Colour coding:

BSB once
BSB twice
Other mock once
Other mock more than once

1. Overview of Criminal Procedure

Classification of offences
Summary only
— Criminal damage less than £5,000 and common assault

Indictable only
— Murder, robbery, rape, and s18 GBH with intent

TEW offences
— Everything else

Duties of P and D
— Prepare and conduct in line with OO
— Comply and inform court and all parties at once of any significant (hinder OO) failure
— Any communication method can be used to apply for directions

Overriding objective is to deal with the case justly by:

— Acquitting the innocent and convicting the guilty
— Dealing fairly with the parties
— Dealing with the case efficiently and expeditiously
— Respecting D’s rights
— Taking into account: the gravity of the offence, complexity of the issues, severity of the consequences & needs of
other cases
— Effective case management must be tempered by justice.
— Telephone hearings can be used where they’re more convenient but only where: D is represented, it is not a plea
hearing.
— Live links can be used where D can participate effectively (whether represented or not)
— A ground rules for trial hearing can be held and the parties and any intermediary must attend.

Representation orders
— Generally, they are determined by the LAA. MC can only determine appeals of an LAA refusal.
— CC can only grant for: breach of a CC order, contempt of court proceedings and appeals of a MC refusal on
question 2.
— The test is two-stage test based on means and the interests of justice. IoJ is automatically met for CC trials and
sentence.
— Where it is not automatically met, the court should consider: seriousness of sentence, complexity of law or
evidence, D’s ability to represent himself, the interests of third parties.

2. Preliminaries to Prosecution
PACE
— Police powers of investigation, arrest, detention, interrogation, entry and search of premises, personal search
and taking of samples
C10: Cautions
— Language
— “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 say may be given in evidence.”
— Does not matter if exact words are not used so long as meaning is the same
— Requirements
— Must be given to:
— A person whom there are reasonable and objective grounds to suspect of a criminal offence
BEFORE
— Any questions about the offence, or further questions if the answers provide grounds for suspicion
— Caution is not required where question is solely about who they are or vehicle ownership
— Must also be given upon arrest unless:
— Impracticable because of arrestee’s condition or behaviour and they were immediately cautioned
before the arrest
- Repeated cautions
- A caution must be re-administered after any significant break in questioning & the arrival of an appropriate
adult.
- If the person being questioned is not under arrest, they must be informed that they are free to leave at any
time
- If the person being questioned had requested a solicitor but that request has been denied, the shorter
caution should be used, and no inferences can be drawn from silence
- “You do not have to say anything, but anything you do say will be given in evidence”

Detention
— Detention is being held at a police station following arrest
— Upon arrest, D must be detained (=held at police station) unless D’s presence is necessary for urgent
investigations (e.g. premises search, checking alibi)
— If it appears necessary to detain for more than six hours, it must be a designated police station.
— Only a custody officer can authorise detention and release. He must:
— Open a custody record which stays with D
— Tell D of his right to:
— See a solicitor at any time (although not necessarily have him present in interview)
— D should be told this upon detention, commencement of any interview, any procedure, extended
detention, charge, the putting of a significant statement or silence
— Notify someone of his arrest and location (and anytime he moves).
— Maximum period is 24 hours from arrival but can be extended to:
— 36 hours if
— Offence is indictable and
— Authorised by superintendent
— 96 hours by MC
— Must be released after expiry (on bail or not)
— If released without charge, D can only be rearrested with a warrant unless there’s new evidence or
analysis of existing evidence has been made which couldn’t be made before
— Person at risk
— Under 18s
— Must be accompanied by and interviewed with an appropriate adult
— Cannot be detained in police cell
— Evidential procedures
— AA only needs to consent if under 14;
— 14-17 both AA and D
— Vulnerable adult
— Must be accompanied by and interviewed with an appropriate adult
 — Presumed vulnerable where there is a suspicion of mental disorder. This is rebutted by a medical
examination
— Can only detain at police station where D poses an imminent risk of serious injury to himself or another
such that detention anywhere else would be unsafe; a health care professional is present and available
throughout the period and it is authorised by an inspector.
— A medical practitioner must be consulted before any detention.
— 24-hour detention can only be extended by 12 hours and must be authorised by a medical professional.
— Appropriate adult
— Never a police officer, solicitor, victim, suspect or witness
— Custody officer must consider the following hierarchy:
— 1. Parent or guardian but not if estranged and D objects to their presence
— 2. Social worker
— 3. Any other responsible adult not connected with police
— An appropriate adult is not someone the youth objects to or has too low an IQ to assist
— AA has an independent right to legal advice

Interviews
- An interview is any questioning under caution of a person regarding his involvement or suspected involvement
in a criminal offence
- The interviewer must inform D (and their solicitor) of the nature of the offence alleged and why they are
suspected.
- An interview must always be in a police station, unless delay would lead to any of:
— Interference with evidence or
— Harm to or interference with a person or
— Serious damage to property or
— Alerting other suspects
- At the start of any interview, I must caution and put to D any significant statement or silence in the presence of
police and ask D to comment. A written record should which D should sign.
- No answer may be elicited by oppression or deception. The interviewer should not tell D what action will be
taken if he does or does not answer, unless they directly ask.
— Police may be rude, foul-mouthed, discourteous, persistent (but not to the point of oppression)
- The following interviews must be (1) authorised by a superintendent and (2) be where delay would lead to
IHDA and (3) it would not cause D significant harm
— Youths and vulnerable adults without an appropriate adult and
— Ds unable to understand (due to intoxication, ailment, illness, condition)
— Poor English or hearing without an interpreter (interpreter can be via live link if appropriate)
- Interview should stop when enough evidence has been gathered and all the appropriate questions asked.
- An accurate record must be made of any each interview, by tape-recording or writing down verbatim. The
record should include the time, place, any breaks taken and the names of those present.

Arrest
— Arrest without warrant
— By a constable:
— Anyone he has (1) genuine and (2) objective reasonable grounds to suspect is committing, is about to
commit, has committed an offence
AND
— It is necessary for any of these reasons:
— To identify them or their address
— To stop suspect doing something else unlawful
— To protect someone
— To allow investigation of the case
— To prevent escape
— By civilian for breach of peace (common law)
 — Due to harm to person or property, or fear of physical harm, affray, riot or other disturbance;
— Committed in his presence or he reasonable believes it will be committed imminently or has been
committed
— Arrest with warrant
— Issued by magistrates courts on application from police
— Must be:
— Adult
— Offence punishable with imprisonment
— Based on written information that D is suspected of having committed an offence
— Can also be issued on court’s own initiative (=bench warrant) where:
— D’s address for a summons is unknown &
— D’s failed to attend for trial or answer bail
— It may be endorsed for bail (= D arrested but released on bail)
— Requirements for lawful arrest (with or without warrant):
— S must be informed they are under arrest as soon as practicable unless it is reasonable to carry our other
investigations first (e.g. search premises) and told what for
— Physically seized (and informed as soon as practicable what for)
— Use of reasonable force
— When deciding whether force was reasonable, consider all the circs
— Serious njury does not necessarily = unreasonable;
— Handcuffs ARE only necessary to prevent escape or violence
— Excessive force will not render the arrest unlawful

CPS
— Determine what charge to bring in all indictable, most TEW, some summary
— Crown prosecutors have all the powers of the DPP as to commence and conduct proceedings
— May assign cases to private barristers or solicitors who act as their agents

DPP
- Head of CPS
- Powers
- Prosecution, extradition
- Appoint staff who are not legally qualified to appear in bail, pre-trial applications, non-imprisonable
summary trials

Different forms of bringing D to MC for first appearance

— Arrest and charge
— D is arrested, interviewed and charged at the police station and kept in custody or bailed to appear before a
court on a specified date.
— CPS written charge and requisition
— D receives a written charge, and a notice that he must appear before the Magistrates’ Court to answer it
(the requisition). It is often used where D was not caught at the scene and can be used whether or not D is
arrested.
— Information and summons
— Only for the purposes of obtaining a warrant.
— P will lay an information (= serve a document on the court or make an oral presentation). If the court is
satisfied it will issue either:
— A warrant for arrest
— A summons for D to appear before the magistrate’s court and answer the information

Time limits for commencement of proceedings

— Summary only offences – 6 months from date of offence
— No time limit on TEW or indictable only
 3. Bail and remands
Difference between adjournments and remands
— The magistrates have the power to adjourn at any stage. They can either simply adjourn (where D is totally free)
or adjourn and remand.
— Where the magistrates remand, they must fix a date for the next hearing be fixed.
— The magistrates may remand in any other case. They MUST remand where:
— Offence is TEW &
— D is 18 &
— D was or has been on remand in the proceedings
— The CC MUST always remand

Time limits for D remanded in custody

MC time limits for single remand
— General rule for remanding in custody: maximum period is 8 clear days, after which D will be produced before
magistrates who can remand in custody again (and then again etc), the only limit to further remands being
maximum aggregate custody time limits.
— D can be remanded for longer if D and P agree.

Custody time limits – maximum ceiling for aggregate period of custody

— MC – from first appearance to first day of MC trial or day sent to CC
— 70 days if sent to CC
— 70 days if decision to try TEW summarily not made on D’s first appearance
— 56 days if summary offence or decision made to try TEW summarily on first appearance
— CC trial – from date sent to CC to beginning of trial
— 182 days minus total amount D was held in custody by MC
— 112 days if it’s a retrial, beginning on CA decision
— Extension of time limit
— The MC or CC may extend and/or further extend the time limit if:
— P has acted with all due diligence and expedition and
— There is good and sufficient cause
— Effect of expiry
— If time-limit expires and no extension is requested, D must be granted bail

Right to bail
— Remand is on bail or in custody.
— GR: D has a general right (rebuttable presumption) in favour of bail in the following circumstances only (this is
unaffected by a GP):
— Before conviction;
- Post-conviction adjournment for pre-sentence reports;
- Breach of community order.
- There is a presumption against bail where:
- D is charged with murder, culpable manslaughter (= with a custodial sentence), rape, or a serious sex
offence and has a previous conviction for any of these. Bail is only granted if exceptional circumstances
justify it and
— D is charged with murder: cannot be granted unless there is no significant risk that D will harm (physically or
mentally) someone else and only a Crown Court judge can grant bail. The magistrates must commit D in custody
to the CC, who must decide bail within 48 working hours.
- Otherwise there is merely a discretion to grant bail.

Statutory grounds for refusing bail

— The usual rules of evidence do not apply but there must be some basis/evidence.
— Real prospect of prison IO/TEW:
— 1. There are substantial grounds for believing that D, if released on bail would:
— i. FTS or
 — ii. Commit an offence while on bail or
— iii. Interfere with a witness or otherwise obstruct the course of justice
— Imprisonable summary/CD -£5k: and D has been arrested under s7 BA
— Taking into account:
— Nature and seriousness of offence/sentence
— D’s character and previous convictions
— D’s record of fulfilling bail conditions
— Strength of P’s case
— D’s community ties
— 2. D has already absconded once in proceedings
— Imprisonable summary/CD -£5k: and the court believes he will again
— 3. D was on bail when he committed the current offence
— Imprisonable summary/CD -£5k: and the court believes he’ll commit another
— 4. D has tested positive for Class A drugs, the offence is connected with Class A drugs and D refuses
treatment
— Statutory grounds for refusing bail irrespective of offence/sentence:
— There are substantial grounds for believing that D may commit a DV offence;
— For D’s own protection or welfare;
— D is already in custody;
— Insufficient time for the court to decide whether bail should be granted (NOT available for non-imprisonable
offences)

Bail conditions
- Unconditional bail = D’s only duty is to surrender to custody at a fixed time
- Conditional bail = D has a duty to surrender to custody at a fixed time AND whatever condition applies of (not
exhaustive):
- How to choose the right condition?
- 1. Identify the risk (further offending/absconding/interfering with witnesses etc)
- 2. Identify the condition which will best reduce that risk
- Financial conditions ONLY matter where the risk is FTS
- Security (= a sum of money paid into court up front by D, which is not returned if D fails to surrender,
even if the money was provided to D by X)
- Surety (= X promises money to court which will be taken if D absconds).
— X’s promise is called a recognizance and can be given in court or at the police station
— X must be motivated and capable of ensuring D does not abscond and should have some means of
influencing/monitoring D
- Behavioural conditions: any condition. The requirement must be suitable.
- Problem = further offence?
— Curfew? Only if night time offending is an issue
- Problem = FTS?
— Residence, reporting.

Procedure
Defendant bail applications
Bail application in the magistrates
- A bail decision cannot be made unless all parties (incl surety) are present (incl via live link) or have made
representations
- If D is in custody, he may not be present if he has waived his right to attend or was present at the last bail
refusal
- It may be in public or private
- If the presumption for bail applies, P will be asked to present any objections and D may then respond
- There’s no requirement for formal evidence
- D can make up to two bail applications after which, the magistrates only need to hear full argument if there’s
been a material change in circumstances/fresh arguments
- When the magistrate refuse bail after hearing full argument, they must issue a certificate confirming they’ve
heard full argument and, if there’s been a material change in circumstances, the certificate must state the
change
Bail applications in the Crown Court
- In the Crown Court, D may:
- Apply for bail if it was refused by the magistrates
- Appeal against bail conditions
- Procedure
- D must give written notice to P, CC, MC and any surety:
- 1. Explaining D’s argument and
- 2. ATTACHING a copy of the certificate of full argument
- If P opposes the application, they must “at once” notify D and the CC
- The hearing must be no later than one business day after D’s application was served. The hearing may be in
public or private. It will be heard by a recorder or Circuit Judge.
- If CC grants bail, any surety must be conditioned and can be given to a CC officer, a police inspector or D’s
prison governor
- D cannot make a second application unless there are fresh arguments

Applications to vary bail

- D or P may apply to for conditions to be varied
— If a hearing is already due, A must serve application two business days before. Otherwise, the hearing must
be no later than the fifth day after service,
— The parties may agree to no hearing.

Prosecution bail applications

— The CPS can appeal the magistrate’s grant of bail to the CC & the CC grant of bail (other than on appeal from the
magistrates) to the HC if D’s offence is punishable by imprisonment & P objected to bail before it was granted.
— P must give:
— 1. Oral notice at the end of the hearing (5 mins after is okay) and before D is released from custody &
— 2. Written notice within two hours otherwise the hearing is deemed disposed of and D will be released
— 2 hours isn’t strictly applied if P is late by no fault of their own
— The hearing must be within two working days of the decision to grant bail
— D must be remanded in custody until the appeal is determined

- Powers of the court when bailed D fails to appear

- 1. Issuing an arrest warrant – the norm. Can be issued by a clerk. Not backed for bail if no reason to.
- 2. Adjourning and extending D’s bail – only where there is a v good reason for D’s non-attendance (e.g.
doctor’s certificate)
- 3. Proceeding in D’s absence
— Not if P witnesses are not present
— If D has been previously warned that the court may proceed without him and there’s no good reason
for his absence – the case will continue even if the charge is serious
— This is provided that, if it’s a mode of trial hearing, the conditions for proceeding in D’s absence
are met
- Offence of absconding = failing to surrender to custody at the appointed time and place without reasonable
excuse or as soon as the excuse no longer applies is an offence
- MC: It is punishable by three months’ imprisonment or a fine.
- CC: it is punishable as if it were contempt by the Crown Court with up to 12 months imprisonment
- Procedure for prosecuting absconding offence
— After arrest, D must be brought before the court who granted bail. D will be asked the reason for his
non-appearance, and if it is prima facie satisfactory, no further action is taken. Otherwise, the charge is
put to D.
— Where the magistrates informally indicate that no charge should be preferred, this binds subsequent
benches.
- Breach of bail conditions
- This is not an offence; it merely confers a power for a police officer to arrest D without a warrant if:
— 1. They have reasonable grounds to believe:
— A. D will abscond or
— B. D has broken, or is likely to break a condition
 — 2. A surety has asked to stop being a surety because they believe D will abscond
- The arrested D must appear before a single justice who must decide the case strictly within 24 hours of
arrest (excluding Sunday).
— The justice:
— Need not be sitting in a court room unless D’s time to surrender to court was within 24 hours of
D’s arrest
— The hearing can be determined based on submissions alone and the justice is entitled to rely on
hearsay.
— The justice’s approach should be as follows:
— 1. Has D breached a condition? (If not, D is entitled to bail)
— D must be entitled to make representations but has no defence of reasonable excuse here
— 2. If they have, should they be granted bail again?
— Only at this stage is reasonable excuse relevant, and breach of bail is only one factor

4. Procedure in the magistrates’ courts, allocation for trial, and sending to the Crown Court for trial or sentence

First hearing is always in MC

— Set for:
— 14 days after charge if P anticipates guilty plea and MC sentence
— 28 days after charge if P anticipates not guilty plea or CC trial or CC sentence
— Process at the hearing depends on:
— 1. The offence
— Indictable-only: under s51 CDA D will be sent immediately (‘forthwith’) to CC and no plea is taken
— TEW: PBV and, if NGP, allocation hearing. If allocated to CC (MC declines jurisdiction or D elects), D will
be sent to CC under s51 CDA
— Summary: a plea will be taken, and directions for trial/sentence given
— 2. Where D is charged:
— At a police station, the first hearing is before a single justice or justice’s clerk
— The clerk is not empowered to remand D:
— In custody (at all) or
— On new bail conditions without P and D’s consent
— Other than at a police station and D has not been sent to CC under s51, the court must conduct a
preparation for trial hearing and give directions for an effective trial.

Appearance at preliminary and sentencing hearings via live link

— D/P can appear virtually at pre-trial and sentencing hearings so long as (if it’s public) the public have access to a
venue displaying it and everyone can see and hear clearly. D’s virtual presence is strongly encouraged and
counts as actual presence
— Skype/FaceTime etc can be used for public hearings
— If D pleads guilty, the court may proceed immediately to sentencing and D can give oral evidence virtually if it is
not contrary to the interests of justice

Ambiguous pleas
— Where D’s plea is ambiguous, imperfect or unfinished, MC should FIRST seek to ascertain or clarify D’s plea (e.g.
by asking questions) and if they cannot, order a NGP be entered on D’s behalf
— Defect in plea renders proceedings a mistrial and D can appeal to CA

Pleas before venue (TEW)

— Should take place in presence of D but court can proceed in his absence and his LR can indicate his plea if D is
represented and D is disorderly such that it is not practicable to proceed in his presence
— Process is as follows:
— At beginning of the day of the hearing (or earlier if requested) the defence is given initial details of P’s case
(with sufficient information to assist in determining plea/allocation)
— Indication of plea is taken:
— Clerk reads charge to D
 — Explains consequences of indication GP/NGP
— Asks D to indicate a plea
— Guilty? Court proceeds as if he pleaded guilty and commits for sentencing if necessary
— Not guilty? Court determines allocation

Allocation
— Should take place in presence of D but court can proceed in his absence if
- Disorderly and it is not practicable to proceed in his presence (note no requirement of LR) or
- D has LR who signifies that D consents to allocation in his absence and there’s a good reason for his absence.
LR can signify D’s consent to summary trial or the court can adjourn
- P has no deciding role in allocation. The only time P has the power to force a CC trial is where is where the
offence is serious fraud or violence involving a child witness and P serves notice on MC.
- Two stages to allocation:
— 1. M must consider whether to accept jurisdiction
— Most important factor for MC is whether their powers of sentence would be adequate based on the
totality of offences. Generally, TEW should be tried summarily unless:
— The sentence would clearly be in excess of their powers or
— There’s unusual legal, factual or procedural complexity
— If there D1 and D2 appear jointly charged on the same occasion, MC must explain that if one of them
is sent to CC, the other will be (including for any related offence), even if MC had already decided ST
was appropriate for one of them
— 2. If MC think that ST is appropriate, they ask whether D consents and explain that D may still be
committed for sentence
— If requested, the magistrates MAY give an indication as to whether D’s sentence would be
custodial/non-custodial. The indication is only binding (on them AND any future bench) if D pleads
guilty on the basis of it and the criteria for the imposition of an extended sentence for dangerousness
are not met.

Factors informing D’s consent

— The only venue where issues of fact and law are guaranteed to be kept separate is the Crown Court, as although
pre-trial rulings are available in the magistrates’ court there is no guarantee of one. Where this is the main
concern, D should elect to CC.
— Although there is also a limit on the magistrates’ powers of sentence, this benefit is nullified by their power to
commit the case for sentence after trial if they deem it appropriate to do so.
— CC may be better equipped to deal with complex questions of law.
— Jurors may be more sceptical about prosecution evidence.
— WS are disclosed when D is transferred to CC. But as a matter of good practice, WS are also disclosed at MC.
— No obligation to serve a defence statement in MC (but failure to do so would mean that D cannot apply for
specific disclosure under s8 CPIA)

Simple criminal damage (including complicity and attempts but not conspiracy) less than £5000 must be summary
— Value is market value (only). Where D appears at MC on same occasion with multiple CD, value is based on
aggregate damage.
— If it is clearly below £5,000 --> ST
— If it clearly exceeds £5,000 --> court must determine allocation and ordinary maximum penalty applies
— If it is not clear, MC must ask D whether he consents to ST and that if he does, the lower maximum penalties
will apply. If he does not, court determines allocation and the ordinary maximum penalty can apply
— M’s sentencing powers
— Less than £5,000 – three months’ imprisonment/£2,500 fine and no power to commit for sentence
— Greater than £5,000 – six months’ imprisonment (or 12 months for two or more) and/or a fine and
committal for sentence

Shoplifting less than £200 must be summary

— But unlike CD, D can still elect to a CC trial
Magistrates sending adult D for trial at CC under s51 CDA
— MC MUST send to CC ‘forthwith’
— Any indictable only offence (with no plea being taken) or
— Any TEW allocated to CC (after PBV and allocation) or
— Any serious/complex fraud case or sexual/violent offence involving a child witness for which P has served
notice on MC (with no plea being taken)
AND
— When dealing with them on the same occasion, MC MUST also send (with no plea being taken):
— Any related (= same or connected circumstances as main offence/same indictment) offence (if summary,
punishable with imprisonment or disqualification)
— Any D2 charged with a related offence (if summary, punishable with imprisonment or disqualification) AND
any other related offence by D2
— When dealing with it on a subsequent occasion, MC MAY send the charge/co-D to CC. It follows that for a
subsequent TEW (by D or co-D), MC MUST have a PBV and allocation hearing
— Where a summary offence is sent to CC, the ST for that offence is regarded as adjourned
— D must be present under s51

Prosecutor including linked summary offences on the indictment

— If D has already been sent to CC (IO/allocated TEW), P can add certain summary offences to the indictment
where:
— They are founded on the same facts or form part of a series of offences which is the same or similar in
character as an offence on the indictment
— Some evidence of the linked summary offence appears in the information which forms the basis of the
indictment
— The offence is are
— Common assault or
— Assault on a prisoner custody officer or
— Criminal damage less than £5,000 or
— Taking a motor vehicle without consent or
— Driving while disqualified

CC’s sentencing powers to deal with related and linked summary offences are limited to those of MC

MC committing adult D for sentence

- Under s3 PCC(S)A 2000, MC may commit D for sentence of TEW (following conviction after trial or GP) if they feel
their sentencing powers are insufficient
- They must have warned D of this at allocation. If MC have expressly or impliedly led D to believe that MC
will sentence, D has a legitimate expectation and they cannot commit him.
- CC has full sentencing powers just as they would if D had been convicted on indictment
- Under s4 PCC(S)A 2000, if D has been sent to CC for trial, MC can commit him for any related TEW to which he
has pled guilty, to be sentenced after the CC trial
- If D is found guilty at CC trial, CC have full sentencing powers
- If D is found not guilty at CC trial, CC are limited to MC’s sentencing powers unless MC indicated that they
would have committed D under s3 for the related TEW
- Under s6 PCC(S)A 2000 MC may commit D for sentence any other offence whatsoever that it had power to
sentence D for, even if conviction/GP was before a different court and it is not related to the main offence
- CC’s sentencing powers are limited to those of the MC

5. Disclosure of unused material and defence statements

Disclosure officer’s duties

— The disclosure officer’s job is to:
— Prepare a schedule of unused material (= material which is potentially relevant but which P is unlikely to
use)/a streamlined disclosure certificate (MC)
 — Draw P’s attention to material which might undermine P’s case
— Certify compliance with his obligation to record and retain (in a durable or retrievable form) relevant (or
potentially relevant) material which is gathered from or generated by an investigation (e.g. an interview. It
is relevant if it ‘has some bearing’ on the offence or D
— “Corporate knowledge” applies, which means that any relevant material in the hands of any police/prosecutor,
even if not obtained in relation to the current investigation, must be disclosed

Prosecutor’s duties
— P must do all she can to facilitate proper disclosure including:
— Directing DO
— Reviewing, correcting and improving schedules
— Ensuring only relevant material is disclosed
— Keep all disclosure decisions under review
— Considering new lines of inquiry based on DS
1. Pre-trial disclosure at common law
— At common law, immediate disclosure of some information may be required by justice or fairness, such as to
assist with a bail application, early preparation of trial or an application to stay proceedings for abuse of
process. Otherwise, pre-trial disclosure is governed by CPIA
2. Disclosure of initial prosecution case
— For all trials, P must disclose the initial details of P’s case as soon as practicable and otherwise, by the beginning
of the first trial hearing
— Details must be sufficient to take an informed view on plea and venue and include:
— If D was in custody:
— Summary of circumstances of offence & D’s criminal record
— If D wasn’t in custody:
— In addition to the above, any:
— Interview account of D
— Material WS
— Victim statement
— CPIA Code also requires disclosure of any previous convictions of key prosecution W or withdrawn WS
3. Initial disclosure under CPIA s3
— P must ALSO provide D with copies of or access to unused material which “might reasonably be considered
capable of undermining P’s case against D or assisting the case for D.”
— Very widely drawn and includes anything which shows a defect, discrepancy or inconsistency in P’s case or
evidence (e.g. convictions of a witness) but does not include material which is neutral or adverse to D.
Includes information which:
— Casts doubt on credibility of evidence
— Supports any defence argument of law or procedure
— Access to or copies of the unused material (s3) should be served along with the schedule (or streamlined
disclosure certificate in MC) of unused material (s4) OR a written notice that no unused material exists.
— In CC, it must be as soon as practicable after e.g. service of initial details of P’s case
— In MC, it must be as soon as practicable after NGP
4. Secondary disclosure. The process for initial disclosure must be fully repeated by DO and P (“secondary
disclosure”) (7A) in light D’s defence statement. If D has served a defence statement and P has purported to
comply with secondary disclosure, D can apply for an order to force disclosure (s8).
5. P has a continuing duty of disclosure which ends when the proceedings are disposed (CPIA) but there is a
common law duty to disclose information relevant to: sentence or appeal.

Public interest immunity applications

— Sensitive material (which gives rise to a real risk of serious prejudice to an important public interest) should be
recorded in a separate ‘sensitive schedule’
— P must apply for a hearing where he intends to withhold such material and inform the court of this. P should
only notify D if the court directs. The hearing is private and confidential and in D’s absence.

Defence duties of disclosure

— Defence statement
— D MUST supply a DS AND in CC within 28 days of P complying with initial duty of disclosure under s3
(EBE)
— D MAY supply a DS in MC and if he chooses to, it must be within 14 days of P complying with initial
duty of disclosure under s3 (*if D does not serve a DS, he cannot apply for an order under s8)
— DS should reveal the case that D will present at trial. If D makes no positive case (e.g. defence/point of
law) and simply puts P to proof, the DS should state this.
— D MUST (even in MC) ALSO notify P and C of any witnesses and alibi witnesses they intend to call within the
same time limits (28/14).

Consequences of defence failures to disclose

— Where D has not complied with his disclosure duty the court may make adverse comment and the court or jury
can draw such inferences as appear proper when deciding whether D is guilty but cannot convict solely on this
inference
— P and co-D require permission to comment on the following:
— A failure to mention a point of law, admissibility or abuse of process
— Late, failed or inadequate identification of a witness

Third party disclosure

— P’s duty to pursue all reasonable lines of inquiry cannot be avoided by merely declining to inquire. Where there
are reasonable grounds to believe that TP has relevant material, it is part of P’s duty to retain it and/or apply for
a summons against TP where they refuse to disclose voluntarily.

6. Indictments

Indictment
— Document containing charges on which D is arraigned at the commencement of trial on indictment.
— A draft indictment does not need to be signed by an officer of the Crown Court to be preferred.
— If it is generated electronically, it is preferred and valid as soon as it is uploaded onto the digital system;
— If it is NOT generated electronically it MUST be served on the Crown Court officer within 20 business days
(EEAE), but counsel must serve it sooner where there are new counts.
— The ultimate responsibility for the indictment rests with counsel for the prosecution.

Counts which may be Included in the Original Indictment

— The indictment may include, instead of or in addition to the original charges, any indictable offences disclosed by
the evidence served by the prosecution

Counts on the indictment

Layout and format
— Each offence is charged in separate numbered paragraphs (= counts)
— Each count is divided into two parts:
— Statement of offence. This describes the offence in ordinary language and any statute contravened (“GBH
with intent contrary to s18 OAPA”)
— Particulars of offence. This should give sufficient factual information to make clear what the prosecutor
alleges (“John Smith on 1st day of January 2017 stole a bike belonging to Joe Bloggs”)
— If the date is unknown, it is enough to state (if supported by the evidence):
— “On or about” a specified date
— “On a day before” a specified date
— “On a day unknown” between two specified dates (a day immediately before and after the earliest
and latest date of commission)

Rule against duplicity: one count for each offence

— Each count must only allege one offence. Otherwise, it is bad for duplicity (e.g. “D stole X and Y from V (two
items of property); D killed V1 and V2 (two victims), D killed and wounded V” (two offences)).
— Exceptions:
 — Conspiracy because it is a continuing offence
— A single count can allege multiple incidents & there can be a single count if those incidents amount to
a course of conduct having regard to the time, place or purpose of commission (e.g. D sexually
assaulted V on 5 separate occasions over a year but V cannot say when each event happened)
— It must be the same KIND/TYPE of offence
— The boThe appropriate circumstances include but are not limited to:
— 1. The same victim or no identifiable individual victim
— 2. The incidents involved a marked degree of repetition
— 3. They took place over a “clearly defined period, typically (but not necessarily) up to a year
— 4. The same defence applies for each incident. Where there are different defences, a multiple
incident count cannot be used

Specimen or sample counts

— Where D is accused of a systematic or continuous course of criminal conduct (e.g. dishonesty over a long period
of time or systematic abuse), and it would be unworkable to include all the counts, P can limit the counts to a
‘sample’ or ‘specimen’ of the overall offending.
— But P must still provide D with a list of all the offences of which it is alleged the specimen counts are samples.
— Potential problems with specimen counts are that:
— D still needs to know the case he has to meet, so the indictment must still be drafted with as much detail as
practicable
— D should not normally be sentenced for offences the jury has not convicted him of

Joinder of defendants on one indictment

— Joint counts. P has the power to indict all parties in a joint count where there is evidence that Ds were acting in
concert (JE).
— There is no need to distinguish between the principal and secondary parties. All Ds will be jointly charged
with the principal offence.
— Separate counts on the same indictment where Ds commit the same or different offences which are so closely
related by time, place or other factors that the interests of justice are best served by trying them together, e.g.
similar time or place; perjury by D1 and then D2 at same trial; Assim nightclub assault
— P is permitted to join them on one indictment even if they’re sent on separate indictments

Improper joinder and severance of the indictment

Improper joinder of counts on one indictment
— Counts are only lawfully joined on an indictment if they are founded on the same facts or part of a series. An
improperly joined count makes the indictment invalid.
— 1. Founded on the same facts:
— Same incident
— One offence is a precondition of the other
— There is a coincidence of time and place
Or
— 2. Form part of a series of offences which are similar in nature, in both law and fact (e.g. Ludlow pub theft
and robbery in Acton in Aug and Sep)

Severance of counts
— Where the counts are unlawfully/improperly joined, the court MUST sever the indictment and order a separate
trial. Proceedings on the improperly joined count are a nullity.
— Where the counts are properly joined, the court has a DISCRETION to sever the indictment and order a separate
trial where:
— 1. D may be “prejudiced or embarrassed” in his defence or
— 2. A separate trial is desirable for some other reason
— The PRESUMPTION should be in favour of joint trial b/c the interests of justice are normally best served by
allegations with a common thread being ventilated together, unless the risk of prejudice is unusually great
 — Same D: the court will only exceptionally sever if there is a special feature which justifies separate trials
scandalous (will prejudice jury, e.g. sex offence & fraud offence) or overly complex.
— Multiple Ds
— In a case involving a ‘cutthroat’ defence the interests of the public (i.e. witnesses giving evidence)
and the prosecution of a single trial outweigh any advantage to the defence in having a separate
trial.
— Joint counts: the court may sever to avoid prejudice to D where there are joint counts (joint
enterprise) the arguments in favour of a joint trial are overwhelming.
— Separate counts: where a co-D is charged in a separate count there should be a greater
willingness to separate trials, especially if the evidence in respect of that count does not
significantly overlap with other co-Ds.
— Following severance, the court must make any order for the postponement of the original trial as appears
necessary. The separated trial shall be as if the count had been preferred in a separate indictment.

General power of amendment

— It is possible to amend the indictment to allege offences not revealed by the papers at sending, and by insertion
or substitution of a new count
— D must be given advanced notice of any application by P to amend.

Staying the indictment

— Another solution is to indefinitely postpone the original indictment and allow P to serve a fresh one. The effect
of staying the original indictment is to treat the trial as if it never happened and discharge the jury (s5
Indictments Act)

7. Preliminaries to trial in the Crown Court

Fitness to plead
— Fitness to plead is to be determined by the judge in the absence of the jury. It can be postponed up to the
opening of D’s case where expedient and in D’s interests.
— If found unfit to plead, the jury must then determine whether D did the act or made the omission charged
against him as the offence
— If no, D is acquitted
— If yes, the court must make one of the following orders only:
— A hospital order (with or without a restriction order)
— Must make a hospital order and restriction order where the sentence is fixed by law
— Must be without time limit where the charge is murder
— A supervision order (with evidence of arrangements for supervision)
— An order for absolute discharge

Pre-trial hearings
— Preliminary hearings
— Required where a DPA is proposed and P consents. The court will declare that a DPA is ‘likely to be in the
interests of justice’ and that its terms are ‘fair, reasonable and proportionate.’

Applications for dismissal

— An application to dismiss may be made at any stage after the service of the prosecution evidence and before
arraignment. If it appears to the court that the evidence would not be sufficient to ensure a proper conviction,
then the charge MUST be dismissed (MANDATORY)

Arraignment and pleas

— Where MC sends D for trial, CC must take D’s plea: at least 10 business days after and no more than 80
business days the date of sending, unless the court otherwise directs.
— A plea should be taken immediately after reading each count
— If two counts are in the alternative and D pleads guilty to the first count, it is unnecessary to take a plea on
the second
— D can be arraigned via live link from custody or elsewhere
— NGP
— The words ‘not guilty’ don’t need to be used
— It is possible for a valid trial to take place even if D does not plead personally
— If D stays silent, fails to give an answer or his plea is ambiguous, the court must enter a NGP on his behalf
— Effect of a NGP is that it puts P’s case to proof
— GP
— A plea of guilty must always be entered by D’s own mouth. LR cannot intervene. Otherwise the plea is
invalid, and the conviction must be quashed
— Effect of GP is P are released from obligation to prove their case and there’s no need to empanel a jury.
— Mixed pleas
— Where D pleads guilty to some counts and not others P has a few options
— P can proceed to trial in respect of the NGP. Sentencing of the GP must be postponed until after trial of
NGP
— P can agree not to proceed on the NG counts. P then has two options:
— To offer no evidence on the NG counts or
— Used where the evidence on the NG counts does not support a conviction or as a form of
plea-bargaining with D, i.e. if D pleads guilty to x counts, they will not proceed on the others
— Effect: the court may then order a verdict of NG and the jury don’t need to return a verdict. It
will have the same effect as if it came from the jury: D is formally acquitted
— While the judge has a discretion to decline to do so (only after he has listened to P’s
reasons) P ultimately cannot be forced to call evidence.
— P is only bound by the judge’s view if it was expressly sought in advance
— To ask for the NG counts (or the entire indictment) to be left on the court file
— Used where there’s strong evidence of guilt on the NG counts but P do not want to proceed
— Effect: The trial of the NG counts is simply adjourned and cannot be proceeded with without
leave of the court. In most cases there will never be a trial and leave will be refused if it would
be oppressive to D
— GP to a lesser offence which is not on the indictment
— Where the count is one which the jury could find D guilty of a lesser offence, D is entitled to plead not guilty
as charged but guilty of the lesser offence, even though this lesser offence is not on the indictment (e.g.
manslaughter instead of murder)
— If P decides to accept the plea, D is acquitted of the offence actually charged and sentenced for the
lesser offence
— It is P’s decision as to whether to accept the plea and P is only bound by the judge’s view if they sought
it
— Change of plea
— Not guilty to guilty
— Court has discretion to allow at any time prior to the jury returning a verdict
— If the matter is already in the jury’s hands, they should return a formal verdict of guilty
— Guilty to not guilty
— Court has discretion to allow at any time prior to sentence

Plea and Trial Preparation Hearings

— MC should schedule PTPH to take place within 28 days of D being sent and P must have served sufficient
evidence (including the indictment) 7 days prior.
— Where D has indicated a GP, its purpose is for sentencing. Otherwise, it is for case management.
— The PTPH form must be available to the court and discussed between the parties in advance.
— The content of the PTPH form and what is said at the PTPH is likely to be excluded under s78 where it is
being used against the accused and D has put all his cards on the table (as otherwise D would be
disincentivised to complete it fully)

8. Summary trial of adults

Trial in absence of D
— If D fails to appear AND has adequate notice of the trial date
— 1. The MC MUST proceed (on a NGP if none was entered) without him unless it appears contrary to the interests
 of justice AND
— MC do not need to inquire as to why. MC MUST to give a reason in open court if they decide not to.
— Acceptable reasons = very high threshold : D is knocked over by a bus or arrested on his way to court or
D is present at court but excluded by security due to misbehaviour. Where D is absent due to sickness,
if he doesn’t provide a medical certificate or it is unsatisfactory, MC should proceed
— 2. MC can also issue an arrest warrant
— 1. Where MC adjourns, the offence is punishable with imprisonment or disqualification
— 2. Where the offence is TEW and it appears that D is evading service
— 3. Under s7 BA for failing to surrender
— Where D’s trial begins by summons, if D never actually received it, the proceedings can be voided if D makes a
statutory declaration within 21 days (EEAE) of discovery and D will not be able to be tried by the same justices

Pre-trial rulings
— There will be a pre-trial hearing where D enters a NGP
— MC have the power to make pre-trial rulings if:
— P and D have had opportunity to be heard and
— It appears in the interests of justice
— And to discharge or vary a ruling where there has ALSO been a material/significant change of
circumstances since the prior ruling or application
— Rulings can only be appealed after proceedings if there’s been an error of law
— A pre-trial ruling is binding on any bench (even if it is differently constituted) until the case is disposed of

Abuse of process
— MC have a discretion to refuse to try a case (acquit D without trial) where there’s a deliberate delay in bringing
the case to court which amounts to an abuse of process (e.g. P took four months after the offence to serve the
summons)
— Where deliberate delay cannot be shown, the magistrates still have a discretion not to proceed if (i) there
has been inordinate delay due to P’s inefficiency, and (ii) there’s prejudice to D. An application to stay is
unlikely to succeed if D is partly responsible.

Procedural steps in summary trial

— Confirmation of NGP
— P’s opening speech
— Should be brief as MC are familiar with cases
— MC may invite D to identify what is in issue. But he should refuse if he has nothing in substance to add.
— P calls P’s evidence
— P must be prepared to call (if only to tender for cross-examination by the defence) all witnesses who are in
court and whose statements have been served. P cannot be compelled to call a W but if necessary, but
improper exercise of P’s discretion could be an abuse of process
— Alternatives to oral evidence:
— Agreed written statements (s9 Criminal Justice Act 1967). A written statement which has the same
value as oral evidence if all parties agree (no other party objects to it within 5 business days of
service)
— It must be signed and contain a declaration of truth
— The statement-maker may still be called
— Any formally admitted fact is conclusive evidence at trial and retrial (S10 Criminal Justice Act
1967).
— Using s10 is most consistent with the OO where the matters on which you rely are not in
dispute
— If not made orally in court, it must be in signed writing.
— If made on behalf of an individual defendant, it must be made or approved by counsel or his
solicitor
— It can only be withdrawn with leave. The court is unlikely to grant leave without cogent
evidence that D and his LR were mistaken
— S10 does not make inadmissible evidence admissible (e.g. because it is hearsay)
— A “fact” includes an expert opinion which a party accepts
— D’s submission of no case to answer
— MC may acquit D (on their own initiative or on application) on grounds that P’s evidence is insufficient for
any reasonable court to properly convict (Galbraith)
— The court should not consider the (lack of) credibility/reliability of witness except in the most
GLARINGLY obvious of cases (e.g. W is lying)
— P must be allowed a right of reply where MC are minded to acquit.
— M is not obliged to give reasons for rejecting a submission
— Closing speeches
— P can only make a closing speech if
— D is legally represented or
— D has called witnesses of fact other than himself
— If P makes a closing speech, D can
— Lesser offence
— The only lesser offence which M can find D guilty of is:
— Dangerous --> careless driving)
— Aggravated vehicle taking --> vehicle taking
— Alternative offences
— If D is charged with offences in the alternative, D should only be convicted of one
— MC are not required to give reasons if they acquit D but must give sufficient reasons if they convict him (so D
can make an informed decision about an appeal)

Role of Clerk (legal adviser)

— In the absence of a DJ, lay magistrates must be accompanied by a legally qualified clerk
— Their role is to proactively advise (during the trial and deliberations) on the law (including mixed law and fact), to
help them formulate and record reasons for their decisions, to take notes, mark evidence inadmissible
— Their duty to ensure proceedings are conducted fairly
— What they must never do is play any part in the findings of fact

9. Jury trial procedure

Proceeding in the absence of D

— Unlike the MC, the presumption is that the court should not proceed unless:
— The court is satisfied that D has knowingly waived his right to attend and the trial will still be fair despite
D’s absence
— There are 2 categories of absence where the court may proceed:
— D is so disruptive that that he has waived his right to be present (high threshold & last resort after suitable
alternatives have been tried)
— Permanent exclusion is extremely rare
— Voluntary absence by escape, failure to surrender, self-intoxication ingestion of drugs
— Involuntary sickness (including where D is too ill to meaningfully participate)
— The court cannot proceed unless:
— D consents or
— Counsel for D can argue his case effectively and he is given the opportunity to give written evidence or
— D has co-Ds and the evidence for the co-Ds has no bearing on D’s case
— If the court is not satisfied with D’s evidence of sickness, it should ask for further evidence before
proceeding
— The court should consider:
— The reason for D’s absence (his fault or not?)
— Whether an adjournment would allow the case to continue later with D present
— How the public interest is best served
— Extent of disadvantage to D of proceeding without him
— Whether D can still be adequately represented –
— If D is unrepresented, the court can only proceed in his absence where it is unavoidable & must ensure the trial
is as fair as possible by taking steps to:
— Expose weaknesses in P’s case
— Make points on behalf of D
 — Warn the jury in summing up that D’s absence adds nothing to P’s case

Unrepresented Accused
— Where D is entitled to legal aid and LR withdraws or is dismissed, the court MAY but need not adjourn

Abuse of Process
— The court has the power to stay proceedings (almost always permanently) where they amount to an abuse of
process.
1. Where D cannot receive a fair trial – this focuses on the trial process
2. Where it would be unfair for D to be tried at all (however fair the process) – this focuses on whether trying
the accused at all would undermine the integrity of the criminal justice system. It includes cases where
there’s been bad faith, unlawfulness or executive misconduct.

Procedural steps
— P’s opening speech
— Gives an overview of the FACTS of the case and outlines evidence which they propose to call
— Should avoid emotive language
— It’s general practice for the judge to invite defence to identify what’s in issue
— P calls oral evidence
— Generally, P must* call to give oral evidence all and only the witnesses whose WS were served on D. *P
has a discretion not to call, but it must be properly exercised. Exceptions to this rule are:
— Agreed written statements s9 CJA (see above)
— Formally admitted facts s10 CJA
— Defence objections to prosecution evidence
— P and D can agree to omit prejudicial parts of P’s statement or the defence can raise an objection
(ideally notifying D before P’s opening)
— At the point that P’s disputed evidence would be adduced, the judge invites the jury to withdraw
— If the dispute is about how the evidence was obtained, the court may hold a voir dire. The judge
determines admissibility.
— The jury return to court and will only hear about the disputed evidence if it is admissible.
— The judge has a discretion to re-review at a later stage
— Submission of no case to answer
— D makes submissions that P’s evidence does not disclose a case to answer in respect of one or all counts
— Submission will be successful if (Galbraith)
— 1. There’s no evidence D committed offence or
— 2. Where the evidence, taken at its highest, the evidence is such that no reasonable jury
properly directed could convict upon it
— E.g. because W has contradicted himself on vital points or says something manifestly
contrary to reason
— But where P’s evidence depends on a question for the jury (e.g. the credibility of W), this
should be left to the jury
— Defence case
— The defence are never obliged to call evidence. D has no right to testify twice
— If he chooses to testify, he must be the first witness
— The court can exceptionally depart from this, but D must always testify before psychiatric
expert evidence and character witnesses
— A W of fact must not wait inside the court room
— Judge calls witnesses?
— The judge has a discretion to call or recall a witness where necessary in the interests of justice
— Procedure between close of defence case and retirement of jury
— Pre-summing up discussions
— Before closing speeches, the judge will almost always discuss his directions with counsel in the
absence of the jury. Counsel are under a duty to assist with the summing-up (point out errors),
whether it assists their case or not.
— Summing-up I (LAW)
— In virtually all cases, the judge should provide the jury with written legal directions and a written
 route to verdict at the start of summing-up and then take the jury through them.
— Closing speeches
— They should be proper, professional and measured and not introduce new matters
— P should go first
— P must not:
— Attack the credibility of his own (non-hostile) witness
— Comment on either the failure of D’s spouse to give evidence or the consequences to
police of not believing their evidence
— P may make comments about D’s silence, inconsistent DS etc
— D should close
— The defence can only make a closing speech if they are calling witnesses of fact other than or in
addition to just D
— D must not refer to punishment/sentencing
— D may advance a hypothesis which goes beyond D’s version of events and comment on a failure to
give evidence
— Summing up II
— Cases vary but every summing up must include the following:
— 1. Questions of fact/evidence are for the jury. The judge is entitled to express a view but the jury
are FREE to disregard it.
— 2. Burden and standard of proof
— 3. Multiple counts should be considered separately, and the judge must make clear when
evidence is admissible against one but not the other.
— 4. Directions on any relevant law in the case and its relationship to the facts
— The judge should
— Explain the main features of P and D’s case
— Direct the jury on a lesser offence if the evidence has obviously raised this (even if P or D
object)
— Make very clear where inferences cannot be drawn
— Put D’s case thoroughly, logically, fairly and impartially to the jury
— Robust comments to the detriment of the defence are permitted (e.g. suggesting
D’s story is ‘remarkable’) but they must be measured (repeatedly telling the jury
that D’s case was ‘absurd’ went too far)
— 5. Any special evidential directions (Turnbull, Vye, Lucas) and guidance on hearsay, character, alibi
and inferences from silence.
— The jury
— The judge should direct the jury to:
— Appoint a foreman
— Try to reach a unanimous verdict. The judge should not tell them the time he can accept a majority
verdict (unless e.g. it is to alleviate anxiety)
— Retirement
— The jury must not separate from each other or the jury bailiffs
— The jury may ask questions by passing a time-and-date-stamped note to the jury bailiff
— If question is unconnected with trial, it can be dealt with by the judge alone
— Otherwise, the judge should state the content of the note in open court and invite counsel’s views
before bringing the jury back and answering the question
— If the note contains voting figures, the judge should deal with it in the normal way but must not
state what they are (as the jury shouldn’t have disclosed them)
— Majority verdicts
— A majority direction can only be given, as a minimum, after two hours and ten minutes
— Minimum majorities permissible are
— 12 jurors: up to 2 dissenters (11-1, 10-2)
— 10-12 jurors: there can only be 1 dissenter (9-1, 10-1)
— 9 jurors: the jury must be unanimous
— Only if the verdict is guilty, the foreman must state in open court how the jury was divided in order for
the verdict to be valid
— Options for jury
— The jury can find D guilty of a lesser offence which was not on the indictment where it ‘amounts to or
 includes’ (expressly or impliedly) the lesser offence, examples.
— Delivering verdict
— Must be in open court, in D’s presence (so no verdict if D has died)
— Can be on all, some or no counts and on only some particulars (e.g. D only stole x items)
— No agreed verdict
— If a verdict is not reached, the jury will be discharged
— P has a discretion to retry. P will usually retry a second time and if the second jury do not reach a
verdict, P will most likely (but not inevitably) offer no evidence

10. Preliminary evidential matters

Facts in issue
— The nature of the offence and defences raised will determine the facts in issue. These are the facts which must
be proved by the party who bears the burden of proof.
— Formally admitted facts under s10 CJA are taken to be proved and are no longer in issue
— Collateral facts are subsidiary facts which affect the question of whether a fact in issue has been proved, e.g. the
credibility of a witness

Prosecution witness’s good character

— Evidence of a prosecution witness’s good character is only admissible if it is relevant to a specific fact in issue,
e.g. evidence of V’s non-violent disposition is relevant to D’s defence of self-defence; evidence that V fostered
BAME children to counter suggestion V is racist
Direct and circumstantial evidence
— Direct evidence is evidence by a person having personal knowledge, e.g. a confession or a witness statement
— Circumstantial evidence requires an inference to be drawn to come to a conclusion on a relevant fact, e.g.
fingerprints, motive, alibi, DNA evidence
— There is nothing inferior or less weighty about circumstantial evidence – it can be more compelling!
— The jury are entitled to conclude that this evidence can carry significant weight

Real evidence
— A tangible thing to be inspected by the tribunal of fact in court or out of court at a ‘view’ in the presence of D (v
important), counsel, the judge, the tribunal of fact and a shorthand writer.
— Little if any weight can be attached to real evidence without accompanying testimony

Admissibility
— To be admissible, evidence must be:
— Relevant to a fact in issue and
— Admissible
— The court has no power to include inadmissible evidence; only to exclude otherwise admissible
evidence

Tribunals of fact and law

Trial on indictment
— CC trial without a jury
— Judge decides law and fact and must give reasons for any conviction
— Lay magistrates should accept the judge’s rulings on law
— CC trial with a jury
— Questions of fact to be determined by the judge include:
— Voir dire
— Deciding the sufficiency of evidence
— Fitness to plead

Summary trials
— Lay justices decide law and fact, but should seek and accept advice on questions of law

11. Burden and standard of proof

Whether the evidential burden is discharged is a matter for the judge alone. Whether the legal burden is discharged
is a matter for the tribunal of fact alone.

Evidential burden of proof

— A party must adduce enough evidence to satisfy the judge that the issue should be left to the tribunal of fact. If
they do not, the issue will be withdrawn. If they do, the legal burden must then be discharged.
— Standard of proof
— If the burden is on P, it is discharged by the adduction of sufficient evidence to justify as a possibility that
the legal burden is discharged too
— If the burden is on D
— If the evidential and legal burden is on D, the evidential burden is discharged by the adduction of such
evidence as might satisfy the jury on the probability of that which the accused is called upon to
establish
— If the evidential but not the legal burden is on D, the evidential burden is discharged by the adduction
of such evidence as ‘might leave a jury in reasonable doubt.’ If discharged, the legal burden is on P to
disprove the defence

General rule – evidential burdens & exceptions

— The general rule is that the party which bears the legal burden of proof also bears the evidential burden.
— But the evidential burden is on the defence, but the legal burden is on the prosecution for the following:
— Self-defence
— Duress
— Non-insane automatism
— Intoxication
— Possession of per se offensive weapon

Legal burden of proof

— The general rule is that P bears the legal burden to prove all elements of D’s offence, even if this means proving a
negative, e.g. no consent. D generally does not have to prove anything. There are the following exceptions
where D bears the evidential AND legal burden:
— Insanity defence
— Express statutory exceptions
— Diminished responsibility
— If possession of an offensive weapon is proved, D bears the burden of proving lawful authority or
reasonable excuse for its possession
— If it is shown that D killed V, it is for D to prove that he was acting in pursuance of a suicide pact
— A statute which expressly reverses the burden of proof will not inevitably be incompatible with Article 6(2)
presumption of innocence. But if it is, it will be “read down” so as to only impose an evidential burden
— The court must view each case on its own merits and:
— Justify the reverse burden with a compelling reason and
— Strike a reasonable balance between the public interest and the protection of D’s rights
— The overriding concern is that D receives a fair trial. The greater the departure from the presumption of
innocence, the more objectionable the reverse burden will be

Standard of proof – LEGAL BURDEN

— Where the prosecution bears the burden of proof, the jury MUST be directed that they must be sure that D is
guilty – this is the judge’s duty
— This is the safest direction (it is synonymous with but clearer than “beyond reasonable doubt”), but there is
no required formula: it is the overall effect of the summing up that matters
— Where the legal burden is on the defence, the jury should be directed that it is the balance of probabilities

12. Preliminary issues relating to Witnesses

Competence and compellability
— A witness is competent if he may lawfully be called to testify, and is compellable if, being competent, he may
lawfully be compelled by the court to testify.

Competence
— The general rule as to competence is that all persons are competent
— Exceptions where a person is not competent (and therefore not compellable):
— 1. If it appears to the court that the person is not able to understand questions put to him or her as a
witness and give answers to them which can be understood
— Relevant for children and mentally disabled/disordered
— The question is entirely witness specific
— There are no presumptions or preconceptions
— The witness does not to be aware of her status as a witness
— The witness does not need to understand or give an understandable answer to every single
question
— 2. D is not competent to give evidence for the prosecution
— D is not competent (and therefore not compellable) as a witness for the prosecution, so he cannot give
evidence even if he wanted to
— D is competent and compellable to give evidence for the prosecution against a co-D ONLY if he
ceases to be liable to be convicted in those proceedings if:
— D’s trial is separated from his co-Ds or
— The case is stopped, dropped or completed by a guilty plea or an acquittal

Compellability
— The general rule is that all competent witnesses are compellable.
— D’s spouse/CP is compellable to give evidence for D unless she is a co-accused in the same proceedings
— Exceptions to the general rule
— 1. D is not compellable as a witness for himself
— 2. D’s current spouse/CP is not compellable for the prosecution OR a co-D
— S can be compelled if the offence is a specified offence of domestic violence against V, or child abuse
(under 16)

Oaths and affirmations

— A witness may not give sworn evidence (by taking an oath or making an affirmations) unless:
— He is 14 or above and
— He has sufficient appreciation of the solemnity of the occasion and of the responsibility to tell the truth
— The witness is rebuttably presumed to have sufficient appreciation if they are able to give intelligible
testimony (i.e. they are competent).
— It is for the party seeking to have the witness sworn to satisfy the court (in absence of jury) on the
BALANCE OF PROBABILITIES that they fulfil both requirements.
— Expert evidence can be adduced.
— Any questioning of the witness is to be conducted by the judge in the presence of all parties
— A witness must give evidence unsworn if either:
— They are under 14 or
— They are a person of any age who does not have a sufficient appreciation
— They are called merely to produce a document and there is no dispute about its identity
— The effect of giving unsworn evidence is that the witness is not liable to be cross-examined.
— A conviction is not unsafe if a witness gives unsworn evidence but satisfies the test for sworn evidence.

Securing a witness’ attendance

— Where it appears as though the witness might not attend voluntarily, P or D can apply for a witness summons.
The summons may be issued if the court is satisfied that: the witness is likely to be able to give or produce
material evidence and it is in the interests of justice to summons them
— An arrest warrant may also be issued if:
— The court is satisfied by evidence on oath that it is probable that a summons would not procure the
witness’s attendance OR
— The summoned witness has failed to attend, and the court is satisfied that:
— W is likely to be able to give material evidence (EOO);
— W has been duly served with the summons and been paid/tendered a reasonable sum for costs;
— There is no just excuse for the failure to attend (v strict & easy to meet)
— A magistrate’s clerk only has the power to issue summonses, not arrest warrants
— Failure to obey a witness summons without just excuse is contempt of the court and the witness can be
 summarily punished for it

13. The rules relating to the examination of Witnesses

Examination in chief
— Examination-in-chief is the examination of a witness by the party calling him, to elicit evidence supportive of the
party’s case

Non-leading questions
— The general rule is that questions should be non-leading. The answer to a leading question is not inadmissible,
but its weight may be substantially reduced.
— This is not a strict rule and the judge can permit leading questions where:
— They are merely introductory
— They are about matters which are not in dispute
— The witness is being asked to identify a person or object

Memory refreshing
— There are two situations in which a witness may be able to refresh their memory:
— In the box (whilst giving evidence) by referring to a written document. The requirements are (s139 CJA):
— The written document was made or verified by W at an earlier time and
— W states that:
— The document sets out his recollection of events at that earlier time and
— His recollection at the time is likely to be significantly better than it is now
— The judge has a residual discretion to refuse an application even where s139 requirements are met
— Can be by application or on the court’s own initiative and at any stage of giving oral evidence (including
cross)
— It is for the court to decide whether W’s recollection is likely to be better
— After going into the box. It may be appropriate to allow W to withdraw and read the statement in peace
— Where W cannot read, counsel can read the document to her in the absence of the jury
— Out of the box (before giving evidence). The s139 requirements do not apply.
— It is routine for WS to refresh their memories before giving evidence
— W may refresh using any medium
— Care should be taken that Ws do not discuss their WS with each other
— Cross-examination on memory refreshing document
— A document used to refresh a witness’s memory does not automatically become evidence, it merely
facilitates the witness giving evidence.
— A memory refreshing document can be inspected by the other side who may cross-examine W on it. It is
only where the cross-examination goes beyond the part of the document used to refresh W’s memory
during her evidence-in-chief that the whole document can be put in evidence for the ToF.

The rule against previous consistent statements

— A previous consistent statement is a statement made by W on an occasion before trial which is consistent with
their later testimony in court. The general rule is that evidence of such statements is not admissible as evidence
of consistency. The rationale is to prevent a potentially false account being seen as credible merely because the
witnesses repeated it.
— Exceptions where previous statements are admissible as evidence of consistency with W’s oral evidence
given in court and under s120 CJA 2003, as evidence of the truth of its contents
— A statement made by D in response to being accused of the crime
— A wholly exculpatory statement is only admissible as evidence of consistency.
— A mixed statement (exculpatory and inculpatory) is admissible as to the truth of its contents
— A statement to rebut of the suggestion of recent fabrication
— If in cross-examination, W’s version of events is challenged as being a ‘recent’ invention, evidence
of a previous consistent statement is admissible in re-examination as evidence of consistency and
the truth of its contents.
— The statement is a previous complaint by V
— A ‘previous complaint’ (to anyone, oral or written) by the victim of the offence on the indictment is
admissible as evidence of V’s consistency. V must give oral evidence on the matter before the
statement is adduced. V’s complaint cannot be the result of a threat or promise.
 — So long as V confirms her previous complaint in her oral evidence, it can be admitted as evidence
of the truth of its contents.

Hostile witness
— The general rule is that it is not permitted for a party to impeach the credibility of his own witness by using
leading questions or adducing previous inconsistent statements even if the witness is unfavourable (= unhelpful).
— But where W is more than merely unfavourable and is not desirous of telling the truth to the court, the
calling party may apply to treat them as hostile. If the application is granted, the party calling the witness
may, in effect, cross-examine his own W by:
— Asking leading questions and/or
— Adducing evidence of any previous inconsistent statements made by W
— If W admits making the previous statement, it becomes his evidence on the day
— If W does not, it will be proved against him and admissible as evidence of the truth of the matters
stated in it (s119 CJA 2003)
— The time at which to apply to treat W as hostile is when they first show unmistakable signs of hostility, but the
party calling W should first invite W to refresh her memory.
— The question whether W is hostile is for the judge in the absence of the jury, but the evidence and
demeanour of W should be tested in the presence of the jury

Cross-examination
Form and content
— All witnesses who give evidence in chief must be made available for cross-examination by P and any co-D.
— Prosecution witnesses are cross-examined in the order their names appear in the indictment. Defence witnesses
are cross-examined by co-Ds before P.
— Questions are not restricted to matters raised in chief and may extend to any relevant matter, especially
anything going to their credibility: recall, character, convictions, previous inconsistent statements.
— Evidence to contradict a witness must be put to them in cross-examination for the cross-examining party to
be able to invite the jury to disbelieve the witness on that issue. Any failure to challenge a witness on any
matter amounts to a tacit acceptance of the witness’s evidence in chief on that matter.

Regulating cross-examination
— The judge should only intervene in a cross-examination to clarify matters or prevent unnecessary/improper
questioning
— Cross-examination should be conducted with restraint and courtesy
— Questions should be to elicit evidence; they should not be in the nature of comment or framed so as to
invite argument (‘I suggest to you that...’)
— The Code of Conduct also regulates cross-examination

Cross
— Cross-examination by unrepresented defendants of the following witnesses is prohibited by statute:
— Complainants of sexual offences
— Child witnesses of sexual, violent, abduction, false imprisonment offences
— The court has a general power to prohibit cross-examination by D where:
— The quality of W’s evidence is likely to be diminished as a result
— It would not be contrary to the interests of justice
— If the accused is prevented from cross-examining the court MUST
— 1. Appoint an LR if it is in the interests of justice
— The remit of the appointed representative is limited to cross-examination and any applications relevant
to it. Their role ends with the cross-examination, but they are free to stay on a pro bono basis
— 2. Give any warning the judge considers necessary to ensure that D is not prejudiced from any inference
drawn as a result

Previous inconsistent statements

— One of the most effective ways of challenging witnesses in cross-examination is to prove they made a previous
statement which contradicts their oral evidence.
— Such a statement is admissible (only as against W) as evidence of inconsistency and the truth of its contents
 (s119 CJA 2003)
— A previous inconsistent statement which the cross-examining party proves W made is one which W admits
or denies he made, or where W is treated as hostile

The rule against rebuttal on collateral matters

— Rebuttal evidence during cross-examination cannot be adduced purely AND SOLELY ON collateral matters (i.e
going only to credibility) UNLESS it is to show that W is BIASED against D e.g. to rebut a prosecution witness’s
denial that he had threatened to ‘get even’ with D
— There has to be some basis for the allegation of bias, the denial that a bribe was offered could not be
rebutted, but the denial that a bribe was accepted could, because only the latter suggested partiality

Re-examination
— The rules for re-examination are the same as for examination in chief. Questions are strictly limited to those
which seek to explain or qualify a statement made in cross-examination unless the court gives permission.

Eligibility of witnesses for special measures

— Category 1: witnesses who are automatically eligible for a special measures direction:
— Children (under 18)
— The family court’s consent is not required for any child, even a ward of the court, to be interviewed, or
called as a witness in this jurisdiction.
— There is a presumption or primary rule that in all cases the court must direct that:
— The video recording of W’s interview with police is their evidence-in-chief
— Cross-examination is by live link
— Complainants in sex, modern slavery or trafficking cases
— But they have an unqualified right to opt out of SMD
— Witnesses to a knife or firearms offence
— But they have an unqualified right to opt out of SMD
— Category 2: the court must determine whether the quality of the witness’s evidence would be diminished by
their condition, taking into account their own views before making a declaration of eligibility:
— Witnesses in fear or distress about testifying
— Witnesses with a physical or mental impairment
— Apart from children (where specific SMD are presumed), after the declaration of eligibility is made, the court
must consider which specific special measures will maximise the quality of the witness’s evidence

Types of special measures for eligible witnesses

— Removal of wigs and gowns
— Screening the witness from the accused
— Where W can cope with the courtroom but not with D seeing her. W will only be screened from D.
— Excluding named people from the courtroom (other than the parties and their LRs) while W gives evidence in
sex, modern slavery or trafficking cases or cases where W feels intimidated
— Giving evidence by live link accompanied by a supporter
— Video recording evidence-in-chief
— Video recording cross-examination and re-examination where the evidence-in-chief was video recorded
— Where a child or mentally or physically incapacitated witness who needs assistance communicating their
evidence:
— Examination through an interpreter or approved intermediary or
— Aids to communication
— Other protective procedures include:
— Reporting and public access restrictions to protect a fearful or distressed adult witness’s identity
— Complainant anonymity in sex offence cases
— Prohibitions on D cross-examining child witnesses of sexual/violent offences or sex offence victims
— Pre-trial depositions for witnesses under 18

Special measures for D

— The accused is expressly excluded from the statutory SMD regime for witnesses. There are two routes for special
measures for D:
— Under s33A YCJEA, D can give evidence through live link SMD, but only where: it maximises the quality of
 D’s evidence, is in the interests of justice and:
— D is under 18 and his ability to give evidence effectively is compromised by impaired intellectual or
social functioning or
— D is over 18 and unable to participate effectively because he has a mental disorder or a significant
impairment of intelligence and social functioning
— The court has an inherent jurisdiction to make modifications to orthodox procedures where it is in the
interests of justice – narrowly interpreted (e.g. does not extend s33A)
— The court can direct that a D with comprehension and/or communication difficulties be assisted by an
intermediary
— D does not need an intermediary where his difficulties can be resolved by setting ground rules
— Where an intermediary is not available for a D assessed in need, the trial judge must determine
whether D can still have a fair trial by adapting procedures
— Expert reports in support of an intermediary appointment must address D’s difficulties and how
they impact his ability to give evidence

Intermediaries
— Intermediaries owe their duty to the court so they should be transparent, independent and impartial
— Their role is limited to assisting W in the communication of his evidence. They should not be called to give oral
evidence, but their pre-trial assessment report is admissible
— Intermediaries should be used for witnesses who are incapable of speech. For less disabled witnesses, the
recommended approach is to assist counsel and the judge as to what questions D will struggle to answer so as to
avert them

14. Hearsay Evidence

Hearsay is an ‘out-of-this-court statement’ (ss114-115 CJA 2003)

— A statement
— A representation of fact or opinion by means including speech, a gesture, documents, diagrams, sketches,
gestures.
— Made by a person
— It must have human input, so information automatically generated by a machine which is not based on
human input does not count (e.g. CCTV recording (but distinguish between the recording and what was
said), photograph, breathalyser results as no data is entered manually).
— Not made in oral evidence in the proceedings
— Whose purpose was to cause another person to believe the statement, or for them or a machine to act as
though it were true (s115(3))
— Three-stage test:
— What is the matter you seek to prove? E.g. that D is a drug dealer
— Is there a statement to this effect in the communication? If not, there’s no hearsay
— Was one of the purposes of the maker that the other person believes or act as if the statement was
true? If not, there’s no hearsay
— The following is therefore hearsay:
— Where A tells B a number A sees but B does not, to prove the number
— Where an item is labelled, to prove the content of the label
— The following is therefore NOT hearsay:
— Where the statement-maker does not intend for anyone to read the statement (strictly private diaries)
— Communications where there is a presumed or actual common understanding between the parties
— Examples
— Calls to a drug dealers house asking for drugs were not hearsay because the client’s purpose
was not to cause anyone to believe D was a drug dealer as they thought they were talking to
D
— A text apologising V for raping her was not hearsay because D’s purpose wasn’t to cause V to
believe she had been raped
— Which is adduced to prove what was stated (distinguishing original evidence from hearsay)
— A statement is only hearsay if it is being put into evidence to prove that what was stated is true. Where the
statement is being adduced for some purpose other than to prove the statement is true, it is not hearsay.
— Examples of original evidence and not hearsay
 — Where the statement is being adduced:
— To show a statement was made
— E.g. A piece of paper with “Sean rules” near a crime scene was not hearsay because it
was adduced as circumstantial evidence that D was at the crime scene. The prosecution
was not seeking to prove that Sean rules!
— To explain a course of action taken by W
— E.g. Threats or legal advice to D were not hearsay because they were being adduced to
show that a threat or advice was made, not to establish that what was said in the threats
or advice was true
— To explain the statement-maker’s state of mind
— The purpose of the statement cannot be to cause another to believe the state of mind. It
is a statement from which a state of mind may be inferred
— To show the manner in which the statement was made
— To show the document exists or its condition, not that what it says is true
— Where the statement is a lie

As a general rule, hearsay evidence is restricted unless there’s a statutory gateway

Statutory framework:
1. Is there a gateway? (s116-118). Is there an additional ‘interests of justice’ test for the gateway? (e.g. s116
witness in fear)?
2. If there is no other gateway, should s114(1)(d) interests of justice apply?
3. The issue of multiple hearsay (s121)
4. What material is there which can help to test the hearsay? (s124)
5. Even if prima facie admissible, ought the evidence be ruled inadmissible under s78 PACE or s126 CJA?
6. If the evidence is admitted, should the case subsequently be stopped under s125?

1. Gateways to admissibility under CJA 2003

Unavailable witness (s116 CJA 2003)
— An oral, written statement or a statement about conduct is admissible hearsay where an identified witness is:
— (a) Dead
— (b) Mentally or physically unfit to give evidence
— Evidence which does not indicate that W is unfit to give evidence (e.g. simply saying that D’s condition
is worsened by stress) is not sufficient
— Proof of mental illness is not necessary
— Expert evidence can be adduced and cross-examined where necessary
— (c) Absent abroad and it is not reasonably practicable to secure attendance in person or by video link
— (d) Disappearance despite reasonable steps being taken to find them
— (c) and (d) cannot be used where P or D are partly responsible
— In fear of giving oral evidence (at all or on the subject matter covered by the statement) and s116(4) the
court considers that the statement ought to be admitted in the interests of justice having regard to:
— The risk of unfairness
— How difficult it will be to challenge the statement
— The reliability of the evidence
— Whether the witness’s fear could be overcome by any special measures
— Fear of giving oral evidence must be proved by specific evidence
— There does have to be a causal link between the fear and the failure or refusal to give evidence which
must be proved to the criminal standard
— Additional requirements
— The statement-maker must be identified and competent
— The party seeking to adduce the hearsay must not be one of the reasons for the witness’s unavailability
— The hearsay must be first-hand (and not multiple)
Professional or business document (s117 CJA 2003)
— A document created or received in the course of a profession can be admitted as hearsay evidence, provided
that:
— Oral evidence of the matter would be admissible; and
— The person who supplied the information contained in the statement (had personal knowledge of the
 matters dealt with.
— If the document was prepared for a criminal investigation or criminal proceedings (e.g. a witness
statement), then in addition to the above criteria either:
— A requirement in S116 is fulfilled (But high threshold) OR
— The maker of the statement cannot reasonably be expected to remember its contents because of the
length of time which has passed
— But:
— The court has a discretion to exclude the evidence if its reliability is considered doubtful (e.g. the
statement is in a letter which is degraded when it arrives at its destination)
Preserved common law exceptions (s118 CJA 2003)
— Res gestae – a close connection between the crime and the making of the statement
— 1. The maker was so emotionally overpowered that there is virtually no possibility of the statement
being concocted or distorted
— S118(4) should not be used as a substitute for s116, but the case law allows it in domestic abuse
cases
— 2. The statement was to identify D as perpetrator
— 3. The statement is declarative of the person’s physical or mental state (but it cannot prove its cause)
— Confessions by D or agents of D
— Only admissible against D and CANNOT be used against a co-D.
— Includes implied acceptance even where D is silent.
— Statements or acts made by one co-conspirator/joint party during the pursuance of the offence are admissible
against another party
— e.g. D and V agree to commit suicide, D survives and is charged with V’s murder. Evidence that V purchased
the poison, was admissible against A
— Expert opinion
— An expert opinion can be informed by hearsay, but an expert’s assertion of fact cannot. The test is where
the statement ceases to be the expounding of general study and becomes an assertion of a particular fact in
issue in the case.
— Public information is admissible evidence of the facts stated within them
— Published works dealing with public matters (histories, scientific works, dictionaries, maps)
— Public documents (registers, returns)
— Records (court records, treaties, Crown grants)
— Evidence relating to a person’s age, DOB, place of birth
— Evidence of reputation (only) to prove either:
— A person’s good or bad character
— Pedigree
— The existence of a marriage
— Any public or general right
— The existence of a third person or thing

2. Safety valve where there’s no other gateway

Interests of justice (s114(1)(d) CJA 2003)
— This is a ‘safety-valve’ to admit evidence if it is in the ‘interests of justice’ and no other gateway applies. It
cannot be used to circumvent the requirements of other gateways or evidential rules
— The court must have regard to the following (common sense) factors:
— Importance of the evidence
— The risk of unreliability of the evidence
— The extent to which the reliability of the evidence can be tested
— The prejudice that the evidence may cause
— The statement of an incompetent witness is admissible under s114(1)(d) in exceptional cases

3. Multiple hearsay (s121 CJA 2003)

— Second-hand hearsay (where A tells B that C told him x) is not admissible even if A and B both separately fall
within a gateway unless (s121):
— Either of the statements (A or B’s) is admissible under s117, 119 or 120 or
— All parties agree or
 — Given its reliability, the value of the evidence is so high that the interests of justice require its admission

4. Testing the credibility of the hearsay (s124 CJA)

— Evidence admissible to challenge the credibility of the hearsay includes ANY evidence that would have been
admissible had the witness been present. Rebuttal evidence on purely collateral matters is also permitted.

5. Even if prima facie admissible, ought the evidence be ruled inadmissible?

— Hearsay evidence can be excluded in the following ways:
— The general discretion to exclude prosecution evidence under s78 or at common law
— Under s117
— General discretion to exclude in S126 CJA 2003 prosecution or defence hearsay which is unconvincing and
superfluous: the value to be gained from it is substantially outweighed by the amount of time that would
be wasted in receiving it because it lacks probative value.

6. If the evidence is admitted, should the case subsequently be stopped under s125 CJA 2003?
— Where the case against D is based wholly or partly on hearsay evidence the court must either direct an acquittal
or order a retrial if, the court is satisfied that the hearsay evidence is so unconvincing that...any resulting
conviction of the offence would be unsafe.

Loss of the right to cross-examine and Article 6 ECHR

— Even where hearsay is the ‘sole or decisive’ evidence against D, CJA 2003 is rigorous enough to protect D’s
Article 6 rights.
— The more critical the evidence, the greater the vigilance required, particularly where the evidence is generally
regarded as weak (recognition or identification evidence).
— The judge must give a clear direction on the deficiencies of the hearsay both generally and specifically in the
case.

Procedure
— Advance notice on the court and all parties is only required for the following gateways:
— 114(1)(d) (interests of justice)
— 116 (unavailable witness)
— 117(1)(c) (statement prepared for the purposes of criminal proceedings or investigation)
— 121 (multiple hearsay)
— Not 118!
— Advance notice for the prosecution is 10 business days after a NGP in the Crown Court and 20 business days in
the magistrates. For the defence: “as soon as reasonably practicable.”
— Notice opposing the introduction of hearsay evidence must be served as soon as reasonably practicable, and in
any event not more than 10 business days after notice served.
— Failure to object will mean the hearsay is admissible by agreement of the parties (s114(1)(c))

15. Character evidence

Relevance of character evidence
— Evidence about character may be relevant to:
— A fact in issue – e.g. on a charge of driving while disqualified, an essential ingredient is disqualification
and/or
— Guilt or innocence – evidence that D has a propensity (tendency) to commit crimes of that type is relevant to
determining whether he committed the offence
— Credibility – a witness’s character may enhance or decrease the credibility of their evidence

Definition of bad character (s98 CJA 2003)

— Bad character means “misconduct which is unrelated to the commission, investigation or prosecution of the
offence charged.” It must come under a gateway to be admissible.
— But the following is not bad character and is admissible in the ordinary way:
— Misconduct which is:
— Directly relevant to the alleged facts of the offence because it provides the direct motive for the
offence or it is directly linked to the facts (e.g. a large amount of cash for a drug-dealing offence
 which is the alleged cash proceeds of the offence charged, collapsing because on drugs, not
because D hit V)
— Connected to the prosecution or investigation of the offence (e.g. telling lies in interview,
intimidation of witnesses, blackmailing a co-D)
— “Misconduct” includes
— The commission of an offence:
— Previous convictions (including in EU MS) (the jury is not bound to accept the factual basis of D’s GP)
— Other charges/accusations/counts in the same proceedings
— A gateway is required as to adduce evidence of any other charge or accusation in the same
proceedings. If no application under a gateway is made, the judge must direct the jury that the
other count is inadmissible.
— E.g. evidence that Harold Shipman killed V1 is only admissible to proving he killed V2 where
an application to adduce it is made.
— Careful instructions on cross-admissibility must be given.
— Offences for which D was never prosecuted or acquitted
— Evidence of an acquittal is admissible under s101(d) and s101(e) (subject to exclusions) and does
not violate the rule on double jeopardy as D isn’t being prosecuted for them
— Offences occurring after the offence charged
— Other reprehensible behaviour:
— It is for the court to determine – v fact specific (a text shouting at V not enough – would have to say D
desires to kill V)
— It connotes culpability or blame. It’s not enough that behaviour is morally lax (e.g. 30-year-old dating a
16-year-old), but could include gang membership
— Non- bad character evidence may be admitted on normal principles of relevance

The stages for determining bad character admissibility

1 The judge determines the relevant gateway
1 Where it is raised, the judge determines any question of exclusion of P’s evidence
2 Once admitted, questions of weight are for the jury, subject to the judge’s power to stop the case
3 The judge’s direction is of absolute importance.
— The direction must:
— Warn the jury against the dangers of placing undue reliance on bad character evidence. It cannot be
used to bolster a weak case or to prejudice the jury against D (Hanson)
— Emphasise that the jury must not infer guilt from the bad character evidence (Hanson)
— Make clear the purpose(s) for which the evidence can and cannot be used
— Give separate directions on propensity and credibility

Gateways for the admissibility of defendant bad character (s101 CJA)

— (Bar (f)) once admitted, the evidence can be used for any purpose to which is relevant
— Agreement
— By all the parties to admission of the evidence
— Blabs
— D introduces the evidence himself (D may do this tactically to support his case)
— Context
— It is important explanatory evidence if: “without it the court or jury would find it impossible or difficult
properly to understand other evidence in the case and its value to understanding the case as a whole is
substantial”
— E.g. evidence that D sexually abused V throughout her childhood to show that her consent to have
sex with him on 16th birthday was not genuine; evidence of an unhappy marriage to show a motive
for killing D’s wife; evidence that W knew D to show W’s identification was reliable
— Done it before [Only P]
— Evidence must be relevant to an important matter in issue between P and D, often to show D has done
it before.
— It includes evidence of (s103(1)):
— Propensity to commit this type of offence (EXCEPT where D’s propensity is does not make it
more likely that D committed the offence charged – e.g. prev offences involving recklessness
don’t prove intent) UNLESS the court thinks it is unjust due to the passage of time or some
 other reason
— Propensity will be established if there are many charges of this type, but it can be a
single charge if it is ‘strikingly similar’ = (Hanson)
— Gang membership
— Propensity to be untruthful ONLY IF it is suggested that D’s account in current proceedings is
untruthful
— D’s credibility must be a central in the case and the propensity evidence should clearly
show D’s propensity to tell lies
— ‘E did it, not me! [Only D against co-D]
— The evidence must have substantial probative value to an important matter in issue between Co-Ds.
— The evidence can go to:
— Propensity or
— Credibility but only where D2’s defence undermines D1’s (usually a cut-throat defence). A mere
denial is only enough if by necessary implication it implicates D. If D2’s account leaves a route of
acquittal open to D1, this isn’t enough
— D1 usually wants to attack D2’s credibility to show why the jury should prefer his evidence
— Once admitted, there is no discretion to exclude (apart from procedural breach) (e.g. lateness)
— False impression [Only P]
Evidence to correct any false impression which D positively creates (beyond mere denial).
— The evidence must go no further than is necessary to correct the false impression¸ and once
admitted, cannot be used for any other purpose
— The prosecution cannot rely on (f) where D has voluntarily disassociated himself from the false
impression (e.g. agreeing to edit a police interview statement and not repeating the false
statement in court) in advance of cross-examination.
— It includes things words, conduct or appearance (anything) by:
— D during proceedings or questioning
— Defence witnesses
— Any witness in response to a question in cross-examination intended to elicit it
— Anyone and evidence of it is adduced by D
— Gets at any specific person [Only P]
— Evidence of any attack by D on the character of a specific person by saying they’re of bad character
— A denial is not enough, D must make a positive attack (V is a slag) but it does not need to be intentional
— D has no option to disassociate
— The court must not permit P to use statements made in the heat of a cross-examination as an artificial
device for relying on (g)

Bad character evidence of any person other than D, whether called as a witness or not (s100 CJA)
— Bad character is generally not admissible unless:
— Agreement of all parties and the court has given leave
— It is of substantial probative value in relation to a matter in issue in the proceedings AND substantially
important to the case as a whole . Matters in issue include both facts and credibility. In considering
probative value the court must assess:
— E.g. D may wish to adduce evidence of previous convictions of V to show V’s propensity for violence or
untruthfulness
— It is important explanatory evidence if: “without it the court or jury would find it impossible or difficult
properly to understand other evidence in the case and its value to understanding the case as a whole is
substantial” E.g. evidence that W beat V to explain why V did not seek W’s help
— If D uses s100 to attack X, he will risk opening gateway s101(g)
— The only power to exclude is s78 for prosecution evidence

4 Where it is raised, the judge determines any question of exclusion of P’s evidence
5 Once admitted, questions of weight are for the jury, subject to the judge’s power to stop the case
6 The judge’s direction is of absolute importance.
— The direction must:
— Warn the jury against the dangers of placing undue reliance on bad character evidence. It cannot be
used to bolster a weak case or to prejudice the jury against D (Hanson)
— Emphasise that the jury must not infer guilt from the bad character evidence (Hanson)
 — Make clear the purpose(s) for which the evidence can and cannot be used
— Give separate directions on propensity and credibility

Safeguarding and excluding character evidence

— Prosecution bad character evidence may be excluded under:
— s78 PACE
— Common law where the prejudicial effect outweighs probative value
— s101(3) CJA 2003 ONLY for gateway D [Done it before] & G [Gets at T]
— Admissibility through gateway (g) is subject to the fairness test in s.101(3). The court must not admit
evidence through this gateway if it would have such an adverse effect on the fairness of the
proceedings that it ought not to be admitted
— The court has the power to stop the trial where it feels the character evidence has been contaminated (usually
due to collusion between witnesses)

Procedure
— For bad character of a non-D the adducing party must apply for permission no more than 10 business days after
relevant prosecution disclosure
— Under s101 (for bad character of the accused)
— The adducing party must give notice to the court and all other parties no more than:
— (Prosecution): 10 business days after a NGP in the Crown Court and 20 business days in the
magistrates court
— (Co-defendant): as soon as reasonably practicable, and no more than 14 days after prosecution
disclosure
— (Defendant): must give notice orally or in writing before the evidence is introduced
— Any objection must be in writing no more than 10 business days after service of the application/notice
— The court may determine the matter with or without a hearing and must give reasons for its decisions in public,
in the absence of the jury
— The court has the power to vary or waive procedural rules where D is not unfairly prejudiced

Proving convictions under ss73-75 PACE

— Under s73 PACE the conviction is proved by producing a signed certificate of conviction at the appropriate court
and by proving that the person named on the certificate is the person whose conviction is to be proved
— Under s74, any evidence of a conviction creates a presumption that the offence was committed by the person
convicted, ‘unless the contrary is proved’

Good character directions

— Where D is of good character, the judge must give a Vye direction. It has two limbs:
— Credibility:
— D’s good character must be taken into account when considering whether to accept his version of
events. This must only be given if there is something D has said, either in court or previously, which the
jury is asked to believe.
— Propensity
— D’s good character must be taken into account when deciding whether D is the sort of person to have
committed the offence. This must be given in all cases where D is of good character.
— Categories of good character (Hunter)
— Only those deemed of absolute or effective good character are entitled to a good character direction
— Where D has no convictions/cautions AND no other reprehensible conduct, D is of “Absolute good
character.” A full and unqualified Vye direction must be given. D does not need to prove good
character.
— Where D has previous convictions/cautions which are old, minor or irrelevant to the charge. The
judge MAY FIRST decide that D is of “Effective good character.” If he does, a full direction must be
given which is modified to ensure the jury is not misled.
— In any other case, the judge has a broad discretion whether to give any part of the good character direction
and on what terms.
— If the judge is required to give a bad character direction, he may weave in parts of a good character direction,
subject to the absurdity principle (the judge must not give an absurd or misleading direction).
Good character of someone other than D
— Good character evidence is only admissible to rebut an accusation by D.

16. Confessions and unlawfully or unfairly obtained evidence

Definition of confessions
— A statement which is wholly or partly adverse to the person making it, whether made to a person in authority
or not (directly or indirectly), and whether made by words or conduct (includes a guilty plea)

Choosing between s76 & s78

— s.78 gives the court a discretion to refuse to admit the evidence. Under s.76 if the court finds that the confession
is unreliable it must refuse to admit it. Therefore, the better submission is one advanced under s.76.

S76 PACE 1984 (focus is unreliability)

— The general rule is that a confession made by D is admissible insofar as it is relevant and is not excluded on the
grounds of oppression or unreliability
— Where challenged, the court MUST not admit the confession statement into evidence unless the prosecution
establishes beyond reasonable doubt that the confession was not obtained by oppression or in circumstances
likely to render the confession unreliable
— (a) By oppression
— Oppression is defined as including ‘torture, inhuman or degrading treatment and the use or threat of
violence’ and can include constant bullying
— It generally requires deliberate and VERY serious misconduct
— The character and attributes of the accused have to be considered by the court when assessing whether a
confession was obtained by oppression. What amounts to oppression of one suspect will not necessarily
amount to oppression of another
— (b) In the circumstances of anything said or done likely to render the confession unreliable
— The test is whether any such confession which the accused might have made in those circumstances would
likely be unreliable (e.g. confess and I won’t take any further action)
— There must be a causal link between the circumstances and the confession
— The circumstances causing the confession must be external to D
— The causal potency of the circumstances varies depending on D’s vulnerability
— A PACE breach will not automatically render the confession unreliable, it depends on the facts
— Evidence admissible despite excluded confession
— If a confession has been partly or wholly excluded under s76(2), this does not affect the admissibility of any
facts discovered as a result of the confession or anything revealed about how D writes, speaks or
expresses himself
— What is not admissible is the fact that the evidence was discovered as a result of the confession
— Examples:
— That the stolen goods were found in D’s house
— A misspelling or handwriting matching the crime scene
— A speech impediment which matched V’s description
— Where s76(2) is raised, the Crown Court and the MUST determine it by way of a voir dire as soon as it is raised.
— In the CC an application MUST be made before the evidence is adduced
— In the magistrates, an application may be made at any time, but a suggestion in cross-examination that the
alleged confession was obtained improperly does not amount to an application

S78 PACE 1984 (exclusion of unfair evidence)

— The court has a discretion to exclude *ANY* EVIDENCE on which the prosecution proposes to rely...where,
having regard to all the circumstances, to do so would so adversely affect the fairness of the proceedings
— The circumstances will only lead to exclusion where they fulfil this test, which covers all evidence
— Case-specific factors include: Has there has been a significant and substantial breach of PACE which so
prejudices D? Has D been denied access to legal advice (important)? Were the police acting in bad faith?
How vulnerable was D? Was the ECHR breached? Can D be fairly convicted if the confession is admitted?
— Evidence admissible despite excluded confession?
— There is no similar statutory provision, but the common law suggests such evidence is admissible (unless
 otherwise excluded)

Making or challenging applications to exclude evidence under s78

— Hearing evidence on a voir dire is discretionary, not obligatory; s78 may be determined on submissions only
— The defence must make a s78 submission before the evidence is adduced.
— Trial on indictment
— The court must determine s78 before the prosecution evidence is adduced
— Where there is a factual dispute about how the evidence was obtained, there should generally be a voir dire
(unless it concerns identification parade evidence)
— The judge has a discretion to readmit previously excluded evidence if the balance of fairness shifts
— Summary trial
— The magistrates can decide at ANY time as it is entirely within the magistrates’ discretion as to when to rule
on admissibility
— Where the s78 challenge is to statements made by D, there should generally be a voir dire. But the defence
have no right to one.
— If the evidence is excluded, MC must then consider whether the substantive hearing should be conducted by
a different bench

Common law rules of exclusion

— S82(3) preserves the common law powers to exclude prosecution evidence where:
— Its prejudicial effect outweighs its probative value
— The admission or confession obtained from D might operate unfairly against him e.g. because it has been
obtained in bad faith
— The power must be resorted to where the defence objects after the confession has already been admitted into
evidence, because s76 and s78 only apply where a submission is made before the evidence is adduced

17. Inferences from the defendant’s silence and other conduct

— An adverse inference = circumstantial evidence which can be taken into account in whether D is guilty

Lies
— Whenever a lie told by D is used as evidence that D is guilty of the offence (i.e. the jury are invited to draw an
adverse inference), a Lucas direction must be given:
— (i) The lie must be admitted or proved beyond reasonable doubt by independent evidence
— (ii) The lie must be deliberate
— (iii) The lie must relate to a distinct material issue
— (iv) The mere fact of telling a lie is not itself evidence of guilt, becomes sometimes people lie for innocent
reasons. Only if the jury are sure that D did not lie for an innocent reason can the lie support P’s case
— (v) D cannot be convicted wholly or mainly on the basis that he lied
— A Lucas direction should be given wherever the prosecution seek to rely on a lie as evidence of guilt, or where
the jury may do so

The right to silence & CPJOA 1994

— At common law, D has a right to silence. But, where the Criminal Justice and Public Order Act 1994 (CPJOA
1994) applies, adverse inferences may be drawn from a defendant’s failure to explain themselves.

Requirements common to ss34-37

— They “may” draw an inference, not “must.”
— It is for the judge to decide (having consulted counsel) whether a direction should be given and on what
terms and when determining whether there is a case to answer.
— It is for the jury to decide whether and to what extent to draw an adverse inference when determining
whether D is guilty.
— Any direction must make clear that no conviction can rest wholly or mainly on an adverse inference
— Adverse inferences do not infringe Article 6 ECHR, but clear directions are crucial
— S34, 36, 37: When questioned at an authorised place of detention, no adverse inference can be drawn unless
and until D has been given the opportunity to consult a solicitor

Failure to mention when questioned a fact later relied on: s34

— If, when questioned under caution or charge D fails to mention a fact later relied on at trial which he could
reasonably have been expected to mention, any such inference as appears proper may be drawn
— S34 only applies where a D advances a positive case at trial which is suspicious because it was not put
forward earlier. S34 does not apply where:
— D advances no positive case and merely denies the offence and puts P to proof
— D’s account at trial has not changed in substance
— Where D defendant puts forward some sort of defence, albeit without all the detail, it is not necessary to
give an adverse inference direction
— s.34 is primarily directed is the person who gives a positive defence following a ‘no comment’ interview or
attempts to ambush with a defence
— Fails to mention a fact
— Facts can be mentioned in a prepared statement, even if D doesn’t respond to questions thereafter
— Where D later seeks to rely on other facts, a s34 inference may be drawn or a Lucas direction given (on
the basis that the prepared statement was a lie).
— Later relied on at trial
— Reliance is very broadly interpreted. It covers any fact advanced by defence counsel including:
— Putting a positive case to a prosecution witness in cross
— Eliciting a fact from a prosecution or defence witness
— Adopting the evidence of a co-defendant
— Which he could reasonably have been expected to mention
— The court must ascertain whether D has a reasonable explanation in light of:
— D’s age, experience, mental capacity, health, sobriety, tiredness and personality
— The conduct of the interviewer
— Legal advice
— Where D’s explanation for silence is legal advice:
— The jury must decide whether D genuinely and reasonably relied on the advice or merely hid behind
it because he had no satisfactory explanation to give
— D only waives privilege where he explains why he was so advised (rather than merely that he was
so advised)
— The jury direction must:
— Emphasise D’s right to silence
— Outline the specific fact upon which D now relies, any explanation given and the inferences which may be
drawn (MC too)
— Ensure the jury understands that an adverse inference of guilt may only be drawn if:
— The prosecution’s case calls for an answer and
— Taking into account D’s explanation, the only sensible explanation for D’s silence when questioned was
that D had no answer, or none that would survive cross-examination
— Make clear that no conviction can rest wholly or mainly on an adverse inference
— Multiple defendants should be dealt with separately
— Where the facts invite a s34 and a Lucas direction, the judge should generally give a combined direction adapted
to the facts of the case

Failure to account for incriminating objects, substances, marks (s36) or presence at the scene of a crime (s37)
— Any such inference as appears proper may be drawn, where, in addition to the above (specific ss36-37
requirements):
— D is arrested
— At the time of arrest the arresting or investigating officer reasonably believes that either of the following is
attributable to D’s participation in the offence:
— (s36) An object, substance or mark on D’s clothing, person or footwear or
 — (s37) D’s presence at the scene of the crime (when he was arrested) around the same time the offence
was committed
— D is offered legal advice prior to the interview (he doesn’t need to take it)
— The officer:
— Informs D of his suspicion &
— Gives a special warning &
— Requests an explanation &
— D fails or refuses to account
— If D was not at a police station, when interviewed at a police station, D must be given a special warning and
his silence put to him at interview
— An inference of guilt may only be drawn if the jury is satisfied that D has either failed to account or offered an
implausible explanation
— The strength of the inference increases with the suspicious nature of the circumstances

Failure to testify or answer questions during trial: s35

— If D fails to give evidence at trial or when giving evidence, fails without good cause to answer a question, any
such inference as appears proper may be drawn in determining whether D is guilty
— Requirements
— The prosecution must have established a case against the accused which calls for an explanation
— S35 only comes into play after the close of P’s case which presupposes that there is a case to answer
— A failure to testify can never assist in making a case to answer
— D’s physical and mental condition must not make it “undesirable” for him to give evidence
— This applies very exceptionally because of the availability of special measures
— Angina suffices, but the following doesn’t:
— Low IQ
— Memory loss
— Mental disorder
— There must be expert medical evidence on the condition
— The judge may decide to hold a voir dire on the issue and must if requested by the defence
— The judge can revisit his ruling
— The court must be satisfied, in the presence of the jury, that:
— If unrepresented, that D is aware that he may give evidence and the risks attached to a failure to give
evidence or answer questions or
— If represented, D has been so advised (burden in s35 falls on LR)
— Counsel must record in signed writing D’s decision not to give evidence
— D may be excused from answering a particular question on grounds of privilege or at the discretion of the
court
— S35 direction must make clear:
— D has a right to remain silent and is under no obligation to testify
— An inference of guilt may only be drawn if:
— The prosecution case clearly calls for an answer from D and
— It is fair and proper and
— The jury decide that D’s silence can “only sensibly be attributed to him having no answer, or none that
would stand up to cross-examination”
— It is open to the jury to conclude that there is another reason why D has refused to give evidence
e.g. a mental condition, but fear of a bad character application is not enough
— The stronger the case against D, the stronger the inference that can be drawn

18. Visual identification evidence

Dock identifications prohibited

— Dock identifications in the Crown Court are prohibited (where W identifies D for the first time when he is in the
dock at trial, but not where W recognises D)
— Where W makes a dock identification anyway, the trial judge must warn the jury not to give it any weight

Safeguards
— There are safeguards in place to mitigate the risk of a mistaken identification where W’s identification or
recognition of D is DISPUTED
— PACE Code D
— Turnbull guidelines on how to approach disputed identification or recognition evidence

Pace Code D
— The police must record W’s description of D before any identification procedure takes place
— An identification procedure must occur whenever identification is disputed. But if W is unable to identify D from
the procedure, W can still give other incriminating evidence
— A trial judge must give reasons for any decision to admit identification evidence obtained in breach of Code D
— Where there has been a breach of Code the court whether the breach may have caused any significant prejudice
to D and if, on the other hand, some prejudice may have been caused, it will be necessary to determine the issue
under s78
—

Turnbull guidelines
— Stopping a case based on inadequate identification
— At the close of the prosecution case, the judge must withdraw the case from the jury and direct an acquittal
where the identification evidence is POOR AND lacking evidential support.
— Poor identification evidence may still be left to the jury where there’s other evidence
— Good identification evidence, even without corroboration, will be left to the jury with a direction
— D cannot be convicted solely on a qualified (e.g. 90% sure) identification, but it can be left to the jury
alongside other evidence
— Turnbull direction where identification evidence is left to the jury
— A direction is required whenever the accuracy of W’s identification/recognition of D is in dispute AND the
prosecution case depends substantially on W’s identification
— Turnbull is still applicable even where the principal line of defence involves an attack on the honesty of
the witness about their identification of D
— Failure to give a thorough, adequate and tailored direction may render the conviction unsafe unless other
evidence is overwhelming
— The judge must:
— Warn the jury of the special need for caution where P’s case against D rests on the correctness of the
identification
— Explain the reason for caution, which is that a mistaken witness and even multiple mistaken witnesses
can be convincing, but nevertheless mistaken. Mistakes are sometimes made recognising friends and
relatives
— Examine the particular circumstances of the case, with regard to the reliability of the observation
(things like distance, light, obstructions, whether W knew D) and the reliability of recall (length of time
between the observation and the identification, conversations with others etc)
— Identify any particular weaknesses in the identification at hand (poor lighting, fleeting glimpse) as well
as strengths: police officers may, by virtue of their training, give stronger evidence
— Identify capable supporting evidence (having consulted counsel) (and when appropriate, not capable)
of the identification. This may take any admissible form and include:
— Bad character evidence of D
— Evidence of identification by other witnesses
— Two identifications can be mutually supportive where they are both (separately considered)
to be of a good quality
— Self-incrimination
— In the form of lies or rejected alibi evidence (but a Lucas direction will also be required)
— D’s failure to account for himself under police questioning (ss34,36-37 CPJOA) or failure to give
evidence at trial (s35 CPJOA)
— Cell site data
— Explain the relevance of any breaches of Code D where evidence has been admitted: “suspect has lost
the benefit of the safeguard of an identification procedure, and that they should take account of that
fact in their assessment of the whole case, giving it such weight as they think fit”

19. Opinion evidence and experts

As a general rule, opinion evidence is not admissible at trial. There are two exceptions:

Non-expert perception evidence

— A non-expert witness will be allowed to express an opinion as a ‘shorthand’ for describing how they perceived
something including:
— Someone’s age, appearance, state (drunkenness) etc.
— The weather, the passage of time, the speed of a vehicle
— Whether they can identify or recognise something

Expert opinion evidence

Admissibility
— The following requirements are necessary in order to be admissible:
— The expert must be necessary
— If the tribunal of fact can form its own opinion without the assistance of the expert, then expert
evidence is not necessary
— It is not necessary for everyday emotions or acts or the deterioration in memory of a normal
witness
— Expert evidence can also be used to assist jurors in making a decision within their expertise where
the expert has more time and facilities to consider it
— A counsellor can give objective non-expert evidence of a previous complaint by V and V’s demeanour,
but it must be made clear that it is not evidence of the truth of the complaint
— The expert must be suitably qualified
— The expertise must be based upon experience, knowledge and/or study
— This is ultimately a question for the court. If there’s a dispute, the court should decide the issue based
on the papers/documents to support the witness’s claim that he is an expert or n a voir dire (if the
judge thinks this is helpful)
— The court has the power to remove a witness’s expert status and limit their evidence to factual matters
— The expert can only give evidence on matters within their expertise
— The role of the expert is to assist, not usurp, the role of jury
— An expert may give evidence of their opinion on ultimate issues (e.g. going to D’s guilt), but the tribunal of
fact is the ultimate decision-maker and they decide how much weight to give to it
— Where expert evidence favourable to D is unequivocal and undisputed, the jury should be directed to
accept it unless there is good reason not to

Admissibility objections
— Expert evidence will be admitted unless challenged
— If there is an objection, the burden is on the party proffering the evidence to prove admissibility
— An objection will inevitably fail if it’s not expert evidence

Duty of experts
— The expert’s overriding duty is to the court and includes to:
— Define his area of expertise in his evidence
— To draw the court’s attention to anything outside of it
— To inform all parties and the court if his opinion changes

20. Privilege

General principles
— A person entitled to claim privilege may refuse to answer a question or disclose a document and no adverse
inference can be drawn
— The privilege belongs to the individual/company (only) and if it is waived, no one can object. D and LR can then
be questioned on the content of communication
— The party claiming privilege bears the BoP
— If a client applies to a legal adviser for advice intended to facilitate the commission of a crime and the legal
advisor is ignorant of the purpose of their advice, the communication between them is not subject to legal
 privilege

Privilege against self-incrimination

— No witness is bound to give evidence at trial if to do would expose him to domestic criminal liability
— Or if they are bound (e.g. by a disclosure order) they will be protected from future criminal liability
— If D elects to give evidence, he may be asked questions in cross-examination which incriminate him as to the
offences charged, but he is protected against prosecution for some other offence
— The privilege only protects the individual or company claiming it

Legal professional privilege

— A client may and his LR must (unless D waives waiver) refuse to answer a question or produce a document
(enclosed with, referred to or created for the purpose of) protected by:
— Legal advice privilege
— Covers the content of confidential communications between D (or D’s LR) and his legal adviser(s) for
the purpose of giving or receiving of legal advice
— Includes communications between D/LR and counsel for D
— Litigation privilege
— Covers the content of confidential communications between either D and/or LR and a third party (e.g.
expert for expert report), for the dominant purpose of obtaining information or advice in connection
with reasonably contemplated adversarial litigation. Only if the evidence is to be relied on at trial must
it be disclosed
— Covers:
— The identity and details of witnesses
— Third-party documents copied or assembled for the purpose of litigation which would
otherwise reveal legal advice

Waiver to explain silence at interview

— If D’s reason for not answering a question during interview is that he was advised not to, this does not waive
privilege. If D reveals the basis or reason for the solicitor's advice this will amount to a waiver. In order to resist
an adverse inference being drawn under s34 CPJOA, D may either:
— Give the nature of LR’s advice, which may waive privilege in respect of the advice (the judge should warn D
of this)
— Rebut P’s likely allegation of subsequent fabrication of facts upon which D now relies by showing that D
informed LR of these facts around the time of the interview – this does not waive privilege
—
19. Youth Courts and the appearance of youths in other courts
The categorisation of youth into “child” and “young person”
— Under 18 = juvenile, categorised as follows:
— 14-17 = young person
— 10-13 = child
— Under 10 = irrebuttably incapable of crime, and cannot be prosecuted

Procedures
— The youth court is a magistrates court with specially adapted procedures:
— The YD has jurisdiction to try all indictable offences bar homicide and serious firearms offences. YD will
otherwise be tried summarily unless the magistrates decide not to accept jurisdiction. YD has no right to
elect to a Crown Court trial
— The public are excluded. Only the following persons are permitted:
— YD, his parents and legal representatives;
— Witnesses (after giving evidence);
— Others directly concerned with the case (probation officer or social workers) or specially authorised;
— Bona fide news representatives
— Attendance of parents
— If YD is under 16 the court must and if 16-17 the court may order parents to attend unless it would be
unreasonable to do so
 — Different terminology
— ‘Conviction’ and ‘sentence’ are replaced by ‘finding of guilt’ and ‘order made on a finding of guilt’ in
both the youth court and the adult magistrates, but not the Crown Court
— Relative informality
— YD sits on a chair with a parent nearby and is addressed by his first name
— Witnesses ‘promise’ to tell the truth
Determining Age
— The court is required to take account of the evidence of YD’s age, but is entitled to accept what YD or his parents
say unless there is doubt, in which case, an age assessment should be done
— YD’s age is that which the court declares it to be after considering the evidence. Any judgment/order is not
invalidated by subsequent proof that YD’s age was incorrect

Procedure in the youth court

— The general rule is that a plea should be taken and all matters should be tried/sentenced in the Youth Court.
— The following are exceptions:
— Where YD is accused of homicide or a firearms offence, he must be sent FORTHWITH to the Crown
Court, with no plea being taken;
— In the following cases, YD MAY be sent to the Crown Court for trial or sentence, so the modified (D has
no right of election) plea before venue applies. This can be in YD’s absence if and YD disorderly and
legally represented. LR can plead G/NG on his behalf. If YD is sent to the Crown Court, there’s no
power to remit back.
— YD (11+) is charged with a PCCSA s91 offence (carrying at least 14 years’ imprisonment in the
case of an adult or specified in s91 (soa))
— If the court considers that it ought to be possible to impose a s91 sentence of detention of
over 2 years, the case must be heard in the Crown Court.
— YD falls within the ‘dangerous offender’ provisions of CJA 2003
— If the court decides that D can properly be regarded as a dangerous offender, the case
must be heard in the Crown Court. It must be in the interests of justice and the court must
have a sufficient information to assess (a risk assessment report)
— YD is charged alongside an adult who is to be tried in the Crown Court (first appearance in MC)
— The court should conclude in favour of YD being tried separately in YC unless it is
necessary in the interests of justice to have a joint trial.
— The younger the child, the less serious charge, the more minor their role, the more
likely to sever
— YD may also be sent to the Crown Court for trial of any related offences, including
summary offences punishable with imprisonment or disqualification from driving
— If YD pleads guilty, the magistrates may sentence YD pass sentence on Lucas provided it is
one of the sentences it can impose is appropriate (immediate sentencing is better where
possible).
— If the adult pleads guilty, the adult magistrates’ court may try YD, but it is better to remit
him to YC
— Where YD is charged with an adult charged with a summary offence (first appearance in MC):
— If they are jointly charged the adult magistrates MUST try them together
— If the offences are linked the adult magistrates may try them together
— If only the adult pleads guilty, the adult magistrates’ court may try YD, but it is better to remit him to YC
— If YD pleads guilty, the magistrates may sentence YD pass sentence on Lucas provided it is one of the
sentences it can impose is appropriate (immediate sentencing is better where possible).
—

Sentences available to YC
— Age is at the date of conviction
— Committal for sentence
 — The sentences unavailable to the YC are long-term detention (which only the Crown Court can impose) and
an extended sentence (dangerous offender).
— Long term detention (s91): detention for a period not exceeding the maximum sentence of
imprisonment which may be imposed on an adult offender.
— Extended sentence: a custodial sentence of at least 4 years where D is released on licence
— . 4A (which applies where the accused is sent for trial for one or more offences but also
indicates a guilty plea for one or more other offences).
— The following sentences are available to YC:
— An absolute or conditional discharge
— A fine (£1,000 if 14-17, £250 if 10-13)
— Compensation order (max £5,000 for each offence but no limit on aggregate sum)
— Sentences unique to YC are
— Referral order (available to YC, MC but never CC)
— YD will be referred to youth offending panel who specify the requirements of YD’s sentence (not
the court) in the form of a contract between them, YD and his family.
— A referral order must be made where:
— YD pleads guilty to his first offence and
— The offence is punishable with imprisonment and
— A custodial sentence or absolute discharge is not being imposed
— A referral order may be made where:
— YD pleads guilty to at least one offence and
— This is not YD’s first offence and
— No offence needs to be punishable with imprisonment
— Minimum term is 3 months and maximum term is 1 year
— No reduction is available for a guilty plea because a referral order is only available where YD
pleads guilty
— Youth rehabilitation order
— Youth equivalent of a community order (cf list below).
— The order can only include intensive supervision and surveillance or fostering if:
— The offence is punishable with imprisonment and sufficiently serious to warrant custodial
sentence
— If under 15, YD is a persistent offender.
— Detention and training order (youth equivalent to prison)
— Sentence (taking into account mitigation/GP) must be minimum of 4 months, maximum 24 months (12
months custody, 12 months supervision)
— Can be consecutive
— If under 15, YD must be a persistent offender
— Not available for under 12

20. Sentencing Principles

Purposes of sentencing
— Punishment
— Protection of the public
— Rehabilitation
— Reparation to victims
— Deterrence

Calculating the sentence

Consider each stage separately
1. Reaching a provisional sentence
— The court does this by:
 — Following the relevant sentencing guideline or, if there is none, considering: (1) the statutory maximum
sentence for the offence, (2) CA judgments and (3) sentencing guidelines for analogous offences and
— Making an initial assessment of seriousness (culpability + harm)
2. Aggravating and mitigating factors
— Identify whether these factors should lead to an upward or downward adjustment (subject to proportionality).
— Statutory aggravating factors are:
— Previous convictions (relevance depends on nature, relevance and age)
— Offence committed whilst on bail
— Offence motivated by, or demonstrating hostility to presumed characteristics
— Offence was committed against an emergency worker acting in the exercise of their functions
— Other aggravating factors are common sensical but lies are not an aggravating factor
— Local prevalence should only exceptionally aggravate where there is compelling evidence
— Mitigating factors are common sensical. The weight to be given to them is the court’s discretion
3. Reduction for assistance to the prosecution
Additional factors
4. Additional offences to take into consideration/sample offences
— The general rule is that D can only be sentenced based on the offences before the court, subject to:
— D may request that other offences be taken into consideration to ‘wipe the slate’ clean
— P may invite the judge to treat the offence on the indictment as a sample
5. Whether a life or extended sentence is appropriate
6. Custodial sentence for Terrorist offence
7. Totality principle
— The overall sentence for multiple offences must be just and proportionate. It is usually impossible to do this by
adding up the notional single sentences. That is so whether the sentences are constructed as concurrent or
consecutive.
8. Reduction for guilty plea (left until last because it discounts the total sentence calculated)
— The strength of the evidence MUST not be taken into account
— The judge must indicate whether a reduction is being given and how much
— 1/3 if
— At first stage (arraignment) or the circumstances make it unreasonable for D to have pleaded sooner
BECAUSE D genuinely cannot know whether he is guilty of the offence charged’.
— 1/4 (PTPH)
— 1/10 if on the first day of trial
— Anything down to 0 if during trial
— Exceptions:
— Newton hearing – where D’s factual basis is rejected, any credit given will be halved and can be
dissipated
— Prescribed minimum sentences – the ceiling is 80% of the minimum sentence
9. Compensation and ancillary orders
— The possibility of making such orders must be considered in all cases
10. Reasons
11. Credit for time spent on tagged curfew
— The curfew must be accompanied by an electronic monitoring condition and be for not less than 9 hours a day in
order to be a qualify.

Indications as to sentence (Goodyear)

— Responsibilities of the Court
— The judge can, only on request, give an indication of the maximum sentence he would pass were a guilty
plea entered immediately. This is called a Goodyear indication.
— The judge has an unfettered discretion to refuse to give an indication, or to defer an indication, without
giving reasons
— The judge must refuse to give an indication where there is no agreement between P and D (written basis of
plea)
 — Once given, a Goodyear indication is binding on everyone unless/until CA authority or a sentencing
guideline alters the sentencing level or AG refers sentence to CA
— The Goodyear indication ceases to have effect after a reasonable opportunity to plead guilty has passed.
But a fresh indication can be sought
— It is P’s responsibility to remind the judge of when and whether the indication can be given
— Responsibilities of the Defence
— D should give at least 7 days’ notice of an intention to seek an indication in difficult cases
— If an application is made without notice when it should have been given, the court may conclude
that any inevitable adjournment should have been avoided and that the discount for the guilty plea
should be reduced accordingly
— The court has the power to remind the defence to seek an indication, but it is the defence’s responsibility
— The defence needs D’s signed written authority to request one and is responsible for ensuring D
understands its function and consequences
— Responsibilities of the Prosecution
— The prosecution’s role is to assist the court in ensuring the correct procedure and guidelines are followed
— Counsel must not create the impression that the sentence indication has the support of the Crown
— It is P’s responsibility to remind the judge of when and whether the indication can
be given
— The process
— Normally sought at a PTPH
— Any hearing must be in open court, with a full recording, in the presence of all parties including D, with
reporting restrictions
— Where there are discussions on plea in chambers, the prosecution should take a full note and remind
the judge that such discussions can only take place in exceptional circumstances and disassociate
themselves if the circumstances are not exceptional
— The fact that an indication is sought is inadmissible at trial

Sentencing in the Crown Court

Pre-sentence procedure
A. The offence: facts and impact
— The prosecutor’s role
— The prosecutor must:
— Summarise the facts of the offence
— Adduce evidence about D’s character and antecedents
— Prepare a document containing the relevant guidelines/authorities and any aggravating or mitigating
factors
— Be neutral and assist the court to avoid error – P’s role is not to advocate for a particular sentence
— Apply for any compensation or confiscation order
— Dispute over factual basis of plea
— Where there is a dispute between the parties about the factual basis of D’s plea, P may:
— Agree that D be sentenced based on his version of the facts by signing his written basis of facts. The
judge is not bound by it and is still entitled to conduct a Newton hearing or
— Reject D’s basis. In this case, the defence should request a Newton hearing
— It is the judge’s decision whether to conduct a hearing or not. He has three options:
— To sentence based on the defence version as far as possible
— To conduct a Newton hearing and call evidence on the issue
— The judge is entitled to decline to conduct a hearing if:
— D’s case is absurd or obviously untenable
— The dispute is not substantial and will have no effect on the sentence
— To put it to a jury
— This is relevant where the offence differs depending on the factual basis (e.g. s18 or 20
OAPA) or requires a finding of intent (which only a jury can determine)
— Newton hearing
 — The prosecution and defence may call any relevant evidence. Although the prosecutor is not obliged to
call evidence, he must cross-examine any defence witnesses. The defence may simply observe while the
prosecution seeks to establish their version, but the judge will be entitled to draw inferences
— After calling all the evidence, the judge should direct himself as though he were a jury. The burden of
proof is for P to prove their factual basis beyond reasonable doubt
— If D acts unreasonably in requesting or participating in the Newton hearing, his guilty plea reduction
MAY be reduced, even to nothing, but the judge must give reasons
— Where D is found guilty after trial, the jury must not state the factual basis of their verdict, as it is for
the sentencer to form his own view of the facts
— If the magistrates hold a Newton hearing and commit D for sentence, the Crown Court may hold
another one
— Where there are co-accused with different pleas, the Newton hearing on the guilty plea should take
place after the conclusion of the other’s trial by the same judge, who can rely on evidence called at co-
D’s trial.
B. Consideration of reports
— Pre-sentence reports
— The court must obtain a pre-sentence report before making a decision to impose a custodial or community
sentence on an adult, unless it appears unnecessary.
— If D is under 18, a report must be obtained unless there is an existing report
— Victim statements
— Victims must be informed that they may make a statement but are under no obligation to
— The victim statement must be set out as a s9 witness statement and be served in advance
— Its function is to explain the impact of the crime, not to proffer an inadmissible opinion on an appropriate
sentence
— Mentally Disordered Offenders
— Where an offender appears to be mentally disordered, the court must
— Obtain and consider one medical report before passing a custodial sentence other than one fixed by
law
— Obtain written or oral evidence of two medical practitioners before making a hospital order
— A copy must be given to D’s authorised person
— If unrepresented, the gist (but not the report) must be disclosed to D or his parents (if under 18)
C. Mitigation
— The court must give the offender an opportunity to make representations
D. Reasons
— The court must give reasons in open court where:
— The court must explain in non-technical terms (1) its reasons, (2) the effect of the sentence, and (3) the
consequences of non-compliance or
— The court has the power to make a compensation order or disqualification but does not do so or
E. Deferment
— The court may defer sentencing if it’s in the interests of justice and D consents. The maximum is 6 months, but
the court must fix the date of deferment
— Exception: where there is a requirement to make a referral order on a young offender, this cannot be
deferred

The magistrates court

— The MC follows the same procedure as the CC.
— The magistrates may adjourn for pre-sentence reports for up to four weeks or three weeks at any one time if D is
remanded in custody
— Where the court consists of justices which did not sit at trial, the court must inquire into the facts
— The magistrates decision is by majority. If a decision is not reached, the court should adjourn for the matter to be
reconsidered at a resumed hearing

The sentencing powers of MC

— The magistrates powers are limited to the statutory maximum for each offence, and in any case, they can only
pass the following sentences
— Custodial:
— Minimum 5 days
— Maximum 6 months aggregate (unless statute sets a lesser term) (for a single offence or multiple
summary offences) or
— No 6-month limit for imprisonment for non-payment of a fine
— 12 months aggregate if awarding consecutive sentences for multiple TEW or
— 18 months if:
— Awarding consecutive sentences for multiple TEW and
— D is in breach of a 6-month suspended sentence = 6 months for each offence followed by 6
months for breach of suspended sentence
— Detention in a YOI can be ordered for offenders aged 18-20 and is subject to the same custodial limits
— If MC has the power to imprison D, they may order detention in a court-house/police station until no
later than 8pm
— Non-custodial:
— Community order
— Fine up to £5000 (but no aggregate limit)
— Unlimited compensation order (if 18+
— The Crown Court’s sentencing powers for summary offences are:
— 6 months for common assault
— 3 months for criminal damage
— Maximum aggregate sentence of 6 months (-guilty plea reduction) but if D is in breach of a suspended
sentence when the offence is committed = 6 months for the offence + 6 months for breach

23. Non-custodial sentences

Discharge
— Court has the power to order:
— Absolute discharge
— Conditional discharge on the sole condition that D commits no offence during the specified period of
discharge (no more than 3 years)
— Exceptions where a conditional discharge is not available:
— Where YD has had 2+ youth cautions and committed an offence within two years of the last
caution (only exceptionally available)
— If breached, D can be sentenced by the court who made the discharge for the original offence as if he
had just been convicted of it
— The sentence only terminates the discharge; any ancillary order (costs/compensation) remains
valid
— The CC’s powers are limited to MC where the original offence was tried summarily
— The MC’s powers in respect of an under 18 D who is now 18 are to fine him or imprison him for a
maximum of six months
— A discharge cannot be combined with a custodial sentence, a community order or a fine but it can be combined
with any disqualification and ancillary orders

Community sentence
— A court cannot pass a community order unless it is satisfied that:
— The offence is serious enough
— The order is suitable for D e.g. local arrangements exist; the order will assist D/prevent the risk of further
offending
— The restrictions on liberty are proportionate
— Individual requirements
— Unpaid work: 40 hours-300 hours (aggregate) to be completed within 12-months Aim here is PUNISHMENT
and can apply even if D has a job
— Programme requirement: must specify the programme and the number of days, otherwise unlawful
— Prohibition of a certain activity during a specified period
 — Exclusion of a person/place/area during a specified period for no more than 2 years
— It can exclude D from different places at different times
— Curfew to remain at a specified place for 2-16 hours each day for no more than 12 months
— The court must have information on the place and the persons affected
— Residence at a specified place for a specified period
— Mental health treatment under a registered professional
— D’s state must warrant treatment but not a hospital order
— D must express willingness to comply
— Alcohol treatment (resident or non-resident)
— D must express willingness to comply
— Drug Rehabilitation treatment and testing (resident or non-resident)
— The requirement must have been recommended as suitable by probation services
— D must express willingness to comply, including to provide samples on request
— Attendance Centre (under 25s only) for a specified number of hours (12 -36), once a day for no more than 3
hours
— Electronic Monitoring Requirement
— Mandatory to combine with a curfew or exclusion requirement unless inappropriate
— May be standalone or combined with any other order (excluding alcohol abstinence)
— The consent of any person whose cooperation is necessary is required
— Breach
— First time: a warning that if breached again within 12-months, D will be brought to court
— Further breach without reasonable excuse: the enforcement officer must cause an information to be laid
— Unless the CC have directed otherwise in the order, any breach will be dealt with by the CC
— Powers of the CC and MC
— D’s sentence is based on his age when the original order was made.
— Any breach must be admitted or formally proven by P.
— The M court must either:
— 1. Amending the order to impose more onerous requirements;
— 2. £2,500 fine;
— 3. Dealing with D in any way they could as if he had just been convicted;
— 4. If the offence was not punishable with imprisonment, D is 18+, D has wilfully and persistently
breached; imposing a custodial sentence of no more than 6 months
— The court may, only once, extend the order by six months, even in excess of three years
— If the community order was made by the CC, the magistrates may commit him to the CC
— Revoking or amending the order
— On application, the court may:
— Revoke the order or deal with the offender in some other way if there’s a change in circumstances
(including good progress) making it in the interests of justice
— Amend the terms of the order including:
— To extend by a maximum of 6 months (no more than 3 years and 6 months)
— To extend the 12-month period for completion of unpaid work
— For cancellation or replacement of certain requirements
— Where D commits a further offence while under a community order and the community order is still in force
— If either court is dealing with the subsequent offence, they can revoke the order and deal with D in any other
way taking into account the extent of compliance with the order
— If the community order was made by the CC, the magistrates may commit D and if they do, must commit D
in respect of the new offence

Fines
— Of an unlimited amount in MC (as of March 2015) and CC
— The Crown Court must fix a custodial term to be served in default.
— Terms for multiple offences can be served concurrently or consecutively (subject to TP)
— Fixing the fine: in setting the amount the court considers the following
— 1. Seriousness of the offence
— A fine is inappropriate where the offence requires an immediate custodial sentence
— 2. Mitigation/guilty plea
— 3. D’s means
 — The fine should be adjusted upwards or downwards depending on the individual D’s means (weekly
income)
— A fine should not be used as an alternative to a custodial sentence (where one is necessary) for a rich D,
and vice versa for a poor D
— The court can make a financial circumstances order, on pain of a level 3 fine for non-compliance and a
level 4 fine for falsity
— 4. Payment
— Defendants should always be asked for immediate payment, but where necessary, the Crown Court may
make an order:
— Allowing time to pay
— Directing instalments within reasonable time (normally 12 months max but can be up to 3 years)
— 5. Combining fines
— Fines cannot be combined with a hospital order or a discharge for a single offence.
— Fines can be combined with any other sentence, but it would be undesirable to combine with a custodial
sentence where D lacks the means

24. Custodial sentences

18-21
If D is aged 18-21, he cannot be sentenced to prison, but to detention in a YOI. But YD can be remanded in custody
to prison until his case is disposed of

General restrictions
— The court must not pass a custodial offence unless:
— The offence (and) one or more associated offences are “so serious that neither a fine alone nor a
community sentence can be justified” or
— D failed to express willingness to comply with mental health treatment, drug rehabilitation, alcohol
treatment
— The custodial sentence must be the shortest the seriousness of the offence allows and not exceed the permitted
maximum. If:
— Offence is statutory and the max term is not specified – two years max
— Offence is common law – no limitation other than proportionality

24.2. Multiple offences

— Where D is sentenced or convicted on the same occasion for two+ offences, the court must consider the sum of
them
— Includes where D is re-sentenced for breaching community order but not where D is re-sentenced for
breaching a suspended sentence
— Where an offender is convicted on more than one count, the court should impose separate sentences on each
count, but the overall sentence must be mitigated by the totality principle
— A concurrent sentence is appropriate for related offences (arise from same facts). It should be increased to
reflect the number of offences
— A consecutive sentence is appropriate for offences arising from different/unrelated facts
— Where only some of the offences are serious enough to be custodial, the court may still pass custodial sentences
for the lesser offences provided they run concurrently and do not increase the term

Remand as time served

— Time spent on remand in custody for that offence automatically counts as time served in relation to that
custodial sentence (and no court order is required)
— This does not apply to:
— DTO
— Life sentence not fixed by law
— Remand on bail with a curfew and electronic monitoring condition counts as time served in relation to one
sentence (the court must order this)
— Court must state in open court its calculation: Number of days on conditional bail – any day where D was
in breach / 2 = Time served, round up to nearest whole number

Power to Impose Suspended Sentences

— An offence which warrants an immediate custodial sentence term of 14 days-2 years (total) can be suspended.
Detention and training orders cannot be suspended.
— The operational period is the time for which the sentence will be suspended. The supervision period is the
time D is supervised by probation. Both must be between 6 months-2 years, but the supervision period
must not outlive the operational period
— A suspended sentence can only be combined with:
— A fine or
— A community requirement during the supervision period
— The requirement must be compatible with any other requirement; D’s work/education; D’s religion
— The court must be satisfied that local arrangements exist, and facilities are in place
— Breach
— If D commits 1. a further offence during the operational period or 2. fails to comply with a community
requirement during the supervision period after a first warning has been given the court must deal in one of
the following ways in view of the facts of the further offence (1) or the extent of compliance (2). Personal
mitigation, whether there is a realistic prospect of rehabilitation, & whether immediate custody will result
in significant impact on others.
— Order that D serve the original suspended sentence (wholly or partially) unless it would be unjust (in all
the circs)
— Impose more onerous community requirements (where the order had them before);
— Extend the supervision or operation period;
— Impose a fine of up to £2,500 (not where D cannot pay)

Mandatory minimum sentences

Murder
— Sentence:
— Imprisonment for life if 21+
— Custody for life if 18-21
— Detention at Her Majesty’s pleasure if under 18
— The court must normally make an order for early release after a specified period is served, calculated based on:
— Seriousness of offence(s) (not dangerousness of D) and
— Credit for time served (on remand/bail)
— If D is 21+, the court may order that early release provisions are not to apply because of the seriousness of the
offence = whole life minimum term
—
Three strikes and you’re out
Class A drug-trafficking
— 1. Where D is convicted of Class A drug trafficking offence;
— 2. Which D committed after 30 Sep 1997 and when he was 18;
— 3. Prior to this D had been convicted on two separate occasions for Class A drug trafficking after 30 Sep 1997;
— D must receive a minimum 7 years’ imprisonment unless unjust
— If D pleads guilty, D’s minimum sentence cannot be less than 80% of 7 years = 5 years and 8 months

Burglary
— 1. Where D is convicted of domestic burglary;
— 2. Which D committed after 30 November 1999 and when he was 18;
— 3. Prior to this D had been convicted on two separate occasions for domestic burglaries both committed after 30
Nov 1999;
— D must receive a minimum 3 years’ imprisonment unless unjust
— If D pleads guilty, D’s minimum sentence cannot be less than 80% of 3 years = 2 years and 5 months
‘Third strike’ domestic (dwelling) burglary

Sections 111(2) and (4) of the Powers of Criminal Courts (Sentencing) Act 2000 contain

important provisions in respect of domestic burglaries. They provide that a third domestic

burglary (the so-called ‘third strike burglary’) is triable only on indictment where:

 a person is convicted of a domestic burglary committed after 30th November 1999;

 at the time when that burglary was committed, he was 18 or over and had been
convicted in England and Wales of two other domestic burglaries; and
 one of those other burglaries was committed after he had been convicted of the
other, and both of them were committed after 30 November 1999.

To identify a ‘third strike’ it is necessary to establish five dates, plus the age of the

suspect on commission of the third burglary. The five dates must be different and follow

each other in chronological order:

 commission of the first offence of burglary – must be after 30 November 1999.

(‘Strike one’)
 conviction for the first burglary
 commission of the second burglary – must be after the date of conviction of the first
burglary. (‘Strike two’)
 conviction for the second burglary
 commission of the third burglary – must be after the date of conviction of the second
burglary. (‘Strike three’)

The suspect must have been 18 or over at the date of commission of the third burglary, but

not at the commission or conviction of the earlier burglaries.

A Third Class A Drug Trafficking Offence - 7 years – triable only on

indictment

Where a defendant aged 18 or over is facing sentence for Class A Drug Trafficking where the defendant has 2 or more
previous convictions on separate dates for Class A Drug Trafficking offences (and all were committed after 30th
September 1997), the minimum sentence must be 7 years, unless the judge considers there are circumstances relating
to the offence or to the defendant which would make such a sentence unjust.

A defendant facing a mandatory minimum term sentence for drug trafficking is entitled to a reduction in sentence for a
plea of guilty, but the sentence must never fall below 80% of the 7 year minimum term. An early indication of a plea
of guilty will attract the most credit.

Drug Trafficking offences include importation, production, supply and possession with intent to supply controlled
drugs of Class A. Common Class A drugs are Cocaine, Heroin and Ecstacy.
 25. Ancillary orders and costs on conviction

25.1. Costs on conviction

— The court may order that an unsuccessful D pay prosecution costs at trial or on appeal. The Crown Court can also
order D to pay sentencing costs
— The amount payable must be:
— Expressly specified in the order
— “Just and reasonable”
— The order must not exceed D’s means or P’s reasonably incurred expenses
— The purpose is compensatory. It is NOT to be used as punishment
— A fine takes priority over costs
— D must disclose his financial means or risk an adverse inference
— The court must allow D to make representations prior to the order

Surcharge
— When imposing a sentence on D, the MC/CC is always required to impose a surcharge unless D is discharged
absolutely or given a MHA hospital order
— Where the court is also making a compensation order and D cannot afford to pay both, the compensation
order takes priority

Compensation Orders
— The court must consider making a compensation where there has been personal injury, loss or damage resulting
from the offence. If the offence has caused death, the order can include payment for bereavement and funeral
expenses.
— The court must give reasons if it could, but doesn’t make an order
— A compensation order cannot be used as an alternative where the seriousness of the offence requires a harsher
punishment. It can be combined with any other order but including:
— Discharge
— Custody
— Suspended sentence
— A compensation order takes priority over a fine where D cannot afford both

Deprivation order
— If the court is satisfied that the property (excluding land) was intended or used to commit or facilitate the
commission of an offence, then it may make a deprivation order
— When making the order, the court must consider the value of the property, the effect on D and make full
inquiries into ownership where it is disputed
— The property must wholly belong to D, otherwise the rightful owner can apply for recovery
— Misuse of Drugs Act 1971, contains its own provisions. If someone applies to court, the court cannot make the
order until it has heard them

Confiscation Orders
— Their purpose is to deprive D of the proceeds of his crime
— Confiscation orders can only be made in the Crown Court and the magistrates may commit D to consider an
order
— A confiscation hearing is mandatory if P applies for one. Its purpose is to determine if D has benefited and how
much
— The court may assume that D’s has benefited if D has a ‘criminal lifestyle,’ unless it would be unjust
— If the court finds D has benefited, they have a duty to make an order of the determined amount
— The duty to make a confiscation is excepted where:
— There are anticipated civil proceedings
 — The order would be disproportionate
— The order can be made before sentence
— The court may defer the hearing until after sentence (for up to 2 years from conviction), but cannot impose any
financial penalties in the meantime (such as compensation or fine)

26. The dangerous offender provisions

— Where D is deemed dangerous offender, the court must impose a life or extended sentence
— For D to be considered a dangerous offender:
— D has been convicted of a specified offence (= violent, terrorist, sexual) which is serious (punishable with life
imprisonment or 10+ years, e.g. rape, murder, terrorism, child abuse etc) and
— The court assesses that there is a significant risk that D will commit further serious specified offences which
will cause serious harm (death or serious physical/mental injury) to member(s) of the public (potentially
enough to be a single person, and can be non-UK public
— The court must take into account any information concerning:
— The nature and circumstances of
— The specified offence and
— Any and all prior offences
— But it is not necessary that D have any prior convictions or that D’s prior offending has
caused serious harm
— Any pattern of behaviour of which the offences form part
— Any information about D (not restricted to ‘evidence’
— The contents of any pre-sentence/psychiatric reports
— They are not binding but if the sentencer is minded to depart from the report, he should
give counsel advance warning
— “Information” does not need to be proved by criminal conviction

27. Appeals from the magistrates’ courts and from the Crown Court in its appellate capacity

MC’s power to rectify mistakes if it is in the interests of justice

— Power is strictly limited to a procedural or legal mistake which everyone agrees has been made (i.e. no appeal
on merits) (e.g. trial of D while reasonably absent)
— If the appeal is to set the conviction aside, the MC will order a retrial before a different bench
— The order can be made by the same bench who convicted D or a different bench
— If the appeal is to rescind or vary sentence, it will only exceptionally be used to increase sentence

Defendant appeals in the Crown Court against conviction and/or sentence

— Constitution
— Appeals are normally heard by a Circuit Judge sitting with two lay magistrates not involved in original
proceedings (exceptionally one)
— Decision is by majority (the lay justices can out-vote the judge. The lay justices must, however, accept any
decisions on questions of law made by the judge).
— Procedure
— D has an AUTOMATIC right of appeal
— Written notice must be given to the magistrates’ court officer and every other party within 15 business days
of SENTENCE being passed (time always runs from date of sentence)
— Should state:
— What is being appealed
— Points of appeal
— If appealing against conviction: witnesses A will want to question and how long the trial lasted and
how long the appeal is likely to take
— Those upon whom notice is served
— Whether A has asked MC to reconsider the case
— Hearing
— Complete rehearing and new evidence can be called. But the information cannot be amended, and any
amendment made cannot be struck out
— Powers
 — Quash the conviction
— Remit the matter back for trial (in the case of an equivocal plea)
— If D pleaded guilty, he can only appeal sentence, unless he argues it was equivocal (ambiguous or under
duress)
— Pass any sentence that was available to the Magistrates at the time of the original sentence.
— Abandonment
— The appeal must be abandoned by written notice to the magistrates’ court, the Crown Court and the
prosecution and to any other party. Failure to turn up is not enough.
— Once the hearing has started CC permission is required to abandon the appeal and CC can always allow
notice in a different form, e.g. oral
— The Crown Court has a discretion to award costs in an appeal from a magistrates' court in all cases.

Appeal to High Court (DC) for prosecution or defence by way of case stated
— Only error of law or in excess of powers
— Use where the sentence is in excess of powers
— Only available after the final outcome of the case
— Constitution:
— At least two judges, and usually three. If a two-judge court cannot agree, the appeal is unsuccessful
— Hearing
— Submissions only and new points of law can be argued
— Powers
— Quash an acquittal with a direction that the magistrates’ court convicts and sentences or convict and
sentence themselves
— Substitute the appropriate sentence
— Order a retrial before a different or the same bench
— No leave required to abandon
— The HC has a discretion to award costs
—

Appeal to High Court for prosecution or defence (DC of the QB) for judicial review
— Power
— Quashing orders (which quashes the decision of an inferior tribunal)
— Mandatory orders (which compels the inferior tribunal to act)
— Prohibiting orders (which prevents an inferior court acting unlawfully or in excess of jurisdiction)
— Judicial review should be used where:
— There’s an issue of fact which the justices didn’t decide
— Unfairness or bias, including:
— Failing to grant an adjournment or to give D adequate time to prepare a defence, failing to disclose
important evidence, making a costs order without assessing D’s means
— D wishes to challenge a committal for sentence
— Appeals from the Divisional Court are direct to the Supreme Court

28. Appeals from the Crown Court

Crown Court judge’s power to vary own sentence

— The Crown Court has the power to rescind or vary the form and length of a sentence upwards or downwards by
swapping, subtracting or adding orders
— Variation must be within 56 days of sentence (only) by the judge who originally passed sentence and cannot be
made if leave for appeal has been determined

Defendant’s right to appeal to the Court of Appeal and the requirement to obtain leave
Matters Dealt with by three judges
— A court of 3/5/7 is required to determine:
— An appeal against conviction
— A review of sentence
— An insanity/diminished responsibility finding
 — An application for leave to appeal to the SC
— Anything else may be dealt with by two judges

Procedural requirements for applying for leave to appeal

— Unless the trial judge has certified that the case is fit for appeal, the CA must be asked to grant leave
— Notice plus grounds must be lodged within 28 days (EEAE) of conviction/sentence directly on the Registrar
of Criminal Appeals
— The stages are as follows:
— After requesting and receiving a trial transcript, counsel has 14 days to perfect his grounds
— A single judge considers whether to grant leave
— Hearing of an appeal
— The Registrar must give adequate notice to all parties (but not in PII hearings)
— The respondent is invariably represented in appeals against conviction and usually in appeals against
sentence
— If a skeleton argument is served, it must be no later than 21 days before the hearing (appellant) or 14 days
(respondent) and should not exceed 15 pages
— The appellant may only rely on grounds on which leave has been refused (as opposed to undecided) if a
renewed application for leave has been made and he has given notice to the Registrar’s office

Renewal of application before full court after a refusal by single judge

— Heard by a court of 2 or 3 judges
— Applicant has no right to attend
— Written notice must be given if counsel is to attend

Loss of time direction (= time in custody does not count towards sentence)
— On refusing to grant leave, the single judge must identify whether a loss of time direction should be given should
the application be renewed, and this will generally be followed
— This can be done even if counsel has associated itself with the renewal

Rules concerning the CA hearing fresh evidence during the appeal

— Fresh evidence will be admitted if it is necessary or expedient in the interests of justice but not to advance new
grounds which ought to have been made at trial
— Jurors and, subject to waiver of privilege, legal representatives can be compelled to appear at the hearing of an
appeal
— Expert evidence can only be challenged based on epistemic advances

Test for appeal against conviction

— There is only one ground of appeal: that the conviction is unsafe
— Grounds of appeal tend to subdivide into two categories:
— Those manifested by what the judge did or did not do when conducting the trial (e.g. excluded
admissible evidence, admitted inadmissible evidence, or wrongly rejected a submission of no case to
answer etc) and/or
— Those manifested by what the judge did or did not say in summing upon to the jury (e.g. failed to
observe due process (e.g. interrupted D and criticised D’s lawyer), direct the jury properly on the
burden and standard of proof, failed to put the defence case fairly to the jury, misdirected the jury on
the law etc)
— Common bases for challenging unequivocal pleas of guilty are an incorrect ruling on a point of law,
admission of fresh evidence, inappropriate legal advice

Outcomes of appeal against conviction

— Quash the conviction
— Order a retrial if it is in the interests of justice. Relevant factors to ordering a retrial are: the length of time that
has elapsed since the original trial, how long D has been in custody, the state of the evidence and public opinion.
— Substituting the verdict for guilty of a lesser offence (if the jury could have convicted D of the lesser offence, e.g.
murder to manslaughter) or an alternative offence on the indictment (provided the jury haven’t entered a not
guilty verdict on that count)

Grounds of appeal against sentence

— The sentence passed was:
— Wrong in law (e.g. the sentence passed was outside the judge’s jurisdiction)
— Wrong in principle (e.g. D was sent to prison when the custody threshold was not met)
— Manifestly excessive in that it was outside the broad range of appropriate penalties
— The approach to sentencing was wrong (the judge considered irrelevant factors or did not consider relevant
factors)
— The procedure prior to sentence was wrong (e.g. the judge did not await a pre-sentence report)
— There is an unacceptable disparity of sentence between co-accused)
— Legitimate sense of grievance (where D was led to believe that a particular type of sentence would be imposed)

Prosecutorial routes to the CA

AG reference of ‘unduly lenient’ sentences
— If the offence is IO/TEW, the AG can ask the CA to review it if it “falls outside the range of sentence which the
judge could reasonable consider appropriate” is for the A-G to decide and apply for leave
— The CA must grant leave
— The CA will only consider fresh evidence (from either side) if it decides the sentence was unduly lenient

Prosecution appeals against adverse rulings (before acquittal)

— P has the power to appeal rulings of the Crown Court which would otherwise bring proceedings to an end (e.g.
ruling that there is no case to answer)
— Stages
— Immediately after the ruling, P must give notice of intention to appeal or request an adjournment
— The court must grant the adjournment if requested (normally until the next business day)
— The prosecution can appeal with the leave of either the trial judge or the Court of Appeal.
— The judge must hear representations from the defence before deciding whether to grant leave
— Leave to appeal must be granted on the same day as the oral application
— The prosecution must undertake to offer no evidence (i.e. D will be acquitted) if leave is refused or the
appeal is abandoned
— The appeal hearing must take place the next day (if expedited) or no later than 5 days

References from the CCRC

— The CCRC may refer a conviction on indictment or sentence to the Court of Appeal and any summary or sentence
to the Crown Court
— The reference will ordinarily only be made based on new arguments/information
— The respondent must serve notice if it wishes to make representations
— The CCRC may require any public body or person to produce any document or information

Appealing a CA decision
Supreme Court Appeals
— The prosecution or defence may appeal a decision of the CA to SC, but only if:
— The CA certifies that the appeal involves a question concerning a point of law of general public importance
and
— The CA or the SC grant permission to appeal to SC because they consider it ought to be considered
— Procedure
— A must apply to the CA for permission to appeal within 28 days of the decision/judgment, whichever is
later. Time begins to run on the day of the decision
— If CA refuse permission but certify the question, A may apply to SC for permission to appeal within 28 days
from refusal
 — A refusal by the CA to certify a question cannot be appealed
— Form SC must be served on the Registrar and all parties
— Any application for a representation orders must be made to the CA
— Where the CA is of the view that the prospective appeal raises no point of law of public importance, it may
decide so on the papers
— Where the CA leaves some grounds of appeal undecided the SC may:
— Rule on them as if they were the CA based on written submissions
— Remit them back to the CA to decide