anyone arrested and held in custody at a police station is entitled to have a friend or relative informed of this.
Where that person has been arrested for an indictable offence, in certain circumstances this right may be delayed
for up to 36 hours. The delay must be authorised by a police officer of inspector or higher rank who has reasonable
grounds for believing that:

• Telling the named person of the arrest will lead to interference with or harm to evidence or other people,
the alerting of other suspects or hinder the recovery of property; or
• The detainee has benefited from his criminal conduct and the recovery of the value of the property
constituting that benefit would be hindered if the named person was informed.
See Code C Annex B.

Right to legal advice – s.58 PACE

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A detainee must be informed he has a right to consult privately with a solicitor at any time and that free,
independent legal advice is available. If he requests legal advice, the police will contact the Defence Solicitor Call
Centre (see 2.1) unless the detainee says he will pay for his own representation. Again, where the offence is
indictable, the exercise of this right may be delayed for up to 36 hours but, in this instance, authorisation must be
given by a police officer of the rank of superintendent or above. He must have reasonable rounds for believing that
the exercise of this right, at the time the detainee wishes to exercise it, would have any of the consequences
referred to above or that the solicitor the detainee wants to consult would pass on a message or act in some other
way which would have those consequences. In such circumstances, the detainee must be allowed to choose another
solicitor.

Interviews

After a suspect is arrested, he should not be interviewed except at a police station other than in exceptional
circumstances – see Code C 11.1.

If a suspect has requested legal advice, he should not be interviewed until he has received advice save in the
exceptional circumstances referred to in Code C 6.6. Even if a suspect previously indicated that he did not want legal
advice he can change his mind at any point, even mid interview. If he does so, the interview should be stopped to
allow him to obtain legal advice.

Interviews are recorded. See Code E: PACE Code of Practice on Audio Recording Interviews with Suspects for the
procedure (Code F for visual recording with sound)

At the start, the police officer conducting the interview will repeat the caution. If the suspect then remains silent but
then at trial raises facts as part of his defence which he could have mentioned during interview, the court may draw
an ‘adverse inference’ from his silence – s.34 Criminal Justice and Public Order Act 1994.

Identification procedures

An arrested person may be detained not just so that he can be interviewed about his suspected involvement in a
criminal offence. The police may want to see if the victim or witnesses to the offence can visually identify the
suspect. The procedures the police must follow when obtaining identification evidence are set out in Code D: PACE
Code of Practice for the Identification of Persons by Police Officers.

An identification procedure must be held if an eye witness has identified a suspect, thinks he can do so or there is a
reasonable chance that he will be able to do so and the suspect disputes being the person the witness claims to have
seen – Code D 3.12.

Identification procedures are the responsibility of the identification officer, an officer not below the rank of inspector
and who is not involved in the investigation.

Where a suspect has been arrested, there are four different types of identification procedure available:
1. Video identification – see Code D Annex A;
2. Identification parade – see Code D Annex B;
3. Group identification – see Code D Annex C; and
4. Confrontation – see Code D Annex D.

The decision on which type of procedure to offer a suspect is made by the investigating officer in conjunction with
the identification officer. There is a hierarchy of procedures – see Code D 3.14. A suspect should initially be offered
a video identification

 Unless this is not practicable; or

 An identification parade is both practicable and more suitable; or
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  The officer in charge of the investigation considers that a group identification is more suitable and the
identification officer considers it practical to arrange.
 Confrontations are the last resort.

A suspect can refuse to consent to the identification procedure offered but his refusal can be used in evidence at
trial and the police could then arrange a confrontation or covert video or group identification.

Samples, fingerprints and photographs

These are other forms of identification evidence which may link a suspect to a crime or crime scene.

Non intimate samples, for example hair, saliva or from a nail, and fingerprints (and impressions of footwear) may be
taken from a suspect in police custody without consent if he has been detained for a recordable offence (ie one
which carries a possible sentence of imprisonment on conviction and certain other specified offences) and samples
have not been taken already or are not sufficient – ss.63(2A)-(2C), 61(3) PACE. Reasonable force can be used to do
so – see s.117 PACE.

Any person detained at a police station may also be photographed, with or without consent – s.64A PACE.

Charging the suspect

Once the police have exercised their investigative powers whilst the subject is detained at the police station, the
custody officer and/or the Crown Prosecution Service will then need to decide upon the next step.

There are 4 options:

1. To release the suspect without charge and without bail;
2. To release the suspect without charge but on bail whilst the police make further enquiries;
3. To release the suspect without charge but on bail (or keep him in police detention) for the purpose of
enabling the CPS to make a decision on charges; or
4. To charge the suspect (or offer him an alternative such as a formal caution or penalty notice. We shall be
looking at these alternatives in Large Group 31)

Where the decision is made to charge the suspect, he will be formally charged at the police station. He must be
cautioned and anything he says written down. He will be given a charge sheet which gives particulars of the offence.
The custody officer will then decide if the suspect should be kept in police custody until he can be brought before a
magistrates’ court or to release him on bail, which may be with or without conditions. See s.46 PACE for detention
after charge.

Summary

o All offences are classified as either indictable only, either way or summary
o Criminal court proceedings are governed by CrimPR
o Public funding of criminal defence is run by the LAA
o Applicants for representation orders must satisfy the interests of justice (merits) test and a means test
o Police investigative powers are granted mainly by PACE

o Powers include :
o stop and search
o arrest
o entry of premises, search and seizure

o PACE is supplemented by Codes of Practice containing detailed guidance on the exercise of those powers

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 o Detention treatment and questioning of suspects in the police station is governed by Code C

Which Code?

 Stop and search = Code A

 Police station questioning = Code C

 Audio recording of interviews = Code E

 Identification procedures = Code D

 Review of detention = Code C

 Search and seizure of property = Code B

Arrest

 Power of ‘citizen’s arrest’ – s.24A PACE

 Must be an ‘indictable offence’ and 2 other conditions to be satisfied – s.24A(3) & (4)

 After arrest, can be searched in the street for evidence relating to the assault (or theft) or any item which
may assist escape from custody – s.32(2) PACE

 Usual search will be of outer clothing, coat, jacket or gloves - s.32(4)

 Search must be reasonable in extent (s.32(3)) and there must reasonable grounds for believing that the
person to be searched may have a concealed item – s.32(5)

 See also Code A 3.4-3.7

Chapter 2—Powers to Stop, Search and Arrest

The power can be exercised if a police officer has a ‘reasonable suspicion’ that ‘a stolen or prohibited article’ may be
found. Details of power exercised under PACE CODE A.

What can the officer search for? PACE s.1(2) permits a constable to search any person or vehicle o anything in or on
a vehicle for ‘stolen or prohibited articles’. S.1(3)  officer can only search when there are reasonable grounds (1)
actual suspicion and (2) reasonable grounds.

Code A 2.6 which provides that reasonable suspicion may be based on ‘reliable information’ about gangs who may
habitually carry weapons or drugs.

Limitations on the Search?

Can only be done in a public place or a place to which the public have ready access at the time—S.1(1). Recording
the search is dealt under Code A 4. The suspect must be asked if they want a copy, and if they do, then I must be
handed over immediately.

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Use of Force
A forcible search can only take place if the person to be searched is unwilling to cooperate or otherwise resists.
Reasonable force can be used if necessary—Code A 3.2.

Searches by Consent
There is no power to search a person unless it is provided for by statute—Code A 1.5. An officer cannot justify a
search of a person by arguing that the person consented. In order for the search to be lawful, the statutory grounds
must be made out.

-Other powers to stop and search prior to arrest are under s. 60 Criminal Justice and Public Order Act 1994

Power to Arrest: Under s.24PACE. This is a wide-ranging power arrest without warrant persons for any criminal
offence, no matter how minor, subject to a requirement to show that the arrest was ‘necessary’. PACE Code G gives
guidance on the likely circumstances where the necessity test will be fulfilled. Other powers of arrest breach of
peace, arrest by warrant, community support officers. The test for necessity is in s.24(4) and s.24(5).

Cautions: Is a warning to a person that what they say or do not say may now have legal consequences. The terms of
the caution are laid down by the PACE Code C para 10.5.  ‘you do not have to say anything. But it may harm your
defence if you do not mention when questioned something which you later rely on in court. Anything you do may be
given in evidence’.

Should be cautioned? PACE Code C 10.1 provides that a caution should be given as soon as there are ‘grounds’ to
suspect a person of an offence. Reasonable grounds.

 Limiting the scope of the search Code A 3.5 stipulates that the officer may only require the suspect to
remove his outer coat, jacket and gloves. Search may only conducted by an officer of the same sex as
suspect (Code A 3.6).

 Reasonable force can be used if necessary Code A 3.2

 The recording of searches is deal with in Code A.4. Record of the search must be made at the time unless;
due to exceptional circumstances it is wholly impracticable to do so.

 Reasonable grounds for suspicion  there must be some objective basis for the suspicion—Code A 2.2-2.11

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Police Station
 Code C - Detention practice

 Code D – Identification procedures

Chapter 3—In the Police Station

 The role and duties of the custody officer are detailed in s.37 PACE.

 The job of the custody officer is to determine whether there is sufficient evidence to charge and if not,
whether there are grounds for detention. Must keep a custody record and must ensure that the detainee is
treated in accordance with PACE.

Custody Records- Code C2

A custody record must be opened as soon as practicable following the detainee’s arrival of the police station: C2.1

-Matters relating to the detainee must be recorded on the record

-While the suspect is detained: C2.4
-After the detainee has been release or taken to court, the detainee or solicitor are entitled to a copy of the
custody record if they request it.

Solicitor should always ask to see the custody record when arriving at the police station:
 What your client was arrested for, and when and where the arrest took place;
 The time your client arrived at the police station
 On what ground the custody officer authorized detention
 Whether your client was informed of, and whether he chose to exercise his rights to contact some and take
legal advise
 Whether any interviews have already taken place
 What other steps have occurred since detention this should include a risk assessment in respect of the
detainee (C 3.6) and
 Whether any significant comments ( or silences) from your client have been recorded.

Initial Action—Code C 3
When the suspect is brought to the police station the custody officer will need to:

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  Decide whether detention should be authorized
 Inform the detainee of his rights
 Conduct an immediate risk assessment

Being detained  When a person is arrested without a warrant is there sufficient evidence to charge the person?
If there then may only be detained until necessary s.37(1) PACE if there isn’t sufficient evidence s.37(2) PACE.

Informing the Detainee of his Rights—at the time of detention the detainee has 3 rights:
1. The right of intimation ( have someone informed of his whereabouts): s.56
2. The right to free legal advice: s.58 PACE and
3. The right to consult the PACE codes.

Search of the Person and taking Initial Samples:

1. Search of the person Code C 4.1

2. Intimate search s.55PACE, provides a power to carry out intimate searches at police stations. An intimate
search is one which consists of the physical examination of bodily orifices other than the mouth (Code C,
Annex A 1). Authorization from an officer of at least the rank of Inspector is required. If search is for drugs,
then written consent from the detainee is needed but an inference can be drawn from any refusal, without
good cause, to permit a search. Intimate searches should be conducted by a medical practitioner unless the
Inspector feels this is not practicable.

3. Fingerprints, footwear impression and other sample s. 61-63PACE. There are wide powers to take
fingerprints, footwear impressions and non-intimate samples from person who are under arrest.

4. Non-intimate samples include hair, samples taken from nails, swab from any part of the body, including
the mouth, saliva, or a skin impression. With both fingerprints and non-intimate samples consent is not
needed and reasonable force can be used.

5. Drugs Testing There is a power to test for the presence of drugs in the body in some circumstance, which
can then either be used to require the detainee to seek treatment, or the information about which can be
passed to the court for use in making a decision about bail.

Delaying the right of Intimation—s.56 and C 5

The right of intimation is the right to have a person known to the detainee or likely to take an interest in their
welfare and informed they are in jail—C5.1. Where that person cannot be contracted, the detainee can choose up to
two further people. Can only delay this if there is believe that notification to one’s family or friends may either lead
to interference with evidence or physical injury to other people, or lead to the altering of suspects who are still at
large, or will hinder the recovery of property obtained from the offence. POWER OF DELAY will only be acceptable
for indictable offence Code C, Annex B.

Conditions of Detention—Code C 8
Custody officer is responsible for the conditions of detention. There must be adequate heat, cleanliness, ventilation
and lighting in a cell. Reasonable standard—there must access to a toilet and washing facilities. Bedding must be
supplied and must be of a reasonable standard. If the detainee’s clothing has been removed for any purpose, then
replacement clothing of a reasonable standard must be provided. There should be two light meals and one main
mean every 24 hours. The detainee should be visited every hour, and if intoxicated through drink or drugs visited
and roused every half-hour. If medical treatment is needed a police surgeon or health care professional should be
called—Code C 9.

12
If allegation or complains of ill treatment since arrest, or it comes to the attention of an officer that he may have
been treated improperly, an independent officer of a least the rank of inspector must be informed. If allegation is of
assault or excessive force, health care professional must be called—Code C 9.2.

Reviewing of Detention –S.40 and Code C 15 review officer is responsible for deciding whether the suspect’s
detention continues to be necessary. If it is not, the suspect must be released.

Access to a Solicitor
A detainee is entitled to consult a solicitor privately at any time. He must be allowed to do so as soon as is
practicable following his request, except to the limited extent that the police are entitled to delay that access—s.58
PACE.

The Right to See a Solicitor get free advice from the duty solicitor—Code C6.1.

Can your client be interviewed before you arrive? The normal rule is that a person who wants legal advice may not
be interviewed or continue to be interviewed until he has received it. Code C6.6 provides that an interview can
still go ahead if either the provisions of Annex B to Code C apply

Advising Your Client

Checklist:
 Who are the arresting officers
 What is the alleged offence
 Is your client under arrest or a volunteer (walked in on his own)
 What the time of arrest was, and the reason why arrest was necessary
 What time did the detainee arrive at the station
 Whether any interview has yet taken place
 When legal advice was first requested and whether any legal advice has already been given
 The result of the risk assessment

Attending the client at the Police Station

1. Speak first to the custody officer to at the custody record—Code C2.4

a. Custody record time of arrest, detention, review, any searches and their results, any delays, any
interviews, any significant comments or silences, any identification procedure that have taken place,
any medical issues, what the offences are

2. Officer of the case is not obliged to tell you anything at this stage –only requirement to disclose original
descriptions given by identification witnesses—Code D 3.1

3. Officer not required by law to disclose information, most officers are prepared to give you some information
about the offence, as they recognise you may otherwise need to keep stopping the interview to take
instructions. Must press the officer for as much disclosure as possible.

4. Are there any gaps—may have difficulty in obtaining a statement from the alleged victim? Any damaging
admissions, whether at the scene of the crime or on his way to the police station??

5. No right to see the witness statements that police have taken

Professional Conduct

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 Client is attempting to forward a false evidence = must stop representing him/her

Right to Silence & the danger of inferences the basic principle remains that your client has an absolute right to
silence. This means that he does not have to answer any police questions BUT remaining silent an inference can be
drawn by this either making it up and taking the time to decide what the ‘truth’ is.

Answering Police Questions

 If talks, he may talk himself into all kinds of trouble

 If your client puts forward his defence now, it will look terrible if he tries to change the details at a later
stage

 Client stays silent, but then puts forward a defence at trial, the prosecution and the judge can invite the jury
to draw inference from his failure to put forward his defence now

 If your client answers the easy questions but doesn’t answer the hard ones, the tape of the interview can be
played to the jury and it sounds very incriminating

 If you client is adamant that he is guilty and wants to confess, he will get the maximum discount for co-
operating with the police at this early stage. Alternatively, another advantage is that a confession at this
stage could lead to a caution rather than prosecution.

Consider:

-Strength of police evidence

-Issues of admissibility of police evidence

-Fairness of the interview and the general condition and abilities of the clients

Interview

Police Conduct that May Warrant an Intervention:

 Twisting the clients’ words to suit the police account

 Misrepresenting the purpose of the interview

 Misrepresenting the law

 Disclosing new evidence

 Raising new evidence

 Raising previous convictions

 Asking multiple questions

 Failing to give the client chance to respond to a question

 Oppressive behaviour –raised voices or forcing eye contact

14
  Asking irrelevant questions

 Asking hypothetical questions

 When your client starts to answer questions

 When you client start to blame other or raise bad character issues

 The officer gives his own opinion.

Excluding Solicitor from the Interview? Can only be excluded if your conduct is such that ‘investigating officer is
unable properly to put questions—Code C 6.9

 Code C makes clear that removal of a solicitor is a serious step.

 Interview has to be stopped if detainee asks to stop the interview and seek legal advice.

 The solicitor should be careful and not be silent – his presence will cure the breach, if it later relied
upon at court.

Bail Applications
Large Group 28  The First Court Hearing, Bail, Allocation, Transfer and Disclosure

First Hearings

All criminal prosecutions start in the magistrates’ court, although some (indictment only) will swiftly be transferred
to the Crown Court. Some (either way offences) can be heard in either court.

Criminal Justice: Simple, Speedy Summary (CJSSS) Now supplemented by the Stop Delaying Justice initiative

The aim of CJSSS is for criminal justice agencies to work together to improve the criminal justice system for the
public. Specific aims are:

 A reduction in the number of hearings from the current average of five to an expectation of one (for guilty
pleas) and two (for contested cases).

15
  Simple cases taking on average between one day to six weeks from charge to disposal, as opposed to the
previous system which averages 21 plus weeks.

How CJSSS helps

Pre-court, the scheme will ensure that:

 The prosecution is ready so the first hearing is effective and proportionate.

 The level of information is appropriate and sufficient for the type of charge, expectation of plea and court
decisions.

 All appropriate information is given to the defence and the court so the defence is ready to ensure the first
hearing is effective.

At First Hearing:

 Judiciary will ensure issues are identified.

 Defendant will enter a plea.

 Where a guilty plea is entered, sentencing will take place on the same day where possible.

 Where a not guilty plea is entered, an effective trial date will be fixed within four to six weeks.

From First Hearing to Trial, the Scheme Will Ensure:

 The case management regime is appropriate to the seriousness of the case.

 Pre-trial reviews will be by exception.

 Case progression will take place outside the courtroom; interim hearings will take place only where
necessary.

 Trials proceed where appropriate on the appointed day in the absence of the defendant where there is a
failure to appear.

Benefits for the Defence Include:

 Solicitors and legal representatives are in a better position to advise their client and ensure the appropriate
plea is entered at first hearing.

 More guilty pleas are dealt with at first hearing.

 The standard fee goes further.

 Fewer attendances at hearings.

 Proportionate advance information is available.

 The level of Crown Prosecution Service (CPS) case file preparation is better.

 Earlier payment as cases are resolved more quickly.

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Summary Offences:

For a defendant appearing before a magistrates’ court for a summary offence, matters can proceed in one of two
ways:

 The legal adviser (to the magistrates) will read out the charge to the defendant and confirm his solicitor has
received advance disclosure of the prosecution case.

 The legal adviser will ask the defendant how he will plead.

 The legal adviser will also tell the defendant that if he pleads guilty before the magistrates he will be
sentenced either on that day or after an adjournment for a pre-sentence report.

 The legal adviser will then ask the defendant for his plea.

 If the defendant pleads guilty, the prosecutor will outline the facts and provide details of any previous
convictions.

 Unless the case is to be adjourned for a pre-sentence report, the defendant’s solicitor will then deliver a plea
in mitigation on the defendant’s behalf.

The Magistrates Will Then Either:

1. Sentence the defendant; or

2. Adjourn the case for a report before sentencing.

If the defendant pleads not guilty, an effective trial date will be fixed within 4-6 weeks and the court will give case
management directions.

Either Way Offences:

For a defendant appearing before a magistrates’ court on an either way charge, matters can proceed in one of two
ways.

The first is the plea before venue procedure (from CrimPR Part 9);

Adult defendant: request for plea

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  The legal adviser (to the magistrates) must read the allegation of the offence to the defendant and explain
the allegation, unless it is self-explanatory and that the offence is one which can be tried in a magistrates’
court or in the Crown Court.

 The legal adviser will ask whether the defendant intends to plead guilty and if so, it then must treat that as a
guilty plea and must sentence the defendant, or commit the defendant to the Crown Court for sentence.

 If the defendant does not answer, or the answer is ‘no’, then the court must decide whether to allocate the
case to a magistrates’ court or to the Crown Court for trial.

 If the court allocates the case to a magistrates’ court for trial, the defendant can nonetheless require trial in
the Crown Court.

 The legal adviser must then ask whether the defendant intends to plead guilty.

Adult defendant: guilty plea

 Where the defendant indicates an intention to plead guilty, the court must exercise its power to deal with
the case as if the defendant had just pleaded guilty to an offence that can be tried only in a magistrates’
court.

Allocation and sending

Adult defendant: not guilty plea

 Where the defendant indicates an intention to plead not guilty, or gives no indication of intended plea, the
legal adviser must then ask whether the defendant agrees to be tried in a magistrates’ court, and if the
answer to that question is ‘yes’, then the court must order such a trial.

 The legal adviser will invite the prosecutor to identify any previous convictions of which it can take account,
and make representations about how the court should allocate the case for trial, including representations
about the value involved, if relevant;

 The legal adviser will invite the defendant to make such representations.

 The court will exercise its power to allocate the case for trial, taking into account the adequacy of a
magistrates’ court’s sentencing powers, any representations by the parties, and any allocation guidelines
issued by the Sentencing Council.

Adult defendant: allocation for magistrates’ court trial

 Where the court allocates the case to a magistrates’ court for trial the legal adviser must explain, in terms
the defendant can understand, that the court considers the case more suitable for trial in a magistrates’
court than in the Crown Court but if the defendant is convicted at a magistrates’ court trial, then in some
circumstances the court may commit the defendant to the Crown Court for sentence.

 If the defendant does not agree to a magistrates’ court trial, then the court must send the defendant to the
Crown Court for trial. Before deciding whether to accept magistrates’ court trial, the defendant may ask the
court for an indication of whether a custodial or non-custodial sentence is more likely in the event of a guilty
plea at such a trial, but the court need not give such an indication.

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  If the defendant asks for such an indication of sentence and the court gives such an indication the court must
then ask again whether the defendant intends to plead guilty. If in answer to that question, the defendant
indicates an intention to plead guilty, then the court must exercise its power to deal with the case as if the
defendant had just pleaded guilty to an offence that can be tried only in a magistrates’ court.

 But if, in answer to that question, the defendant indicates an intention to plead not guilty, or gives no
indication of intended plea, in the following sequence the court must then ask whether the defendant
agrees to trial in a magistrates’ court and if the defendant’s answer to that question is ‘yes’, order such a
trial.

 If the defendant does not answer that question, or the answer is ‘no’, the court will allocate and send to the
Crown Court.

Indictment only offences

A defendant appearing before a magistrates’ court for an indictment only offence should normally be sent to the
Crown Court after a first magistrates’ court hearing – s.51 Crime and Disorder Act 1998

Bail
Remands and adjournments

The prima facie right to bail: s.4 Bail Act 1976

Imprisonable offences

Even in situations where your client may have a prima facie right to bail under s.4 Bail Act, this does not mean that
the court has to grant bail. The right can be displaced on grounds, which are set out in Bail Act Schedule 1, Part 1,
para 2. The Schedule 1 “grounds”, i.e. bail refusal:

Non-imprisonable offences

Where an offence is not imprisonable, it is obviously rare for remands in custody to be appropriate. The grounds for
refusing bail in such circumstances are set out in Schedule 1 Part II, para 2, Bail Act 1976. They are limited to cases
where the defendant has previously failed to answer to bail and the court believes either that he will do so again or
that it is necessary for his own protection, or he is already serving a custodial sentence.

Bail conditions

If no relevant and sufficient reasons exist for refusing bail – suspect should be released.

If relevant and sufficient reasons do exist – suspect should be released in any case if the reasons for refusing bail can
be met by imposing bail conditions, e.g.:

 Sureties
 Residence and reporting
 Curfews, tagging, bail hostel and exclusion
 Surrender of passport
 Attending a legal adviser

Consequences of Failure to Answer Bail

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Failure to answer to bail will have serious consequences for your client. First, failure to surrender is an imprisonable
offence under s.6 Bail Act; secondly, failure to surrender will often mean that bail is not re-granted; finally, your
client may be tried in his absence if he fails to attend.

Structure of a bail application

Contested applications:

Basic outline

Step 1

Prosecution applies for remand in custody

Step 2

Prosecution outlines circumstances of current offence and objections to bail and hands in the defendant’s
criminal record

Step 3

Defence puts forward arguments in favour of bail

Step 4

Magistrates decide whether to grant bail with or without conditions or to remand in custody

The defence should focus on answering the prosecution objections, dealing with each ground raised in turn.

Dealing with the first prosecution objection to bail, namely that my client would commit further offences if granted
bail, I submit on my client’s behalf that... Turning to the second objection, that my client would interfere with
witnesses if granted bail, I submit that…”

Should you offer conditions?

20
You need to check with your client that he is willing to submit to bail conditions. Assuming he is, you can address the
magistrates on appropriate conditions after you have addressed them about unconditional bail if it is clear that they
are not inclined to grant your client unconditional bail. Alternatively, it may be quite clear at the outset that there is
very little prospect of the magistrates granting your client unconditional bail, given the strength of the prosecution’s
arguments for a remand in custody and/or seriousness of the offence(s). Then it is proper to mention appropriate
conditions of bail when dealing with the prosecution objections to bail in turn, arguing how those objections can be
met by the conditions you propose.

Renewed applications

Disclosure

Initial disclosure-- CrimPR 21.2 obligations

Section 9 Criminal Justice Act 1967

Section 9 of the Act provides that if the conditions in that section are satisfied (which includes agreement between
prosecution and defence), a written statement can be admissible in evidence in the same way as oral evidence.

Defence witnesses

Under section 6C of the Criminal Procedure and Investigations Act 1996, in both the Crown Court and the
magistrates’ courts, the defendant must give a defence witness notice indicating whether he or she intends to call
any witnesses (other than him or herself) and, if so, identifying them.

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Obligations under Criminal Procedure and Investigations Act 1996

The Police are under a duty to retain and disclose to the CPS all evidence
which may be relevant.

(s.3 CPIA 1996)

Duty on the CPS to disclose any ‘unused’ prosecution material which might
reasonably be capable of undermining the prosecution case or assisting the
defence case.

Schedule of ‘unused materials’ should accompany service of ‘used materials' by

CPS after a NG plea for summary trial, after transfer for an EW case going to the
Crown Court and after transfer to Crown Court for indictment only cases.

If none then confirmation required from CPS.

(ss.5 & 6 CPIA 1996)

Defence MAY (magistrates’ court) MUST (Crown Court) provide a Defence

Statement.

Defence MUST notify of intention to call defence witnesses

Will be within 14 days of CPS disclosure in magistrates’ court and within 28 days
of CPS disclosure in Crown court

s.7A CPIA 1996)

Prosecution is under continuing duty of disclosure

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Defence statement (s.6A CPIA 1996)

Requirements of a defence statement

 nature of defence
 facts at issue
 reasons why defence takes issue on facts
 particulars of the matters of fact relied upon in the defence
 points of law to be raised by defence
 alibi details (if alibi defence alleged)

CLASSIFICATION OF OFFENCES

Type of Offence Triable only on Indictment Triable Either Way Triable only Summarily

1. Offences against the Murder Inflicting grievous bodily harm Common assault
person
Manslaughter Unlawful wounding Assault on a police officer in
the execution of his duty
Attempt to procure an Assault occasioning actual
abortion bodily harm

Causing grievous bodily Assault with intent to resist

harm with intent arrest

2. Sexual offences Rape (including buggery) Sexual activity with a child (13- Soliciting
16)
Assault of a child under 13
by penetration Sexual assault

Sex with an adult relative

Exploitation of prostitution

3. Theft Act offences Robbery All Theft Act offences not being Taking a motor cycle without
in the other two categories consent
Aggravated burglary
Taking a pedal cycle without
Blackmail consent

Assault with intent to rob

Burglary of a dwelling with

threats to occupants

4. Criminal damage Damage or arson with Damage where the value Damage where the value
intent to endanger life involved is over £5,000 involved is £5,000 or less

5. Road Traffic Causing death by dangerous Dangerous driving Most other traffic offences
driving
e.g.

23
 Speeding

Failing to report an accident

Driving while disqualified

Driving without insurance

Drunk in charge of a motor

vehicle

Failing to stop at a red traffic

light

Aggravated TWOC where

only damage caused and of
value less than £5,000

6. Miscellaneous Perjury Carrying a loaded firearm in a Interference with vehicles

public place Being drunk and disorderly
Attempting to pervert the
course of justice Shortening a shotgun Obstructing the police

Possessing a firearm with Having an offensive weapon in Using threatening words or

intent to endanger life a public place behaviour

Using a firearm to resist Violent disorder Dropping litter

arrest
Affray Failure to pay TV licence
Carrying a firearm to
commit an indictable Stirring up racial hatred All offences under the
offence Factories Act 1961
Offences under the Forgery
Collecting, communicating and Counterfeiting Act 1981
etc information intended to
Offences under the Misuse of
be useful to an enemy
Drugs Act 1971
Riot

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Bail
 Release of a person from the police station or court

 Obligation to return to police station or attend court

 Failure to comply is a new offence in itself: “failure to answer bail”

Prima Facie Right to Bail  S.4 Bail Act 1976

“(1) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act.”

Statutory exceptions

1. S.25 CJPOA 1994 – charged with murder, rape, etc

• Charged / convicted of offence listed in s.25

AND

• Previous conviction (in UK) for an offence listed in s.25

Bail can only be granted if satisfied

exceptional circumstances justify it

2. S.14 CJA 2003 – class A offences

3. Para 2A sch 1 Part 1 BA 1976 – indictable offences

4. Para 2A sch 1 Part 1 BA 1976 – max sentence life imprisonment

Losing Right to Bail

 Para 2(1) Sch 1 Part 1 BA 1976

 Substantial grounds for believing that if

 released on bail D would:

 Fail to surrender to custody (‘FTS’)

 Commit further offences (‘CFO’)
 Interfere with witnesses/justice (‘IWW’)

Para 9 Factors

25
The court shall have regard to:

• Nature and seriousness of the offence

• Character antecedents, associations, community ties

• Previous bail record

• Strength of the evidence

Remember these for bail advocacy

S.19 CJA 2003 – Drug Offending

“ The court may not grant bail unless it is satisfied that there is no significant risk of the defendant committing an
offence whilst on bail”

Para 2A—Indictable Offence

The court need not grant bail if:

• Indictable offence

AND

• D was on police or court bail at the time the offence was committed

Bail Conditions

S.3(6) BA 1976 necessary to:

 Secure attendance at court

 Prevent committing an offence on bail

 Prevent interfere witnesses/justice

 Ensure attends probation to prep report

 Ensure attends legal advisor

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Structure of Bail Applications

• Introduction – who are/represent/request bail with/without conditions

• FTS - meet objections / raise additional factors in support

• CFO – meet objections / raise additional factors in support

• IWW – meet objections / raise additional factors in support

• Conditions

• Summarise, what requested, grounds, conditions

 If refused, renewed applications can only be made if a new legal or factual argument for bail can
be made

Your Bail Applications

• You speak after P has outlined its objections

• Shorter than civil, so only 4-5 minutes

• No court bundle

• Do not refer to client’s proof (no need to refer to documents)

• “My client’s instructions are…”

• Bail application is not a trial and so formal rules of evidence do not apply (contrast with civil hearings)

Renewed Applications

Usual rule
27
 • RIC basic rule – 8 clear days at a time

• D only need be brought before court on every 4 th remand, if he so consents and has sols

Exceptions

Court may RIC for up to 28 days if

• There has been a previous RIC

• D is before the court; and

• Court can set date for next stage of proceedings, e.g. PBV/AOT/Trial – see ss.128 & 128A MCA 1980

Initial Disclosure

 CrimPR 10.2 requires P at, or before the beginning of the day of the first hearing, to provide to D and the
court ‘initial details’ of the case

 Summary of P evidence, statements and documents

 Not P witness statements

 List of D’s previous convictions

*MUST know how to prepare and present an effective bail application

DEFENCE STATEMENT

(Criminal Procedure and Investigations Act 1996, s.5 & 6; Criminal Procedure and Investigations Act 1996 (Defence
Disclosure Time Limits) Regulations 2011; Criminal Procedure Rules, rule 22.4)

Part 2: Nature of the defence

Under section 6A of the Criminal Procedure and Investigations Act 1996, you must:

(a) set out the nature of your defence, including any particular defences on which you intend to rely;

The defendant denies the offence because he was not present at any stage in the staff locker room between 10.30
am and 10.45 am on 20 November 2013 during which time the alleged offence took place.

(b) indicate the matters of fact on which you take issue with the prosecutor, and in respect of each explain why;

The defendant takes issue with the prosecution case that he stole a wallet, a bus pass and cash.

28
(c) set out particulars of the matters of fact on which you intend to rely for the purposes of your defence;

The defendant was outside the premises of Superstore Limited, walking to and from a shop known as A & B
Newsagents in Hackney Way, Sidcup, between the said times. In support of such contention, he will rely on the
evidence of Charles Spencer.

(d) indicate any point of law that you wish to take, including any point about the admissibility of evidence or
about abuse of process, and any authority relied on; and

None.

(e) if your defence statement includes an alibi (i.e. an assertion that you were in a place, at a time, inconsistent
with you having committed the offence), give particulars, including -

(i) the name, address and date of birth of any witness who you believe can give evidence in support of that
alibi, or as many of those details as are known to you when this statement is given; and
(ii) any information in your possession which might be of material assistance in identifying or finding any such
witness in whose case any of such details are not known to you when this statement in given.

When the alleged offence took place I was at all times in the company of the following witnesses who will give
evidence in support of this alibi:

Trial Preparations & Procedures

Sentencing: Extracts of law

1. Sentencing Aims

Criminal Justice Act 2003

S.142 Purposes of sentencing

(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of
sentencing—
(a) the punishment of offenders,
(b) the reduction of crime (including its reduction by deterrence),
(c) the reform and rehabilitation of offenders,
(d) the protection of the public, and
(e) the making of reparation by offenders to persons affected by their offences.
(2) Subsection (1) does not apply—
(a) in relation to an offender who is aged under 18 at the time of conviction,
(b) to an offence the sentence for which is fixed by law,
…

(3) In this Chapter “sentence”, in relation to an offence, includes any order made by a court when dealing with the
offender in respect of his offence; and “sentencing” is to be construed accordingly.

2. Seriousness of the offence

S.143 Determining the seriousness of an offence

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(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing
the offence and any harm which the offence caused, was intended to cause or might forseeably have caused.
(2) In considering the seriousness of an offence (“the current offence”) committed by an offender who has one or
more previous convictions, the court must treat each previous conviction as an aggravating factor if (in the case of
that conviction) the court considers that it can reasonably be so treated having regard, in particular, to—
(a) the nature of the offence to which the conviction relates and its relevance to the current offence, and
(b) the time that has elapsed since the conviction.
(3) In considering the seriousness of any offence committed while the offender was on bail, the court must treat
the fact that it was committed in those circumstances as an aggravating factor.
(4) Any reference in subsection (2) to a previous conviction is to be read as a reference to—
(a) a previous conviction by a court in the United Kingdom
[(aa) a previous conviction by a court in another member State of a relevant offence under the law of that State,]…

Extracts from the Sentencing Guidelines Council Guidance Overarching Principle: Seriousness December 2004
(paraphrased)

B. Culpability
Four levels of criminal culpability can be identified for sentencing purposes:

Where the offender:

(i) has the intention to cause harm, with the highest culpability when an offence is planned. The worse the harm
intended, the greater the seriousness.

(ii) is reckless as to whether harm is caused, that is, where the offender appreciates at least some harm would be
caused but proceeds giving no thought to the consequences even though the extent of the risk would be obvious to
most people.

(iii) has knowledge of the specific risks entailed by his actions even though he does not intend to cause the harm that
results.

(iv) is guilty of negligence.

Where the offences is one of strict liability and no culpability need be proved for the purposes of obtaining a
conviction the degree of culpability is still important when deciding sentence. The extent to which recklessness,
knowledge or negligence are involved in a particular offence will vary.

C Harm
S.143 is widely drafted so that it encompasses those offences where harm is caused but also those where neither
individuals nor the community suffer harm but a risk of harm is present.

(i) To Individual Victims

• The types of harm caused or risked by different types of criminal activity are diverse and victims may suffer
physical injury, sexual violation, financial loss, damage to health or psychological distress. There are gradations of
harm within all of these categories.

• The nature of harm will depend on personal characteristics and circumstances of the victim and the court’s
assessment of harm will be an effective and important way of taking into consideration the impact of a particular
crime on the victim.

• In some cases no actual harm may have resulted and the court will be concerned with assessing the relative
dangerousness of the offender’s conduct; it will consider the likelihood of harm occurring and the gravity of the
harm that could have resulted.
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(ii) To the Community
• Some offences cause harm to the community at large (instead of or as well as to an individual victim) and
may include economic loss, harm to public health, or interference with the administration of justice.

(iii) Other Types of harm

• There are other types of harm that are more difficult to define or categorise. For example, cruelty to animals
certainly causes significant harm to the animal but there may also be a human victim who also suffers psychological
distress and/or financial loss.
• Some conduct is criminalised purely by reference to public feeling or social mores. In addition, public
concern about the damage caused by some behaviour, both to individuals and to society as a whole, can influence
public perception of the harm caused, for example supply of prohibited drugs

S.144 Reduction in sentences for guilty pleas

(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before
that or another court, a court must take into account—

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which this indication was given.

3. Custody Threshold

S.152 General restrictions on imposing discretionary custodial sentences

(1) This section applies where a person is convicted of an offence punishable with a custodial sentence other than
one—
(a) fixed by law, or
…

(2) 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.
(3) Nothing in subsection (2) prevents the court from passing a custodial sentence on the offender if—
(a) he fails to express his willingness to comply with a requirement which is proposed by the court to be included
in a community order and which requires an expression of such willingness, or
(b) he fails to comply with an order under section 161(2) (pre-sentence drug testing).

4. Community Threshold

S.148 Restrictions on imposing community sentences

(1) A court must not pass a community sentence on an offender 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 such a
sentence.
(2) Where a court passes a community sentence. . .—
(a) the particular requirement or requirements forming part of the community order[, or, as the case may be,
youth rehabilitation order, comprised in the sentence] must be such as, in the opinion of the court, is, or taken
together are, the most suitable for the offender, and
(b) the restrictions on liberty imposed by the order must be such as in the opinion of the court are commensurate
with the seriousness of the offence, or the combination of the offence and one or more offences associated with it.
…

(4) Subsections (1) and (2)(b) have effect subject to section 151(2).
[(5) The fact that by virtue of any provision of this section—
(a) a community sentence may be passed in relation to an offence; or
31
(b) particular restrictions on liberty may be imposed by a community order or youth rehabilitation order,
does not require a court to pass such a sentence or to impose those restrictions.]

S.149 Passing of community sentence on offender remanded in custody

(1) In determining the restrictions on liberty to be imposed by a community order or [youth rehabilitation order] in
respect of an offence, the court may have regard to any period for which the offender has been remanded in custody
in connection with the offence or any other offence the charge for which was founded on the same facts or
evidence.
(2) In subsection (1) “remanded in custody” has the meaning given by section 242(2).

Coroners and Justice Act 2009

S.120 Sentencing Guidelines

(1) In this Chapter “sentencing guidelines” means guidelines relating to the sentencing of offenders.
(2) A sentencing guideline may be general in nature or limited to a particular offence, particular category of
offence or particular category of offender.
(3) The Council must prepare—
(a) sentencing guidelines about the discharge of a court's duty under section 144 of the Criminal Justice Act 2003
(c 44) (reduction in sentences for guilty pleas), and
(b) sentencing guidelines about the application of any rule of law as to the totality of sentences.
…

(8) In any other case, the Council may, after making such amendments, issue them as definitive guidelines.
(9) The Council may, from time to time, review the sentencing guidelines issued under this section, and may revise
them.
…

(11) When exercising functions under this section, the Council must have regard to the following matters—
(a) the sentences imposed by courts in England and Wales for offences;
(b) the need to promote consistency in sentencing;
(c) the impact of sentencing decisions on victims of offences;
(d) the need to promote public confidence in the criminal justice system;
(e) the cost of different sentences and their relative effectiveness in preventing re-offending;
…
S.121 Sentencing Ranges
(1) When exercising functions under section 120, the Council is to have regard to the desirability of sentencing
guidelines which relate to a particular offence being structured in the way described in subsections (2) to (9).
(2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one
or more of the factors mentioned in subsection (3), different categories of case involving the commission of the
offence which illustrate in general terms the varying degrees of seriousness with which the offence may be
committed.
(3) Those factors are—
(a) the offender's culpability in committing the offence;
(b) the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence;
(c) such other factors as the Council considers to be particularly relevant to the seriousness of the offence in
question.
(4) The guidelines should—
(a) specify the range of sentences (“the offence range”) which, in the opinion of the Council, it may be appropriate
for a court to impose on an offender convicted of that offence, and
(b) if the guidelines describe different categories of case in accordance with subsection (2), specify for each
category the range of sentences (“the category range”) within the offence range which, in the opinion of the Council,
it may be appropriate for a court to impose on an offender in a case which falls within the category.
(5) The guidelines should also—
(a) specify the sentencing starting point in the offence range, or

32
(b) if the guidelines describe different categories of case in accordance with subsection (2), specify the sentencing
starting point in the offence range for each of those categories.
(6) The guidelines should—
(a) (to the extent not already taken into account by categories of case described in accordance with subsection (2))
list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required
to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors
which the Council considers are relevant to such a consideration,
(b) list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the
offence, and
(c) include criteria, and provide guidance, for determining the weight to be given to previous convictions of the
offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular
significance in relation to the offence or the offender.
…

(9) The provision made in accordance with subsections (2) to (8) may be different for different circumstances or
cases involving the offence.
(10) The sentencing starting point in the offence range—
(a) for a category of case described in the guidelines in accordance with subsection (2), is the sentence within that
range which the Council considers to be the appropriate starting point for cases within that category—
(i) before taking account of the factors mentioned in subsection (6), and
(ii) assuming the offender has pleaded not guilty, and
(b) where the guidelines do not describe categories of case in accordance with subsection (2), is the sentence
within that range which the Council considers to be the appropriate starting point for the offence—
(i) before taking account of the factors mentioned in subsection (6), and
(ii) assuming the offender has pleaded not guilty.

S.125 Sentencing guidelines: duty of court

(1) Every court—

(a) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and

(b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines
which are relevant to the exercise of the function,
unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2) Subsections (3) and (4) apply where—

(a) a court is deciding what sentence to impose on a person (“P”) who is guilty of an offence, and

(b) sentencing guidelines have been issued in relation to that offence which are structured in the way described in
section 121(2) to (5) (“the offence specific guidelines”).

(3) The duty imposed on a court by subsection (1)(a) to follow any sentencing guidelines which are relevant to the
offender's case includes—

(a) in all cases, a duty to impose on P, in accordance with the offence specific guidelines, a sentence which is within
the offence range, and
33
(b) where the offence-specific guidelines describe categories of case in accordance with section 121(2), a duty to
decide which of the categories most resembles P's case in order to identify the sentencing starting point in the
offence range;
but nothing in this section imposes on the court a separate duty, in a case within paragraph (b), to impose a
sentence which is within the category range.

(4) Subsection (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence
within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P's
case.

(5) Subsection (3)(a) is subject to—

(a) section 144 of the Criminal Justice Act 2003 (c. 44) (reduction in sentences for guilty pleas),
…
(8) In this section—
…
“sentencing guidelines” means definitive sentencing guidelines.

1. What Will You do to Prepare for Summary Trial?

• Advocate booked
• Client told of date (if on bail)
• Witnesses pre-warned
• Finalise client’s proof of evidence and statements of other witnesses
• Any other evidence? E.g. photos or plans etc.
• Ensure CPS have been served with defence witness notice
• Finalise client’s comments on prosecution evidence
• Complete and lodge at court the form: Preparation for Trial in a Magistrates’ Court, see CrimPR Part 3
• See also the protocol: Essential Case Management: Applying the Criminal Procedure Rules, December 2009

2. How Will You Analyse the Case Against Your Client?

 Three main methods

 Whichever one is used, identify the legal elements of the charge, i.e. that the named defendant committed
the acts reus with mens rea and that all are present
 Identify the fact(s) in issue, i.e., is identity disputed, is consent disputed, or that the defendant took a
particular action disputed?
 Identify any weaknesses (evidential or legal) in the prosecution case
 Work outConsider:
your line of defence

Mitigating factors

Damage?

First offence?

Remorse?

Co-operative with police

Aggravating factors

Multiple offending?

Element of planning?

Previous convictions? 34
Offended whilst on bail (see s.143 CJA 2003)
*Look at sentencing guidelines

If pleading guilty S.144 CJA 2003 – reduction in sentence for a guilty plea.

 Depending when plea entered, reduction will be of one third, one quarter or one tenth of sentence imposed.

 May also be used as a genuine expression of remorse and so to reduce core offences.

 May try to argue that the early guilty plea may reduce her sentence from a community penalty to a fine.

Sentencing Proposal

• Argue that community penalty appropriate,

• if not accepted propose suspended sentence,
• if not accepted propose short term of imprisonment.

Sentencing –Plea in Mitigation

Outline of Mitigation

1. Introduction (and check court has PSR)

2. Sentencing Guidelines and threshold reached through seriousness

3. Use PSR

4. Offence – mitigating & aggravating factors

5. Offender mitigation

6. Credit for guilty plea

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 7. Sentencing proposal (relate to sentencing purposes)

8. Summarise

Using Sentencing Guidelines

Seriousness

Prosecution Defence

Agg. Factors Offence Mitigation

Threshold Offender Mitigation

Entry Point Credit

Anything Else

Sentence

Suspended Sentences

• Supervision period’ - to undertake one or more community requirements

• ‘Operational period’ – to commit no further offences

• Breach of above may lead court to activate period of imprisonment

Defence Statements. Bad Character Evidence

The Defence Statement

Contents

S.6A Criminal Procedure and Investigations Act 1996

A defence statement is a written statement which must:

 set out in general terms the nature of the accused’s defence, including any particular defences on which he
intends to rely;
 indicate the matters of fact on which he takes issue with the prosecution;
 set out why he takes issue on each of those matters;

36
  set out particulars of the matters of fact on which he intends to rely for the purposes of his defence;
 indicate any point of law he wishes to take at trial and any legal authorities relied on; and
 provide particulars of any alibi relied on, including the names, addresses and dates of birth of any alibi
witnesses whom the defendant intends to call. If he does not know these details he must give any
information he has which might assist in identifying or finding them.

Drafting

The natural tendency of defence lawyers is not to give too much away in the defence statement, not wanting to help
the prosecution prepare its case or to prejudice the defendant should he put forward a different defence at trial.
However, too thin a defence statement can also lead to problems for the defendant. Adverse inferences can be
drawn at trial and prosecution disclosure may be inadequate, as the prosecution does not know what the defence
case is.

Bad Character

 Defined in s.98 CJA 2003

Section 101 gateways

Gateway A – Agreement of all parties

Gateway B – Adduced by the defendant himself

Gateway C – Important explanatory evidence

Gateway D – Relevant to an important issue between the prosecution and defence

An ‘important issue’ expressly includes whether the defendant has a propensity to be untruthful or a propensity to
commit offences of the kind with which he has been charged – s.103(1).

But may include evidence which does not necessarily show a propensity.

Discretion to exclude –

S.103(3) - Evidence will not be admitted if, by reason of the length of time since the conviction or for any other
reason, this would be unjust.

and s.101(3) – The court must not admit evidence if, on the defendant’s application to exclude it, it appears that the
admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought
not to admit it. On an application under s.101(3), the court must have regard, in particular, to the length of time
between the matters to which that evidence relates and the matters which form the subject of the offence charged –
s.101(4).

In Hanson [2005] EWCA Crim 824, the Court of Appeal provided guidance as to the factors to consider for admitting
previous convictions which include:

37
  the number of convictions – although a single previous conviction may be enough to demonstrate propensity if it
shows unusual behaviour or a particular modus operandi;
 the similarity of conviction(s) to offence charged; (often, the similarity in the factual circumstances of the offence
will also need to be considered)
 the gravity of conviction(s);
 the age of conviction(s) – old convictions with no special feature are likely to be excluded under s.103(3) unless
they show a continuing propensity; and
 the strength of prosecution case

Gateway E – Substantial probative value to an important matter in issue between the defendant and a co-defendant

Gateway F – To correct a false impression given by the defendant

Gateway G – Defendant had attacked another’s character

Gateway A P or D Agreement

Gateway B D Adduced by the defendant

Gateway C P or Co- Important explanatory evidence

D
Gateway D P only Relevant to an important matter in issue between P & D
Propensity? 1. Same offence 2. Same category 3. Different but relevant
Discretion to exclude under ss 101(3) and 103(3). See Hanson principles - manual page
254, 258

Gateway E Co-D Substantial probative value to important matter in issue – two or more Ds and one D
only wants to rely on previous bad character of co-defendant (eg Co-D may have propensity
to be untruthful). PROBABLY WILL NOT BE USED IN EXAM

Gateway F P only Where D has given false impression in proceedings or when questioned by the police or
at point of charge
Note - relevant to police station advice as catches false impressions put forward at early
stage

Gateway P only When D has made an attack on another person. Includes imputations made by D when
G questioned under caution or at point of charge
S.101(3) discretion to exclude

Procedure for admitting bad character evidence

If a party intends to adduce bad character evidence, notice must be given pre-trial under CrimPR 35.

If the prosecution intends to rely on evidence of the defendant’s bad character, it must give notice not more than 28
days after the defendant pleads not guilty in the magistrate’s court or, in the Crown Court, not more than 14 days
after the defendant pleads not guilty. A co-defendant who intends to rely on his co-accused’s bad character must
serve notice not more than 14 days of the prosecution disclosure on which the notice is based.

38
Where any party wants to adduce evidence of the bad character of someone other than a defendant, an application
to do so must be served not more than 14 days after the prosecutor disclosed the material on which the application
is based.

The party served with notice of intention to adduce bad character evidence can then apply to exclude the evidence
within 14 days.

The court has discretion to vary these time limits.

The Advocates’ Questionnaire which is completed before the Plea and Case Management Hearing contains a
standard question asking whether any directions are needed in relation to bad character applications and any
outstanding issues concerning bad character evidence will be dealt with at the PCMH.

Professional Conduct and the Advocate

Duty not to deceive or knowingly or recklessly mislead the court

See Principle 1 (you must uphold the rule of law and the proper administration of justice) and chapter 5 of the Code
of Conduct [2011], SRA Handbook (Your client and the court)

Deceiving or misleading the court – some examples:

 submitting inaccurate information;
 indicating agreement with information another person puts forward which you know is untrue;
 failing immediately to disclose a document which should have been disclosed;
 attempting to influence a witness when taking their statement;
 tampering with the evidence or seeking to persuade a witness to change their evidence; and
 offering to pay witnesses dependent upon their evidence or the outcome of the case.

Duty to Assist the Court

Solicitors are officers of the court and have therefore always owed duties to the court. The Criminal Procedure Rules
(CrimPR) extend these duties.

‘The duty of the participants in a criminal case:

(1) Each participant, in the conduct of each case, must -
(a) prepare and conduct the case in accordance with the overriding objective (to deal with cases justly);
(b) comply with these Rules, practice directions and directions made by the court; and
(c) at once inform the court and all parties of any significant failure …to take any procedural step required by these
Rules, any practice direction or any direction of the court…’.
CrimPR 1.2

However, the Rules also make plain that dealing with a criminal case justly includes recognising the rights of a
defendant, particularly those under Article 6 of the European Convention of Human Rights - CrimPR 1.1(2)(c).
In this context, these rights are:
 the presumption of innocence;
 the right to silence and privilege against self incrimination; and
 the ‘fundamental human right’ to legal professional privilege.

The defence solicitor has a duty to keep the court informed but cannot be required to provide information if, to do
so, would breach the client’s rights.

39
R v K [2006] EWCA Crim 724 makes it clear that the CrimPR impose duties and burdens upon solicitors in a criminal
trial and that their preparation for and conduct of criminal trials is dependent upon and subject to the CrimPR. Your
professional obligations under the Code of Conduct provide that you must:
 comply with court orders which place obligations upon you – O(5.3);
 where relevant, inform clients of the circumstances in which your duties to the court outweigh your
obligations to your client – O(5.5); and
 comply with your duties to the court – O(5.6)

It is important that clients are made aware of these duties and the Law Society advises solicitors to explain to their
clients at the outset, and also in the terms of business/retainer letter, that, whilst privileged communications can
never be divulged to the court without the client’s authority, solicitors are under a duty to provide information to
the court which is not privileged and which enables the court to further the overriding objective by actively
managing the case – see Criminal Procedure Rules: impact on solicitors’ duties to the client, Law Society Practice Note
on Criminal Procedure Rules 2011, 5 April 2012.

Appearing as an Advocate

You must not call a witness whose evidence you know is untrue – IB(5.9).
You must avoid naming in open court a third party whose character would thereby be called into question unless it is
necessary for the proper conduct of the case – IB(5.12).
You must not call into question the character of a witness you have cross examined unless he had the opportunity to
answer the allegations during cross examination – IB(5.13).
You must not suggest any person is guilty of a crime, fraud or misconduct unless you have reasonable grounds and
the allegations go to a matter in issue which is material to your client’s case – IB(5.8).
You must inform the court immediately if, during the course of proceedings, you become aware you have misled the
court. You need your client’s consent to do so; if he does not consent, you must cease to act – IB(5.4).
If you become aware that your client has committed perjury or misled the court, you must refuse to continue to act
unless your client agrees to disclose the truth to the court – IB(5.5).

Review
Classification of offences

40
Triable on indictment only – if statute creating offence provides only a penalty on indictment, all common law
offences except those listed in Sched 1 MCA 1980

Triable either way - if statute specifies different penalties if convicted on indictment or on summary conviction,
common law offences listed as such in Sched 1 MCA 1980

Summary - if statute provides only a penalty imposable on summary conviction

See d3-advance of LG 28 for classification of common offences

Public funding of the defence

At the police station

Free legal advice for all under Police Station Advice and Assistance Scheme but will be limited to telephone advice in
straightforward cases

Outside the police station before charge

Under the Advice and Assistance Scheme. This is means tested and only available where there is sufficient benefit to
the client to justify the work

Representation at court

Limited assistance available through the duty solicitor scheme. Otherwise, a Representation Order is required

Subject to means and merits (interests of justice) tests

For factors which must be taken into account when deciding if the interests of justice test has been satisfied, see s.17
LASPOA 2012

Police investigative powers

Outside the police station

Stop and search – s.1 PACE

See Code A 2.2-2.11 for guidance on reasonable suspicion, 3.1–3.7 for conduct of searches

Arrest – primarily under s.24 PACE

Power is exercisable only when it is necessary – s.24(5)

See also Code G 2.4-2.9 (necessity criteria)

Suspect should be cautioned prior to questioning by police as soon as there are grounds to suspect him of an offence
– Code C 10.1

Entry and search to effect arrest etc – s.17 PACE

41
Search after arrest of the person or the premises where the arrest took place – s.32 PACE power to search premises is
only for indictable offences

Search after arrest of premises occupied or controlled by the arrested person – s.18 PACE only for indictable offences
and normally requires written authorisation from an Inspector

Power of seizure when lawfully on premises – s.19 PACE

See Code B 6 for conduct of searches, B 7 for procedure on seizure/retention of property

Inside the police station

See Code C

Detention - permitted periods and review of detention – see ss.41–44 PACE

Must be charged within 24 hours (generally, runs from time of arrival at police station)

For indictable offences, Superintendant can extend to 36 hours, then need warrant of further detention

First review to take place within 6 hours of detention being authorised and second review within 9 hours of the first

Detainee’s right not to be held incommunicado – s.56 PACE, Code C 5

Right to legal advice – s.58 PACE, Code C 6

See Code C Annex B for when/how the exercise of these rights may be delayed

Interviews - see Code C 11

To be conducted at the police station save in exceptional circumstances – Code C 11.1

A detainee who wants legal advice may not be interviewed unless he has received advice, subject to exceptions in
Code C 6.6

Must be cautioned – Code C 10.1

Solicitor’s role - see Code C Note 6D

Identification procedures – see Code D

Where the suspect is known and available the procedures in 3.5 – 3.10 may be used

Suspect is entitled to witnesses’ first description before identification procedure - 3.1 and notice of rights - 3.17

Hierarchy of procedures is in 3.14. Once the type of procedure to be used has been selected, see relevant Annex to
Code D as to how this should be arranged and conducted – eg for VIPER see Annex A

Non-intimate samples and fingerprints - may be taken from a person detained for a recordable offence without
consent – ss.63(2B), 61(3) PACE

Photographs - any person detained may be photographed, with or without their consent –s.64A PACE

Use of reasonable force – a police officer may use reasonable force, if necessary, in the exercise of any power
conferred by PACE – s.117

42
Charge – suspect will be cautioned again before charge is put to him and will receive a written charge sheet detailing
the offence. Then will be bailed to attend court on a specified date or, if not released, will appear in court the
following day

Court Hearings

All cases start in the magistrates’ court

Summary offences
If D pleads guilty - case may be disposed of at the first hearing or adjourned for a pre-sentence report before
sentencing if custody or a community order are being considered
If D pleads not guilty – trial date fixed and case management directions given
Either way offences
If D pleads guilty – case may be disposed of as above or will be committed to Crown Court for sentence if
magistrates’ powers are inadequate
If D does not indicate a guilty plea – magistrates will decide whether to accept jurisdiction or to send case to Crown
Court for trial. Even if magistrates accept jurisdiction, D can elect for Crown Court trial. Consider pros and cons of
magistrates cf Crown court trial (see LG 28)
Indictment only offences
Will normally be sent to Crown Court at first magistrates’ court hearing – s.51 CDA 1998
Court will give detailed case management directions and fix trial date at the subsequent PCMH - see questionnaire to
be completed by advocates at Document 19 in manual

Bail

Prima facie right to bail – s.4 BA 1976. Some statutory exceptions where presumption in favour of bail reversed –
s.25 CJPOA 1994, paras 2A, 6, 6ZA Sched 1 Part 1 BA 1976
For imprisonable offences, right can be displaced on grounds in para 2 Sched 1 Part 1 – eg FTS, COB and IWW
When considering these grounds, court will take into account the para 9 factors
Bail conditions may be imposed – suggest those suitable to address residual concerns

Disclosure - prosecution duties

Initial disclosure – CrimPR 10.2 requires P, at or before the beginning of the day of the first hearing, to provide to D
and the court ‘initial details’ of the case – eg summary of the case, key prosecution evidence, list of client’s previous
convictions

Pre-trial disclosure
- of used material - in magistrates’ court ‘in sufficient time to enable the defence to consider the evidence before it is
called’. In Crown Court must be made within 50 days of sending if D in custody, within 70 days if on bail
- of unused material - s.3 CPIA 1996 – schedule of unused material to be provided with used disclosure. P must
disclose any unused material which might reasonably be considered capable of undermining P’s case or assisting D’s
case
Continuing duty of disclosure – s.7A CPIA 1996

Disclosure - defence duties

43
Defence statement – optional in magistrates’ court, compulsory in Crown Court within 28 days of P disclosure. For
required content - see s.6A CPIA 1996, Document 17B in manual
Defence witness notice – see s.6C CPIA 1996, Document 17C in manual

Inferences

See s.34 CJPOA 1994 – if a suspect fails to mention when questioned under caution/charged a fact he later relies on
in his defence an inference may be drawn if it is reasonable to do so (therefore consider client’s reasons for silence)
Reasonableness is a matter for the jury – see Argent
An inference by itself cannot prove guilt – s.38
A pre-prepared written statement setting out defence facts may prevent a later inference

Exclusion of evidence

Confessions – s.76 PACE

Definition of confession – s.82(1) PACE
Where a confession was or might have been obtained by oppression or in consequence of anything said or done that
was likely to render it unreliable, the court must exclude it
Definition of oppression – s.76(8). Oppressive questioning – Code C 11.5
Any evidence - s.78 PACE
May be excluded if it would have such an adverse effect on the fairness of proceedings that the court ought not to
admit it
Often, applications are made under both s.76 and s.78

Hearsay
Defined in s.114(1) CJA 2003
Only admissible under s.114 or other statutory exception/preserved common law rule - eg confessions are an
exception to the hearsay rule – s.76(1) PACE
Note s.114(1)(d) - hearsay may be admitted if the court is satisfied that this is in the interests of justice
If a witness is not available - see s.116. For business records - see s.117
Bad character evidence
Of the Defendant
Admissible only if passes through one of the seven gateways (a-g) in s.101(1) CJA 2003 – see flow chart on page 9 of
d2 of LG 34.
Court still has discretion to exclude – see s.101(3) for gateway D and G, s.103(3) for gateway D and, generally, s.78
PACE
Of anyone other than the Defendant
Admissible only if passes through one of the three gateways (a-c) in s.100(1) CJA 2003
Sentencing and mitigation
Purposes of sentencing – s.142 CJA 2003
Determining seriousness of offence – s. 143 - consider culpability and harm
Custody threshold - s.152
Community threshold – s.148
Reduction for guilty plea – s.144 – sliding scale – 1/3, 1/4, 1/10
Locate and apply the relevant sentencing guidelines in order to prepare plea in mitigation/advise client on likely
sentence
44
Plea in mitigation should consider offence aggravating and mitigating factors before dealing with offender mitigation
Make sentencing proposals having regard to any PSR and the purposes of sentencing
Professional conduct
See Principles 1, 2 and 4 and chapters 1, 3, 4 and 5 of the SRA Code of Conduct
When appearing as an advocate in criminal proceedings – see O(5.1), (5.2) and IBs(5.4), (5.5), (5.8), (5.9), (5.12) and
(5.13)
Duty to assist the court under CrimPR does not override legal professional privilege

6. Summary

The defence statement must comply with s.6A CPIA. Too much detail may prejudice the defendant if he later
changes his account or by assisting the prosecution to prepare its case. On the other hand, a stonewall
defence statement risks inferences being drawn at trial and inadequate prosecution disclosure.

Bad character evidence will be admissible at trial if it passes through one of the gateways in s.101 CJA
(bad character of the defendant) or s.100 CJA (bad character of a person other than the accused).

Professional conduct and the advocate – A solicitor owes professional duties to the client and – as one
of its officers – to the court. The court will expect a solicitor to act towards it with integrity and not to
deceive or mislead it, but cannot demand that he or she breach their professional duties owed to their
client.

45