Criminal Practice

Chapter 1 - Advising Clients, Including Vulnerable Clients, About the

Procedure and Processes at the Police Station
● Introduction to Criminal Procedure
○ Arrival at the Police Station
■ On arrival following arrest a suspect will be booked (details recorded by custody
officer- usually a sargent) - must be done ASAP
■ Custody officer - officer independent of the investigation of at least the rank of
sergeant who is responsible for suspects welfare - opens a custody record
(document used to record details of the suspect and their welfare in police
detention, name, address, offence, time of arrest etc) and inform them of their
rights
■ Custody record can be inspected at any time by their solicitor or appropriate adult
and can be obtained when released from custody
○ Decision to Charge, Release or Detain
■ Following booking in the custody officer must decide if there is sufficient evidence
to charge the suspect, if detention is required
■ If there is sufficient evidence - custody officer should charge suspect and either
release on bail or remand into police custody
■ Insufficient - release suspect on bail with or without conditions or unconditionally
unless detention is justified
■ May detain a suspect if there are reasonable grounds for believing the suspects
detention without charge is necessary to secure or preserve evidence or obtain
such evidence through questioning
● Rights of a Suspect Being Detained by the Police for Questioning
○ Under PACE 1984 there are 8 codes of conduct which regulate how the police or other
investigative agencies should conduct themselves before and during criminal
proceedings
○ PACE C - relates to custody and how suspects should be treat and how interviews are to
be conducted
○ If a minor - should be detained in a youth cell unless none are available - then can be in
an ordinary cell (can share with another youth but never an adult)
○ Right to Legal Advice
■ When a suspect is detained in custody the suspect has the right to consult legal
advice, privately or at any time- suspect must be informed of the right to seek free
independent legal advice:
● On arrival at police station
● On arrest following voluntary attendance at PS
○ Is entitled to legal advice if attending voluntarily even if not
arrested
● Immediately before any interview
■ Unless offence is non imprisonable all suspects are entitled to free in-person
advice
● If non-imprisonable, or arrested on a bench warrant, things like driving
while drunk or refusing to provide a specimen - will be restricted to
telephone advice provided by criminal defence direct
 ■ If a volunteer - still has right to legal representation, to be informed that they are
not under arrest and can leave at any time and to be cautioned before being
questioned
■ Once legal advice has been accepted a suspect should be permitted to consult
with a solicitor as soon as practicable
■ Obtaining legal advice - in most cases the custody officer will contact the Defence
Solicitor Call Centre - once contacted will determine whether telephone advice is
sufficient or whether a solicitor or police station representative should attend.
Sometimes a suspect may want a specific solicitor or firm
■ Delaying access to legal advice - in limited circumstances an officer of the rank of
superintendent may delay a suspect's access to consult with a solicitor. Officer
may do so if suspect had been arrested for an indictable offence and that their
exercising of their right to legal advice will
● Lead to interference with or harm to evidence or physical injury to others
● Lead to alerting others suspected of having committed an offence who
had not been arrested for it
○ If denied access to a particular solicitor they may choose another
○ Can only be delayed as long as necessary - must not exceed 36
hours
○ Suspect must be informed of reason for delay
● If right to legal advice has been refused or are interviewed without legal
advice then the alternative caution will be given “you do not have to say
anything but anything you do say may be given in evidence”
■ Declining legal advice - if declines they must be informed this includes the right to
speak on the telephone
● Custody officer must ask why they declined
● Can later decade to consult a solicitor
○ Right to have someone informed of arrest as soon as practicable
■ Relatives, friends or other persons known to them or likely to take an interest in
the suspects welfare
■ Custody officer must inform them of this right and ask if they want to exercise it -
if so the person must be informed that suspect has been arrested, their place of
detention and if moved suspect can request that they are informed of new
whereabouts, if cannot be contacted suspect can nominate a max of two
alternatives
■ Delaying notification - inspector or above may authorise a delay for up to 36
hours from arrival at the police station if detained for an indictable offence and
reasonable grounds to believe notifying an individual will:
● Lead to interference with or harm to evidence or physical injury, lead to
alerting others suspected of having committed an offence who have not
yet been arrested
● Delay may also be authorised where officer has reasonable grounds to
believe that - the person detained has benefited from their criminal
conduct, the recovery of the value of the property will be hindered by
telling the named person of their arrest
● Suspect must be notified as to why and have this in their custody record
○ Reviews and detention time limits under PACE 1984 Code C
■ Initial decision to detain - generally can be held without charge for a max of 24
hours from arriving at police station or 24 hours after arrest (arrival at a police
station if arrested outside of PS, time of arrest if attended PS voluntarily)
 ■ Expiry of the initial 24 hour period - once initial period of detention is due to expire
the police have 2 options - extend detention or release the suspect - can only
extend if it is an indictable offence - otherwise must release/ charge
● Extending to 36 hours - superintendent or above at the station if they
have reasonable grounds to believe that it is necessary to secure or
preserve evidence or obtain it through questioning. Must be indictable
offence and investigation is being conducted diligently and expeditiously -
if no longer grounds for detention then must be released
● Over 36 hours - need a warrant from magistrates court - must be 2 lay
magistrates or a district judge, application is made on oath by warranted
constable with written supporting evidence, suspect is present in court
and court is satisfied that there are reasonable grounds for believing
further detention is justified (secure, preserve or obtain evidence and
investigation is being conducted diligently and expeditiously) - magistrates
can issue warrant for further extensions of 36 hours up to a max of 96
hours
○ Can first go up to 72 hours - if want to hold all the way to 96 hours
will need to apply to magistrates to extend to 96
■ Procedure on expiry of detention - can either charge suspect, release on bail or
release
● Charge - depending on nature of the offence the police will normally need
authorisation from the CPS (custody officer must consult with CPS) - if
sufficient evidence suspect will be charged and case progresses - if
charged they may be granted police bail or courts may need to determine
● Release on bail - in some instances the suspect will be released on police
bail
● Release the suspect - police do not have enough evidence to charge
suspect and do not intend to prosecute- suspect will be released without
charge - custody officer will provide written notice of police intention not to
prosecute the suspect unless new evidence arises supporting it
■ Detention reviews - where a review officer (inspector +) determines whether a
suspect's continued detention is justified - begins when custody officer has
authorised initial detention - first review must be no later than 6 hours after
detention first authorised
● Reviews must occur no later than every 9 hours
● If suspect has not been charged the officer carrying out the detention
review must determine whether police have sufficient evidence to charge
suspect - not enough evidence to charge then review officer must decide
if detention is still necessary
○ Consult with investigating officer to determine what documents
and materials are essential for challenging lawfulness of the arrest
and detention - must be available for suspect
○ Allow suspect/ solicitor/ appropriate adult to make oral or written
representations about detention
● Searches and samples
○ The custody officer will make a record of the suspects property when they are brought
into custody - their property and clothing may be seized and retained if it could cause
injury or damage or escape
○ A strip search (more than just outer clothing) requires special authorisation - officer must
reasonably believe the S is concealing an article they would not be permitted to have, or
is necessary to prove or disprove that the S has an identifying mark like a tattoo
 ■ If clothing needs to be removed and is likely to cause embarrassment - cant have
someone of opposite sex unless a healthcare professional
■ Minor, vulnerable and mentally unwell people can request an appropriate adult of
opposite sex
○ Fingerprints and footwear - can be obtained without consent - if with consent (written)
must be at station and a recordable offence, can be taken outside station if suspect they
are committing or attempting to commit an offence or attempted to do so and name is
unknown and cant be obtained.
■ Can use reasonable force to take
■ Must be informed why prints being taken
○ Non- intimate samples - include hair (not pubic), scraping from under the nail, bodily
impression or mouth swab. Must be informed why it is taken, the authority and that it may
be retained - written records should be made.Typically need written consent unless:
■ Arrested and detained for a recordable offence and no sample has yet been
taken (or was not sufficient)
■ Following conviction or caution if sample has not been taken or inspector believes
it is necessary to assist in prevention or detection of crime
○ Intimate Samples - dental impression, blood, tissue, urine, pubic hair, swabs other than
the mouth. Can be taken if
■ Authorised by officer above inspector with reasonable grounds to suspect
suspect is involved in recordable offence and is necessary to demonstrate
involvement
■ Written consent from suspect
■ Unless urine must be taken by healthcare professional
■ If refuse adverse inferences can be drawn
● Identification Procedures
○ To assist the police in confirming that the suspect was involved in the alleged offence or
potentially eliminating a suspect from an investigation the police will usually carry out an
identification procedure
■ In doing so they must comply with PACE D
● There is an exception as there is a new part B inserted - allows persons
(typically police officers) to review CCTV to see if they recognise suspects
- need to view on an individual basis and that it is via photographs if the
suspect is not known
○ When an identification procedure must be held
■ All must be satisfied:
● (1) An eyewitness has identified or claims to have identified a suspect or
there is a witness who claims that they can or there is a reasonable
chance of them being able to do so; and
● (2) The eyewitness has not already been given an opportunity to identify
the suspect in an approved identification procedure; and
● (3) There is an issue of identity where the suspect disputes being the
person the witness saw
■ Exceptions
● (a) Not practicable to hold such procedure;
● (b) Doing so would serve no useful purpose in proving or disproving
whether the suspect was involved in committing the offence, e.g.
○ Suspect admits to being at the scene of the crime and gives an
account of what took place and does not contradict eyewitness
○ Not disputed the suspect is already known to the eyewitness
 ● Suspects identity is unknown - where identity is unknown the police may
take the eyewitness to an area to attempt to identify the alleged offender -
eyewitness may complying with relevant guidelines also be shown
photographs of potential suspects
● Suspects identity is known and they are available - police will want to
carry out an identification procedure when known and available
● Suspects identity is known but they are not available - where known but
not immediately available or likely to be available in a reasonably short
period of time the identification officer may proceed to conduct covert
identification procedures or identification procedures without suspects
consent such as group identification or confrontation - if suspect refuses
to participate in identification procedure they will be treat as known but not
available
● Consequences of refusing to participate - may be adduced in evidence at
any subsequent trial and police may covertly carry out identification
procedure without suspects consent or knowledge
○ Different types of identification procedure
■ Depends on what is most practicable and suitable, what the officer in charge of
the investigation considers most appropriate and identification officer considers it
practicable to arrange
■ Video identification
● May conduct with suspects consent - where an eyewitness is shown a
selection of portrait images on the screen - usually carried out when
suspect is known and available or known but not available
● Must include suspect + 8 others resembling them - ie age and ethnicity,
witness must not be prompted or guided
● If a witness makes a positive identification from the set of photographs no
other witness can be shown the set and each of the witnesses should be
asked to attend a parade
■ Identification parade - suspect is lined up with others visually similar (suspect + 8
others)
● Take place in normal room or one with screen permitting witness to
remain anonymous to parade
● Generally will be required when the D denies being responsible - unless
the suspect is well known to the witness and easily recognised
● Should take endeavours to conceal identifying marks like tattoos or scars
■ Group identification - similar to identification parade but without the same control -
eyewitness sees the suspect in an informal group of people - identification officer
must reasonably expect that over the period from which the witness observe the
group the witness will be able to see from time to time a number of others in
addition to the suspect
● Should be where others are passing by or waiting around informally such
as leaving an escalator
■ Confrontation - measure of last resort - suspect is directly confronted by
eyewitness - does not require suspects consent and is less controlled - if refusing
to consent to identification procedure may be appropriate
● Confrontation must be in front of suspects solicitor interpreter or friend
unless would cause unreasonable delay
○ Procedure for Carrying out an identification Procedure under PACE 1984 Code D
■ Must be presided over by an identification officer - independent from the main
investigation - oversees the identification procedure and ensures that PACE 1984
 code D is complied with - must be of the rank of at least inspector and any duties
must be performed as soon as practicable
■ Regardless of the type of procedure carried out all suspects who may be subject
to an identification procedure will need to be provided with notice - must explain
to the suspect:
● The purpose of the procedure
● Relevant process for the procedure, including right to legal advice and
have a solicitor or friend present
● Right to refuse to participate
● Consequence of refusing to take part
● Any special arrangements if juvenile or vulnerable
● The fact their solicitor will be provided with the initial description of the
subject as first given by eyewitnesses and their right to free legal advice -
have a solicitor/ friend present
● That other forms of identification can be used if the identification officer
feels that the suspect significantly changed their appearance
● All recorded in written notice given to suspect
■ A breach of code D does not inevitably lead to the identification evidence being
excluded - for court to decide if it would be prejudicial at trial
● Advising a Client Including Vulnerable Clients Whether to Answer Police Questions
○ Factors relevant to assessing whether to answer police questions
■ Benefits like enabling them to set the record straight and put their case forward
clearly - also may say something incriminating though - must weigh factors to
determine whether it is appropriate for client to answer police questions or if they
should remain silent
■ Case is weak and there is insufficient evidence to prove - no comment interview
may be appropriate to avoid revealing incriminating info and will often involve
police choosing not to pursue matter further
■ Inadequate police disclosure to solicitor - no comment interview may be given as
solicitor has not been able to form a proper view of the strengths of police case
● Before a person is interviewed if they are represented their solicitor must
be given sufficient information to enable them to understand the nature of
the offence, why they are suspected of committing it - must be sufficient to
understand the nature of any offence (ie time and place, description of the
facts) but does not need to disclose details which may prejudice the
criminal investigation
■ Client will likely perform poorly in interview - lack of maturity, vulnerability etc
would be detrimental to them
○ Right to silence - for prosecution to prove someone is guilty of offence not D to prove
their innocence - must be informed of their right to silence and against self incrimination -
could stay silent, answer questions or make a prepared statement - may decide to make
a prepared statement and offer to police instead of directly answer questions at interview
- common where concerned client will perform poorly in interview
○ Adverse inferences
■ Legal advice to remain silent - if remains silent due to solicitors advice but later
relies on a fact at trial that was not mentioned but was reasonable to mention
then not necessarily immune from having adverse inferences drawn - if genuinely
relied on advice of a solicitor but had a good defence then inferences may not be
drawn, if however the arbiter of fact takes the view that reliance on legal advice
was not genuine however then inferences may be drawn
 ■ Prepared statements and adverse inferences - where a suspect offers a prepared
statement to the police this will not negate the possibility for adverse inferences to
be drawn if for example a question from the constable is left unanswered but later
brought up in trial - ie must cover everything the D wants to rely on in their
defence
● Procedure for Interviewing a Suspect under PACE 1984
○ Questioning of a person regarding their involvement or suspected involvement in a
criminal offence which must be carried out under caution and at a police station except in
limited circumstances
○ Police are not permitted to re-interview the detainee once they have been charged - can
be questioned (not interviewed) after if to facilitate the recovery of evidence or if a
terrorist
○ Fitness to be interviewed - must be deemed fit to be interviewed: (may need to consult
appropriate healthcare professionals) will be unfit if they are unable to:
■ Appreciate the significance of the questions put to them or their answers to the
questions; or
■ understand what is happening due to the influence of drugs alcohol or any mental
illness ailment or condition
■ Where interviews may be concluded - arrest should not be delayed to question
the suspect beforehand - following arrest the suspect will be interviewed which
must take place at a police station or authorised place of detention unless the
delay in taking them to station would:
● Lead to interference with or harm to evidence connected with an offence,
physical harm to others or loss of/ damage to property
● Lead to alerting of other persons not yet arrested
● Hinder the recovery of property obtained in consequence with commission
of the offence
● Interview must cease once relevant risk has been averted or necessary
questions been put forward to avert the risk
■ How interviews are to be conducted:
● Remind of right to legal advice immediately prior to the start of an
interview unless delayed for a valid reason - is to be reminded of the right
to free legal advice and that the interview can be delayed in order to do so
● Commencement of interview and will caution suspect
● Significant statement or silence - following caution IO will put to the
suspect any significant statement or silence and ask if they want to add
anything
● Nature of police questioning - can't attempt to obtain answers through
oppression or indicate what action the police will take in event of a
suspect refusing to answer a question or make a prepared statement
unless S directly asks
○ Room should be properly heated, lit and ventilated
○ No max amount of people that may be present but an excessive
number could be oppressive
○ Police are exempted from disclosing their name if it could put them
in danger- use id number instead
● If it is an indictable or either way offence it must be audio recorded - will
be sent to defence later to check it meets prosecutions summary
○ If there are any inaccuracies in recording or notes of police officer
the solicitor must intervene asap - hard to change later
 ○ This will be served on the defence as part of the initial disclosure
and will need to be agreed between the prosecution and the
defence for the final version
● Breaks from interview - must have 8 hours undisturbed between
interviews and should account for when the suspect last had a meal, short
refreshment breaks must be provided at approximately 2 hour intervals
● Cessation of interviews - should cease to continue when officer
responsible for conducting the investigation is satisfied that all of the
questions deemed relevant to obtaining accurate and reliable information
about the offence have been put to the suspect, if there is sufficient
evidence for a conviction etc
○ If there is sufficient evidence - decide whether to charge, offer a
caution, continue to detain or release on bail
● Should refer the case to the CPS for a charging decision where:
○ Summary only offence with damage >£5k
○ Not retail theft/ shoplifting (left to custody officer)
○ Not either way offences where a guilty plea is expected (excluding
violence or hate crimes)
○ Role and appropriate conduct by a defence legal representative/ solicitor including
representation of a vulnerable client
■ Conduct of a solicitor during an interview is an important consideration - solicitor
primarily has an ethical duty to represent the best interests of their client:
● Request that the police disclose evidence mentioned in interview
● Challenge an improper question or the manner in which the question is
put
● Advise their client not to answer a question
■ Role of the solicitor
● When the suspect is to be interviewed the solicitor has a number of key
roles to undertake
● Should explain
○ How interview will be conducted
○ The seating arrangements
○ That the interview can be stopped if further legal advice is required
○ Solicitor will intervene where necessary to protect clients interests
○ Police will often use tactics to get the client to talk and as a result
they should remain calm
○ That if the client has chosen to remain silent they should use the
phrase no comment
● Should take an active role in the interview - to seek clarification, challenge
an improper question to their client, advise their client not to reply to
particular questions or if they wish to give their client further legal advice -
solicitor should make an opening statement at the start of every interview
to explain their role and involvement
● Solicitor must not conduct themselves in a way that prevents the proper
putting of questions to a suspect - answering questions on clients behalf,
providing written questions for a client to quote
● If superintendent + thinks solicitor is misconducting themselves they may
require solicitor to leave - suspect can get another solicitor
○ The role of an appropriate adult
■ It is not uncommon for a solicitor to represent a juvenile or vulnerable person
 ■ Vulnerable person if because of a mental condition or disorder: they may have
difficulty understanding or communicating effectively about the full implications for
them of any procedures and processes, they do not appear to understand the
significance of what they are told, or they appear particularly prone to becoming
confused and unclear about their position providing unreliable misleading or
incriminating information without knowing or wishing to do so
● Vulnerable person must not be interviewed regarding their suspected
involvement in a criminal offence or offences in the absence of an
appropriate adult (someone to safeguard the rights, welfare and
entitlement of juveniles or vulnerable persons)
● Can only be interviewed without AA if a superintendent or above confirms
that it will not cause the vulnerable person harm and it is important not to
delay the interview
■ Who can be an appropriate adult - parents, guardians or local authority
representatives, if not then a social worker, if not then some other responsible
adult aged 18 or over who is not connected to police (juveniles). Vulnerable
people - relative, guardian or other person responsible for their care, if not then
someone experienced dealing with vulnerable persons but not connected to
police, if not then some other responsible adult aged 18+. Cant be:
● Suspected of being involved in offence
● Victim or witness
● Involved in investigation
● Received admission from suspect before acting as an appropriate adult
● Is a solicitor representing juvenile/ vulnerable person
● Estranged parent who VP does not want to attend
■ Role of appropriate adult
● Support advise and assist the juvenile or VP when required to provide
information or participate in a procedure
● Observe whether police are acting properly and fairly and inform officer of
the rank of inspector or above if they are not
● Assist detainees to communicate with police while respecting right not to
say anything they don't want to
● Help them understand their rights and ensure that they are protected and
respected
● Decision to Charge
○ Lies with CPS - DPP guidance says police can only charge if:
■ Summary offence <£5k in damage
■ Retail theft suitable in magistrates
■ Either way offence with anticipated guilty plea that is suitable for magistrates
○ Full code test - used by CPS in other circumstances - once carried out the Crown
Prosecutor will give investigating officer written notice of his decision
■ 1) evidence disclosed by police file (or HMRC if relates to tax fraud - still
prosecuted by CPS) shows sufficient evidence to provide for a realistic prospect
of conviction and
■ 2) it is in the public interest to prosecute
○ Threshold Test - where not yet enough evidence to charge but would be a risk to release
on bail:
■ 1) insufficient evidence to apply full code test
■ 2) reasonable grounds to believe further evidence will be available in a
reasonable period
■ 3) seriousness justifies an immediate charging decision
 ■ 4) substantial reasons to object to granting bail
■ Decision to charge under threshold test will be reviewed to ensure it is
appropriate and the objection to granting bail is still justified
○ Selecting Charge - must:
■ Reflect seriousness and extent of offending
■ Gives court adequate sentencing and post conviction powers
■ Allows a confiscation order where appropriate where a
■ D benefitted from criminal conduct and
■ Enable case to be presented in a clear and simple way
○ Alternatives to prosecution for adults
■ Caution - sufficient evidence for prosecution, offender admits guilt, it is in public
interest for a simple caution, offender agrees to simple caution and is warned of
its effects - can’t be given if had any caution in last 2 years, or if for indictable or
specified either way offences unless DPP consents
● Can have a conditional caution too - signs document that also requires
anger management, rehab etc and often reparation to V or community - if
fail to comply then liable to be prosecuted for original offence
○ Whether investigated by CPS the decision to charge and prosecute will be with CPS

Chapter 2 - Bail Applications

● Introduction
○ It is rare for a case to be concluded at the first hearing - thus a decision is requires as to
whether the D should be remanded in custody or released on bail (with or without
conditions)
■ Also have pre-charge bail - ie investigation ongoing - limited to 28 days - can be
extended to 3 months by superintendent
■ If been denied bail they must appear before a magistrates court ASAP
○ Remand - decision to adjourn or postpone a case and dictate what will happen with the D
- necessary where case is part heard (case is over a few days), where D is committed to
the Crown Court for trial or sentence or where the court has adjourned for pre-sentence
reports following guilty plea or conviction or where case is appealed from magistrates to
Crown Court
■ Can be in custody or on bail (either conditionally or unconditionally)
■ Remand time limits - if court chooses to remand a D in custody then time limits
are set on the period of remand - dependent on whether decision is made before
or after conviction
● Pre conviction
○ 3 clear days in custody to a police constable
○ 8 clear days in custody to a prison when next stage is not yet set
○ 28 clear days in custody to a prison when next stage of
proceedings will occur within that time, D at the time of the remand
is before the court and D has previously been remanded in
custody by the court in the proceedings
○ 28 clear days in prison if already serving a custodial sentence
● Post- Conviction
○ 3 weeks in custody for enquires or reports for sentencing
○ 4 weeks on bail
■ Custody time limits - maximum amount of time an individual may be remanded in
custody during the progress of a criminal trial - designed to ensure that cases will
be expedited where D is in custody. Prosecution can apply for deadline to be
 extended - must show on balance of probabilities that there is good and sufficient
case for the extension and has acted with due diligence and expedition. Runs
from the day after the Ds first court appearance
● 56 days for summary only offences (from first appearance to trial)
● 70 days for cases sent to the crown court - from first appearance in
magistrates court to committal - sending to the crown court
● 70 days for either way offence being tried in the magistrates court - from
first appearance to trial - reduced to 56 days if allocation hearing is held
within first 56 days
● 182 days for indictable only offences sent to the Crown Court from
sending to arraignment (but the crown if they have acted with diligence
and expedition can apply to extend this - but defence can oppose)
● The Right to Bail
○ D charged with a criminal offence has a prima facie right to bail - rebuttable presumption
though
○ Bail can be granted either by the police or by the court - police bail is granted during
criminal investigation, criminal cases - court must decide whether the D will be remanded
on bail or in custody until next court hearing - will typically be first dealt with after first
court appearance in magistrates
○ Exclusions to right to bail - right to bail does not apply (unless there are “exceptional
reasons”)
■ Appeals following summary conviction- bail is discretionary and unlikely to be
appropriate unless appeal was very likely to succeed
■ Committal for sentence following summary conviction - does not exist where D
has been committed to the Crown Court for sentence following conviction in the
magistrates court - bail is discretionary
■ Where the D is over 18 and is already on bail when arrested again
■ Homicide or rape cases if there is a previous conviction - bail should only be
granted if the court if of the opinion that there are exceptional circumstances (only
in manslaughter cases where previous conviction resulted in sentence of
imprisonment) - or offences under the sexual offences act
■ Murder cases - no bail may be granted unless the court is satisfied that there
would be no significant risk that if released on bail the D would commit an offence
likely to cause physical or mental injury to another - only a crown court judge
may grant bail - decision must be made by crown court whether to grant bail
within 48 hours of appearing in front of magistrates
● Exceptions to the right to Bail - where the D need not be granted bail if there is a reason
to refuse
○ Exceptions are listed in Sch 1 Bail Act 1976
■ Defendants Accused or Convicted of Indictable Imprisonable Offences
● Includes offences triable either way
● Exceptions to bail will not apply where:
● D has reached 18
● D has not been convicted of an offence in those proceedings; and
● It appears to the court that there is no real prospect that the D will be
sentenced to a custodial sentence - then should grant bail
■ Risk of absconding, further offences or interference with witnesses (or otherwise
obstruct the course of justice)
● Most common ground for bail to be opposed
● Must be substantial grounds for believing so
● Could include if his name or address cannot be ascertained
 ■ Harm to an associated person
● If substantial grounds for believing the D if released on bail (conditionally
or not) would commit an offence that would be likely to cause:
○ Physical or mental injury to an associated person (current or
former spouse, cohabitant, parent etc); or
○ An associated person to feel physical or mental injury
■ Offence Committed Whilst on Bail
● D need not be granted bail if court is satisfied that the D should be kept in
custody for their own protection or if they are a child or young person for
their own welfare
■ Already serving a custodial sentence
● D need not be granted bail if already serving custodial sentence
■ Arrested for absconding
● If have previously absconded on breaking conditions of bail
■ Not practicable
● Where it is not practicable to obtain sufficient info for proposing bail
because of lack of time; or
● Where a case is adjourned for inquiries or a report it is impractical to
complete inquiries or make a report without keeping the D in custody
○ Defendants accused or convicted of summary only imprisonable offences (tried in
magistrates only)
■ Exceptions are broadly similar to the above but criteria used is slightly different -
same limitation noted above applies to a number of exceptions
■ Will not be granted bail if:
● Have previously been granted bail, failed to surrender and court believes
they would fail to surrender again
● Were on bail on date of alleged offence and substantial grounds for
believing they would commit another
● Substantial grounds to believe D would cause physician or mental injury
to an associated person
● Should be kept in custody for their own protection
● Were already serving a custodial sentence
● Have been arrested for absconding or breaching bail conditions and
substantial grounds for believing they would do so again
● It is not practicable to obtain sufficient information for the purpose of
determining bail applications because of the shortness of time sine
proceedings began against the D
○ Ds accused or convicted of non-imprisonable offences
■ If they have been convicted of the offence, have previously been granted bail and
failed to surrender and court believes they would do so again
■ Should be kept in custody for their own protection
■ Were already serving a custodial sentence
■ Have been convicted of an offence, been arrested for absconding or breaching
bail conditions and there are substantial grounds for believing that they would fail
to surrender, commit an offence, interfere with witnesses or otherwise obstruct
the course of justice if released on bail
■ Have been arrested for absconding or breaching bail conditions and substantial
grounds for believing they would commit an offence on bail by engaging in
conduct that would be likely to cause physical or mental injury to an associated
person
 ○ Statutory factors - when court is making a decision as to whether there are substantial
grounds for denying bail they must take into account any of the relevant statutory factors
■ Nature and seriousness of the offence
■ Ds character, associations and community ties
■ Strength of the evidence against D
■ Ds previous record on bail
■ Risk of harm to any person
■ Any other relevant factor
● If court is satisfied the D does not pose a real risk then should grant
unconditional bail
● If not satisfied then the court may impose bail conditions (conditional bail)
● Conditional Bail - most common conditions
○ Surety
■ Someone who accepts if the D fails to attend then they will forfeit a sum of money
- will consider their financial resources, their character and any previous
convictions as well as proximity to D
■ Should never be a solicitor
■ Deals with risk of absconding
○ Security
■ A condition that the D deposit money or other goods as a security for being
released on bail - if fail to surrender then security will also be forfeited
■ Deals with risk of absconding
○ Residence
■ Condition that the D be required to live and sleep at a specified address - police
will visit to check
■ Deals with risk of absconding, committing offence on bail, interfering with
witnesses
○ Curfew
■ Condition that the D must be at specified address between certain hours of the
day with no restriction on minimum and maximum period - court must consider Ds
employment and care commitments, police will visit address at random points in
day to monitor compliance and may tag D
■ Deals with committing offences on bail
■ If curfew is for 9+ hours and electronically monitored then each day on curfew will
count as half a day in custody
○ Non-communication
■ Condition the D must not make any contact with complainant or any probable
witness
■ Deals with interfering with witnesses
○ Restriction on Location
■ Condition that the D must not enter a certain area or building or go in vicinity of a
location - may tag the D
■ Deals with committing offence on bail or interfering with witnesses
○ Reporting
■ A condition that the D must report to local police station - at specified intervals
■ Deals with risk of absconding
○ Surrender of Passport
■ Deals with risk of absconding
● Procedure for Applying for Bail
○ Before a decision is made as to bail the prosecution must as soon as practicable provide
the court and D with all the information in their possession which is material to what the
 court must decide, bear in mind that bail applications are inquisitorial as opposed to
adversarial in nature
○ D solicitor should first speak to prosecution to identify if they will oppose bail or not
○ 1) prosecution representations - summarise case against D including a summary of any
evidence against them and then present their objections to bail - must specify:
■ Each exception to the general right to bail they are relying on
■ Each statutory factor they consider relevant
■ Specify each condition proposed and the purpose of each
■ Court will also be presented with previous convictions if any
○ 2) Defence representations - D will be permitted to make representations as to granting
of bail - D will attempt to rebut exceptions and mitigate any concerns raised by
prosecution in using the statutory factors - D advocate will try to persuade court to grant
unconditional bail or propose one or more conditions to bail which may persuade the
court
○ 3) right to reply - prosecution is permitted a right to reply to correct any alleged
misstatements of fact but not normally used
○ 4) decision as to bail - court will announce its decision and must explain its reasons for
whatever decision it takes - record of this decision will be made - if bail is granted the
court will inform the D where and when they should surrender to custody and any
conditions
■ If bail is refused the court will serve on the D a certificate of full argument - to
show the court has heard a fully argued bail application
■ After fully argued certificate given by magistrates the D must give at least 24
hours notice of their intention to appeal to the prosecution - will be heard in CC
chambers as a complete re-hearing
● Further Applications for Bail
○ If court decides not to grant the D bail it is the courts duty to consider the question of bail
at each subsequent hearing where:
■ Presumption in favour of bail still applies and
■ D remains in custody
○ Nature of the bail application will vary depending on whether the application is being
made at the first hearing following refusal or subsequent hearings
○ First hearing
■ D is permitted to make a full application for bail
■ D may support an application for bail with any argument as to fact or law that they
desire whether or not they have advanced that argument previously
○ Subsequent hearings
■ Court need not hear arguments as to fact or law which it has heard previously
■ Means unless there has been a change in circumstances the court may choose
not to entertain an application for bail
● Appeals Against Decisions on Bail
○ Defence appeals (where magistrates refused bail)
■ D must apply to Crown Court in writing as soon as practicable after magistrates
court decision and serve that application on the Crown Court, magistrates and
prosecution
■ Application must specify the decision wants, why bail should not be withheld any
and proposed conditions of bail
■ Appeals will usually be heard in magistrates within 48 hours after initial refusal
■ Appeals will be heard by Crown Court judge in chambers not in court - will be a
complete rehearing of a bail application with judge permitting both prosecution
and defence to make necessary representations
 ■ Crown Court judge may either withhold bail and D will continue to be remanded in
custody or grant bail conditionally or unconditionally
○ Prosecution appeals (does not have unfettered right to appeal against grant of bail) - D
charged with or convicted of an imprisonable offence - if not punished by way of
imprisonment the prosecution cannot appeal against decision to grant bail - may either
appeal to crown court or high court
■ Appeal to Crown Court - where prosecution is appealing against decision of
magistrates to grant bail - must be held as soon as practicable and no later than
second business day after appeal notice served
■ Appeal to High Court - where prosecution is appealing against decision of Crown
Court to grant bail - does not apply where Crown Court granted bail following an
appeal from magistrate by D
■ In either case the prosecution must give oral notice to court which granted bail of
the decision to appeal during hearing where court granted bail and before D is
released on bail - prosecution must serve written notice of appeal no more than 2
hours after informing court of decision - D must be remanded in custody until
appeal determined
● If D has already been released from custody then cannot appeal
● Absconding and Breaches of Bail
○ Absconding - where D without reasonable cause fails to surrender to custody of the court
- ie does not show up for trial
■ Where D fails to surrender and no reasonable cause for this the court will issue a
warrant for their immediate arrest
● Backed with bail - once arrested they will be released by police
● Not backed by bail - will be held in custody until next hearing
■ Is a criminal offence
■ If have reasonable cause then must surrender as soon as reasonably practicable
- it is up to the D to prove this
■ If solicitor suspects client has absconded to a specific place - should just say that
they are without instructions - dont tell the court where they are but dont lie for
them
■ If guilty of absconding then court may sentence them immediately or postpone
sentencing until end of proceedings - general principle is that the court must
sentence as soon as practicable
● If failed to show at magistrates - up to 3 months imprisonment and max
fine of £5,000
● Crown court - punishable by 12 months / unlimited fine
○ Breaching Bail Conditions
■ Conditions and importance of complying will be explained to D - breach of
conditions is not a criminal offence but can be arrested if police have reasonable
grounds to believe D:
● Broke any conditions of their bail or
● Is likely to do so
■ If arrested must be brought before magistrates as soon as reasonably practicable
and within 24 hours (not including sundays) - if not then have absolute right to be
released
■ Magistrates court must decide whether to remand D in custody or release on bail
● Determine the breach (if it occurred) then
● Determine bail - if did occur then must decide whether to remand in
custody or on bail - if releases on bail then may maintain the same
conditions imposed previously or vary them
 ● Bail is not to be confused with Conditional Cautions
○ Cautions are not formally a conviction but form part of a Cs criminal record and may be
cited in any subsequent criminal proceedings
○ Can be given by either a PO of a Crown prosecutor where:
■ (1) Evidence the offender committed the offence
■ (2) decide there is sufficient evidence to charge
■ (3) offender admits to the offence
■ (4) the offender has been made aware of what the caution and failure to comply
would mean
■ (5) offender signs a document with admission and details of the offence and
conditions imposed
○ If a C fails to comply with the conditions of a caution then they are liable to be
prosecuted for the original offence -

Chapter 3 - First Hearing Before the Magistrates Court

● When charged with a criminal offence all adults will attend a magistrates court for the first
hearing
● Classification of Offences
○ Summary offences - least serious forms of offences and can only be dealt with in the
magistrates - most road traffic offences
■ If summary only offence arises out of the same circumstances as an indictable
only offence and is punishable by imprisonment or disqualification from driving -
both sent to CC
○ Either way offences - severity is dependent on the facts of a particular case - can be in
magistrates or Crown Court - e.g. fraud - depends on if low amount of money or not
○ Indictable ONLY offences - can only be dealt with by Crown Court - murder for example -
whilst a D will make their initial appearance at magistrates the magistrates will then send
to the Crown Court
○ Examples
■ Murder and manslaughter - Crown court only
■ Assault and battery - magistrates only
■ Assault occasioning actual bodily harm - either way
■ Malicious wounding/ GBH (s20) - either way
■ Malicious wounding/ causing GBH (s18) - crown court only
■ Theft - either way
● Low value shoplifting (below £200) is magistrates only - if multiple then
total of value from all not individual - can elect for crown court
■ Robbery - crown court
■ Burglary - either way
● Indictable only if another offence intended to be committed whilst in
building
● Indictable only where burglary was in a dwelling and any person there
was subject to violence or threat of violence
● If domestic burglary, D is over 18 and has 2 previous convictions for the
same
■ Aggravated Burglary - crown court
■ Fraud - either way
■ Simple criminal damage/ arson - either way
● Where value of property damaged does not exceed £5000 then
summary - no right to crown court
■ Aggravated criminal damage/ arson - crown court
● Procedural Overview - what will happen a hearing
○ Before first hearing CPS should disclose: initial details of its case to the defence: custody
record, charge sheet, summary of evidence or a statement setting out the facts of the
case and the Ds prior convictions
○ Initial details of the prosecution case (IDPC) - for summary and either way offences
■ Prosecution are required to serve initial details of the prosecution case - enables
D to know what information they have available - part of the prosecutions pre-trial
disclosure
■ Contents depends on if D was in police custody immediately before first hearing
or not
● If was in custody - summary of all the circumstances of the offence(case
summary) and the Ds criminal record
● D was not in custody - summary of the circumstances of the offence, any
account given by the D in interview whether contained in that summary or
another document, any written witness statement or exhibit the prosecutor
then has available and considers material to plea or to allocation of the
case for trial or sentencing, the Ds criminal record, any available
statement of the effect of the offence on a victim, their family or others
■ If D has been released on bail after being charged and prosecutor does not
anticipate a guilty plea - should also make available
● Statements and exhibits that the prosecution has identified as being of
importance for the purpose of plea or initial case management, including
any relevant CCTV and forensic report
● Details of witness availability
● Indication of any expert witness the prosecution is likely to bring
● Any information as to special measures, bad character or hearsay
■ Procedure for serving the IDPC
● Must be served on the magistrates court as soon as practicable and no
later than the beginning of the day of first hearing
● If D wishes to receive before first hearing they must request it from
prosecution - following this the prosecution must serve the IDPC on the D
as soon as is practicable and no later than the day of the first hearing
● If D does not request then the prosecutor must make them available to the
D at or before the beginning of the first hearing
● If not provided then court will not allow it to be introduced until D has
considered it
○ Summary only offences
■ Where a D is charged with a summary only offence the court must read the
charge to them and ask if they intend to plead guilty or not guilty
● Guilty plea - magistrates will proceed to sentence
● Not-guilty - magistrates will normally adjourn and set a date for trial
○ Either Way Offences - first go to magistrates to plea
■ Guilty plea - magistrates will consider if their sentencing powers are sufficient - if
they are then will sentence the D - if not then will commit to Crown Court
■ Not-guilty plea - magistrates must determine where the Ds case will be tried - in
magistrates court or the Crown Court - allocation hearing
○ Indictable only
■ D will be identified and charge read to them
■ Court will explain the allegation unless self explanatory and must explain that
their case will be sent to the Crown Court due to the nature of the offence
 ■ Court must permit the prosecution and D to make any necessary representations
regarding power to send case to Crown Court or ancillary matters such as bail -
given that any case must be adjourned a consideration of bail at this stage is vital
■ Crown court must ask whether D intends to plead guilty in Crown Court
● If answer is yes then court must make arrangements for Crown Court to
take Ds plea as soon as possible
● If answer is no or no answer he court must make arrangements for a case
management hearing in crown court
● Applying for a Representation Order
○ Majority of criminal cases are funded by legal aid - if need further assistance a D will
either pay for legal representation, represent themselves or apply for a representation
order
○ All persons regardless of their means are entitled to free legal advice at the police station
regardless of income (and from duty solicitor for first court hearing provided that it is an
imprisonable offence or they are in custody- but not necessarily at second third etc
hearings)
■ Application for a representation order is made electronically using CRIM14 eForm
to the LAA - whether such order is granted is determined by a two stage test
● Interests of justice test; and
● Means test
○ (1) Interests of Justice Test - Legal aid should subject to means testing be granted in
cases only where it is in the interests of justice for the D to be represented - determined
according to a list of statutory factors (Widgery criteria) Automatically satisfied when
charged with an indictable only offence - only do test if either way or summary:
■ It is likely the D will lose their liberty if the proceedings is decided against them -
Legal Aid Agency will pay regard to previous convictions and sentencing
guidelines to determine whether custody is likely in a given case - could also
include custodial sentences and hospital orders
■ Been given a sentence that is suspended or non-custodial - if i break this the
court may be able to deal with me for the original offence - if the D would be in
breach of a suspended custodial sentence - if convicted - this is a relevant factor
to be considered
■ Likely to lose livelihood - need to be in employment or self-employed - risk of loss
must be directly attributable to conviction or sentence - e.g. conviction of theft
from employer or a lorry driver disqualified from driving
■ It is likely to suffer serious damage to reputation - Ds current reputation and
nature and seriousness of the offence - if intends to plead guilty this is unlikely to
be relevant
■ Whether the determination of any matter in the proceedings may involve
consideration of substantial question of law - D must identify the question of law
which may arise - which aspect of the case it relates to and why it is substantial
and beyond remit of the duty solicitor
■ May not be able to understand the proceedings or present their own case -
disability or understanding of english is inadequate - but must also show that this
impacts their ability to understand proceedings and bring their own case
■ Witnesses may need to be traced or interviewed on behalf - must identify the
relevance of the witness and why legal representation is necessary
■ The proceedings may involve expert cross examination of a prosecution witness -
must be proven that expert cross exam is required
■ It is in the interests of another person that I am represented - the other person will
commonly be a prosecution witness in cases of sensitivity where it would not be
 appropriate for the D to cross examine them in person - e.g. domestic abuse
cases
■ Any other reason
○ (2) Means test - assessment of the available funds and or income of the D - assessment
undertaken differs according to whether the case is being heard in the magistrates or
Crown Court and some cases are passported
■ Takes account of Ds income, family circumstances and essential living costs
● Passporting - automatically pass the means test if under 18, or receive
welfare benefits
■ Initial means test is based on gross annual income of D and family
circumstances, initial assessment is weighted, taking account of number and
ages of family members. Operation of the assessment is dependent on trial
venue:
● Magistrates court - assessment limited to income of a D
● Crown Court - assessment includes Ds income, capital and equity - in
addition D may be liable to contribute to funding
■ Calculate gross annual income and calculate any weighting
● £12,475 or less - means test passed (no contribution required in crown)
● £12,475 - £22,325 - in magistrates and crown depends on full means test
- in Crown may need to contribute
● £22,325+ - magistrates has failed, crown court depends on full means test
- contribution may be required
● £37,500 of disposable income or more (crown court only) - means test
failed and no funding available
■ Full means test - calculated by deducting living costs from gross annual income -
NI payments, housing costs, childcare costs and annual living cost (£5,676) and
any weighting
● Annual disposable income of £3,398 or less - means test passed for both
● £3,398 - £37,500 - magistrates - failed, crown court - passed but
contribution will be required
■ Income Contribution
● Alongside the above if the D has above £30k in capital and equity and is
convicted they may have to contribute to any remaining balance against
final defence costs
○ Granting of the Order - if LAA are satisfied that the interests of justice test and means
test have been satisfied the magistrates court will grant the representation order which
will be sent to the Ds solicitor - if refused then can submit another application
● Role of the Defence Solicitor at the First Hearing
○ Obtain and review the IDPC and using that evidence consider whether the charges
against the D are appropriate and advise on the strength of the prosecution's case and
any possible defences available to the client - in light of the strength of the prosecution's
case - the defence solicitor should advise the client about whether to plead guilty or not
guilty
○ Interview the client, obtain instructions and take a proof of evidence from the client
○ Ascertain who is prosecuting and confirm they are acting on behalf of the client - the
defence solicitor may need to raise any concerns about the nature of the charges,
sufficiency of the evidence and if the client is in custody ascertain what objection there
are to bail
○ Advise the client how the case will progress
○ Advise the client as to prospects of bail if in custody
○ Make any necessary representations to court
Chapter 4 -Plea Before Venue and Allocation of Business Between
Magistrates Court and Crown Court
● Plea Before Venue
○ All defendants will make their first appearance in the magistrates court regardless of the
classification of the offence charged
○ All Ds will make their first appearance in magistrates regardless of classification of
offence - when triable either way the magistrate will adopt the process:
■ First stage of process is known as plea before venue - specific to either way
offences and designed to allow the D to indicate their intended plea - procedure
that follows will be dependent on the plea indicated by the D
■ If a summary only offence - written charge (facts creating the offence and those
supporting that it was committed by the D) as well as sequestration will be sent to
D by first class post
● Summary only must be commenced within 6 months of the commission of
the offence
■ If triable either way - should be summarily tried unless:
● Outcome would be a sentence in manifest excess of the courts powers for
the offence taking into account personal mitigation and any potential
reduction for a guilty plea
● The reasons of unusual legal, procedural or factual complexity the case
should be tried in the crown court
○ Procedure on Defendant Entering Plea - detailed in statute and the Criminal Procedure
Rules 2020
■ Rules must be followed - part 9 CrimPR 2020 deals with allocation proceedings
and sets the process out in an accessible manner
● Charge must be written down and read to the D
● Court must explain to the D: allegation (unless self-explanatory), that the
offence is one that can be tried in a magistrates court or in the crown
court, that they will ask if they intend to plead guilty or not, if yes then
court must treat that as a guilty plea and must sentence D or commit to
Crown Court for sentence, if the D does not answer or the answer is no
then court must decide whether to allocate case to a magistrates court or
to Crown Court for trial, the D can nonetheless require trial in the Crown
Court
● Court must ask if the D intends to plead guilty - D can then
○ Guilty plea
○ Not guilty plea
○ Remain silent
■ Guilty Plea - magistrate will treat as a guilty plea and proceed as if D has been
convicted of a summary offence - can either sentence immediately or adjourn
case for pre-sentence reports (prepared by probation service)
● Required to obtain a pre-sentence report before imposing a custodial
sentence
● Procedure upon sentencing a D is dealt with in chapter 8 - for purposes of
chapter need to consider the powers available to the magistrates - may
choose to sentence the D in magistrates court.
● Commit D to be sentenced in Crown Court if they consider their
sentencing powers to be insufficient- magistrates must be of the view it is
too serious
 ● If adjourning or committing to Crown Court the magistrates should
consider whether D should be held in remand or bail
■ Not guilty/ No plea
● Then will proceed to allocation heating - formal process whereby the
magistrates determine whether the D is to be tried in magistrates of
Crown
○ Advising Client on Trial Venue
■ D has the right to elect trial by jury when magistrates accept summary jurisdiction
- must be able to advise on the respective pros and cons
■ Pro Magistrates
● Sentencing powers - more limited than crown court
● Appeal routes - more favourable in magistrates - can appeal without leave
to the Crown Court
● Delay - summary trials are listed quicker than trials on indictment
● Stress - less formal and thus likely to be less stressful
● Publicity - If public perception is important this may be better
● Cost - will be much cheaper where the D is not legally aided - no income
contributions required for summary trial
● Disclosure - no requirement to serve a define statement meaning more of
the Ds case may be hidden from the prosecution
○ Summary trials are heard by 2-3 lay magistrates or one district
judge
■ Pro Crown Court
● Conviction rates are lower as juries are more sympathetic
● Questions of law - functions of judge and jury are separated - judge is
better placed to deal with point of law
○ Where evidence is inadmissible the jury would never hear it unlike
in magistrates
● Preparation for trial - having more time means defence have longer to
prepare their case and gather evidence
● Allocation Hearing (Cant appeal)
○ Decision as to allocation (MCA 1980 s19)
■ Before making decision the court:
● Shall first give the prosecution an opportunity to inform the court of the Ds
previous convictions given that they will likely affect sentence
● The court shall then give the prosecution and the defendant an
opportunity to make representations as to whether summary trial or trial
on indictment would be more suitable
■ Following this the magistrates (or District Judge) will then consider a number of
statutory factors in making their decision
● 1) whether the sentence which a magistrates would have power to impose
for the offence would be adequate
● 2) any representations made by the prosecution or the D
● 3) the allocation guideline issued by the sentencing council
■ Adequacy of magistrates sentencing powers - will consider sentencing guidelines
and maximum sentence available for the offence
● D can still be later tried in magistrates and sentenced in the crown court
● Special rule in 19(4) provides that where a D is charged with two or more
offences and those offences can either be joined in the same indictment
or arise out of the same or connected circumstances - e.g. multiple thefts
from the same victim then the magistrates will consider whether their
 sentencing powers are adequate in light of the maximum aggregate
sentence
■ Representations by the Parties
● Each party involved is permitted to make representations as to the
appropriate trial venue
● Often the parties will agree on trial venue and prosecution will indicate this
in their submissions - often the case that any dispute arises where the
prosecution seeks to have the case sent to the crown court but the D
wishes to remain in the magistrates
● If it is decided that the case will be tried summarily - D can elect to be
instead tried on indictment at CC
● If decided indictment in CC is right - D will not have ability to elect where
to go
■ Allocation Guideline
● Produced by sentencing council - provides that in general either way
offences should be tried summarily unless:
○ Where outcome would clearly be a sentence in excess of courts
powers for offence concerned after taking into account personal
mitigation and any potential reduction for guilty plea
○ For reasons of unusual legal procedural or factual complexity case
should be tried in Crown Court - exception may apply in cases
where substantial fine is the likely sentence - other circumstances
are likely to be rare and case specific - court will rely on
submissions of parties to identify relevant cases
○ In cases with no factual or legal complications the court should
bear in mind its power to commit for sentence after a trial - may
retain jurisdiction despite the fact that the likely sentence may
exceed its powers
○ Outcome of Allocation
■ Trial on indictment seems more suitable (MCA 1980) S21
● Court shall inform the D of this and send them to crown court - date will be
set for Ds first appearance before Crown Court at the plea and trial
preparation hearing
● If magistrates have declined jurisdiction then the D has no choice
● Bill of Indictment will be a printed accusation of an offence or offences
drafted at the suit of the crown - states the trial court as well as the
offence
○ Prosecution must serve a draft indictment on CC within 20
business days after service of case sent bundle
■ Summary trial appears more suitable - MCA (1980) S20
● First court will explain to the D:
○ That it appears to the court more suitable the D is tried summarily
○ That they can consent to this or be tried on indictment
○ That if they are tried summarily and convicted by the court then
they may be committed to crown court for sentence
● D can then request an indication of sentence - magistrates identify
whether a custodial sentence or non-custodial would be more likely to be
imposed if D were to be tried summarily
○ Court is not obliged to give indication
○ Where it does the court must ask the D if they intend to reconsider
their intended plea
 ○ D can then plead again
● If D wishes to reconsider their plea and indicates a plea of guilty the
magistrates will proceed and convict them of the offence -
● If no indication of sentence is given or requested the court shall seek the
defendants choice as to whether they want to be tried summarily or on
indictment (only when magistrates has accepted summary jurisdiction)
● Ds choice will then affect the progression of the case - but a date will be
set for either no less
● Sending to Crown Court Without Allocation (Crime and Disorder Act) 1998 S50a
○ Notices in serious or complex fraud cases- charge of fraud while ordinarily an either way
offence must be sent forthwith to the Crown Court for trial without allocation (treat as if an
indictable offence) - S51B concerns circumstances where the prosecution is of the
opinion that the evidence of the offence charged:
■ Is sufficient for the person charged to be put on trial
■ Reveals a case of fraud of such seriousness or complexity that it is appropriate
that the management of the case should without delay be taken over by the
Crown Court
■ Such notice can only be given by DPP - includes CPS, serious fraud office, NCA
(serious organised crime) or SoS
○ Notices in Certain Cases Involving Children
■ DPP (head of CPS) or someone delegated authority such as crown prosecutor is
of the opinion that
● Evidence would be sufficient to be put on trial
● Child would be called as a witness and
● For the purpose of avoiding any prejudice to the welfare of the child the
case should be taken over and proceed without delay by Crown Court
○ Related Offences
■ If multiple charges some indictable and some not then must send all to Crown
Court
■ If magistrates previously sent D to crown court for trial and then later appears
before magistrates charged with related either way or summary offences then
magistrates may send these to crown court
■ Court can try them together if the defence agrees or the court feels that it is in the
interests of justice to do so
● Court can later order misjoinder if it feels they should not be tried together
- D may be convicted of 2 offences from same conduct or incident
○ Related Offenders
■ D2 jointly charged with D1 for either way offence
■ Either way offence is related to the indictable only offence for which D1 has
already been sent and
■ D1 and D2 appear together on the same occasion

Chapter 5 - Case Management and Pre-trial Hearings

● Overriding objective is that criminal cases are dealt with justly - things like acquitting the
innocent and convicting the guilty, treating prosecution and defence fairly etc
● Magistrates Court Case Management Directions
○ Cases remaining in the magistrates court
■ If D pleads not guilty then the magistrates must conduct a preparation for a trial
hearing - court must give directions for an effective trial - parties complete
Preparation for an Effective Trial form - includes evidence that will be relied upon,
 elements of the prosecution's case disputed by D and decisions and directions for
effective trial given by court
■ Will ask parties to confirm
● Issues in the case
● Points of law arising
● Whether any witness evidence is agreed as admissible
● Witness number and identity and availability
● Record of police interview
● Realistic time estimate for trial length
■ Further pre trial hearings - where court anticipates a guilty plea, it is necessary to
give directions for an effective trial or
■ Such hearing is required to set ground rules for the conduct of the questioning of
a witness of D
■ Standard Directions
● Service of evidence and disclosure -e.g. Direct prosecution to serve ruther
evidence by a certain date or comply with disclosure
● Witness and evidence - parties must provide details of witness that they
intend to call - must be done (with their details) within 10 business days of
initial duty of disclosure. Court will also direct parties to identify whether
evidence is to be heard live or may be read in court - if to be live then how
long will it take
● Expert evidence - if expert witness is required by D for a particular issue
then court will direct that any witness statement or report from that expert
be served on the prosecution
● Securing attendance - party can apply to court for witness summons -
court must be satisfied the evidence given would be material
● Special measures including intermediaries - for particular witness such as
restriction of cross examination and any use of an intermediary
○ Cases sent to Crown Court
■ Magistrates will still issue standard directions for the preparation of trial, better
case management form must be completed on sending for trial and magistrates
must set a date for a plea and trial preparation hearings at crown court which
must be held within 28 days of sending
■ Once goes to CC - will upload paper files to Digital Case System
● Plea and Trial Preparation Hearing
○ Will typically have made first appearance in magistrate - where they will have plea
regardless if summary or indictable
■ Case management questionnaire should be completed in good time before the
PTHP (if sent to CC)
○ Where a case is then sent to the Crown Court generally the first hearing in the crown
court will be the PTPH - a pre trial hearing to set the date for trial, identify so far as can
be determined at that stage the issues for trial, provide a timetable and give appropriate
directions for effective trial - must be held in every criminal case sent to CC
○ Content of a PTPH
■ Arraignment - when charges on the indictment are read to D in open court by
Clerk and D is asked to enter a plea
■ Guilty plea: sentencing - if entered court should normally proceed to sentencing
on same day - may be adjourned if pre sentence reports required or where D
disputes factual basis of prosecution's case thus requiring a Newton hearing
 ■ Not guilty plea: case management hearing - if entered the case management will
take place in preparation of trial - PTPH form must have been completed and
discussed between two parties- form seeks to:
● Gather necessary information from parties
● Monitor the extent to which the prosecution provides info prior to PTHP
● Allow court to make and record clear orders timetabling case progression
● Allow court to provide for further hearings when necessary and most
useful
● Court must decide again if the D should be released on bail
○ Further case management hearings - generally not needed following PTPH but court
may do so when:
■ Necessary to conduct hearing to give directions for effective trial or
■ Such a hearing is required to set ground rules for conduct of questioning of a
witness or D (important if vulnerable witness for example and how they can give
their best evidence) will address management of questions to be asked and
whether any reasonable adjustments are required
● Disclosure - the legal duties imposed on parties to provide evidence or information to the other
side - both prosecution and defence possess legal duties relating to disclosure which vary
○ First prosecution must disclose all evidence they rely on in case
■ Applies regardless of if in magistrates or Crown court
■ Initial duty of prosecution to disclose any material (relied upon or not):
● Which has not previously been disclosed and
● Which might reasonably be considered capable of undermining the case
for the prosecution against the D
● Don't need to disclose neutral material not affecting either party or which
is adverse to the Ds case
● Defence will review disclosed material and should serve a witness notice
within 14 days of being served with unused material
■ AG Guidelines on disclosure - list of considerations the prosecution must take
account of in deciding whether material satisfies the disclosure test:
● The use in cross examination
● Capacity of material to support submissions that could lead to exclusion of
evidence of stay of proceedings
● To suggest an explanation of the Ds actions
● Capacity of the material to undermine reliability or credibility of a
prosecution witness
● Capacity to have bearing on scientific or medical evidence
■ Timeframes for Initial Disclosure
● Prosecution must ensure that they comply with their duties of initial
disclosure within the time set by law - varies according to whether case is
tried in magistrates or crown court
○ Magistrates - as soon as reasonably practicable following not
guilty plea (D should serve a defence statement within 14 days of
receiving initial disclosure from the prosecution)
○ Crown court - as soon as reasonably practicable after case is
committed for trial or after evidence is served where case is sent
for trial or after a count is added to indictment (usually 28 days
after disclosure)
■ Prosecution must disclose within 50 days if remanded, 70
days if on bail
 ■ After prosecution disclosure the defence have 28 days to
notify the prosecution and court if they intend to call
witnesses and serve a defence statement on court and
prosecution - if fail to do so in time then adverse inferences
can be drawn
■ Continuing Duty of Prosecution to Disclose material which:
● Might reasonably be considered capable of undermining case for
prosecution against the D or assisting the case for the D
● Has not already been disclosed to the D
● The prosecution is under a duty to take reasonable measures to identify
secure and review material in the possession of any third party if they
believe it exists and may be relevant to an issue in the case
■ Withholding Disclosure
● Prosecution may apply to court to prevent disclosure of material where
would not be in public interest - sensitive matters such as those relating to
national security or identity of police informants
● Application must be made in writing and describe the material to be
withheld
■ Defence Application to Disclose
● If D believes information which has not been disclosed should be then D
may apply fo order requiring disclose - must serve a defence statement
before can apply for disclosure
○ Second D may be under obligation to disclose info regarding their case - depends on the
court the case is tried in - but does not override their legal professional privilege
■ Onus is then on D to give notice indicating whether they intend to call any witness
their details and also if required a defence statement (written statement setting
out nature of Ds defence including any particular defences on which they intend
to rely, matters of fact they take issue with any why and any points of law,
admissibility of evidence or abuse of power)
● If discloses an alibi then must include particulars (name, address and
DoB)
● Nature of Ds duty to disclose is dependent on trial venue
■ Defence statements in magistrates - if give to prosecution must also give one to
the court
● If serving DS then must do so within 14 days of prosecutions initial
disclosure of material in line with it or serve notice that there is nothing to
disclose - D can apply for an extension if would be unreasonable in time
period
● Technically not obliged to serve one but if they di they must comply with
the above
■ Defence statements in crown court
● Must be supplied - if fail to comply then court can draw adverse inferences
● Must be served no more than 28 days after prosecution discloses unused
material in line with their initial duty of disclosure or serve notice that no
such material to disclose - can apply for extension
■ Faults with Defence Disclosure
● If does not comply with all the rules or be inconsistent - D may be subject
to adverse inferences or comment at trial
○ Court or other party may make such comments as appears
appropriate
 ○ Court or judge may draw such inferences as appear proper in
deciding if accused is guilty of offence concerned
● Permission is not generally required for prosecution to make a comment
on faults unless relates to a point of law
● D cannot be convicted of an offence solely on inference drawn due to
faults with the DS
○ Third - prosecution is also under obligation to disclose unused material
■ Refers to any evidence or information that the prosecution possesses but does
not intend to use as part of its case against the D - continuing duty

Chapter 6 - Principles and Procedures to Admit and Exclude Evidence

● Any evidence will always be presented by a solicitor/ barrister - never by a judge
● Burden and Standard of Proof
○ Burden of proof - term given for the responsibility or obligation to prove or disprove a
particular matter which is in dispute - may be legal or evidential burden
■ Legal burden - burden to prove a matter or fact in issue between the parties
■ Evidential - burden to make an issue “live” (one that can be considered by arbiter
of fact- judge/ jury)
○ Prosecution's burden
■ Prove Ds guilt (legal)
■ Disprove any relevant defences (legal)
■ Prove any confession was obtained reliably/ not through oppression (legal)
○ Defence burden
■ Raise sufficient evidence to make an issue live (evidential) - if raising an
affirmative defence (ie dont have if it is just an alibi)
■ Prove any matters that the law reversed on to them - diminished responsibility in
case of murder (only one I need to know)
○ Standard of proof - degree or level required to satisfy arbiter of fact a matter has been
proved
■ Beyond reasonable doubt - criminal - must be sure the matter has been proved,
higher standard of proof which applies only when prosecution bears a burden of
proof
● But when explaining to jury the judge should just explain in directions that
they must be satisfied that they are sure the D committed the crime/
that the D is guilty
● In cases where the legal burden of proof is passed to the defence the
standard of proof is on the balance of probabilities (ie more likely than
not)
■ Balance of probabilities - civil - more likely than not that the matter has been
proved, lower standard of proof (applies when defence bears a burden of proof)
● Disputed Eye Witness Evidence
○ Witness evidence that requires corroboration is said to be unreliable or deficient or
tainted in some way -
■ common example is where a witness may have a purpose of their own to serve
by testifying for the prosecution against the D
○ Where a witnesses evidence may be questionable - corroboration warning may be
appropriate - basically says to judge or jury that should be cautious about relying on it
without independent supporting evidence -
■ Different from Turnbull which is when eyewitness identification is unreliable - but
instead is where witness is prone to dishonesty and have motives to lie
■ Is not mandatory - but is a matter for judges discretion if appropriate
 ■ If any question arises whether a special warning should be given in respect of a
witness it is desirable the Q be resolved with counsel in absence of jury
■ CA will not later interfere unless judge acted unreasonably
○ Corroborating evidence can come from any other evidence and must be:
■ Admissible in its own right and
■ Independent of the evidence being corroborated
● Visual Identification Evidence and Turnbull Guidance
○ Visual identification evidence (often to prove D is the one who committed offence) - any
evidence which purports that a witness has positively identified the suspect (at either pre-
trial or dock identification)
■ Pre trial identification - witness may purport to positively identify a suspect who
later becomes a D, such evidence may stem from witness documents with a
description of the suspect or carrying out identification procedures - not
uncommon to be accompanied by other evidence the prosecution argues shows
the Ds guilt
■ Dock identification - witness positively identified D for first time who is sitting in
the dock - prosecution can only invite if they have previously identified the D
unless:
● Impractical or unnecessary
● Exceptional circumstances
○ Turnbull guidance - Where there is a dispute between prosecution and D as to visual
identification evidence - direction may be given to jury (also applies to magistrates) -
judge assesses quality of the evidence giving consideration to:
■ Length of time a W had the D under observation
■ Whether the observation was impeded by anything
■ Conditions of the identification - distance, lighting, weather etc
■ Whether D was known to witness previously
■ Length of time between observation and further identification to police
■ Whether or not there are discrepancies between description and actual
appearance of D
■ Whether significant discrepancies have been provided to defence
○ Turnbull guidelines will not apply in:
■ Motor vehicle cases (identification is of a vehicle rather than a person)
■ Evidence of police officers who based their identification on long periods of
surveillance
■ Where there has not been a formal identification of the D
■ Where the D maintains the witness is fabricating evidence
■ Where the D admits their presence at the crime scene
○ Actions to be taken by Judge following Turnbull assessment
■ If identification is of good quality or poor but supported by other prosecution
evidence - turnbull direction should be given to jury to warn of need for caution
before convicting - that even convincing witnesses can be mistaken and the
requirement to examine the circumstances closely in which each identification
was made by each witness
■ Identification is of poor quality and unsupported -judge should withdraw the
evidence and invite submissions from advocates and if appropriate withdraw case
from jury at conclusion of prosecution's case - will direct jury to acquit
■ If a Turnbull warning is not given when it should have been then it will most likely
provide a convicted D with grounds for appeal on the basis that their conviction is
unsafe
● Inferences from Silence
 ■ May be times during criminal proceedings when a suspect remains silent when
being questioned at a particular time - while they can remain silent inferences can
be drawn - such as whether the D was preventing self incrimination, if there is a
case to answer or if the D had no explanation
○ Silence when questioned or charged (CJPOA 1994 s34)
■ Where D is arrested and questioned under caution and fail to answer a question
but later put forward a fact or account at trial that could have been given in
response
■ To draw adverse inferences must meet the following 6 criteria:
● Criminal proceedings have started
● Alleged failure occurred before or on charge
● Alleged failure occurred when D was questioned by a constable
● Constables questioning was for the purpose of discovering how and who
committed the alleged offence
● D relied on a fact as part of their defence that was not mentioned to a
constable when questioned
● It was reasonable for the D to have mentioned the fact to a constable
when questioned
● D must have been offered access to a solicitor
○ Failure to testify at trial (CJPOA 1994 S35)
■ At close of the prosecution's case the D must choose whether to give evidence, D
is not obligated to give evidence and have right to refuse but refusing to give
evidence at trial may result in adverse inference being drawn
■ Court is permitted to draw inferences if a D does not testify at their own trial at all
or chooses to give evidence but refuses to answer a question put by an advocate
without good cause -
■ Inference can be that the D has no answer or no answer that would stand up to
cross examination
■ Inferences cannot be drawn where Ds physician or mental state make it
undesirable for them to give evidence
■ Court must also be satisfied the D was given the opportunity to testify and
understood the court's ability to draw inferences from their failure to testify or
refusal without good reason to answer a question
■ Just because they are not putting forward a defence does not mean that they
cannot cross examine defence witnesses and put the prosecution to proof -
evidential burden is on prosecution
○ Failure to account for objects or presence at a particular place (CJPOA 1994 S36+37)
■ S36 - if on arrest a suspect is asked to account for a particular object substance
or mark and fails or refuses to give an explanation then inferences may be drawn
from that failure - the object substance or mark is something which is found on
their person or possession or any place they are at the time of their arrest
■ S37 CJPOA - if on arrest at a place at or about the time the alleged offence was
committed a suspect is asked by a constable to account for their presence at the
particular place by a constable but fails or refuses then inferences may be drawn
from that failure
■ Unlike S34 this is NOT only when the D later attempts to rely on something -
failure to account is in and of itself a reason to draw adverse inferences
● Also does not matter whether their failure to account was reasonable or
not
■ Must have been arrested at the time and a special warning given to the suspect
in ordinary language - what offence, what they are being asked to account for,
 that this face may be due to them taking part in the commission of the offence,
that a court may draw such inferences as appear proper, that a record is being
made of the interview and may be given in evidence at trial
○ Interpretation (CJPOA 1994 S38)
■ S38 provides some crucial interpretation - provides that a D cannot be convicted
of an offence solely on inference
■ Inferences cannot be drawn under S34, s36 or 37 where the D was at an
authorised place of detention - ie police station at the time of the offence and had
not been allowed an opportunity to consult a solicitor prior to being questioned or
charged
■ If remained silent due to legal advice - can only not draw adverse inferences if the
court is persuaded the Ds reliance on legal advice to remain silent was
reasonable and genuine
■ To avoid adverse inferences from an interview - can put forward a written
statement which is read by solicitor - provided facts disclosed or omitted are
consistent with defence case at trial
● Hearsay Evidence - generally inadmissible unless falls under an exception (must serve notice
in compliance with the directions given at the plea and trial preparation hearing)
○ Where a witness is unable to give evidence in court an application may be made to
adduce their evidence as hearsay (where evidence is presented to the court by the
parties advocate and not the person who originally made the evidence out of court)
○ Public documents can be admissible as evidence of the truth of their contents
○ Evidence may be admitted as hearsay if - is a statement made by a person, not made in
oral evidence is tendered to prove a matter stated
○ A statement made by a person
■ Must be made by a person (not computer)
■ Must be made by whatever means (e.g. orally, in writing or conduct)
○ Not made in oral evidence
○ Prove a matter stated
■ Statement must been made to prove a matter stated
● Cause someone to believe that what is being represented in the
statement is true ; or
● Cause someone or something to operate on the basis that what is being
represented in the statement is true
■ If it is not to prove a matter stated then it wont be hearsay - ie if it is to give
context or prevent adverse inferences - such as mentioning the advice that they
were given by their solicitor
○ Evidence that is not hearsay:
■ Photos, videos and audio recordings
■ Computer results following an automated process not involving human input - eg
printouts or calculations a computer performs like speedometer or breathalyser
○ Procedure to admit hearsay
■ Must give notice to court and all other parties in advance - 20 business days
after plea if magistrates or 10 days after plea if CC
■ If a party objects they must apply to court no more than 10 business days after
service or plea (not guilty) whichever happens last
○ Grounds for admitting hearsay evidence - only be admitted if:
■ Statutory provision applies
● CJA 2003 - if the witness who made the statement is unavailable or
statement is a business document
 ● Unavailable witness - can't come in person, only applies to first hand
hearsay as opposed to multiple hearsay
● Must have been admissible if made in court, they are identified to the
court or:
○ Witness is dead
○ Unfit due to bodily or mental condition - provided their bodily or
mental illness would make it pointless to bring them to court
○ Witness is outside the uk and it is not reasonably practicable to
secure their attendance
○ Witness cannot be found - reasonably practicable steps must
have been made
○ Witness is in fear of giving evidence - must be as a result of
witness intimidation, injury or financial loss and relate to the
relevant time
○ Must always be in the interests of justice too
● Business documents (e.g. hospital records) if:
○ Would have been admissible as evidence of a matter stated in oral
evidence
○ Was created or received by a person who was acting in their
occupation or as a holder of unpaid or paid office and
○ Was supplied by someone who had personal knowledge of the
matters stated
● Burden of proof is on party seeking to adduce
■ S120 - Can also allow previous inconsistent statements to rebut allegations of
fabrication,
■ S9 Statement - witness statement can be read to court without witness if:
● Signed by maker
● Contains a declaration is specified words as to its truth
● Served on opposing party who did not object within 7 days of service
■ Common law principle preserved by statute applies
● Res gestae - principle whereby if a statement is made as a result of a
close and intimate connection with the event in issue and is made
contemporaneously (spontaneously) with that event then may be admitted
as hearsay evidence
○ E.g. statement made by a man in his dying breath from injuries
● Confession evidence - out of court confession is an exception to the
hearsay rules
■ All parties agree to its admissibility or
■ Court is satisfied that it would be in the interests of justice to admit the evidence -
must consider:
● How much probative value is in the statement/ how valuable it is for
assisting the court
● Whether any other evidence has been or can be given on the matter
● How important the matter is in which hearsay evidence relates to the
context as a whole
● Circumstances in which the statement was made
● How reliable the evidence and maker of the statement appear
● Whether oral evidence on the matter stated can be given and if not why
not
● How difficult it would be to challenge the statement
● The extent to which that difficulty would prejudice the party facing it
 ○ Multiple Hearsay - Where relayed through more than one person -not admissible unless
■ Business documents,
■ or to show inconsistent previous statements
■ Or all parties agree
■ Or court is satisfied that the value of the evidence in question is so high the
interests of justice require the latter to be admissible for that purpose
○ Party that the hearsay evidence was admitted against can challenge its credibility
■ If a party objects they must apply to court no more than 10 business days after
service or plea (not guilty) whichever happens last
● Confession Evidence (Separate to Hearsay)
○ Law distinguishes between exculpatory statements and inculpatory statements
○ Exculpatory statements - will seek to demonstrate a suspect's innocence
○ Inculpatory statements - where suspect makes a statement which demonstrates their
guilt
■ May amount to a confession - can be admitted in evidence but there is additional
criteria which needs to be satisfied before an inculpatory statement can be
considered a confession
○ Confession includes any statement which is wholly or partly adverse to the person who
made it, regardless of who it is made to (ie does not need to be made to someone in
authority like police), made in words or otherwise -
■ Does not have to be complete admission of guilt, can be made outside of a police
station/courtroom
■ “Off the record comments” may be admissible provided there is a written record
signed and dated
○ Main statutory provision for confession evidence is Police and Criminal Evidence Act
(PACE) - need to know S76 and 78 of pace for SQE
○ Admissibility
■ Confession made out of court does not necessarily constitute hearsay as S76
PACE provides a separate framework to allow confessions to be adduced as
evidence
■ S76(1) - permits a confession made by D if it is relevant to a matter in issue and
is not excluded by any statutory provision
● If prosecution is required to demonstrate that the confession is admissible
it must satisfy the court beyond reasonable doubt that the confession was
not or may not have been obtained by oppression or obtained unreliably
due to police actions
■ D admitting confession of co-defendant - D may seek to adduce the confession of
their co-defendant - if does not implicit themselves then S76A PACE provides it
can be admitted - however if challenged it is on the defence not prosecution
to prove that it is admissible
○ Challenging admissibility
■ Once admissibility is challenged a Voir Dire will then take place to determine
whether the confession will be introduced to the arbiter of fact as evidence -(voir
dire - hearing in front of magistrates or judge to determine whether a piece of
evidence is to be admitted) - resolved in absence of a jury
● Often more effective in the CC as unlike magistrates the functions are
separated as to judging fact and law
■ Obtained by Oppression (PACE 1984 s76(2)(a) - things like being tortured, treat
in an inhuman or degrading way, or threatened with violence - will be excluded
■ Unfairness - such as not allowing access to solicitor, failing to record interview,
failing to provide safeguards to vulnerable etc
 ■ Unreliable confession (PACE 1984 S76(2)(b)):
● Breaches of PACE codes (e.g. failing to appoint an appropriate adult or
misrepresenting the strength of the police case) - e.g. saying if confess
will just be discharged
● Suspects vulnerabilities (e.g. taking advantage of learning difficulty)
● Suspects emotional state - e.g. demanding a confession when suspect is
clearly distressed for whatever reason
■ Adverse effect (PACE S78) - if court considers that the admission of the
confession would have such an adverse effect on the fairness of proceedings that
it ought not to be admitted -
○ If a confession is deemed inadmissible it does not mean that the evidence obtained as a
result of the confession must also be excluded - provided that no reference is made to
the inadmissible confession
○ If mixed statement - partly a confession and partly an exculpatory statement - must admit
all or non of it
● Character Evidence
○ Bad character - evidence or a disposition towards misconduct on the part of the D - is
concerned with the commission of an offence or other reprehensible conduct - does NOT
include:
■ Facts to do with the offence -
■ Is evidence of misconduct in connection with the investigation or prosecution of
that offence e.g. threatening witnesses
■ These cannot be objected to
○ The 7 Gateways s101(1) Criminal Justice Act 2003 - is admissible under S101 CJA 2003
if satisfies one of the following
■ a) all parties agree to evidence being admitted
● If multiple Ds then they also must agree
■ b) Evidence is adduced by D or given in cross examination of them
■ c) evidence is important explanatory evidence
● Without it the court would find it difficult or impossible to properly
understand the other evidence in the case
● The value of the evidence for understanding the case as a whole is
substantial
■ d) evidence is relevant to an important issue between the D and prosecution
● If Ds bad character is relevant to a matter in issue between the
prosecution and defence it may be admitted - this is most important
● Does the D show a particular propensity (ie to commit offences or be
untruthful)
● Hanson factors:
○ Whether the history of previous convictions establishes a
propensity to commit offences of the kind which the D is charged
or the question of whether the D has a propensity to be untruthful
■ Theft would show a propensity to be dishonest not a
propensity to be untruthful though
■ For example - having had sex with a 16 year old in the past
would be evidence of bad character and show a sexual
appetite for young girls - but not of reprehensible
behaviour - unlikely to be admitted
○ If so whether this makes it more likely the D committed the offence
○ The number of previous convictions
○ Strength of the prosecution case
 ○ Individual circumstances of each conviction
■ e) evidence has substantial probative value in relation to an important matter in
issue between the D and co D
■ f) required to correct a false impression given by the D
■ g) D has made an attack on another's character (includes if it was made under
caution at the police station)
○ Procedure for admitting bad character evidence - part 21 Criminal Procedure Rules 2020
■ Notice must be served and must include:
● Facts of the misconduct
● Explanation as to how those facts will be proved and
● Statement as to why the evidence is admissible
● If served by prosecution - 20 business days after not guilty plea in
magistrates or 10 in Crown
○ Bad character application in CC will initially be considered by
judge at plea and trial preparation hearing along with other pre-trial
issues - prosecution and defence will usually have submitted a
skeleton argument
○ In magistrates a contested application will usually be considered at
pre-trial hearing from which magistrates or district judge will make
a binding ruling
○ May permit it to be entered out of time if it is in the interests of
justice to do so
● If served by co defendant - not more than 10 business days after
prosecution discloses material on which the notice is based
● If D wants to adduce their own bad character - must give notice orally or in
writing, as soon as reasonably practicable, if in Crown Court give notice of
any desired direction to be given to jury at the same time notice is given of
Ds intention to introduce their bad character
■ Objecting against Prosecution or Co-Ds notice - must draft an application stating:
● Which facts the D objects to
● Which if any they admit to
● Why it is inadmissible
● Why it would be unfair to admit it
● Any additional objections
■ Determining the Application - court can hear in public or private, without a hearing
or adjourn the application - it is not however permitted to determine an application
without the party who made it being present unless they had reasonable time
○ Courts powers to exclude bad character evidence - S101(3) CJA 2003
■ If the bad character evidence if admitted would have such an adverse effect on
the fairness of proceedings then court ought not to admit it
■ If application is made to exclude bad character evidence in the form of previous
convictions to show propensity then the court must consider both the length of
time that has passed and the facts which formed the subject of those previous
convictions
○ Good Character Evidence
■ A D is entitled to a good character direction on propensity (ie why they would
have been less likely to have committed it because of character) regardless of
whether they give evidence
■ Good character direction can have a positive evidential effect on the ds credibility
and in bolstering the defence case
 ■ Are also entitled to a good character direction on credibility if he gives evidence at
trial or asserts innocence in interview at police station
■ Examples
● Absence of criminal record
● Praiseworthy activities like military service, public/ charitable acts etc
● Could still be given if have previous good character - but would get
“effective good character direction” rather than “absolute good character”
■ Failure to give a good character direction will provide a D with grounds to appeal
against conviction
● Exclusion of Evidence
○ Whilst some methods of challenging the admissibility of specific types of evidence have
been discussed - want to consider S78 PACE 1984 which has been identified in SQE
○ S76 - confession evidence
■ May be relied on by defence/ co defence
■ Must exclude if obtained through oppression/ anything said or done rendering
confession unreliable
● For example an interview conducted without caution or legal advice
○ S78 - Any prosecution evidence
■ May exclude if has adverse effect on fairness of proceedings
● Could stay if hampers a fair trial
■ Evidence obtained following an illegal search
■ Evidence obtained in breach of PACE code D
■ Unauthorised surveillance
■ Evidence in undercover police investigations
○ While entrapment is not a defence in criminal law - evidence obtained as a result of
entrapment may be excluded - provided the police effectively caused the commission of
the offence not just provided the D with the chance to commit the offence
○ Common law - prejudicial effect outweighs probative value - prosecution evidence
■ May exclude if the prejudicial effect on the arbiters facts of mind outweighs any
probative value
○ Common law - relevance - any evidence
■ May exclude if not relevant to matter at issue
■ Only way prosecution can seek to have excluded
○ Under S78 the court also has over powers - such as to stay the court proceedings for
abuse of process - end trial because D cannot have a fair trial
■ Considerable delay in bringing charges
■ Too much adverse pretrial publicity
■ Previous trial halted
■ Prosecution failed to secure evidence that may have assisted D
■ Prosecution withheld relevant evidence
■ Evidence from entrapment

Chapter 7 - Trial Procedure in the Magistrates Court and Crown Court

● Mode of Address and Courtroom Etiquette
○ Judges
■ Lay magistrates - sir/ madam or collectively “your worships” (Mr… JP)
■ District judge (magistrates) - Sir / madam (district judge…)
■ Circuit Judge (crown court) - “your honour” (His honour Judge…)
■ High court judge (Crown court) - My Lord/ Lady (the honourable…)
 ○ Advocates
■ Barrister - “my learned friend”
■ Solicitor - “my friend”
○ Courtroom etiquette
■ Bowing - upon entry and exit from a courtroom (direct coat of arms)
■ Standing and sitting - all should stand upon the entry of a judge. No two
advocates should be on their feet at the same time unless being addressed by
the judge
■ Seating location - defence is closest to jury
● Competence and Compellability
○ Competence - witness is competent if able to be called to give evidence for either the
prosecution or defence - generally all regardless of age or mental infirmity are okay
(presumption is in favour of competence). Unless:
■ Witness is presumed to only be able to give sworn evidence over 14
● Witness under 14 is presumed competent to give unsworn evidence -
cannot give sworn evidence below this regardless of their intelligence or
understanding
● May allow to accept unsworn testimony of a child under if they can
demonstrate a sufficient level of understanding to be competent to
testimony
○ Equally if older than 14 may not allow sworn if dont have
understanding
■ Unable to understand questions put to them as a witness, and
■ Give answers to them which can be understood
■ A judgement call will be based off the specific circumstances of that witness
■ Any objection must be before the witness gives evidence - burden is on the
party calling the witness to prove their competence
■ Not a co defendant
■ A solicitor should not act for a client in litigation or as an advocate where it is
likely that they or a member of their firm will be called as a witness - might be fine
if it is another solicitor who technically could be called as a witness but is unlikely
to be because facts are not going to be disputed
○ Compellability
■ Once deemed to be competent, they are free to give evidence - will however be
instances where a witness does not wish to give evidence voluntarily - must ask
whether the witness is compellable (ie held in contempt of court if refuse)- all
persons are compellable as a general rule unless:
● D is not compellable in their own defence
● Not competent nor compellable for D to give evidence for co-D (would be
fine if no longer party to proceedings as acquitted or convicted or pleads
guilty though)
■ Compellability of the Spouse of the D
● Can be compelled by defence unless a co defendant
● Prosecution generally cannot compel unless a specified offence:
○ Assault or threat of injury to spouse themselves or person under
16
○ Sexual offence committed on someone under 16
○ Or attempting or conspiring to commit, aiding, abetting etc the
commission of the 2 above
● Special Measures
 ○ Exist to assist vulnerable or intimidated witnesses in giving evidence by reducing the
stress involved and also to improve the quality of the evidence
○ Presumption for children and victims of sexual offences (pre recorded for sexual and
child- except for children when live link must be used in cross examination
○ Are available for both prosecution and defence. Defendant personally is ineligible
though
■ a) is the witness eligible for special measures on grounds of vulnerability or
intimidation?; and
● Vulnerability - under 18, quality of evidence to be diminished because
they suffer from a mental/ physical disorder or other impairment
● Intimidated - must consider age or maturity, ability to understand
consequences of giving evidence in court, any other factors the court
considers relevant. Also automatically entitled if sexual offence or involves
guns or knives
■ b) would any of the special measures available or any combination of them be
likely to improve the quality of evidence given by the witness
○ Special Measures Available - must be applied for by the party wanting it within 10
business days of entering not guilty plea
■ Screening witness from defendant
■ Live link video - this is the only one that is available to a D (if mental disorder or
impairment that mean they are unable to participate effectively in proceedings
and video would help)
■ Evidence given in private - only available in sexual offence cases or if here are
reasonable grounds to believe someone will seek to intimidate the witness
■ Can apply for the witness to re-read their statement if they are contradicting
themselves
■ Removal of wigs and gowns
■ Video recorded evidence
■ Video recorded cross examination or re-examination - court may direct that cross
examination and re-examination also are conducted by video recording - it is
presumed that child witnesses this is how their evidence in chief will be given
unless the court feels it will not improve the quality of the child's evidence
■ Examination of witness through intermediary - may be examined though
interpreter or other
■ Aids to communication - to assist disabilities
● Stages of a Criminal Trial, Including Submission of No Case to Answer
○ Stages of a summary trial (not guilty plea)
■ 1) Prosecution opening - prosecutor summarises prosecution case concisely
identifying relevant law, outlining facts and indicating matters to be in dispute -
should remind magistrates of burden and standard of proof
■ 2) Prosecution's case - prosecution presents evidence it relies upon to prove Ds
guilt - witnesses and evidence. Will have witnesses swear an oath and prosecutor
will conduct examination-in-chief to elicit info from witness before making them
available to cross examination by defence, after will then the prosecutor will then
be permitted to conduct re-examination of the witness - after prosecution will
close its case
■ 3) - D may make a submission of no case to answer - if successful then will be
acquitted - (decision will be made by judge in absence of the jury) if not then trial
continues
■ 4) - right of D to give evidence (technically does not have to)
 ■ 5) - Ds case - will then have the opportunity to present evidence to court - same
process as with prosecutions case - if chooses to testify then will be called first
■ 6) Any further evidence from either party
■ 7) prosecution closing speech (provided D is legally represented)
■ 8) Defence closing speech - D may then make any final representations in
support of their defence - no restrictions on ability to make a closing speech
■ 9) retirement of magistrates and delivery of verdict - if convicted then must give
sufficient reasons for this (if acquitted they may give reasons but don't have to)
○ Stages of trial on indictment (not guilty plea)
■ 1) Empanelling the jury - 12 jurors sworn in (but minimum of 9)- court will inform
jury of the charges faced by the D and explain what their role is
● If D then wants to change plea to guilty then the decision whether to
accept the plea rests with the prosecution - if accepted then no trial and
court proceeds to sentence - otherwise just continue with trial
○ If pled and accepted before trial then wont empanel jury
○ Can technically change their plea at any time before the court
passes sentence - judge often wont allow this though
● It is possible that a trial may be conducted without a jury if there is a real
and present danger of jury tampering - court must be satisfied that the risk
of tampering is so substantial as to make it necessary in interests of
justice to be conducted without one -
○ can appeal to CA for the decision to not use a jury or ask for retrial
without a jury because of tampering
■ 2) Prosecution opening
■ 3) prosecution's case
■ 4) submission of no case to answer
■ 5) intention to give evidence - must ask the D if they want to give evidence
■ 6) - defendants case
■ 7) any further evidence
■ 8) prosecution's closing speech - restricted in the same way as magistrates but
the court can waive this here
■ 9) - Defence closing speech
■ 10) summing up by the judge - judge will then sum up the case for the jury - judge
will provide a summary of the case presented by both prosecution and defence
and provide any directions on any matters of law for jury -judge will often provide
a route to verdict for the jury to use in deliberations
■ 11) retirement of jury (court usher/ jury bailiff takes them somewhere private and
convenient) and delivery of verdict
● Jury must have deliberated for at least 2 hours and 10 mins to give
majority verdict - can only have 1 (or 2 if full jury dissenting)
● If jury cannot reach a majority then judge will discharge them and
prosecution will likely request a retrial before a new jury
○ Can have majority verdicts of 11:1, 10:2, 10:1 or 9:1
○ Submission of no case to answer - made to persuade the judge to stop the case
because of the weakness of the prosecution's evidence - test comes from R v Galbraith:
■ a) if there is no evidence that the crime alleged has been committed by the D
then there is no difficulty - judge will stop the case
■ b) -where the judge comes to the conclusion that the prosecution's evidence
taken at its highest is such that a properly directed jury could not properly convict
on it
 ■ c) where the strength or weakness of the prosecution's case is generally a matter
for the jury to consider -e.g. The reliability of a witness - should allow the matter
to be tried by the jury if there is evidence on which a jury could properly come to
the conclusion that the D is guilty
● Difference between Leading and Non-Leading Questions
○ Leading question - one that suggests the answer and often where the answer can only
be yes or no or a number etc (closed Qs)
■ Leading questions cannot generally be asked in examination in chief - any
evidence elicited by such questions is inadmissible - advocates will be asked to
rephrase the Q. Can be asked if it is not in dispute though or if it is seeking to
elicit a denial of the offence from the D
● During examination in chief witness can refresh their memory from a
document or recording while testifying - provided it was made by witness
earlier or records their recollection - can be inspected by court and other
party first
● If witness does not tell the truth (deemed hostile) - can cross examine
witness or ask if they made an earlier inconsistent statement
● Unless it is being asked on a matter which is not in issue then it is fine
■ Are permitted and expected in cross examination
● If cross examination does not go well - can call witness back to repair any
damage - but cant introduce new matters or ask leading questions
○ Non leading question - open question which does not suggest the answer - a witness is
permitted to speak freely in terms of the answer provided - e.g. where was James when
you saw him

Chapter 8 - Sentencing
● Purposes of sentencing - unless has mandatory life sentence or D is a minor then must always
have regard to:
○ The punishment of offenders
○ Reduction in crime via deterrence
○ Reform and rehabilitation of offenders
○ Protection of the public
○ Making or reparation
● Sentencing Guidelines
○ Developed by the sentencing council - assist the court to categorise the seriousness of
the offence - ensure that judges and magistrates take a consistent approach to
sentencing
○ Overarching guidelines - offer general guidance on approaches to sentencing and are
used in conjunction with the offence specific guidelines
○ Also have guidelines specific to magistrates and court
○ After D has been found guilty the prosecutor will read any victim impact statement, refer
court to any previous convictions, ask for ancillary orders like compensation to V or
prosecution costs
■ D will have an opportunity to make a plea in mitigation
○ The court must generally follow the guidelines and any additional relevant sentencing
guidelines - may only depart if in the interests of justice to do so depending on the unique
facts of the case
○ Step 1 - determine offence category
■ Cat 1 - greater harm and higher culpability
■ Cat 2 - greater harm and lower culpability or vice versa
 ■ Cat 3 - lesser harm and lower culpability
○ Step 2- using offence category the court must then determine the starting point and
category range (what form a sentence may take if the court applies aggravating or
mitigating factors- the more serious the further up the range it may be placed) for each
offence
○ Step 3 - consider any factors which indicate a reduction - assistance to prosecution or
investigator
○ Step 4 - reduction for guilty pleas
○ Step 5 - dangerousness of the offender
○ Step 6 - totality principle - court must consider proportionality of multiple sentences
○ Step 7 - compensation and ancillary orders
■ Criminal injuries Compensation Authority - provides compensation payments to
victims of criminal violence for physical and psychological injuries >£1000
○ Step 8 - reasons - court is obliged to give reasons for and explain the effect of the
sentence
○ Step 9 - consideration for time spent on bail
● Determining Seriousness
○ Prosecutor outlines the facts of the case, the defence then respond by way of mitigation
in respect to the offence, then in respect to the offender - judge will then determine the
sentence
○ Starting point - harm and culpability
■ Culpability - the blameworthiness of the offender and the role that they played in
the commission of the offence - assessed by reference to the level of intention
and/or premeditation and the extent and sophistication of planning
● High culpability if intended or was reckless as to causing harm
● Low or no culpability, negligent, reckless or deliberate basically
● Also how much planning was involved and the significance of the Ds role
■ Harm - court can also consider the level of harm intended to be caused and
which may have foreseeably been caused
● Did the D deliberately cause more harm than necessary, where they
targeting a vulnerable victim or foresaw the harm
○ Aggravating Factors - facts that make the offence more serious, providing a justification
for the court to pass a more severe sentence
■ Statutory - relevant previous convictions are always an aggravating factor (have
regard to nature of offence and time elapsed), offence committed whilst on bail,
hostility based on protected characteristics of the victim, assaults on emergency
workers and doctors
■ Aggravating factors from the guidelines - influence of alcohol or drugs, committed
as part of a group, planning, high level of profit, location of offence, attempting to
conceal evidence, presence of others during offence such as children, use of
weapon, offences taken into consideration, will also consider things that indicate
a position of trust was abused such as if stole from employer
■ Offences taken into consideration - offender has not been convicted of but has
admitted to in addition to the offence they are being sentenced for - should not be
accepted where:
● Likely to result in sentence greater than convicted offence
● In public interest there is a separate prosecution
● Offender would avoid a less severe consequence which would have been
appropriate to impose on conviction
● Mitigation - plea of mitigation from defence to reduce the severity of the sentence
imposed - 2 forms may be relied upon
 ○ (a) Mitigating factors relating to the offence
■ Usually coincide with evidence of lower culpability and harm - defence advocate
will bring these to courts attention when attempting to categorise the offence -
may also attempt to minimise impact or weight placed on aggravating factors
■ Things like provocation, mental illness, the extent to which they played a minor
role in the offence
○ (b) Personal mitigation relating to offender - includes but not limited to:
■ Absence of previous convictions
■ good/ exemplary character or conduct
■ Genuine remorse
■ Cooperation with authorities
■ Sole or primary carer
■ Early guilty plea
■ Determination to treat offending behaviour (may also attempt to explain away
previous offending)
■ Assistance given or offered to prosecutor or investigator
■ Pre-sentence report compiled by a probation officer
○ Reduction for early guilty pleas
■ Court is required by law to have regard to any early guilty plea as may result in
more lenient sentence - must consider:
● Stage of proceedings at which a guilty plea was given
● Circumstances in which the guilty plea was given
■ First stage of proceedings - max of ⅓ reduction
■ After first stage - max of ¼ reduction
■ During trial - sliding scale from 1/10 - 0
● Concurrent and consecutive sentences - many offenders may have been charged with and
convicted of/ pleaded guilty to multiple offences
○ Court needs to determine if they will be served at the same time or one after another
○ Consecutive more appropriate
■ Offences arise under unrelated facts or incidents
● Includes bail act offences
● Attempts to pervert course of justice relating to another offence
■ Similar offences but where concurrent sentences would not affect overall
criminality (ie if repeated minor offences)
■ One or more offences qualifies for a statutory minimum sentence and concurrent
sentences would undermine that
○ Concurrent sentence appropriate
■ Offences arise out of the same incident or facts
■ Series of offences of the same or similar kind e.g. many minor thefts from same
person
○ Totality principle - court must assess the overall criminality of the offender and pass a
sentence which is just and proportionate in circumstances
■ Firstly sentence should be reflective of all of the offending behaviour - just and
proportionate
■ Secondly - necessary to address both offending behaviour and factors specific to
offender
● Types of Sentences
○ Non custodial sentences - any sentence which a court passes that does not involve a
term of imprisonment will be considered a non-custodial sentence - can include fines
discharge or community orders
○ Custodial sentences - involve imposing a term of imprisonment on the offender and are
usually handed down when all other forms of sentencing are inappropriate
■ Should consider the custody threshold - must be sufficiently severe and an
appropriate non-custodial sentence cannot be justified
■ Even if threshold is passed a custodial sentence should not be deemed inevitable
■ Should also consider the impact on any dependents if on the cusp of meeting
custody threshold
○ Determining length of a custodial sentence
■ Must be for the shortest term which in the opinion of the court is commensurate
with the severity of the offence / combination of offences and does not exceed the
permitted maximum
■ Where an offender is convicted on indictment of a statutory offence punishable by
imprisonment but there is no limit on a maximum term and no mandatory life
sentence - the maximum custodial sentence is two years - otherwise the crown
court is generally not restricted in its sentencing powers except by any statutory
maximum:
● Single summary only - 6 months
● Two or more summary - aggregate must not exceed 6 months
● Single either way offence - 12 months
● Two + either way offences - aggregate must not exceed 12 months
■ Release following custodial sentence - if spend ½ of sentence in prison then must
be released on licence into community - obliged to comply with both standard and
prescribed conditions and licence would be in place until sentence expires - may
be revoked resulting in offender being returned to custody for remainder of
sentence
■ Mandatory life sentences - generally eligible for release after specified minimum
○ Suspended sentences - will have to comply with specified condition
■ Eligible if more than 14 days but less than 2 years
■ Can also impose community order
■ Must:
● Realistic proposal of rehabilitation
● Strong personal mitigation
● Immediate custody will result in significant harmful impact on others
■ Must not:
● Be a risk to public
● Immediate custody is only appropriate punishment
● History of poor compliance with court orders
■ Court will specify operational period - if reoffends then suspended sentence takes
effect - minimum of 6 months but cannot exceed 2 years
● Court must impose supervision period only if attaches a community order
to suspended sentence
■ Consequence for breaching requirements or reoffending
● Suspended sentence takes immediate effect on original term with no
alterations
● Suspended sentence takes immediate effect on lesser term
● Fine of max £2000
■ Court also has the ability to defer a sentence for 6 months to observe the Ds
conduct and any changes in the Ds circumstances
○ Community orders
■ Can be many things like unpaid work, rehab, curfew, electronic monitoring etc
■ Offence must be sufficiently serious to warrant such a sentence:
 ● Punishable by imprisonment (unless fined 3+ times)
● Offender is suitable
■ Consequences for breach - supervising probation officer must provide offender
with a warning - if over 18:
● Amend terms of order and add requirement or extend
● Revoke and resentence
● Fine max of £2,500
● Impose custodial sentence for persistent non compliance (up to 6 months)
○ Fines
■ Magistrates and CC can impose an unlimited fine but will often be capped by the
Sentencing Guidelines for the specific offence
■ Will consider the seriousness of the offence and the Ds financial circumstances
before deciding on the amount of the fine
● Newton hearings
○ Following guilty plea court will proceed to sentence D on facts of the case - if there is a
factual dispute then will hold a newton hearing:
■ Judge listens to the evidence and comes to their own conclusion on what the
issue is, or
■ Judge hears no evidence but listens to submissions from prosecution and
defence
■ Burden of proof is on prosecution and standard of proof is beyond a reasonable
doubt - if prosecution succeeds then D may lose credit for their guilty plea

Chapter 9 Appeals Procedure

● Appeals from the magistrates court
○ Two types of appeal
■ Appeal against conviction or sentence - may appeal to the Crown Court against
the conviction or sentence
■ By way of case stated - if either party to the proceedings believes that the
magistrates was wrong in law can appeal to the Divisional Court of the High Court
by way of case stated within 21 days
○ Appeals to Crown Court - most common
■ Only available to convicted person - prosecution cannot appeal against
■ Procedure for appeal against conviction and/or sentence
● Must serve an appeal notice on the magistrates and every other party
involved - must not be served more than 15 business days after the
magistrates pass or defers sentence
● Also
○ If appellant wishes to obtain bail pending appeal they must include
this application within their appeal notice - does not apply to those
appealing against conviction or sentence - if refused by
magistrates then may apply to Crown Court for bail
■ If appealing from CC - must apply to CA
○ If appeal notice is late they must include an application for an
extension of time in their appeal notice
○ Provided notice is given within time no leave to appeal is required
and is instead an automatic right
○ If appeal is against conviction and the appeal is contested the
respondent must submit a responders notice not more than 15
business days after service of the notice
 ○ Once notice of appeal has been served the magistrates court
officer must notify the crown court of the service of the appeals
notice
■ So long as the appeal has not been heard, the D may
abandon the appeal by serving notice of abandonment on
magistrates, CC and other party (could also abandon
during appeal but need CC permission)
● Hearing the appeal
○ Against conviction - complete re-hearing of the entire case - either
party may call evidence not called at the magistrates or omit
evidence heard already
○ Appeal against sentence - complete rehearing of sentencing
hearing with the appellant to make another plea in mitigation
○ Appeal will be heard by a CC judge and between 2-4 lay
magistrates (non who took part in initial decision)
■ All votes have same weight so lay judges can outvote
judge
○ Decision will then be based on a majority vote
● Powers of the crown court
○ Upon conclusion of the appeal the crown Court may confirm
reverse or vary any part of the decision
○ Can also just give its opinion and send it back to magistrates
○ In appeals against sentence the Crown Court can impose any
sentence that would have been available to the magistrates court -
can be more or less severe
● Further appeals
○ Both prosecution and defence have the ability to appeal to the
High Court by way of case stated
○ Appeals by way of case stated
■ Second form of appeal from magistrates - appeal based on law not fact and is
heard by the Administrative Court sitting as a Divisional Court of the KBD - two
grounds for appeal:
● (a) The decision made by the magistrates court is wrong in law -
misapplied the law or admitted evidence that shouldn't been; or
● (b) Decision made by magistrates is in excess of their jurisdiction
■ After the application is made for appeal BWCS the ability to then appeal to the
Crown Court is lost - this is not visa versa though as can still appeal from CC to
KBD by way of case stated after
■ Procedure - must apply in writing not more than 21 days after the decision that
was made by the magistrates court - magistrates are not obliged to state the case
and may refuse if they find the application to be frivolous - any refusal must be
made by a certificate of refusal and is subject to judicial review
■ Hearing the appeal - is not a re-examination of the facts of the case but is
confined to legal arguments and no new evidence may be called - often heard by
2-3 judges - if 2 judges and both reach a stalemate then appeal fails
■ Powers of the High Court - Upon conclusion of the appeal the high court will
determine the question arising on the case and shall:
● a) reverse, affirm or amend the decision made by the magistrates court; or
● b) remit (return) the matter to the magistrates court with the opinion of the
High Court and may make other order in relation to the matter as it thinks
fit
 ○ Can also remit the matter for a rehearing before a different bench
of the magistrates
■ A further appeal - any appeal from the High Court is heard in the SC - both
prosecution and defence may appeal to the SC - High Court must certify that the
case involves a point of law of general public importance and leave to appeal
must be obtained from either the High Court of SC
○ Reopening a case
■ Magistrates court also has the power to reopen cases and correct obvious
mistakes and errors that would otherwise need to be appealed to CC or HC via
JR
■ Can be made whether or not the D pleaded guilty or not
■ No specific time limit - but cant have unreasonable delay
● Appeals from the Crown Court
○ This is in relation to those that have been tried in the Crown Court (not those as a result
of appeal from the magistrates)
○ Ground of appeal - unlike in the magistrates permission (leave) to appeal is required
■ Appeals against conviction - will only be allowed if an unsafe conviction, e.g.:
● Trial judge incorrectly rejected a submission of no case to answer
● TJ misdirected jury on a point of law
● TJ permitted evidence to be adduced or excluded which should have
been permitted
● TJ made an error in summing up
● TJ made unnecessary interventions or comments
● In limited circumstances if fresh evidence has been introduced
■ Hearing fresh evidence - generally an appeal will not be allowed on the grounds
of introducing fresh evidence, CA can however hear fresh evidence if it is in the
interests of justice to do so - must be credible, afford a ground of appeal, would
have been admissible at trial and whether there is reasonable explanation for its
failure to be adduced at trial
■ Appeals against sentence - must demonstrate:
● Wrong in law - judge had no power to sentence a D in a particular way
● Manifestly excessive or wrong in principle
○ Procedure for making the appeal
■ A D cannot automatically appeal against their conviction or sentence from the
grown court - leave to appeal is always required - may be granted by the trial
judge at the conclusion of the trial by means of a certificate or on an application to
the Court of Appeal
■ Obtaining leave to appeal
● Following the jury delivering a verdict of guilty, leave to appeal may be
obtained at this stage - trial judge may grant a certificate on their own
initiative or an application will be made by defence counsel - if leave is
granted by the trial judge a certificate will be issues which details the
question for the CAs consideration - it is relatively rare for a defence
counsel to seek a certificate of leave to appeal - most applications are
made directly to the CA
● If not granted by the trial judge - an application (appeal notice)- gives
written grounds must be served on Registrar of Criminal Appeals not more
than:
○ 28 days after the date of conviction (if appeal is against conviction)
■ Must serve an appeal notice (written application) on crown
court
 ■ Should provide a transcript to CC of judges summing up or
whatever is being challenged (could be whole trial)
○ 28 days after date of sentence (if appeal is against sentence)
○ If the judge refuses the appellant has a further 14 days in which to
serve notice that they wish to renew their application before the full
court
● Appeal notice must be sent with the draft grounds of appeal - registrar will
then place the application along with a transcript of evidence given at trial
before a single judge for their consideration - filter stage
■ Consideration by the single judge
● Consideration for leave to appeal will in most instances be initially
considered by a single judge on the papers (without a hearing) - role is not
to consider the outcome of the appeal but to consider whether leave
should be granted - will examine grounds advanced and see if they are
cogent and if the case is suitable for an appeal hearing, if the case is
suitable for appeal then leave will be granted, if not then leave shall be
refused
● If multiple grounds for appeal judge may grant leave for one but dismiss
the others - appellant may re-apply for leave on the grounds which were
dismissed by the single judge
■ Heading the appeal
● Will be heard before full court of appeal - generally odd number (usually 3)
- member of the CA and 2 HC judges (or 1 HC and one specially
nominated senior circuit judge)
○ Powers of the CA
■ Appeals against conviction - CA can
● Dismiss the appeal and uphold conviction
● Allow appeal and quash conviction
● Allow part of appeal and dismiss other part
● Quash conviction and order retrial - only if in interests of justice to do so
● Allow appeal and find D guilty of an alternative offence
● Make order of loss of time - CA has power to direct that any time spent in
custody while an appeal is determined will not count towards the term of a
custodial sentence which has been imposed - discretionary not mandatory
power
■ Appeals against sentence - CA can:
● Dismiss appeal and confirm sentence
● Allow appeal and quash any sentence or order
● Allow appeal and substitute any sentence (cannot increase the sentence
imposed) - must be a sentence that would have been available at the CC
● Make order for loss of time
○ Prosecution appeals
■ Prosecution's right to appeal from the Crown Court is heavily restricted - generally
prosecution cannot appeal against acquittal or sentence of a D
● May potentially be able to apply for JR if acquittal was down to evidence
being excluded or some other procedural issue
■ Prosecution may appeal against a termination ruling (where trial judge accepted a
submission of no case to answer) - must inform the court that it intends to appeal
■ Retrial of an offence will only be permitted if:
● D has been acquitted of a “qualifying offence” (murder, attempted murder,
manslaughter and aggravated arson)
 ● Written consent of the DPP has been obtained; and
● Leave to appeal has been granted
● CA must order a retrial if there is new and compelling evidence and it is in
the interests of justice
■ AG may with leave of the CA refer a sentence passed by CC that it considers
unduly lenient - AGs Reference cases - sentence is unduly lenient if it falls
outside the range of offences which the judge could reasonably consider
appropriate
● Referral must be made within 28 days of sentence
■ Prosecutor can also apply to CA with consent of DPP for an order to quash the
Ds acquittal for a qualifying offence and order a new trial - generally one which
carries life sentence - must order retrial if new and compelling evidence and in
interests of justice
● Appeal to SC - made where CA or SC certifies that the case involves a point of law of
general public or constitutional importance
● Criminal Cases Review Commission (CCRC)
○ Independent body that is the final recourse - must have exhausted all appeal avenues
○ Can refer both convictions and sentences from magistrates to CC or CC to CA
○ Conditions
■ Real possibility the original sentence will be reduced
■ Real possibility arises from evidence or legal arguments not previously presented
during earlier appeal unless exceptional circumstances
■ Applicant must have already attempted an unsuccessful appeal
○ Cant increase sentence
● Also Criminal Justice Act 2003 - CA shall order a retrial if there is new and compelling evidence
that has arisen and it is in the interests of justice that such an order be made

Chapter 10 - Youth Court Procedure

● Introduction
○ Aims - principle aim is to prevent offending by children and young persons - every court
will must have regard to the welfare of the children and ensuring that proper provision is
made for their education and training
○ Terminology
■ Youth/ juvenile - anyone under 18
■ Young person/ young offender - 14-17
■ Child - 10-13
● Jurisdiction and Grave Crimes
○ There are exceptions to the general rule that children must be tried summarily in the
youth court that can be impacted by:
■ The age of the offender at the time of trial;
■ The offence charged;
■ Whether the youth is jointly charged with an adult
○ Age of the offender - if a minor when crime is committed but turns 18 during
proceedings
■ If turns 18 before their first appearance in the youth court then youth court has no
jurisdiction
■ If turns 18 after their first appearance in youth court - the youth court has
jurisdiction but has discretion to try in adult magistrates court (there is no right to
appeal against this order)
 ■ If turns 18 during the trial but before conclusion - youth court may deal with the
case and make an order as if still 17 - alternatively may at any time after
conviction and before sentence remit to magistrates
■ If commit an offence as a child and then are brought to justice/ tried when they
are an adult any sentencing guidelines will be that of the minor - (sentencing
guidelines apply on the date of offence not the date of conviction) - but the court
will not be able to give them youth sentences and will be treat as an adult - can
still give anything that would be available to an adult offender
○ Type of offence (all first appearance will be in the youth court)
■ Homicide offence - must be charged in Crown Court (actual or attempted)
■ Firearm offences - which are subject to mandatory minimum sentence of 3 years
must be sent to the Crown Court before plea for trial without an indication of plea
being taken in the youth court (only if over 16 when crime committed)
■ Notice in fraud cases or cases involving children - serious or complex fraud
■ Dangerous offenders may be sent to crown court without indication of plea where:
● Specified offence (a violent, sexual or terrorism offence listed in S18 of
the Sentencing Code, e.g.manslaughter, wounding, robbery, rape and
sexual assault)
● The court considers them to be a dangerous offender (there is significant
risk to the public of serious harm caused by the child or young person
committing further specified offences); and
● A custodial sentence of at least 4 years would be imposed
■ Grave grimes - if charged with a grave crime the youth court must determine
whether to retain jurisdiction or send them to the crown court for trial depending
on whether the 24 months max sentencing power of the youth court is sufficient
or not - serious offence for which the sentence is not fixed by law and is
punishable with imprisonment of 14 years or more for an adult offender aged 21
years or older - often this will be hard to determine and as a result it will likely be
necessary to retain in the youth court and then remit to CC for sentencing if
necessary:
● Robbery,
● Causing GBH or wounding with intent
● Aggravated criminal damage and arson/ aggravated arson
● Unlike with other offences this is the only one where a plea must be made
before the youth court
● Court must decide whether there is a real prospect that a sentence of >2
years will be imposed - if they don't know then the youth court should
retain jurisdiction. If retains jurisdiction must warn youth that the child can
be committed to Crown Court for sentence
● Allocation of Youths Jointly Charged with an Adult
○ Must make their first appearance together before an adult magistrates court - if summary
only then trial will likely take place there. Unless adult pleads guilty and youth pleads not
guilty - youth will be sent to youth court
○ If adult is sent to trial in the Crown Court then the court will consider if the type of offence
is one of those above - if not a plea will be taken before venue and the youth will indicate
a plea
■ Guilty plea - magistrates will proceed to sentencing or remit the matter to the
youth court for sentencing - in some cases may remit youth to Crown Court
■ Not guilty/ no plea - allocation hearing will be held - generally the youth offender
would be tried separately in the youth court - unless it is in the interests of justice
for the youth and adult to be tried jointly:
 ● Whether separate trials will cause injustice to witnesses or to the cases as
a whole
● The younger the youth the greater the desirability they be tried in the
youth court
● Age gap between youth and adult
● Maturity of the youth
● Relative culpability of the youth vs the adult and the level of the alleged
role of the minor
● Lack of previous convictions on the part of the youth
○ If adult is sent to the crown court then the youth offender pleading not guilty should be
tried with them - if the adult pleads guilty or the case against them is dismissed then the
court will normally remit the youth to the youth court for trial - if convicted in adult they will
often be remitted to youth court for sentence
● Sentencing
○ The process for sentencing youths:
■ Prosecution will provide an overview of the offence and outline any previous
convictions
■ Plea in mitigation
■ Youth and/or their parent may be invited to make a statement to the court - will
seek to understand the reasons for the offending and the effects it has had on
victims
■ Before the youth court sentences the youth it must obtain a pre-sentence report
from the Youth Offending Team (probation service for youths)
○ Role of the Sentencing Children and Young People Definitive Guideline
■ When sentencing children or young people a court must have regard to the
principle aim of preventing offending by children and welfare of the child
● Should avoid criminalising minors and instead wherever possible
encourage them to take responsibility for their own actions and be
reintegrated into society
● Take a scaled approach to ensure sentencing is tailored to individual D
based on an assessment of their risks and needs
■ Definitive Guideline emphasises that the approach to sentencing should be
individualistic and focus on rehabilitation where possible - custody should be a
measure of last resort
■ Determining sentence:
● Age of the child or young person
● Seriousness of the offence
● Likelihood of further offence
● Extent of harm likely to result from those further offences
● Must avoid “criminalising” youths unnecessarily - primary purpose is to
encourage children and young people to take responsibility for their own
actions and promote re-integration
● Bear in mind the lack of emotional development and immaturity of a youth
when compared with an adult
● Must consider the scaled approach - ensure that interventions are tailored
to the individual and based on an assessment of their risks and needs -
the intended outcomes are to reduce the likelihood of re-offending for
each child or young person mu tailoring the intensity of intervention
■ Can also defer sentence for up to 6 months because of an imminent and
significant change in the young person's lifestyle or to allow the young person to
save up to pay compensation to the V
 ■ Where the CC has convicted youth it should generally remit the offender to the
youth court for sentencing unless undesirable to do so:
● Cause delay, unnecessary expense or unnecessary duplication of the
proceedings
● Can still give youth specific things like DTOs anyway so not going to
change much by being in CC unless to be imprisoned for a grave crime
● Sentencing - Orders available
○ Referral order - order requiring the youth offender to attend meetings with a Youth
Offender Panel established by a YOT - will require to agree a contract with the YOP and
comply with a programme of behaviour to prevent re-offending - can be mandatory or
discretionary
■ Can be made by youth court, magistrates but not adult crown court - will be
mandatory when:
● No previous convictions (cautions don't count)
● Pleads guilty to an imprisonable offence
● Court is not proposing a custodial sentence
● Offence is not fixed by law
■ Can last 3-12 months - the more serious the offence the longer period of time will
be imposed
○ Conditional discharge - typically for less serious offences
■ Conditional discharge - must not commit any further offences during operational
period up to 3 years - if breached within this time will be re-sentenced for offence
■ Absolute discharge - really trivial offences
○ Reparation order - confront offender with the consequences of their offending behaviour -
only can be imposed for an imprisonable offence - young person must undertake unpaid
work for victim or wider community
○ Detention and training order - only form of custodial sentence available to the youth court
- will be held in a young offenders institution before being released into the community
under supervision. Must be past the custody threshold and a fine or community sentence
alone would not be justified - court must give reasons why a youth referral order cannot
be granted.
■ 10-11 year olds cannot have DTO
■ 12-14 can but only if a persistent offender
■ 15+ can regardless
■ Must be a fixed period min of 4 and max of 24 months
○ Youth rehabilitation orders - community sentence imposed on a youth offender - involves
the imposition of one or more requirements
■ May only be imposed where the court is of the opinion that the offence was
serious enough to warrant the making of such an order - such orders are
discretionary - max period is 3 years from the date the order comes into effect
and there is no minimum period (but can be extended for another 6 months)
■ Include
● Activity requirement max 90 days
● Supervision requirement
● Unpaid work requirement 40 - 240 hours