Criminal Litigation Barristers Practical Training Course (BTC)

Summary Only Offences:

• Common Assault 
• Criminal damage where the value is £5000 or less.

Indictable only offences:

• Robbery
• Wouding / GBH with intent (s18 OAPA 1861)

Either-way Offences:

• Theft 
• Burgulary
• Fraud 
• Sexual assault 
• ABH (S.47 OAPA 1861)
• Possession of Class A or B drugs 
• Possession with the intent to supply Class A or B drugs 
• Criminal damages where the value exceeds £5000.

CrimPC Overriding Objective: Criminal cases be dealt with JUSTLY.

What does deal with a criminal case justly mean:

1.1.—

(1) The overriding objective of this new code is that criminal cases be dealt with justly.

What is the overriding objective Criminal Cases?

What does dealing with cases justly mean?

Who is this different to the overriding objective in Civil Cases?

1.1(2) Dealing with a criminal case justly includes:

(a) acquitting the innocent and convicting the guilty;

(b) dealing with the prosecution and the defence fairly;

(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(e) dealing with the case efficiently and expeditiously;

(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and

What does dealing with a case justly include?

(g) dealing with the case in ways that take into account:

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and(iv) the needs of other cases

What does dealing with a case justl include?

Participants have the following duties in a criminal case:
Prepare and conduct the case in accordance with the overriding objective (JUSTLY)

Comply with these rules and practice directions and directions made by the court 

Inform the court of ANY SIGNIFICANT failure (whether or not the participant is responsible for the failure) to take any procedural step required by these rules, any practice direction or direction of the court.

What makes a failure significant?

If the failure may hinder the court furthering the ovveriding objective = SIGNIFICANT FAILURE 

Anyone invovled in anyway with a criminal case = a participant.

• What are the 3 duties participants in criminal cases participants bare?
• What makes a failure signifciant?
• Who is a pariticpant in a criminal case?

When MUST the court further the overriding objective?

The court MUST further the overiding objective when:

• Exercising any power given to it by legislation (Including the Criminal Proceudre Rules)
• Applying any practice direction or 
• interpreting any rule or practice direction.

The Court has a duty to further the overriding objective by ACTIVELY MANAGING THE CASE.

Active case management includes:

• early identification of real issues
• earrly identification of the needs of witnesses 
• achieving certainty as to what must be done, by whom, and when - in paticular by creating a timetable early on in the case.
• monitoring the progress of the case and compliance with the directions 
• ensuring ALL evidence (dispute and not disputed) is presented in the shortest and clearest way possible.
• Discoruraging delay - dealing with as many issues in the case as possible on the same occassion and avoiding unnesscary hearings.
• Encoruage parties to cooperate and make use of technology 
• Giving directions applicable to the neededs of the case as early as possible.
• When live links are available - giving a participant a live link when 
• rule 3.35 applies 
• where application for link made 

• In the 1st hearing court MUST require the ddefendant wh is present to provide:
• Their name,  DOB, at least one address where docuemnts can be served, electronic address and telephone number.
• The above can also be required at any hearing that is not the first hearing.
• Informaton that is required should be provided in public UNLESS an application is made under rule 6.4

What happens if the defedant fails to comply with the requirement?

Can invire prosecution to begin to prosecution in regards to the failure 

Mindmap/ summaries the duty of the court?

How does the court meet this duty?

Can you give examples?

Parties MUST  assit the court ACTIVELY manage cases without direction or if neccessary with diretion.

AND 

Apply for a direction if it is needed to further the overriding objective.

Summary: PARTIES REQUIRED TO ACTIVELY ASSIST.

Active assistance includes:

• At the beginning of the case communication between the defedant and prosecutor at earliest opportunity. Last chance = beginning of the day of the FIRST HEARING.
• Communication beteween the parties and the court officer until the closure of the case.
• The communication should establish the following (as well as other things)
• How the defendant is likely to plea
• What is agreed and what remains in dispute
• what information / material one party requires of another party and reasons for this.
• What is to be done, by whom and by when.

What are the duties of the parties?
What does active case management include?How and When should this be reported 2 Court?

Reporting of the Communication to the Court:

Communication should be reported to the court @ the first hearing.

One the first hearing has passed 

Communication reporting = as directed by the court.

Parties Active Assistance Includes Continued:

• Alert the court to any reason why:
• a live link direction should not be given
• a llive link dorection should be varied or rescinded 
• alerting the court to any potential impediment to the defendant's effective participation in the trial.
• Alerting the court to the need a witness has to be accompaied while given evidence.
• If this the case the court should be informed of the following:
• Identify a proposed companion 
• Name that person if possible and 
• Explain why that person would be an appropriate companion for the witness, including the witness' own views and
• alert the court to any related family proceedings or such proceedings that are anticipated as soon as reasonably practicable after becoming aware of them.

The court MAY  give ANY direction and take ANY STEP to actively manage a cazse unless that direction or step is incompatible with legislation inlcuiding the Criminal Procedure Rules.

The court may do the following:

• nominate a judge, magistrate or justices' legal adviser to manage the case;
• Give a direction on its own inititiative or on application of one of the parties 
• ask or allow a party to propose a direction
• Receive applications/ notices electronically 
• Conduct hearing by live link or other electronic means 

Give a direction 

• at a hearing, public place or in private.
• Fix, postpone, bring forward, cancel, or adjourn a hearing
• Shorten or a extend a time limit given fixed by a direction 

require that issues in the case should be:

• indentified in writing 
• determined separately, and decide in what order they will be determined

Specifiy rhe consequences of failing to COMPLY with a direction.

Request information from a court dealing with family proceedings by:

• making the request itself or 
• directing the court officer or a party to make the request on the criminal court's behalf 
• Magistrates court can give a direction that WILL/ CAN only apply in the Crown Court if the case is to continue there.

What can the court's do if a party fails to comply with a pracitce rule or direction?
Court MAY:

• fix, postpone, bring forward, extend, cancel orr adjourn a hearing;
• exercise its powers to make a costs order and 
• impose such other sanction as may be appropriate 

What must the court take into acccoutn when deciding to fix, postpone, adjourn, cancel (...) a hearing:

Delay: how likely is the delay to be contrary to rule 1.3 (1.3 = application of the overriding objective)

Court's duty under rule 3.8 (case prep and progression)

availability of a substitute hearing date 

need for compelling reasons and especially where an application to postpone, cancel or adjourn is made at or shortly before the hearing

nauture and gravity of any failure to comply with a rule or directionor to take some other step where the failure prompts the proposed postponement, cancellation or adjournment and

the evidence of unfitness to attend - if party is unable to attend becuase of ill health 

Specifically, does a medical certificate satisfactorily: 

• identify the date of the paritcipant's examination 
• describe the participants injury, illness, or condition, the activity or activities which the ill health impedes and the likely duration of that impediment and 
• explains how that ill-health render the participant unfit to attend the hearing.

Court may require expert evidence to postpone a hearing becuase of ill health. Maybe from GP who carried out the assessment and provided the certificate.

The court may make a cost order under section 19 of the Prosecution of Offences Act 1985:

Court can do this when it decides one party has incurred costs from UNNESCCESSARY OR IMPROPER ACTS OROMISION by or on behalf of another party.

19A: IMPROPER, UNREASONABLE, NEGLIGENT ACT OR OMMISSION on the part of the legal representative.

19B: where the court decides there has been SERIOUS MISCONDUCT by a person who is not a party.

What can court do if party fails to comply with rule or direction:

• Court may refuse to allow that party to introduce evidence
• evidence that party wants to introduce may be admissible 
• Court may draw adverse inferences from late introduction of an issue or evidence.

The court may:
Shorten or extend (even after it has expired) a time limit set by this Part and

allow an application or representations to be made orally 

A person who wants an extension must 

• Apply when serving the application or representations for which it is neededc AND e
• explain the reason for the dely.

What can the court do to vary requirements?

What do if deadline missed?

Court dealing with offender / offence 

Offender is 18 or older when convicted 

The court MUST consider the following when sentencing:

• (a) the punishment of offenders,
• (b) the reduction of crime (including its reduction by deterrence),
• (c) the reform and rehabilitation of offenders,
• (d) the protection of the public, and
• (e) the making of reparation by offenders to persons affected by their offences.

This section does not apply when the offender is mental ill to the point when orders are being made under Part 3 of the Mental Health Act 1983:

Or to an offence when a mandatory sentence requirement is in place.

• Adult for mode of trial = 18 or above
• Adult for sentencing purposes =  aged 21 or over as at the age of 21 an offender becomes liable to imprisonemnt.
• Child = person under age of 14.
• Young person = aged over 14 but not yet 18.
• Irrebutable presumption that a person under the age of 10 cannot be guilty of a criminal offence.
• The normal rules of mode of trial DO NOT apply when the offender is under the age of 18.
• MOST  children and young people are tried and sentenced in Youth Courts.
• Youth Courts= Magistrates Courts.
• Trial in youth court namely a summary trail.
• Accusssed offenders who are under the age of 18 has no right to elect a Crown Court trial.
• Youth court can decide to transfer to Crown Court. All the offender can do is make submissions for case to stay in Magistrates court.

• Define adult 
• Define child
• Define young person 
• What type of court is crown court 
• Do offenders under the age of 18 have a right to elect Crown Court for either way offences

Members of the public are excluded from court hearings of the youth.

Only persons permitted to be present in the youth court include:

members of the court and court officials 

parties to the case and their legal representatives 

witnesses and other persons directly concerned in the case 

bona fide representatives of news gathering or reporting organisations

anyone else directly involved in the case

such other persons as the court may specifically authorise to be present 

When deciding how much to reduce the sentence by the courts will consider:

• The stage in the proceedings for the offence at which the offender indicated their intention to plead guilty and 
• The circumstances in which the indication was given 
• Serious terrorim offences can only be reduced by a maxium of 20%
• If mandaotry sentence requirement exist for the offence and the offender is over the age of 18 then then max discount = 20%.

Examples of where mandotory/ minimum sentences apply:

• Section 312 (minimum sentence for threatening with a weapon or bladed article)
• Section 313 (minimum sentence of 7 years for third class A drug trafficking offence)
• Section 314 (minimum of 3 years for third domestic burgularly);
• Section 315 (minimum sentence for repeat offence involving weapon or bladed article)

If section 312 and 315 apply and the offender is aged 16 or 17 when convicted the madatory sentence requirement does not prevent the court from imposing any sentence that it considers appropriate.

What will the court consider when determining sentence reduction for guilty plea?

For serious terrorism offences what is the maxium sentence reduction?

For offencs with mandaotry sentencing requirements what is the maximum sentence reduction for guilty plea?

Police powers are governed by PACE 1984.

These powers include:

arrest, detention, interrogation, entry and search of premises, personal search, and the taking of samples and various procedures for identification.

8 PACE Codes of Pracitce.

• Code A in force from 17/01/2023
• Code B in force from 27/10/2023
• Code C in force from 21/08/2019
• Code D in force from 23/02/2017
• Code E in force from 31/07/2018
• Code G in force from 12/11/2012
• Code H in force from  10/02/23

Code A does not apply to stop and searches. These powers come from the Terrorism Act 2000.

A failure by a police officer or other person to adhere to PACE does not render the officer liable to criminal and civil proceedigns

If codes are relevant they may be admissable to court proceedings.

What is an interview?

• An interview is the questionning of a person regarding their involvement or suspected involvement in a crime or offence. Defined by Code C in para 11.1A.
• A person who is suspected of a crim MUST be cuastioned before any questions of an offence, or further questions if answers to early questions provide grounds for suspicions are put to them if either the suspect's answers or their silence.

There are some exceptions to when cautions are required these include when questionning is:

• Solely to establish one's identity or ownership of a vehicle.
• To obtain information in accordance with a statutory requirement,. Examples inlcude under the Road Traffic Act 1988 s 165.
• Statutory drink driving procedure is not deemed as an interview
• Futherance of the proper and effective conduct of a search ( if it goes further eg drugs found during search and questions begin to be asked if the purpose was to supply these drugs caution required)>
• To seek verifciation of a written record of comments made by the person outside of an interview.

What are the 5 exceptions to when caution needed to ask questions?

Define an interview- where can this definition be found?

If a caution is not required to ask question then the questioning is not an interview.

Person does not have to be formally arrested for questionning to be deemed to be an interview. Once someone is suspected of an offence a caution must be given.

Suspects once arrested should normally be interviewed in the following places:

• At a police station 
• Or other authorised place of detention

Decision to arrest should not be delayed to enable questionning to go ahead.

Exceptions to the general rule that questionning should be in a police station in another authorised place of detention - when the delay would be likely to:

• lead to interference with or harm to evidence connected with an offence,
• interference with or physical harm to other persons,
• or serious loss of, or damage to prroperty; or 
• lead to the alerting of other persons suspected of having committed but not yet arrested for it; or 
• hinder the recovery of property obtained in consequences of the comission of an offence.

Once the risk has gone away the interview MUST STOP.

What are the 2 places police interviews are usually conducted?

When is it okay for place interviews to be conducted outside of these locations?

When should interviews at these locations be stopped?

PACE 1984 s39 makes provisions enabling a police officer who is not physically @ the police station to carryout an interview remotely via live link.

The person detained or the interviewee has all the same rights that they would have if they were being interviewd in person.

Officer who is not at the station has the EXACT SAME DUTIES AS IF HE WERE CARRYING OUT THE INTERVIEW @ THE STATION.

• Caution must be given at the start of an interview.
• If there is a break interview then caution should be given again @ the start of the interview.
• If there is any doubt about whether the caution has been given it should be given again.
• Caution should also be given on arrest.

Normal caution is as follows:

You do not have to say anything. But it may harm your defence if you do not mention when questionned something which you later rely on in Court. Anything you do say may be given in evidence.

• An officer given a caution may deviate from these words slightly provided that the essence of the caution remains in tact.
• If t appears the person who is being cuationed does not understand the caution the person giving the caution should it explain t in their own words (Code C, Note for Guidance 10D).

If a suspect interviewed after charge or interviewed when they ask to consult a solicitor but have not been permitted to consult one  the caution will read as follows:

"You do not have to say anything, but anyhting you do say may be given in evidence."

Code C does not require caution to be given if a statement is take after charge. However, it should be given.

Cases from Blackstone re REASONABLE SUSPICION 

For caution to be given there needs to be SOME REASONABLE OBJECTIVE GROUNDS FOR SUSPICION BASED PM KNOWN FACTS OR INFORMATION.

• If someone is interviewed and they are not interviewed under cuation and during the interview they begin to self incriminate a caution should be given at the point in which they begin to self incriminate. - Ibrahim v UK
• No need for police to give a caution when they were unaware of a bylaw that gave them reasonable grounds for suspicion. - Shephard.
• Cusotmes officer should have given travellers caustion when questionning them when he had reasonable suspiciion they were commiting an offence - Senior
• Collecting someone from the airport who has drugs in their suitcase was not reasonable grounds for suspicion for drug offences to make it neccessary for a caution to be administered. - Perpont 
• The mere fact of leaving a pub at a late hour, and the later admission that the defendant had drunk three pints, were not sufficient to give rise to reasonable grounds to suspect that an offence had been committed so as to require a caution to be given.

Failure to give a caution will not result in the evidence AUTOMATICALLY being excluded.

Give examples of facts where reaonable suspicion. Give case examples where no reasoable suspicion.

When a person is represented they and the solicitor should be given the following before an interview:

Sufficient information to make it possible to undersand the nature of the suspected offence + why they are suspected of committing it.

In Krik - D was arrested for theft - D admitted theft - Victim had died - D made admission thinking he was only confessing to theft.

Admissions were later excluded.

Decision on what should be disclosed rest with the ivnestigating officer and they MUST make a record of what was disclosed and what was NOT DISCLOSED.

A special warning should begiven when:

When person interveiwed at a police station or other authorised place of detention in addition to the following:

• They are asked to account for any object,
• mark or substance,
• or mark on such objects found on his or her person,
• on their clothing,
• footwear or possession in the place where the arrest took place or 
• To account for his or her presence at the place where the arrest took place.

What are the 6 circumstances when a special warning should be given?

INFERENCES CANNOT BE DRAWN IF A SPECIAL WARNING WAS NOT GIVEN!

Interviewing officer MUST remind of free legal advice and that interview can be delayed for free legal advice.

At the start of the interview a signifcant statement of silence that transpired in earlier or previous interview must be put the the interview.

A significant statement is one that could be used as evidence and inferences could be drawn from.

• Interviews cannot try to obtain information or answers to questions through oppression or indicate what action police will take.
• Police can only indicate what action the police will take in response to a direct question.
• The proposed action must be PROPER AND WARRANTED.
• Example of IMPROPER - Police telling a churcboy who was accused of theft that the police would interview ALL the churhc if he did not confess. - Howden Simpson.
• Police should not seek a confession by offering a caution.
• Postive duty on the police to not mislead the suspect.
• Asking of hypothetical questions is permissible. - but needs to be approached with care.
• Police questioning that carries on after repeated denials may become oppressive.
• Bullying throughout the interview has been found to be oppressive.
• Questionning that was rude and discourteous with raised voices and some bad language = NOT OPPRESSSIVE.

Mindmap all you know about how interviews should be carried out?

Interviews should end when the following has been achieved:

• All questions relevant to obtain accurate information about the offence have been put to the suspetct 
• The officer has taken account of other available evidence 
• Officer believes there is enough evidence to gain conviction.

When should interviews be concluded?

• Police interviews conducted at the police station or a place authorised for detention should contemparenously be recorded.
• Unsolicited comments made outsdie of interview if relevant to the offence in question should be recorded.
• Interviews under caution (even if not @ the police station) should also be recorded using an AUTHORISED RECORDING DEVICE.
• Visual recording of police recordings in not mandatory. However, police officer can use them if the facilties are available but regard must be had to Code F.

Special categories of people inlcude:

• child 
• young person 
• mentally disordered 
• vulnerable person 
• The above MUST NOT be interviewed or asked to sign a written statement in the absence of the apropriate adult UNLESS the conditions for conducting an interview away from the police station under Code C Para 11.1 are satisfied.
• Ideally children / young people should not be interviewed at the place of education UNLESS there are EXCEPTIONAL CIRCUMSTANCES and the principal or person acting for the principal in their absence agrees.
• EFFORTS should be made to notify the parents AND the appropriate adult
• In cases of NECESSITY and where the school was not the victim the principal can act as the approrpiate adult.
• Appropriate adult i functions as:
• Adviser 
• Observer 
• To facilitate communication with the person being interviewed.
• Judicial consent is not reuqired before interview a warden of the court.

Given an example of a special category person?

What is the general rule surrouding interviewing special category persons and them signing witness statements?

When can this be diverted from?

In what circmstances can a child or young person be interviewed at their place of education?

In what circumstances can the headtecher be the appropriate adut?

What are the 3 things the appropriate adult needs to be reminded of?

Once the cusotdy officer determins that a person requires an interpreter to be interviewed they MUST NOT be interviewed in the absence of an interpreter. 

UNLESS:

Authorised by an officer of the rank of superintendent or above who is satisfied tht delaying the interview will lead to the consequences in Code C para 11.1 + the interview going ahead would not signifciantly harm the persons physical or mental state.

Interpretation can happpen via live link however preferential the interpreter is physically present.

If someone is drunk to the point that it impedes on their ability to understand they MUST NOT be interviewed UNLESS:

·       Authorised by an officer of the rank of superintendent or above who is satisfied tht delaying the interview will lead to the consequences in Code C para 11.1 + the interview going ahead would not signifciantly harm the persons physical or mental state.

·       Interpretation can happpen via live link however preferential the interpreter is physically present.

What are the exceptions enabling drunk person or person who requires an interpretor to be interviewed when drunk and in the absence of the interepretor ?

When may a magisrates cort adjourn proceedings?

• At any stage before the mater is sent to trial @ Crown Court or before (or during) a summary trial.
• It is possible for a party to challenge the courts decision to refuse to grant an adjournment by judicial review.
• However, decision to grant adjournment is @ the court's discretion and as a result of that discretion the High Court will only intervene if there are COMPELLING REASONS TO DO SO.
• Appeals of this nature ought to only succeed on WELL-RECOGNISED BUT LIMITED GROUNDS.
• Examples include: errors of principle, errors of law, or where the decision can be characterised as plainly wrong.
• Case Law Examples:
• Adjournment refused. D nor her solicitor could attend the court becuase of extreme and terrible weather conditions. Previously, D attended relevant hearings and no issues throughout the case.
• Appeal upheld - adjournment should not have been refused.
• Defence expert unavailable to attend on the pre-arranged date of hearing. Adjournemnt not granted. On appeal it was granted as the defence not having their expert would make the trial unfair.

The Magistrates Court's power to adjourn the trial is contained in the Magistrates Courts Act 1980 **.10 and 18.

At anytime Magistrate can adjourn trial.

When adjourning the magistrates court may fixed the place and time of when the hearing is to be resumed. If the accused is remeinded tiime and place can be decided later.

When court adjourns a trial they may remand the accu**ed.

References to being remanded in the Magistrates act refer to in bail or in custody.

Section 18 governs adjournments until allocation (mode of trial) has been determined.

• In simple terms, this passage is talking about the legal process of remanding a person accused of a crime. Here are the key points:

• Remand Hearings: After someone is accused of a crime, they may go through multiple remand hearings before the case goes to trial. During these hearings, the court decides whether the accused should be kept in custody or released until the trial.

• Number of Remands: There isn't a strict limit on how many times a person can be remanded, but the court has the discretion to refuse further delays if it goes against the interests of justice.

• Change of Court: The court may decide to move the remand hearings to a different court, closer to the prison where the accused is being held.

• Section 129: This section allows the court to remand the accused to a later date, even in their absence, if they can't attend due to illness or accident. It also applies to cases where the administrative process causes the person not to appear.

• Bail During Remand: If the accused is on bail during remand, the court can grant bail again in their absence by setting a new appearance time. There are no strict restrictions on the reasons for granting bail in this way.

• Enlarging Recognizances: If bail is granted during a remand, the court can also increase the obligations of any individuals who vouched for the accused (sureties) to ensure the accused's attendance at the next hearing.

• Remand can be for a period of longer than 8 days if the prosecution and defence agree.
• Custody time limts are provided for in Section 22 of the Prosecution of Offences Act 1985.
• The act enables the secretary of state to make regulations fixing:
• The max period available to the prosecution to complete any preliminary stage of proceedings for an offence and/ or 
• max period an accussed person can be in cusotdy whilst the pre-trial stage is being completed.
• There are currently no overall time limits within which the prosection must complete the stage of the proceedings in question. However, regs can prescribe such limits.
• Alternatively or additionally the regs may prescribe a custody time-limit.
• Custody time limit = max period for which the accussed may be remanded in custody while the stage is being completed.

• Custody Time Limit:
• Indictable only offence- custody of the magistrates court- between first appearance and committal proceedings = 70 days (MAX).

Between first appearance and summary trial:

• If the issues is trialable either way and the court decides to try the matter SUMMARILY. Max period between the first court appeareance and the court beginning to hear evidence is 70
• days. 
• UNLESS the decision for summary trial is taken within 56 days then the max custody time limit is 56 days.
• Between commmital and trial on INDICTMENT: (START OF TRIAL) 112 days.
• If indicatable but there are several offences. The 112 day limit applies but this will be calculated individually for each offence.
• Section 51 Sending - basically refers to when the Maagistrates send a case to the Crown Court. 182 days between the date the accussed is sent to the Crown Court and the start of the trial.
• Retrial directed by the Court of Appeal: 112 Days after Court of appeal order retrial.
• Where proceedings are by voluntary bill - 112 days after daate of preferment of the bill.

General rule:

Maximum amount of time Magistrates court may remand an accused is 8 clear days.

UNLESS one of the five exemptions apply:

1. after summary conviction remand in cusotdy for three weeks or remand on bail for four weeks. This is usually to enable inquiries to be made eg. pre sentence report info.

2. Court satisifed the person committed the offence that they are accused of can be remanded for 3 weeks in jail or 4 weeks on bail. This is to enable medical examination re physical and mental health condition of the accussed.

3.If court is short staffed. Period of remand can be extended beyond 8 clear days. EG. Only one lay justice. The prisoner will be remanded until there are 3 lay magistrates and a legal advisor availale.

4. S128A applies = second /  subsequent remand in cusotdy may be for up to 28 clear days.

5. Accussed detained under custodial sentence for another offence may be remanded for 28 days or until the end of their existing custodial sentence 

What is the maximum time that the Magistrates can remand a suspect?

Are there any exceptions to this general rule?

Why are these things exceptions?

Summarise the different custody time limits.

Effect of Expiry of the Custody Time Limit:

• If the custody time limit expires for the offence the accussed must be granted bail as a consequence of the expiry of the custody time limit.
• Jabber v Sheffield Crown Court- if someone is released 20 days or 2 days befoee the custody time limit expires but the sole reason for the release was because the no extension to custody time limit could be granted it is still correct to say released/ bailed because of an expirty of the custody time limit.

• Critieria Crown Court and Magistrates court will consider whe granting an extension:
• PROSECUTION OF OFFENCES ACT 1985 S.22(3)
• 1. Prosecution has acted with ALL die diligence and expedition and 
• 2. There is good and sufficient cause for doing so.
• Examples of reasons court may grant an extension:

• illness or absence of accused, necessary witness, a judge or a magistrate.
• a postponement which is occasioned by the ordering by the court of separate trials in the case of two or more accused or two or more offences; 
• Limits that are already extended can be extended further.
• Hearing set outside of custody time limit. If judge extends custody time to hearing - nothing wrong with that.
• What is the 2 fold test the courts need to meet when considering whether to grant an extension?
• Give examples of good sufficient cause?
• Can limits be extended if they have already been extended before/

Bail in criminal proceedings is governed by the Bail Act 1976.

How is bail defined in criminal prooceedings:

Bail grantable in or in connecton with proceedings for an offence to a person who is accused or convicted of the offence or (b) bail grantable in connection with an offence to a person who is under arrest for the offence a warrant is being issued.

When will Magistrates court's grant bail?

• When accussed sent to Crown Court for trial.
• Committals for sentence 
• When awaiting appeal from Crown Court on appeal of SUMMARY CONVICTION.

Important: Only person who can grant bail for murder is a Crown Court judge.

What act governs bail in criminal proceedings?

How is bail defined ?

When will the magistrates court grant bail?

Who can grant bail for murder?

When will / can the Crow court grant bail?

Under the Senior Courts Act the Crown Court may grant bail to any person:

Who has been sent in custody for trial in the Crown Court;

• Custodial sentence given folllowing conviction in the magistrates court who is appealing to the Crown Court against conviction or sentence.
• Someone whose case has been adjourned by the Crown Court.
• Case decided by the Crown Court but who has applied to the court to state a case for the Divisional Court's opinion or is seeking judicial review of the decision.
• To someone who Crown Court has granted a certificate confirming their case is FIT FOR APPEAL to the Court of Appeal (this can be against a conviction or a sentence).
• Remanded in custody by the Magistrates court on adjounring a case provided the magistrates having provided a certificate confirming : BEFORE THE MAGISTRATES COURT REFUSED BAIL IT HEARD THE FULL ARGUMENT.

Summarise the five circumstances in which the Crown Court can grant bail:

Person charged with murder may ONLY be granted bail by order of a Crown Court judge.

Crown Court judges should make decision about bail in murder cases AS SOON AS REASONABLY PRACTICABLE. - And in any event within 48 hours (excluding weekends and public holidays)

The clock begings to run the day on which the person appears before the magistrates court.

Same rules apply if someone is charged with murder alongisde another offence.

• What court can grant bail for murder?
• How quickly should a decision about bail be made?
• When does the clock start to run from?

Section 4 (1) of the Bail Act creates a rebuttable presumption in favour of granting bail.

Colloquailly but slightly inaccurately known as the right to bell.

Persons who benefit from the presumption include:

• appears before magistrates court or crown for proceedings and in connection to those proceedings applies for bail for terms to be varied in connection with those proceedings.
• Has been convicted for an offence and whose case is adjourned for reports before sentencing s4.4 and 
• Who has been brought before the court under the SA 2020 sch 10 for an alleged breach of a requirement of a community order.

once someone has been convicted the presumption does not apply UNLESS: the hearing has been adjourned for reports such as medical, pre sentencing, or psychiatric.

• Therefore someone seeking bail for appeal of conviction or sentencing does not benefit from the rebuttable presumption. Same applies for someone convicted but committed to the Crown Court by Magistrates.
• Bail can be granted but it is at the discretion of the court
• Presumption does not apply to police station bail. However, PACE does impose a similar obligation.

Bail Following Indication of Guilty Plea at Plea Venue Hearing:

If someone has bee granted bail.

Attends plea hearing and pleads guilty at hearing.

Bail should not be interuppted even if they are likely to serve a custodial sentence as a result of the guilty plea.

Questions about bail?

• What is the rebuttable presumption about bail?
• Where does this come from in the bail act - section?
• Who benefits from the rebutable presumption?
• Give two scenarios where the Defendant will not benefit from the rebuttable presumption?
• Does the rebuttable presumption apply to bail from a police station?
• If it does not- what governs bail from a police station?
• If someone is on bail and they plead guilty to a crime should the bail be stopped and them admitted to custody?

If someone has one of the following convictions and is charged with one of the listed convictions bail cannot be granted unless there are EXCEPTIONAL circumstances:

• Murder 
• Attempted murder
• manslaughter
• ****
• attempted **** 

When can bail not be granted?

What charges does it apply to ?

If one is charged with murder and they are applying for bail they need to convince the court that if the bail was granted they would commit an offence that would, or would likely cuase physical or mental INJURY to any person.

Grounds for refusing bail include:

• fail to surrender to custody 
• commit an offence whilst on bail or 
• interfere with a witness or otherwise obstruct the course of justice - can be in relation to oneself or another person.

Standard of proof for bail applications:

• Court must be satisifed that there are "substantial grounds for believing" that they would occur.
• Case of Re Moles: police officer was explaining he was told by witness that the accussed had threatened potential witness told court and this second hand evidence was accepted.
• Second-hand/ hearsay evidence is fine for bail applications.
• No requirement for formal evidence to bbe given [at an application for bail].
• CPS can also argue bail not a good idea based on second hand information received from the police

An uncovicted accused charged with an offence that is imprisonable and indictable only needs one ground of bail to not get bail granted. EG if they failed to surrender to custody previosuly bail will not be granted.

• What are the grounds for refusing a bail application?
• Second hand/ hearsay evidence bail application?
• What is the standard of proof for bail applications?

If there are no real prospects of a custodial sentence bail cannot be witheld on any of the grounds / reasons or witholding bail.

What 5 factors do the courts consider when determining whether to grant bail?

1. The nature and seriousness of the offence and the probable method of dealing with the offender for it.

2. The character, antecedents, associations and community ties of the accussed.

3.The acused's record for having answered bail in the past 

4.The strength of the evidence against the accused.

5. If the  court has / believes there are substantial grounds for believing that the accused would commit an offence while on bail, the risk that the accused may engage in conduct likely to case physical or mental injury to someone else.

This list is not exhuastive and the court can take other considerations into account including:

• any missue of controlled drugs by the defendant 
• the accussed has previously committed offences whilst out on bail.
• prosectuion witness have already received threats from D or are known to D who could easily locate them.

S7 arrest is when someone is arrested for breaching their bail conditions.

This is not an offence but it is arrestable. BAIL OFFENCE =FAILURE TO SURRENDER

Nature and Seriousness of the Offence

• More serious offence and sentence = bigger motives for someone to abscond.
• However, the severity of the charge is not an automatic reason for refusing bail and as a result it should not a conclusive reason for denying a bail application.
• Custodial sentence being likely is not enough to refuse a bail application. However, if coupled with the fact that the likely custodial sentence makes it unlikely the Defendant wil surrender this can be valid reason for refusing bail.

Character and antecedents 

• Primarily refering to previous convictions.
• Failing to answer to custody or surrender to bail are relevant previous convictions.

Associations and Community Ties

Associaites = undesirable criminal friends.

How easy would it be for the accused to abscond? How much does the accused have to lose if they abscond?

Relevant factors for this consideration:

• How long has the accussed lived at this address?
• Does the accsed have a partner?
• Does the acussed have dependent children?
• Is the accsed in employment? How long have they been employed?
• Does the accused have a mortgage or a protected tenancy?
• No fixed abode or sofa surfing does not automatically block bail but it will be considered.

Bail Record:

If the accused has absconded in the past this is taken as evidence that they may abscond again.

Strength of the Prosecution Evidence:

Person who knows there is a strong chance of being acquitted has less of a reason to abscond.

In cases where the arguments against bail are strong but they are not overwhelming, the court may prefer to grant bail than risk someone spending time in jail and then being acquitted or found innocent.

Risk of Injury to someoneelse:

Substantial grounds for believing the accussed is would commit an ffence while on bail, the court considers whether the offence is likely to cause physical or mental injury to any other person.

• What are the 5 considerations for granting bail?
• Summarise them ALL.

What are the other grounds for witholding bail?

• The accused is already on bail for another offence
• Accused's own protection 
• Where the accused is already serving a custodial sentence for another offence 
• Where the court has insufficient information
• Where the accused has absconded in the present proceedings?

What are initial details?

When accussed is in custody for the charged offence before the first hearing inlcude:

Summary of the circumstances of the offence and the accussed's criminal record if any.

Whent the accussed is not in custody for the charged offence before the first hearing:

• Summary of the Circumstances of the Offence 
• Any account given by the accused in an interview ( can be in the summary or in a separate document)
• Any witness statements (which includes exhibits) that the prosecution have possession of @ this stage which is deemed to be relevant to plea or whether the matter is heard in the Magistrates or Crown Court, or sentence
• Accused's criminal record if ANY.
• Any available statement of the effect of thr offenc e on victims or their family or on others.

The prosecutor should provide the intial details of the prosecution case AS SOON AS PRACTICABLE and no later than the start of the day on the first hearing.

Initial details are NOT AUTOMATICALLY supplied but if the accused request them they MUST  in the above time limits.

If the accused does not request the details the prosecutor MUST make them available to the accussed at or before the beginning od the day of the first hearing.

Questions:

• What are the initial details?
• In cusotody for the offence charged? Not in custody for the offence charged?
• When MUST those details be provided to the accussed by the prosectuion
• Is this automatic or does the accussed need to request for this?
• If the accussed does not request for this?
• When should they be provided with the information?

It is of paramount improtance that the initial details (ESSENTIAL) are SUFFICIENT TO ASSIST THE COURT TO identify real issues and give directions for an effective Magistrates or Crown Court Trail.

Part 8 does not provide specific sanctions for if and when the prosecution fail to supply initial details.

However, magistrates court make a direction which requires compliance from the prosecution.

If the prosecution fail to comply with a direction from the court the court can:

Adjourn the hearing and/ or make a cost order.

Court cannot dismiss/ threw out charges bough against the accssed becuase of non compliance with Part 8 (request for further info).

• Does part 8 provide sanctions if the prosecution fail to provide the initial details of the case?
• What happens in this circumstance?
• What can the consequences be of this action?

Parties can participate in ELIGIBLE PROCEEDINGS via live link can be audio or visual.

What are eligible proceedings?
Preliminary hearings 

Hearings before a magistrates court or Crown court which are held after D has entered a plea of guilty and sentencing hearings.

live link hearings need to be in the INTEREST OF JUSTICE.

Additionally, the parties to the proceedings need to have been given the opportunity to make representations.

What factors do the court need to consider when deciding whether  a hearing should take place virtually?

• Any need for the person to attend in person
• The views of the person 
• The suitability of the facilities @ the place where that person would take part in proceedings via a live link
• Whehter that person would be able to take part in proceedings effectively 
• Where the person is a witness the importance of his or her evidence to the proceedings
• Any whether direction may prevent any party to the proceedings testing the witnesses evidence 
• Arrangements for members of the public to see or hear the proceedings as conducted in accordance with the direction.

USE OF LIVE LINK NEEDS TO BE LAWFUL AND IN THE INTEREST OF JUSTICE.

• What are the requirements for a hearing to take place via live link?
• What factors will the court take into account when deciding whehter to have a hearing via live link?
• What types of proceedings are live links used in?
• What do eliigible proceedings mean?

May be in the interest of justice to enable a defendant to attend preliminary hearings via live link to avoid delays and disruption.

The court will wish to account account of the mental health and other medical assessment prior to deciding if a live link is in the interests of justice.

Pre and post court confence may be harder to facilitate if the hearring is remote. Where such conferences are desirable a live link is less likely to be in the interest of justice.

Sentencing Live Link or in Person:
Court should consider the potential penalty, ensure reasons for sentence can be given to ALL participants and  members of the public in a satisfactorily way, preferences of the maker of any Victim Persnal Statement which is to be read.

Rarely appropriate for a youth to be sentenced over a live link.

prelimiary hearings eg bail hearings tend to be appropriate for remote hearings.

Scenario:

• Accused attends preliminary hearing remotely.
• Pleads guilty to an offence 
• Couurt proposes to proceed immediately to sentencing

What happens?

• D MAY continue to attend remotely providing the court is SATISFIED it is in the INTEREST OF JUSTICE.
• D can give evidence over the live link if the court is SATISFIED IT IS IN THE INTEREST OF JUSTICE.

Explain what MAY happen when a remote preliminary hearing turns into a sentencing hearing?

S50 makes provisions for pre trial hearings.

Accussed charged with an offence @ the police station the Magistrates court which the accussed appears before for the first time can be composed of 1 justice.

At this appearance the accused is asked if they would like to be provided with legal aid.

If the person does the neccessary applications MUST be made  and where appropriate legal aid obtained.

Hearing can be adjourned for the legal aid stuff to be done.

Accussed can be remanded in custody or on bail.

Early adminstrative hearings can be carried out by a justices clerk (or assistant clerk who has specifically authorised by the justices clerk for that purpose).

Clerks cannot remand someone in cusotdy or (In the absence of the agreemnent from the prosecutor or the criminal)  bail on different conditions to what was previosuly imposed.

This section (section 50) and provisions only apply when someone is charged @ the police station.

• What does section 50 make arrangements for?
• When does section 50 come into play?
• When section 50 is in play how many magistrates can be @ Magistrates court for the first appearence.

Crim Procedure Rule 3.16 = MAGISTRATES COURT MUST CONDUCT PREPARATION FOR TRIAL HEARING.

However, there are some circumstances when a preparation for trial hearing does not need to take place:

• Accussed is sent for trial in the Crown Court.
• Accussed enters a written guilty plea.
• Single justice procedure applies.

How many Preparation for Trial Hearings can the court conduct?

• The court can conduct more than one if / when one of the following circumstances apply:
• Court anticipates a guilty plea
• Neccessary to give directions for n effective trail.
• Such a hearing is required to set ground rules for the conduct of the questionning of a witness or defendant.

AT A PREPARATION FOR TRIAL HEARING THE COURT MUST GIVE DIRECTIONS FOR AN EFFECTIVE TRIAL.

• What MUST the court do at a Preparation Trial Hearing?
• In what circumstances may the court have more than one preparation trial hearing?

If the Defendant is present for the Prep for trial hearing the court MUST:

• satisify itself that the accussed understands that credit will be given for a guilty plea.
• take a plea from the accussed- if a plea cannot be taken from the accussed find out how the accussed is likely to plea
• if accused pleads not guilty satisfy itself that the accuseed knows what to expect @ trial - evidence  have the right to give evidence after the court has heard the prosecution case,
• If the accussed fails to attend the hearing is likely to take place in the accused's absence.
• Failure to attend when out on bail may result in arrest and punishment etc.

Court required to ascertain the name and date of birth of the accussed unless previously provided.

Hearings will usally take place in public.

What MUST the court do @ a pre-trial hearing?

Will the hearing be public or private?

MCA s8A summary offences where D has pleaded not guilty.

What is a pre trial hearing  - A hearing that tooks place before the court has begun to hear evidence from the prosecution OR if fitness to plea is in play - before the court begiins to consider whether they should exercise their powers under the Mental Health Act 1983.

At a pre-trial hearing the magistrates may decide following:

• admissability of evidence 
• Other questions of law relating to the case.
• These rulings can only be made if the parties are given the opportunites to make presentatins/ representations on the point and it appears to the court that it is in the INTEREST OF JUSTICE TO MAKE THE RULING.
• Unrepresented Defendants MUST be given the opportunity to apply for legal aid.
• Pre trial rulings can be made on application from prosecution or defence or by the court of its's own motion.

PRE TRIAL RULINGS = BINDING .

• binding untl the case against the accussed is disposed of.
• Disposed of = convicted, acquitted or the prosecution decide to dismiss the case.

• What is a pre trial ruling?
• What can a pre trial ruling cover?
• Are pre- trial rulings binding?
• When can pre trial rulings be made?

Court can discharge or vary a pre trial ruling on application from the prosecution or defence or on it's own motion.

This can happen when it appears to the court that it is in the interest of justice to do so and the court has given the parties the opportunity to make submissions on the matter.

Parties can apply for variation/ discharge if there has been a MATERIAL CHANGE of circusmtances since the ruling was made or if there has been a prevous application under s8B since the inital pre ruling application was made.

Courts also need compelling reason to discharge/ vary pre trial ruling off of its own motion.

Examples of compelling reason = CHANGE IN CIRCUMSTANCES + FRESH EVIDENCE.

Another eason for discharge/ variation of a pre trial ruling = same circumstances and evidence but this was not previously brought to the court's attention.

No way to appeal pre trial rulings but an appeal can be lodges by way of case stated once proceedings have been decided.

When the accussed pleads not guilty the parties must do the following:
From the start identify disputed issues

• Communicate the disputed issues to the court 
• If parties do not do this willingly the court MUST require them to do so.
• Live evidence @ the tiral will be confined to the issues mentioned above ^^^.
• Only witnesses whose evidence is relevant to genuinely disputed issues are reqired to attend.
• Court's directions MUST include a timetable for the progress of the case .
• Parties are required to inform the court PROMPTLY of any problems that are anticipated.

Further guidance:

• The court shoudl scrutinise the reasons why it is said a witness is necessary and the time the examination and cross-examination would take.
• When making timetable regard should be had to the nature of the issues and the fact the the trial is SUMMARY trial.
• Any estimate for more than one day in the magistrates court should be scrutinised with the UPMOST RIGOUR!.
• PARTIES MUST RECOGNISE THAT A SUMMARY TRIAL REQUIRES A PROPRTIONATE APPROACH.

When someone enters an ambigous plea - eg Guilty but it was self defence or guilty but I was going to give it back.

Court should not proceed to sentencing - instead the court should pause, explain the law, and try to ascertain who the accussed intends to plead.

Case Law Example 

Atkinson: D pleaded fuilty to assault but alleged she acted in self defence.

This was not deemed to be ambiguous when the judge paused, clarified the ambiguity with the accused's counsel before accepting the plea.

If the plea cannot be clarified the court should order a not guilty plea be entered on the acussed's behalf.

• Give an example of an ambigous plea?
• What should the court do when faced with an ambiguos plea?
• Give case law example of when something has been deemed not to be an ambigous plea?

Advantages of summary trail in the magistrates court:

• Lesser sentence (however this advantage is counteracted by the fac the magistrates court can commit the case t o the Crown Court.
• Shorter and less formal trial - this makes it slightly cheaper. This is an important advantage for clients who are not legally aid represented.

Advantages of Crown Court/ Trial on Indictment:

• Submissions on the admissability of evidence can be made in the absence of the jury. Advantage - jury are unaware of any matters which are deemed to be inadmissable.
• Caveat to this advantage - Courts Act 2003, sch 3 a bench of Magistrates MAY  give a pre- trial ruling on the admissability of evidence and that ruling binds the bench tha tries the case.
• Entitled to recieve copies of prosecution witness. As good practice prosecution also supply this in the Magistrates court. But in the Magistrates court it is not an entitlement.

Once case is sent to Crown Court and the prosecution is served, the accused must give a defence statement to the court and the prosecutor.

Written document setting out the basis of the defence.

The statement must include the following:

• Nature of the accused's defence, including any particular defences on whcih the accussed intends to rely
• The matters of fact on which the accused takes issue with prosection case and reasons as to why.
• particulars of the maters of fact on which the accused intends to rely for the purposes of the defence and 
• any points of law which the accused wishes to take accompanied by any authorities relied upon.

Defence duty: reveal the case which will be presented @ trial.

Prosecution duty: disclose unused material.

Questions:

• When is a defence statement needed?
• Is a defence statement a compulsory requirement in the magistrates court?
• What is a defence statement?
• What is included in a defence statement?
• What are the duties of the prosecution and the defence? How do these duties differ?

In cases tried summarily/ in the Magistrates court there is NO OBLIGATION on the defence to file a defence statement.

However, if the Defence does not file a defence statement they lose the following opportunities:
Accused cannot make an application for specific disclosure under s.8.

Court cannot make any orders for disclosure of unused prosecution material.

How and When can the accused submit a defence statement?

• If D chooses to submit a defence statement it can be done once the prosecutor discloses unused material.
• After this day has 14 days to submit defence statement.
• The court can extend this 14 day time limit following an application from the accused.

Even though there is no obligation to submit a defence statement if one does choose to submit one the defence statment MUST IDENTIFY THE REAL SSUES IN THE CASE IN ACCORDANCE WITH THE OVERRIDING OBJECTIVE.

Defence statements that are submitted MUST comply with the requirements of 6A of the Criminal Procedure and Investigations Act 1998.

• Is a defence statement a complusory requirement in a magistrates court?
• If no, why woulld an accused person go through the effort of submitting a defence statement?
• When can a defence statement be submitted?
• What is the time limit for submitting  a defence statement?
• Can this be extended?
• What must a defence statement include?

Requirements of a Defence Statement

Criminal Procedure and Investigations Act 1996 **.6A:

Must include:

• nature of the accused's defence, including any particular defences on which he intends to rely
• Matters of fact i**ue taken with the prosecution and the reasons why.
• setting out particulars of factual maters that D intends to rely on for their defence.
• Indicating any pin tof law which D intends on relying and identifying authorities.
• Defence statement that discloses an alibi must give details of the alibi or as many of those details which are known to the accused when the statement is given.
• Any information in the accused po**e**ion whcih might be of material a**istance in identifying or finding a witne**

The court is under a duty to give reasons when it convicts someone or makes a hospital order instead of convicting someone . The reasons must be:

SUFFICIENT REASONS TO EXPLAIN THE COURTS DEICISION.

• However, the reasons do not need to be in the form of a formal judgment or in any other elaborate form.
• If a party requires more detailed reasons a request can be made to the magistrates court to state a case.
• The whole point of the reasons is to inform the Defendant of why they have been found to be guilty. This can typically be done in A FEW SIMPLE SENTENCES.
• Great care needs to be taken when drafting reasons to avoid mistakes like reversing the burden of proof.

• Is the court under a duty to give reasons when it sentences someone?
• If that duty exist what does it entail?
• Can you explain the detail requied of the reason?
• What can a party do if they require more reasns than those given by the court?
• When is the court under a duty to give reasons?

Section 14

• Magistrates convicts offender for either way offence or either way offences.
• Magistrates court deems themselves to have insufficient sentencing power.
• Commit the accused to Crown Court so they can use their sentencing powers.
• Committal can be a custodial sentence or bail,
• Crown Court will deal with the offender as if they had been convicted on indictment.

MAX sentence magistrates court can give for one offence = 6 months

Multiple offences = 12 months maximum

What provisions apply to an alleged offence for which a criminal investigation began on or after 1st April 1997?

• Disclosure provisions of Part I of the CPIA 1996.
• Major ammendments were made by CJA 2003.
• Some of these ammendments are yet to come into force and they include:
• Defence disclousre to the co-accussed
• Updated disclosure by the defence 
• Notification of the name of experts instructed by the Defence ( would happen in a situation where the expert report is not served).

Disclosure questions:

• What provisions apply to the disclousre of alleged offence where the criminal investigation begun after the 1st April 1997?
• What bought in ammendments to disclosure?
• Are these ammendemnts in force?
• List these ammendemnts?
• Are these ammendments in force?
• Can you describe the ammendments that are in force?

The responsibilites of investigators re unsed materials are set out in a varitety or resoruces but the primary resource is the CPIA Code.

• CPIA code applies to ALL investigations carried out by the police officers (s.22)
• +
• Investigations carried out by other persons charged with the duty of conducting criminal invstigationss (D9.7).

Definition of Criminal Invesitgation:

A criminal investigation is an investigation carried out by police officers to determine if someone should be charged with an offence or to figure out if someone is guilty of an offence that they have been charged.

Examples include:

• investigations into crimes that have been committed.
• into whether a crime has been committed with the view of initiating possible criminal proceedings
• investigations that begin with the belief that a crime may be committed.

What materials govern the duties / responsibilites of criminal investigators in criminal investigations?

What is the primary source?

Define an investigation?

Give an example of an investigation?

CPIA code sets out the functions of individuals within a criminal investigation and the responsibilities in the disclosure process.

• Note: Different functions can be carried out by the same individual eg someone can wear 2 hats.
• An investigator: any police officer involved in a criminal investigation.
• Disclosure officer: the individual who is responsible for examing material retained by the police during the investigation and for revealing the material to the prosecutor.
• Officer in charge of the investigation: the police officer who is responsible/ the leader for directing the criminal investigation.

CPIA code emphasises the following:

• Keeping clear records which I identify who is doing waht is extremely important
• Carried out be people with the appropriate amount of experience 
• Who are independent of the investigation 
• investigative process is tailored to the circumstances of each case.

CPIA code puts police officer (DISCLOUSRE OFFICER) @ the centre of the process not a lawyer.

Possible to delegate in joint investigations.

CPIA code requires invstigators to record ALL material which may be relevant to the ivestigation in a durbale or retrievable form. This applies to material which is not already recorded.

Obligation to record applies to negative information eg. 7 witnesses said they did not see anything.

The investigator = responsible for retaining ALL information obtained in a criminal investigation that MAY be relevant to the investigation.

What is material "relevant to an investigation"?

Material will be classed as relevant to an investigation if it appears to an investigator or disclosure officer that it has MERELY SOME BEARING ON ANY OFFENCE UNDER INVESTIGATION, OR ANY PERSON BEING INVESTIGATED, OR ON THE SURROUNDING CIRCUMSTANCES OF THE CASE.

In summary: material is relevant if it is likely to have an impact on the case.

Define Material:

• Material = stuff gathered in the course of the investigation (drugs in police raid) or / and things generated by the investigation.

Material includes:

• Crime reports (which include crime report forms)
• Relevant parts of incident report books and police officer notebooks 
• Final versions of witness statements 
• draft versions of witness statements where their content differs from the final version
• interview records (written or taped)
• expert reports and schedules 
• any reports casting doubts upon the reliability of the confession 
• any material casting doubt on the reliability of a witness

Duplicates of the above documents will not be neccessary.

Items that possess no indpendent significance not needed either.

• What categories of materials need to be retained?
• Can you give examples?

Material that the disclosure officer believes will not form part of the prosecution case MUST be listed on the schedule.

• A schedule MUST be created in all Crown Court cases and in magistrates where the accused is likely to plead not guilty.
• In Crown Court cases disclosure officer must prepapre disclosure on MG6C form.
• In Magistrates court a STREAMLINED CERTIFICATE is prepared.
• Prosecutor will review these and decide if material needs to be disclosed to the defence. - will do this by applying the relevant statutory test.

Material likely to meet this test includes:

• Records of telephone messages 
• Incident logs
• contempranous recordsof the incident (such as crime reports and crime report forms)
• police notebook entries
• records of actions carried out by officers and CCTV footage
• custody records 
• previous accounts of complaints or witnesses 
• Interview records (written or taped) and any materia casting doubt on the reliability of a witness.
• What is the disclosure from in the CC/MG? What material must be on this? Examples?

Sensitive materials should be listed in a separate schedule or in EXCEPTIONAL CIRCUMSTACNES disclosed to the prosecutor separately.

What is senstive material?

• Sensitive material is material which the investigator believes would giv e rise to a REAL RISK OF SERIOUS PREJUDICE TO AN IMPORTANT PUBLIC INTEREST IF IT WERE TO BE DISCLOSED.

Examples of sensitie material include:

• Materials relating to national security or given in confidence eg relating to informants, undercover police officers, premises used for police surveillance, techniques used in the detection of crime and material relating to child witnesses.
• Descriptions by disclosure witnesses in non-sensitive schedules should be CLEAR, AND ACCURATE AND MUST CONTAIN SUFFICIENT DETAIL TO ENABLE THE PROSECUTOR TO MAKE AN INFORMED DECISION ON DISCLOSURE.
• SUFFICIENT INFORMATION TO ENABLE PROSECUTOR TO DECIDE ON DISCLOSURE.

• Define sensitive disclosure?
• Give examples of things / circumstances that may require senstive disclosure?
• How should senstive material be dislcosed in normal circumstances?
• How sould senstive informaton be disclosued in exceptional circumstances?

• Define sensitive disclosure?
• Give examples of things / circumstances that may require senstive disclosure?
• How should senstive material be dislcosed in normal circumstances?
• How sould senstive informaton be disclosued in exceptional circumstances?

Investigator should bring any material which MIGHT satify the test for prosecution disclosure to the prosecutor and must give the prosecutor copies of informationfalling within certain categories.

What happens if officers withold informations from counsel?

The prosecutors duty to disclose information is not rendered redundant.

The prosecutions duty of disclosure arises from: CPIA 1996 s.3

Under s3 the prosecution is required to disclose previously undisclosed material to the accused if: IT MIGHT REASONABLY BE CONSIDERED CAPABLE OF UNDERMINING THE CASE FOR THE PROSECUTION AGAINST THE ACCUSED, OR OF ASSISTING THE CASE FOR THE ACCUSED .

What happens if there is no information to disclose:

If there is no disclosable material the accussed must be given a written statement to the effect . Court officer should also be informed of this by the prosecutor @ the same time.

What is prosecution material:

material which the prosecutor posseses or has been allowed to inspect under the provisions of the CPIA Code.

STATUTORY DISCLOSURE TEST:

• WHETHER IT MIGHT REASONABLY BE CONSIDERED CAPABLE OF:
• UNDERMINING THE CAE FOR THE PROSECUTION AGAINST THE ACCUSED OR 
• ASSISTING THE CASE FOR THE ACCUSED.

OBJECTIVE TEST THAT SHOULD BE APPROACHED IMPARTIALLY!

When does common law apply to disclosure instead of the CPIA 1996?

If the thing that needs to be disclosed happens before mags court plea or case is sent to CC common law applies.

CPIA 1996 comes in place for disclosure once plea entered in the mags or case sent to CC.

• What are the requirements for an indictment to be served?
• What statute sets out these requirements?

The Adminstration of Justice (Miscellanous Provisions) Act, 1933, s.2 (2), provides tht no draft indictment may be served unless:

• The accused has been sent to trial ( pursuant to sectio 51 or 51A of CDA 1998).
• A High Court judge has directed or consented to the preferment of a volutary bill of indictment
• Crown Cour judge has consented to the preferment of a bill of indictment following a declaration by the court approving a deferred prosecution agreement (purusant to the CCA 2013 sch 17 para 8 (1).
• The court of appeal has ordered a retrial.
• Indictment can also be preferred were a prosecutor reinstiutues proceedings after custody time limits  have expired .
• When there is a deferred prosecution agreement. The prosecution agreement needs to act as a catalyst for the suspending of the proceedings pursuant to the the terms of the agreement.

• Important not to self it is not a cumplsory prerequisite for an indictment to be signed.
• IT DOES NOT NEED TO BE SIGNED BY A PROPER OFFICER OF THE CROWN COURT - Although, this was the case previously.
• Uploading indictment to a diglital system is sufficient for that indictment to be preferred for the purposes of Crim PR 10.3 an 10.4.
• The court is able to determine which indictment should be purused @trail.
• Indictments should be labeleed as they are uploaded to the digital system to make their status clear.

Do indictments need to be signed by a proper officer of the crown court?

Is a digital upload sufficient for an indictment to be preferred?

In the majority of cases will be drafted electronically when the case is sent.

Requirements of Draft Indictmen CrimPR 10.2:

• Served on the court 
• Endorsed by a court officer
• When the draft indictment is endorsed the date does not impugn the validty of an electronically served indictment.

* Officer of the Crown Court is required to endosre it unless the court orders otherwise.

Defence and Prosecution Duties re Indictment:
Duty of the proseuction and defence to regularise the position where more than one indictment has been uploaded by the time of trail.

At trial the court should enquire whether there were outstanding issues in relation to the the indictment on which it was about to try an accused before proceeding to do so.

The court should require the prosecution to do the following:

• Identify which indictment they wish to pursue 
• identify which order the defendants are to be listed in on the indictment 
• to ensure the defendants understnad and have been arraigned on that indictment.

Who is responsible for drafting an indictment?

The ultimate repsonsibility for drafting an indictment rest with the prosecution.

The prosecution MUST  ensure that the indictment is in proper form before the arraigment.

This responsibility of the prosecution should do 2 things:

• releive the staff of the Crown Court 
• Feweer apeals to the Crown Court based on defective indictments.

Revision Questions:

• Who is responsible for drafting an indictment?
• What does this responsibility mean eg: what must be done?
• What is the aim/ motive behind this responsibility imposed on the prosecution?

• Unless the draft indictment has been generated automatically on the sending of the case to trial,
• A draft indictment should be served on an appropriate officer of the Crown Court within 20 BUSINESS DAYS on the date on which:
• Copies of the documents are served where a person is sent for trial under CDA 1998 S 51 
• OR
• A High Court judge has consented to to the preferement of a voluntary bill of indictment under CrimPR 10.5 (2).

Can this time limit be extended?

• Yes, the time limit can be extended.
• This can be done even after the time limit has expired.

Is ther e a speicifc way an application should be made? Or should an application form contain specific things?

• No specific rules surrounding this.

Revision Questions:

• What is the time limit for serving a bill of an indictment?
• This is 20 business days from what?
• Can this time limit be extended? How can an extension be obtained?
• Are there any rules that govern this?

Subject to the rules on when counts and/or defendants are sufficiently closely linked a draft indictment MAY include charges for ANY indictable offence disclosed by the evidence served under the regulations for the service of the prosecution case after the accussed has been sent.

However, it is most common for the counts on an indictment to follow the ORGINAL charges.

Where the drafter chooses to include an offence in respect of which the accused was not sent thhe drafter needs to do the following 2 things:

• Be careful to ensure that the offence is in fact disclosed by the statements 
• Drafter MUST ALSO ensure that as much notice AS POSSIBLE of such charges is provided to the accused.

Unless an indictment is generated electronically it should SUBSTANTIALLY follow the form given in the CrimPR.

Weirdly no such form is set out.

Basic requirements that are to be followed:

• Each offence charge should be set out in a saparate paragraph or count.
• If there is more than one count they should be numbered.
• Each count should be divided into a statement of offence and particulars of an offence.
• The statement of an offence describes the offence shortly in ordinary langiage
• If offence is stautory should state the law (By section and subsections) which have been broken.
• Particulars of offence should give such particulars as is neccessary for giving reasonable information on the nature of the charge
• Needs to make clear what the prosecution is alleging against the Defendant.

Summarise the layout of an indictment ? When does this layout not need to be followed?

An indictment should contain the date of the offence as so far as is known.

eg. On the 1st Janary 2020.

If the precise date is unknown it is sufficient to sayy on or about 

Where the on or about formula is issued the evidence must show the offence to have been committed wihtin some perdio dthat ahas a reasonabele approximation to the date mentioned in the indictment.

Summairse all you know about the date of the offence and what needs to be included on the indictment?

What is the rule against duplicity?

• The rule that one count (in an indictment) many only allege one offence. + also requires that a count must allege that an offence occurred on one day not on several days.
• Exception to this rule: where an offence is properly to be regarded as a continuing offence which may take place continuosly or intermittently over a period of time , than a count can properly allege that it occured on more than one day.

Clear examples of continuos offences:

• Conspiracy : this begins when parties enter an unlaw agreement and continues until the unlawful agreement ends.
• On the face of it, theft is not a continuos offence - however were the allegation is that the accused stole 10K from till between September and Feb and there is no denitive date that D took X amount from the till this would be classed as a general deficiacy case and is llikely to be deemed a continuos offence.
• Another example of deficency case - Prosecution know that the 1OK was taken between Sept and Feb but they do not know exactly within this period the money was taken.

• What is the rule against duplicity?
• What is the exception to the rule?
• Can you give examples of offences that are likely to fall under the exception?
• Does theft fall under this exception?
• In what circumstances does teft fall under this exception?

When are specimen/ sample counts used?

D is accused of adopting a systematic course of criminal conduct and it is not appropriate to allege a continous offence or multiple offending count.

The choice of count that the prosecution decide to use in the indictment are dependant on the particular circumstances of the case.

However, when the prosecution is making this deicison they should bear in mind the implications for sentencing.

Procedure for Specimen/ Sample Counts:

• The defence should be provided with a list of all the similar offences of which it is alleged that those slected in the indictment are samples;
• evidence of some or all of these additonal offences may in appropriate cases be led as evidence of system;
• in other cases, the additional offnces need not be referred to until after a verdict of guilty upon the sample offence is returned.

What are the potential problems with specimen/ sample counts?

Potential problems arise with specimen counts in relation to sentencing becuase the accused should not thereby be denied the right to be tried by a jury for offenciding for which the accused may ultimately be sentenced.

The court may order a separate trial unless the offences to be tried together (i) are founded o the same facts or (ii) from or part of a series of offences of the same or similar character.

When deciding this the court's exercise their discretion.

Court may exercise it's discretion to order separate trails if the court is of the opinion:

• D would be prejudiced or embarrassed in their defence eg offences to be tried are unrelated.
• For any other reason it is desirable there be separate trails.

Both the Indictment Rules and the Criminal Procedure Rules Apply.

As a result cases involving joinder of counts in an indictment should be approached with a degree of caution.

Leading Case of Newland:

• Severance of a joinder can take place even when the indictment is invalid.
• In case where it become apparant there is an invalid joinder case can proceed if the indictment is ammended to delete one of the offences.
• Just because an indictment contains an improperly joined offences this does not automatically equate to a nullity.

Summarise the three main takeways from the case of Newland ?

Toner 2019:

Where the evidence on one count would be properly admissable on the other as evidence of bad character it is difficult to argue that the defendant would be prejudiced or embarrassed in his defence by having both counts or sets of ***** on the same indictment.

LIMB 1

Charges will be deemed to be on the same facts providing:

• if the joined offences arose out of a single incident or an uninterrupted course of conduct
• eg counts of arson and murder that relate ot the same fire.
• Joinder where one offence is a precondition of the second:
• Relevant were the latter offence would not have occured in the absence of the first offence.
• For example, D charged with robbery of witness 1 and 2.
• 3 weeks later D locates witnesses 1 and 2 and threatens and intimidates them to disuade them from giving evidence.
• Leading case of Barrell established the test is: whether the charges have a common factual origin. 

Limb 2: Joinder of Offences - Series of Offences of the Same or a Similar Character:

Example of series of offences being of the same or a similar character; Ludlow-

• In Ludlow D robbed 2 public houses in Acton.
• The robberies were in 16 days of one another.

Trial judge refused to hear the 2 counts saparately.

The case was then considered by the House of Lords who provided the following guidance:

• Two offences are capable of constituting a series for the purposes of the Indictment Rules.
• To determine if cases are similar the court needs ot take into BOTH LEGAL AND FACTUAL CHARACTERISITICS.
• To show the existences of a series of offences/ offending the prosecution need to be able to show the nexus between the offending.
• NEXUs: a feature of similarity which in all the circumstances of the case enables the offences to be describes as a series.

Example (but not contained to this) of when a nexus woud be present:

• if the offences are SO connected that the evidence of one would be admissable to prove the other offene and this was in accordace with the rules on similar-fact rule.
• Similar fact rule is NOT required to establish nexus.

What are the two limbs of the test to establish of counts can be joined?

Descirbe each limb?

Summarise case examples of when these limbs have been satisifed?

What is requried for the second limb to be satisifed?

What case provided for this?

If somebody lies during trail can the prosecution use this to make a positive case of D's guilt?

• No they cannot - instead the prosecution can rely on the untruths as evidence in support of guilt.
• This was the case in Goodway.

Facts of Goodway:

• D's lies to the police as to his whereabouts at the tie of the offence where used in support of the identification evidence adduced by the prosecution.
• When lies told by D are used to support argument that D is guilty a LUCAS DIRECTION should be given.

What is a LUCAS DIRECTION?

In summary - it is basically reminding the jury that there are a plethora of reasons why people lie. For example extramarrital affairs.

The jury should be reminded in appropriate circumstances that sometimes people lie for the following reasons:

• to bolster up a just case 
• out of shame 
• a wish to conceal disgraceful behaviour to their family.

When should a lucas direction be given?

• A lucas direction should be given in APPROPRIATE CIRCUMSTANCES.

What are appropriate circumstances?

• This simply means that the 3 examples given in a lucas direction (disgracing family, shame or bolstering up a just case) should not be used in every case irrespective of the circumstances.
• Instead regard should be had to the explaination given to the lie.
• This is becuase focuing on the Lucas examples may mislead or confuse jury. For example, the family explaination is confusing if there is no family relevant to the case the jury is deciding.
• General examples should ONLY be given if they will assist.

Should lies told by a D accused of murder be used to support the case of murder?

• No - but can be IF the jury is directed that the lies can support the case of murder BUT ONLY IF they were sure that they were told to conceal the fact that D had murdered V , rather merely concealing a connection with the death.
• Example evade responsiility for deliberate murder as oppsoed to a provoked killing.

Case of Respondek 

• D on trial for muder 
• Evidence that  D had told many lies to conceal the deth 
• Evidence can be used by the jury to support an inference of murder 
• However
• This was contingent on the jury being cautioned that the evidence could be accounted for by V's death resulting from manslaughter.

Summarise the case of Respondek 

Do Lucas Directions need to always be given?

No Lucas directions do not always need to be given especailly when there is no practical purpose (OTIOSE) in one.

Example - explaination given by D leaves the jury with no option but to convict .

Or where the accused has offered an explaination to the lies and where the judge deals with the explaination in summing up.

In the case of The Four Burge Situations the Court of Appeal held that a Lucas direction is usually required in four situations.

These situations include:

• Where the defence relies on an alibi 
• When the judge thinks it's important, they may suggest to the jury to pay attention to other evidence that highlights lies told, or supposedly told, by the defendant."
• When the prosecution seek to show something said (in or out of court) was a lie and to rely on that lie as evidence of guilt in relation to the charge that is sought to be proved.
• Where the prosecution have not done any of the above but the judge REASONABLY ENVISAGES that there is a REAL DANGER that the jury may do so.

Summarise the 4 situations where a Lucas direction is usually required:

Lucas directions should be tailored to the circumstacnes of the case.

However, the following 2 directions should be given:

The lie must be admitted and proved beyond reasonable doubt 

A lie being told by D is not in itself evidence of guilt as D may lie for innocent reasons so ONLY if the jury are sure that the accused did not lie for an innocent reason can a lie support the prosecution case.

IMPORTANT - THE NEED FOR THE DIRECTION ONLY ARISES WHEN:

THE JUDGE ENVISAGES THAT THE JURY MAY SAY THAT THE LIE IS EVIDENCE AGAINST THE ACCUSED IN EFFECT USING IT AS AN IMPLIED ADMISSION OF GUILT.

An accused cannot be penalised for mentioning facts in a preprepared statement.

• This means if the accussed provides a pre prepared statement that contains the relevant facts and then answers no comment in the rest of the interview they cannot be deemed to not mention a relevant fact if it is included in their pre prepared statement.
• Aim of s34 is to to encourage a suspect to disclose the factual defence not to sanction inferences from the accused's faiure to respond to questions.
• Differences betweena prepreared statement and the accused's evidence may be treated as a le as opposed to s.34 failure to mention a relevant fact.
• Inferences cannot be drawn before a suspect is charged UNLESS questioned under caution by a constable.
• A constable = somone/ police officer responsible for inestigating the offence.
• If no questions are put to D eg - D refufses to leave the cell for questionning then no adverse inferences can be drawn.
• Is it neccessary for specifc/ direct questions to be put to D in interview:
• No. D can be expressly or impliedly asked to give an account of the matter / offence which is the subject of the interview.
• Fact does not have to be stated in answer to a question for it to be mentioned. - if fact in pre prepared statement this is deemed as being mentioned.

Adverse inferences can be drawn under s 34 where the fact is one which the accused should have:reasonably been expected to mention at the time.

IF the accussed gives evidence for the reason for not disclosing the fact this MUST be considered when deciding what inferences if any should bd drawn.

Error in law in T v DPP when the magistrates did not consider why D did not co-operate/ provide the facts in interview.

Adverse inferences can only be drawn where D has no answer or no answer that would stand up to questionning.

Facts from the case of Walton:

• D was not asked at any point about why he failed to answer questions at interview.
• D had made a pre-prepared statement.
• Trial judge gave direction for s.34 adverse inferences.
• Court of appeal deemed this decision to be both wrong and unfair.

ULTIMATELY- ADVERSE INFERENCE ONLY ACCEPTABLE WHERE D HAS NO ANSWER OR NO ANSWER THAT WILL STAND UP 2 QUESTIONNING !!!!!!!

Facts from the case of Hillard

• D's only chance to mention a fact was when a witness statement had been read to him in interview.
• D was not told to correct any statement with which he disagreed.
• It was deemed "wholly unsafe" to seek to draw an adverse inference since D had never had the opportunity to deal with the matter
• Even though he ought to had thought that the fact was important enough to mention.

Range of factors will be taken into account when deciding what facts D should have shared these include: accused's age, experience, mental capacity, hralth sobriety, tiredness and personality.

Case of Argent 

• Established a difference between a straighftorward case where facts would be expected to be mentioned and a complex fraud or conspiracy where an immediate response would not be expected.
• False promises being made to purchasers + d believing the promises were true 
• Was not deemed to meet the Argent complex case test.

Failure of the interviewer to provide the relevant information when asked to do so by the legal advisor or the accussed is a factor which can make it improper to draw an adverse inference.

• D arrested for assaulting K. Did not known the specific details of the assault. eg was C allegedly to have hit her or kicket her etc
• D failed to mention it was case that K had made the allegation that was against him up.
• Adverse inferences were drawn as this was found to be something that D should have mentioned.

Also it has been established that an adverse inference can be drawn even when:

• No evidence was presented to D
• No specific questions were asked of D

Longer the interview - more detail expected from D - thus stronger adverse inferences in D was in a lenghty interview and failed to mention important and relevant things.

Facts from the case of Hoare

D was producing a class B drug.

D's defence to this was that D believed that they were procuding the class B drug to help develop a cure for canacer.

In interview D answered no comment to all questions.

D answered no comments as this was the advice of his lawyer.

Lawyer thought there was insufficient evidence against D at that stage.

In cross examination D provided the following reasons for not sharing the explaination:

• D was stunned and surprised.
• D diid not have much sleep
• 'most people would follow the advise of their lawyer.

Case established the question for the court to consider is: Did D remain silent becuase of advise or becuase they had no satisfactory explaination to give.

• Summarise the facts of the case of Hoare?
• What is the test the courts will consider re inferences from silence and non-production of evidence?
• Summarise facts of other cases re this matter in Blackstones:
• Karapetyan 

Key Points/ Facts from Cases in Blackstones:

Karapetyan:

D was silent as he preferred solicitor was unable to attend the interview and has advised him to make no comment.

D's reason for silence was not disputed.

The jury concluded that D could have reasonably expected to have been mentioned.

D's fact relied upon was as follows:

• D was not a driver who had given false details to a police officeer 
• The offender was ppropnably a man to whom  had rented the car 

Summary of important takeaway point: If D has no GOOD defnece and is trying to use the legal advice thing as an excuse an inference may be drawn. However, if D has a good defence  but remained silence becuase of legal an inference may not be drawn.

• It is permissible to draw PROPER INFERENCES where the fact that D failed to mention is one that D could reasonably have been expected to mention.
• Can sraw inferneces that APPEAR PROPER in light of the failure.

These inferences can include the following:

• Determination of guilt (IMPORTANT - AN INFERENCE ALONE IS NOT SUFFICIENT FOR A CONVICTION).
• Whether there is a case to answer 

What are the most common inferences from failure to reveal facts which are subsequently relied?

• Dishonesty - eg D has invented the facts/ come up with the story after interview.
• D has the facts in mind at interview but he did not want to share them as it will open them up to scrutiny -eg if D said they were at their Mum's house @ the time of the murder the police could interview mum or the prosecution could witness summons the Mother.
• D has 2 choices: lying or self incrimination by telling the truth 

• What type of inferences can be drawn from silence / failure to mention a fact?
• What are the common inferences that are drawn?
• Is the judge able to make comments?
• What inferences are not allowed to be drawn?
• Can D be convicted solely on an inference?

Even if it is not disputed that D shared their alibi with their lawyer before the interview but failed to mention the alibi in interview = inferences can still be drawn.

IMPORTANT NOTE - RECENT FABRICATION IS NOT THE ONLY INFERENCE THAT CAN BE DRAWN!!!!!!!!

Where the inference drawn by the prosecution is not recent fabrication and is less severe this should be clearly brought to the jury's attention when summing up !!!!

What should a judge do when D says their reason for silence was legal advice but fails to explain the reasons for the legal advice?

Judge should be PARTICULARLY CAREFUL to avoid directing the jury in such a way as to indicate that the silence is neccessarily a guilty one.

Can judges make fair comments re s34 on the evidence:

• Yes but this is subject to the judge providing the proper directions.
• Judge is not obidged to sit quiet.

What are examples of the fair comments that judges can make?

• Judge can comment on Defence argument - eg D says acting on advice of lawyer. Judge can say that D is on trial for murder not the solicitor.
• Judge can repeat prosecution argument in direction.

Questions:

• Can judges make comments re s34
• If so what types of comments can they make?
• Can you give examples?

Where inferences are going to be drawn pursuant to s34 CJPO a clear, judical direction will be required?

• The direction should address:
• The nature of the inference that may properly be drawn.
• The Crown Court Compendium gives guidance to the content of the directions.

Summary of Guidance:

• A reminder the accussed was cautioned. Right to say nothing but inferences may be drawn.
• Identification in consultation with facts that were not said earlier but that are now being relied upon in the defence.
• Any reasons for a failure to mention these facts 
• Conclusions that it is suggested might be drawn
• Consider whehter the prosecution case at the time of the interview clearly called for an answer . Any explaination - other than D had no answer @ the time that would stand up to scrutiny.
• Instruction only to draw an adverse conclusion if it is fair and proper to do so
• Instruction not to convict the accused wholly or mainly on the stregnth of it.
• Further guidance from case law: There must be a case that clearly called for an answer on the prosecution case as it stood @ the time of interview.

Failure of trial judge to follow Crown Court Compensdium guidance re s34 verbatim was is not that deep providing that the judge does the following:

gave terms to direct the jury which were correct in law and sufficeint in the cirucmstances of the case.

There is a separate and simple 3 stage test for s34 directions in Magistrates Courts:

• Has D relied in his defence on a fact wich he coud reasonably have expected to mention in his interview but did not? If so what is it?
• What is his explaination for not having mentioned it?
• If that explaination is not a reasonable one, is the proper inference to be drawn that D is guilty?

Adverse inferences that the prosecution intend to rely on should be brought to D's attention in cross examination or to counsel's attention.

Facts of the Case of Khan 

• Court of appeal expressed disapproval as D was not cross examined on adverse inferences nor was counsel informed.
• Important D was not subject to any disadvantage as they did not have a defence to adverse inferences being drawn.

What should a judge do if they suspect s34 may come into play?

• The matter should be raise n time for it to be a matter of evidence as opposed to speculation.
• Trial will be rendered unfair IF prosecution are relying on the accussed's failure to mention a specific fact, it is likely that the omission will render the trail unfair.

Can  a s34 direction be called for when there is more than 1 accussed?

• Yes.
• For example there are 2 Defedants A and B.
• A fails to mention a fact at interview which were reasonable to expect them to mention.
• Adverse inferneces/ s34 come into play.
• However, B may give a direction for adverse inferences not to be drawn as their case is kind of contingent on the success of B's case.

Should a direction be given when the prosecution are seeking to adduce inferences pursuant to s34?

• Is there any guidance for what the direction should contain?
• If so, what is this guidance?
• Does this guidance differ between the Crown Court and the Magistrates Court?
• Does the judge need to adhere to this guidance verbatim ?
• When the prosecution are seeking to rely on adverse inferences pursunat to s34 does defence counsel need to be notified?
• If defence counsel is not notified what is the consequence?
• Explain what happens when s34 is used against more than 1 co-accused?

• At common law inferences were generally not permitted to be drawn from a suspects decision to remain silent.
• This position has been substantially erroded by the CJPO 1994 s34-38.
• These sections specifcy the circumstances in which inferences can be drawn.
• When inferences can be drawn the jury must be properly directed as to which inferences can be drawn.

Section 34 enables the tribunal of fact to draw "such inferences as appear proper" in light of the accused's failure to reveal specific facrs provided that the various conditins set forth in s34 (1).

s34 ONLY applies where a particular fact is advanced by the defence which is suspicious as it was not put forward at an earlier opportunity.

There are 2 aims of s34 :

• deter late fabrication
• encourage early disclosure of genuine defences"
• s34 also applies where D provides an account of a defence but fails to mention a specific fact which later comes to be relied upon @ trial.
• When this happens prosecution / court have discretion ver whether to deploy a s34 .

Case Law Examples of this Principle:

Abdalla

• D immediately disclosed his defenee of self defenced 
• Failed to mention that he believed the victim had a hammer 
• Judge did not give s34 direction and this decision was upheld.
• This is becuase: the mischief of which s34 is directed is the positive defence following a no comment interview and/or the ambush defence.

In the case of Johnson the court said a s34 direction could be avoided where D said enough in interview to set up the line of reasoning for the defnce. So basicaly it is okay for some points of detail to be missng.

Whether the drawing of adverse inferences infringes the ECHR, Artice 6 is a matter that will be deterimed taking into account:

All the circumstances of the case which include:

• situation where inferences may be drawn 
• weight attached to the inferences by the national court 
• the degree of complusion inherent in the situation 
• Of particular importance is the terms of the judges direction to he jury.

What is the consequence f the judge failing to give proper direction?

This failure does not autoamtically equate to a breach of Articl  or render the conviction unsafe.

sections 36 and 37 of the Crimina Justice and Public Order Act 1994 deal with an accussed's failure to account for objects, susbtances, marks and presence.

• Important notes re s36 and 37 
• An authorised place of detention = a police station and other locations prescribed by the order.
• s36 and 37 are based on the Irish Criminal Justice System.

An inference can only be drawn under the above sections if the following 4 conditions are satisfied:

• The accused is arrested 
• A constable (it is not a requirement for the constable to be an arresting officer) REASONABLY believes that the object, substance or mark or the presence of the accused at the releveant place, may be attributable t the accused's participation in a crime 
• The constable informs D of their belief and request for an explaination for the matter in question 
• The constable tells the suspect in ordinary language the consequences of failre/ refusal to deal with the request.

The above four requirements can be satisified when an arrested person is confronted with incriminating circumstances before being taken to the police station for interview.

However, this is not the NORM.

Under s36 and 27 only PROPER INFERENCES can be drawn. The jury MUST be satisifed that the accussed has failed to account for the relevant matter.

Any explaination advance by D should be rejected as implaussible before an inference can be drawn.

Facts from the case of Connelly:

• D given opportunity to explain 
• his presence at a crime scene 
• presence of an incriminating receipt found in his pockets.
• D declined and opted to remain silent during interview.
• The following inferences were drawn:
• D was determined to sit out interrogation, assess the strength of the case against him, and if charged present a version of events which would not be undermined by earlier statements made by him.

What are the 4 requirements that need to be met for inferences to be drawn under s36 and 37?

Is it compulsory that the question take  place at a police station?

section 36 is concerned with the state of the suspect @ the time of the arrest.

Does not matter how much time passes between the offence and the arrest.

This was demonstrated by the case of McGeough 

• D identified by scarring on his body from bullet wound 
• Failure to account for scaring was sucject to many adverse inferences at the trial that took place in 2010.
• Incident was originally committed in 1981.

IMPORTANT NOTE - Neither section 36 nor 37 permit for adverse inferences to be drawn re the state or location of the accussed at times other then when D is arrested.

• s37 only applies when D was found @ the location of the crime "at or about the time of the commission of the alleged offence.
• Example: suspected ****** can be asked about stain on trousers but not about why they are not wearing trousers UNLESS the trousers had been discarded nearby.

An inference drawn under s36 and 37 may contirbute to guilty verdict.

However these inferences alone cannot result in someone being found guilty.

Admissibility of Hearsay Evidence:

In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if; but only if:

• Any provision of this chapter or any other staturoy provision makes it admissable 
• Any rule of law preserved by section 118 makes it admissible 
• All parties to the proceedings agree to it being admissible or 
• the court is satisifed that it is in the interests of justice for it to be admissible.

Hearsay can make proceedings unfair and thus there are 2 things the court needs to do when dealing with the evidence:

1. Hearsay is recognised and treated as hearsay

2. Hearsay is ONLY recieved in evidence where the appropriate safeguards are in place.

• Revision Questions:
• List the 4 scenarios where hearsay evidence will be admissable.
• What 2 things do the court need to do when dealing with hearsay evidence?

What is hearsay: evidence that is given second-hand which is given in one of the following ways:

• related by a person to whom the absent witness has spoken about 
• contained in the written statement of the absent witness 
• given in the form of a document or record created by him or otherwise

A statement will not be hearsay if the person who made it did so not intending for for the statmement to be believed or to cuase a person or machine ot act as if the statement was made.

Hearsay applies to both prosecution and defence.

Hearsay includes the following:

• past statements made by a witness who is called to give oral evidence 
• statements made by non-witnesses 

Hearsay applies to all oral statements (not those made in anticipation of trial) AND to documents.

Define statement:A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.

Definition of a statement is to be read in conjunction with the defintion of matters stated.

A matter stated is:

The persons intention who made the statement was to do the following:

• cause another person to believe the matter 
• to cause another person to act or a machine to operae on the basis of the matter being stated.

Revision Questions-

• What is the definition of hearsay?
• What is the defintion of a statement?
• Define a matter stated?

When will a witnesses out of court statement not be tendered as hearsay?

Use of witnesses previous inconsistent statement is not hearsay when tendered merely to show inconsistency. 

s119 of the Criminal justice act enables any previous inconsistent statement that is properly proved can be used as evidence of ANY MATTER STATED.

When tendered as evidence of consitency. (However, using previous statements to demonstrate consistency is often disinhibited by the rule against narraitve aka the rule against self-serving statements).

Where in the unusal circusmtance a statement like that above is admissible ^^^^^^^ s 120 of the Criminal Justice Act may apply to make the statement admissible regarding a matter of which oral evidence would have been admissible if given.

Hearsay evidence can only be generated by a person - therefore evidence that is produced by a purely mechanical process cannot be deemed as hearsay.

Nontheless, juries and courts are still able to see the following mechanically produced evidence:

Photos taken by a security camera during an armed robbery 

Video recording of an indicent 

To hear a tape recording of the relevant conversation.

Also a person who saw the video footage of the crime can give evidence as to what they saw as they are in the direct view of the action.

Evidence can only be hearsay if it is RELIED on as a matter stated.

Examples of reliance on a matter stated include:

A gets into car accident. B witneses car accident and tells A what the car registration was of the car that hit them.  It would be hearsay evidence if A told the court what the number plate was.

However, B can give evidence of number plate by refreshing their memory from a note that A made re the number plate.

Labelling of items - eg LV bags that say made in China or gucci that says made in Italy. This can be done via a mark or a stamp. This evidence is likely to be reliable however the hearsay point should still be taken to ensure that the hearsay can be properly assessed and that the hearsay is not nodded through.

Parties to a conversation conducted by aninterpreter. 

Example: A and B are speaking but there is a language barrier so they commute via interepreter C. A is not happy and takes B to court and is seeking to pove what B said in the conversation by relaying what he was told by the interpreter. This equates to hearsay.

Police officer who attest that D is a known herion user will also be hearsay evidence providing that the basis of this knowledge/ belief is information provided by others.

Care must be taken to ascertain the matter-stated. 

• This is becuase there may be more than one matter-stated in issue.

Example of when there was more than 1 matter-stated issue:

• D on trial for murder.
• D's defence was that A committed the murder.
• A confessed to B that he committed the murder and C heard this confession via voice recording.

The issues in question were:

• the content of the recording.
• and whether A's voice was the voice on the recording.

section 115 (3) of the Criminal Justice Act 2003 is to reverse the hearsay aspects of the decision in the case of Kearley.

Facts of Kearley:

D was arrested for the intent to supply drugs.

When police were at D's house, D received several phone calls from customers trying to buy drugs.

This was inadmissble as it was prior to 2003.

However now this would be admissible as hearsay evidnece for the following reasons:

• The callers were not seeking to mislead the police or the prosecution.
• Nor were they intending to exagerrate the facts on which the prosecution were relying.

Test / When s115 (3) applies:
1.Ascertain the matter sought to be proved (if the matter sought to be proved is relevant can proceed to second step.

2. Is there a statement of that matter in the communication. If no there is no question of hearsay.

3. Was one of the statement makers purposes:

To ensure the receipient or any other person should believe that matter or 

A person should act upon the basis of the statement.

If yes = hearsay.

If no = no hearsay.

What is the 3 stage statutory test under s115 (3) to prove that a statement is hearsay.

Twist

• prosecution relied on text messages to D to prove he was supplyin drugs.
• Messages requesting for more drugs did not provide any statement that D was the dealer.
• Even if this could be infered  it was not the senders purpose to make anyone believe D was a dealer or behave in a way consistent with D being a dealer. Thus there was no hearsay.

Lowe 

• D = Lowe 
• D charged with his girlfiend 2x after they had an argument.
• D's defence was the GF consented. 
• Sex was before the argument.
• Messages to GF allegedly apologising for the **** were deemed to NOT BE HEARSAY.
• This was becuase L was not seeking to make the complainant beleive that she had been *****.

Khan 

A +B both referred to D by a nickname.

Proseuction were trying to suggest that D was well known to A+B however there was NOT HEARSAY EVIDENCE

Noble

• D accused of murder 
• text messages between D and D's GF about a gun in D's possession.
• No hearsay 

Doyle 

• Proseuction aim = prove D had been in possession of drugs from text messages from the person who received the package.
• Messages claimed that D had stolen drugs from sender of message.
• Message demanded that D returned the drugs.
• Message demanded D act on the allegation of stealing drugs eg demanded that D return the drugs.
• This was deemed to be hearsay.

Another example of hearsay = the licence that prisoners are released on !!!!!

Important takeaway point:

There is usually a common intention between the parties to the communication that rendered the evidence non-hearsay.

Example of something not being hearsay:

• C was allegedly ***** by A.
• B supported A organsie and set up the ****.
• After C was ***** B texted C and said "sorry RU mad at me?"
• Concluded that the text should have been excluded under s78 of PACE.
• Text was not hearsay as he was not trying to make C believe that she had been *****.

For a statement to be intended to be believed (a requirement of hearsay evidence) it needs to be directed at another.

Examples of statement not being directed @ another:

C's personal diary which was intended for her sole and personal use in which she detailed sexaul abuse she suffered from her uncle was not hearsay evidence.

NOT HEARSAY EVIDENCE BECAUSE IT WAS INTENDED FOR C's OWN PERSONAL USE.

Examples of statement being directed @ another:

Diary made most in the form of a record with some entries being made by a third party.

Where a statement about one's state of mind is made with the intention of causing another to believe it this is hearsay under 115 (3).

A statement from which a state of mind can be inferred is NOT HEARSAY  as it is not a matter stated.

Example of State of Mind not being hearsay:

• D accussed of murder of A in revenge for A killing B.
• For several months, D had kept a letter written by a third party.
• The letter protested that B's death was not a revenge killing.
• This was non-hearsay evidence in relation to D's state of mind.

HEARSAY RULE EXEMPTION 

The normal hearasay rule does not apply when the statement is relevant.

• Example: D alleging duress namely threats from terrorist group.
• D gave evidence of the threats to help court understand why he would be compelled to commit the crime.
• The aim wasn't to prove the threats were true but to show that if the defendant believed them, they could make him fear immediate death if he didn't follow the terrorists' demands.

• - In Davis [1998] Crim LR 659, the defendant (D) didn't disclose important facts during a theft investigation.
• - During the trial, he wanted to talk about what his lawyer told him before the interview, but the hearsay rule was cited as a reason to prevent it.
• - The Court of Appeal clarified that if D's purpose was to show the impact of the advice, not to prove it true, the hearsay rule wouldn't be violated.
• - The jury could consider D's reasons for not revealing facts in deciding whether to draw an inference against him under CJPO 1994, s. 34.
• - In Roberts v DPP [1994] Crim LR 926, a statement (an advertisement) could be used to prove the defendant's knowledge without violating the hearsay rule.
• - For example, if D denied knowing certain premises were a brothel, an ad he tried to place referring to the premises and mentioning 'many stunning masseuses' could be admitted as evidence that he did know.

A statement that is obviously false can be seen to indicate a guilty conscience.

• A lie cannot be hearsay fr a matter which it did not wish to assert.
• Statement made which contained the details of the alibi could be tendered in evidence by the prosecutiion without breaching hearsay rules.
• What matters/ is signficiant is that the statement was said/ made.

General rule: hearsay is not permitted however there are four exemptions.

These exemptions often overlap.

Examples of overlaps include:

first-hand hearsay evidence of violence from a deceased victim likely to be admissible under s116 or res gestae if made under the influence of the event

letter written by Dr who has now deceased to D's stepdaughters doctor informing the of thier belief that D is responsible for the pregnancy admissible as first hand hearsay (s 116) or as a business document (117).

Criminal Justice Act 2003, s. 114

(1)     In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

•  (a)     any provision of this chapter or any other statutory provision makes it admissible,
•  (b)     any rule of law preserved by section 118 makes it admissible,
•  (c)     all parties to the proceedings agree to it being admissible, or
•  (d)     the court is satisfied that it is in the interests of justice for it to be admissible.

What are the 4 exemptions that hearsay evidence can become admissible under?

As well as the 4 exemptions that are additional safeguards for hearsay evidence.

The aim of the additonal safeguards is to ensure that the fairness of the trial is not adversely affected by the hearsay evidence.

These include:

• s124 - testing the credibility of the statement maker who does not attend to give evidence at trial.
• s125 - deals with the power to stop a case where the evidence is unconvincing.
• s126 - provides a specific discretion to exclude hearsay evidence.
• All prosecution evidence is subject to the courts general powers of exclusion which is governed by s 78 PACE.
• Judge MUST give direction where hearsay evidence is received.

Difficulty of hearsay evidence that is admitted via unaivailabiltiy of witness (116) or in the interest of justice (114) is the risk of unreliability and the extent to which reliability can be tested.

Case of Riat develped 6 stage test for this.

•  Is there a specific statutory justification (or 'gateway') permitting the admi**ion of hearsay evidence (**. 116 to 118)?
•  (b)     What material is there which can help to test or assess  the hearsay (s. 124)?
•  (c)     Is there a specific 'interests of justice' test at the admi**ibility stage?
•  (d)     If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admision is, despite the difficulties, in the interests of justice (s. 114(1)(d))?
•  (e)     Even if prima facie admissiible, ought the evidence to be ruled inadmi**ible (PACE 1984, s. 78, and/or CJA 2003, s. 126)?
•  (f)     If the evidence is admitted, should the case subsequently be stopped under s. 125?

Important : There is no rule that inhibit hearsay being introduced into the court if it the only evidence or the most signficant evidence HOWEVER the significance of the evidence is crucual for many decisions.

When a judge deems hearsay permissible and admits it a direction will need to be given.

It is important the direction is:

given before speeches - this is to enable counsel to alter their speeches and where appropriate make submissions on the content of the proposed hearsay direction.

Direction should be given before the evidence is heard and repeated in the summing up.

Notice is needed of hearsay evidence in the following circumstances:

• The hearsay is admissible in the interest of justice 
• A witness is unavailable 
• Statements prepared for criminal proceedings 
• Multiple hearsay under section 121 

No notice is required for hearsay that is admitted under the following exceptions:

• Common-law exceptions 
• Documents admissible under section 117.

Unclear whether notice is required for hearsay that is admitted by mutua agreement between the parties.

• Important - courts can accept hearsay evidence even if the notice requirement has not been complied with. Additionally, the party who has the right to receive notice can waive this right.
• Failure to comply with these rules can result in a conviction being quashed.
• Court is not obliged to grant leave to a co-accused who fails to comply with the notice procedure.

Starting point: hearsay is not automatically permitted.

• particularly "hearsay cannot be nodded through or adduced as a matter of routine, but must be carefully handled with due regard to its signficance n the case and the possible weaknesses of hearsay evidence.
• The scheme to ensure that the hearsay that is relied upon is safe is decribed in 17.3
• In most cases this is done by PACE s.78 - used for 116 and 117.
• 126 can exclude both prosecution and defence evidence.

Starting point for the assessment of the admissability of any evidence is:

"the neccessity for resort to second-hand evidence must be demonstrated".

Fair - does it satisfy one of the conditon sin 116.

Rigorous assessment of whether the condition is itself made out. - particular regard is geven to this when dealing with witnesses who are absent becuase of fear.

S116 ONLY applies to first-hand hearsay. 

What does this mean? 

When the statement maker makes a statement but it is unclear whether the statement is based off of personal knowledge or something that the statement maker has been told the statement should not be admitted.

Case Law Facts of Kadir 

• Witness outside of the UK 
• It was not reasonably practicable to secure his attendance at D's trial.
• It was unclear whether the statement the witness was making was from their own knowledge.
• Therefore it was not admissible.

The person who made the hearsay statement MUST be identifiable.

This is to enable the other side to challenge ceredibility and invoke s124 to susbtitute the right of cross examination.

Important s116 cannot be applied to anonymous witness.

Case Law Facts from Ford:

• Unknown witness wished to remain anonymous 
• Uknown witness handed the police a note containing the registration number of the getaway car.
• Held that the note was inadmissible.

Rule about evidence from unknown witnesses being inadmissible ONLY applies where the witness has expressed a preference to remain anonymous and it does not apply to witnesses that are untraceable.

If a witness is untraceable the evidence provided is likely to be admitted under common law - RES GESTAE and s114. 

Can evidence from an unknown witness ever be received into the court:

Under common law - RES GESTAE 

Under the interest of justice execpetion s114.

What type of documents does s116 usually involve?

• Typically concerns statements in documents.
• However, the following can also be tendered:
• Oral hearsay statements 
• Statements made by conduct 

Case Law Example from Musone:

• V had just been stabbed.
• V was asked "what happened mate?"
• V replied Musone had just stabbed him.
• This statements was admitted at D's trial for murder.
• Likelwise gesture or sign language identify the guilty party can be admitted.

What does section 116 (5) do?

Prevents a person from being able to rely on any hearsay statement by a potential witness where that person or someone acting on their behalf is responsible for the absence of the witness in order to prevent a witness from testifying.

Case Law Example - Case of Rowley 

Defence prevented from relying on the record of interview from T.

This was becuase:

• T was threatened by D.
• T subsequently fled abroad.
• D subsequently wish to refer to the part's of T's statement that were favourable to them.
• D was unable tko do this becuase of section 116 (5)

116 (5) is directed against a party to the proceedings. DOES NOT APPLY TO EVIDENCE O A COMPLAINANT. who had caused her own absence by committing suicide.

What do the courts do when a witness dies?

• The courts may move straight to the consideration of whether the principles of trial fairness permit the witness' statement to be adduced.
• What happens if a witness claims to be unfit?
• Further investigation to ensure that the witness is genuinely unfit and that the condtion of unfitness is satsifed.
• Case law example - Bennett
• The witness statement of a mentally disordered women rightly received under s 116 (2) (b) of the Criminal Justice Act 2003.

What makes a witness unfit?

• A witness is deemed unfit based on if they attending court what would their ability be to give evidence. It does not focus on the witnesses ability to physically get to court.
• Includes unfitness through any condition.
• Judges are entiled to take into account what the impact of giving evidence will have on witness eg increasing the witnesses likelihood to commit suicide.
• Not neccessary for someone to be unfit becuase of a recognised mental illness - a witness can be unfit from the trauma of being sexually assaulted (for example).
• Evidence indciating that the witnesses condition is made worse by stress but not indicating clearly that the witness is unfit is not sufficient for the women to be deemed to be unfit.

Can the defence challenge the evidence of a Dr who says a witness is unift? YES

How can the defence do this?

1. Defence need to identify proper grounds for wishing to cross-examine a doctor.

2.Once this is done an opportunity should be provided for the Defence to cross examine the Dr.

• What is the consequence of a witness suffering from a mental condtion at the time of making a statement?
• This is signifcant when deciding if the evidence should be exclusing under s123 becuause of the witnesses lack of cuplability.
• Case Law Example of this Eljack:

• V was the victim of an assualt and had serious long-term mental health issues and suffered from delusions.
• His Dr's evidence on the matter was as follow:
• giving oral evidence would make V's mental health worse.
• V was capable of preparing a witness statement.
• If V prepared a witness statement and suffered a deusion @ the time of makig the witness statement this would be very apparant.
• It was held that V's statement was rightly admitted as hearsay.

Sudden Unfitness of a Witness 

• Sudden unfitness of a witness who becomes hospitilised may be a good reason for refusing an adjournment.
• However, the sudden unfitness of a witness IS NOT A GOOD REASON for refusing to consider an application under s.116.

Witnesses Becoming Unift in Cross Examination 

• The trial judge will determine whether the trial in consequence is unfair.
• When doing so the trial judge is entitled to bear in mind that a witnesses whole evidence can be received under section 116.

Starting point:

• It is very rare for an accused to give evidence via hearsay statement.
• However, an accused evidence can be accepted.
• A request can be made to accept an accused persons hearsay statement where the accused is unfit for trial but is fit enough to give sworn evidence in their defence.
• s72 - requiring a Defendant to give evidence under oath does not apply when D's evidence is given in hearsay form.

As D given evidence via hearsay is EXCEPTIONAL AND RARE other avenues should be considereed first and these include:

• Altering the location of the sworn evidence 
• Allowing breaks 
• In summary - rare for D to give evidence via hearsay but this is permitted under s116 where D is genuinely unable to present their account in the usual way of testifying.

What do the prosecution need to do in the following circusmtances:

1. Outside the UK

2.Not reasonably practicable to secure attencance 

3.Cannot be found after reasonable steps 

The prosecution need to do the following:

Provide evidence that they have done what is REASONABLE to expect a party to do.

What is reasonable depends on the circumstances of the case.

• Important the prosecution should be in a position to provide a sufficiently compelling
•  important that the prosecution should be in a position to provide sufficiently compelling 
• detailed reason for the absence of any witness to satsify the requirements of a fair trial.

What do the prosecution need to do in the following circusmtances:

1. Outside the UK

2.Not reasonably practicable to secure attencance 

3.Cannot be found after reasonable steps 

The prosecution need to do the following:

Provide evidence that they have done what is REASONABLE to expect a party to do.

What is reasonable depends on the circumstances of the case.

• Important the prosecution should be in a position to provide a sufficiently compelling
•  important that the prosecution should be in a position to provide sufficiently compelling 
• detailed reason for the absence of any witness to satsify the requirements of a fair trial.
• Good reason for the absence of a witness is not a conclusive reason for a fair trial but it is an important factor.

It is important to keep track of witnesses and their preparedness to testify.

In the case of C 

• A proseuciton witness had a last minute change of heart re attedning trial.
• It was concluded that what is deemed as 'reasonably practicable' must be decided taking into account the steps taken by the party securing to secure the attendance of the witness.
• Further enquiries into the witness' refusal to attend trial should be made.
• Appropriate to provide evidence of whether the witnesses evidence could be provided by alternative methods eg. videolink or some other method which the defence would still be able to challenge the witness on.

McEvoy 

In this case it was determined the the witnesses where 2 German university students evidence should not have been received as hearsay as it was pivotal to whether a child had been indecently assaulted and no efforts had been made to contact students at the uni house + family house in the 2 months before the trial.

If a witness is lost ALL REASONABLY PRACTICABLE STEPS MUST have been taken to get them before court.

This includes looking for the witness if they dissapear but also keeping in touch with the witness to avoid them dissappearing.

Facts of the Case of DT

• D charged with GBH
• The witness claimed that D confessed their guilt of grievous bodily harm to them.
• From the outset the witness expressed an unwillingness to attend trial.
• Despite this, there was no evidence to demonstrate what steps the police had taken to  keep contact with her. These could include: keeping in touch, explaining the witneses civic duty or try to find out where the witness had gone in the months before trial.
• Impossible for a judge to conlcude reasonable steps had been taken.
• It was conclded trials should not proceed without formal inquiry (or atleast an agreed statement of facts on which to base admissibility.

The case of Shah establisehd:

• Telling a judge a witness cannot be found carries with it the implication that efforts have been made to find a witness.
• If no such effort has been made then the judge is being misled.

When has it been held that reasonable steps were taken to secure a witnesses attendance?

In the case of Adams in which:

• No contact with the witness between the trial date being set and the week before trial.
• It was held that REASONABLE STEPS HAD NOT BEEN TAKEN.
• Even though reasonable steps were not taken the evidence was exceptionally admited under s.114 (d).

In the case of Murphy

• No contact with the witnes until JUST before trial.
• However, after this they made efforts to secure the witnesses attendance by doing the following:
• seeking a witness summons which was served on him before he dissapeared and left no address.
• Judge entitled to conclude that the prosecution had taken reasonable steps.

Barnes 

• The witness appeared to be willing to give evidence (with special measures)  until just before the re-arranged trial date.
• After the witness appeared unwilling to give evidence steps were taken to secure their attendance.
• These steps included:
• steps taken to issue witness summons and to track down the witness who had moved away.

Jones

• The case invovled significant domestic violence.
• Complainant went missing.
• No steps were taken to secure her attendance despite prominent concerns about her welfare + indications that she may not appear to give evidence.
• Evidence was admitted as hearsay under exception 114 however this was deemed to be erroneous and it should have been amitted under 116.
• Additonally, an investigation should have taken place into the reasons why the witness could not attend trial.
• Steps could have been taken to secre the witnesses attendance.
• Appreciate these steps may have caused delay but this was not a reason for admitting the evidence as hearsay.

CJA 2003 and Article 6 do not require the fear of the witness needing to be attributed to the accused.

However, there is a requirement that there is a CAUSUAL link between the fear and failure or refusal to give evidence must be proved.

How this is proved depends on the following:

• history of case 
• circumstacnes of the case.

Accussed cannot complain re about an absent witness who provides a witness statement IF the witness is absent becuase of fear of a co-accused.

JURY cannot be told the reason for a witnesses absence when that reason is fear.

A statement of a hostile prosecution witness who is keen to protect D does not fall within the parameters of s116 but may be permissible under section 119 or 114 (1) (d).

If fear appears to be the only reason why a witness does not wish to attend other possible reasons a witness may not want to attend should also be explored.

Case Law Example: Nelson

• Witness was angry at what she deemed to be failures of the witness protection programme
• Witness was anxious about the symptoms of a serious medical conditon and a related medical appointment she had missed when attending court
• More should have been done to ascertain the witnesses definiteve reasons for not wanting to attend.
• Had this been done the judge may have dealt with her differently.

It is unclear the extent to s116 applies to anoral statement made by a witness who later gives evidence.

Case of Clarke

• Victim of a violent burgularly testified that they did not recognise the attacker.
• Off the record the victim told a police officer that they attacker was D.
• There was evidence to show that the victim was scared of D and what he may do.
• D = Violent man.
• Court of appeal declined to conlcude on whether the officer's evidence was rightly admitted @ trial.
• Seems unlikley officers statement was rightly admitted as the victim gave evidence event hough it was unfavourable.

Section 116 (3) makes it clear that fear is to be widely construed and as a result of this fear could include any of the following:

• fear of financial loss
• fear of injury to another 

In the case of Shabir it was concluded: "every effort must be made to get the witness to court to test the issue of fear with a view if at all possible to perusading the witness to give evidence.

In the case of Riat it was that a degree of fortitude can be legitimately be expected in the fight against crime.

Witnesses alleging fear can be cross examinded by the defence with special measures in place. However, this is not appropriate in ALL cases alleging fear and an example of this would be domestic violence as this may be an avenue for worsening apprehension.

Likely that the current position is that the above rule/ guidance provided by the case of Shabir will be followed UNLESS there is evidence (aside from the fearful witnesses testimony) that there is a threat to life or limb.

Case Law Example: Walker

• Witnesses fear was evident from start.
• Witness refused to sign a witness statement due to fear.
• Witness only attended trial because of complusion.
• Absecne of a witness statement caused difficulty @ trial.
• The court of appeal accepted it would have been better to have a signed witness statements, there were some communites that were really against snitching, and that the strategy of keeping tabs on the witnesses, rather than causing him to go to ground was not irrational, unreasonable or indicative of bad faith.

Horncastle- the Court of Appeal stressed that ALL possible efforts should be made to get the witness to court.

Bearing in mind the right and signficiance of the right to confrontation and that intimidation will only flourish if citizens are readily discouraged from doing their duty.

If the circumstances of the case mean that the defence cannot cross examine the witness the judge must investigate all possibilities by which the witness might give oral evidence.

In the case of Fagan it was recognised that a conlcusion of intimidation may still be reached wiithout producing the witness in court.

Failure to enquire when a witness was in court about their ability to testify did not render a convcition unsafe.

Min Fu [2017] EWCA Crim 248,

L= the absent witness,

L  alleged to be the victim of a protection racket and afraid of reprisals.

L's hearsay witness as admitted - L did not testify @ the trial.

As L did not testify at the trial the defence could not cross examine L as to whether D had behaved threateningly towards him, but the Court of Appeal accepted that the judge was entitled to take the view he did, although other judges might have taken more positive steps to get L into court.

One factor was the existence of CCTV footage that appeared to show D directing a violent attack against L. 

• Witnesses should never be assured in advance that their evidence will be read.
• When deciding whether to admit a hearsay statement because of fear under s 116 (4) the court should have regard to the following:
• content of the statement,
• the risk the admission or exclussion will pose of unfairness having regard to the dififuclty in challenging the statement if the relevant person does not give oral evidence.
• Possibility that a special measures direction could be made under YCJEA 1999 in relation to that person. - basically reminding the court that fear can be alleviated/ reduce by special measures being put in place.
• These special measures include:screens, live-link or video recorded evidence.
• Speical measures good alternative to hearsay as the witness can be cross examined.

Case Law Examples:

Robinson v Sutton Coldfield Magistrates Court where the complainant in an assualt case had started a new life and did not want D to know anything about her including where she was living. Before receiving her evidence the justices needed to consider if: any special measures could be put in place to enable the complainant to give evidence in the absence of D discovering where she was.

In Doherty [2006] EWCA Crim 2716, the exercise to be undertaken under s. 116(4) was described as 'not strictly an exercise of discretion but something akin to it', and one which the judge is in the best position to perform.

What is the section 114 exception under CJA 2003:

Statements not made orally will be admissible if the court is satisfied that it is in the interest of justice.

How do the courts determine if it is in the interest of justice to admit under s114:

To decide if the statement being admitted is in the interest of justice the court will have regard to the following:

• probative value of the statement or how valueable is the statement to understanding other evidence.
• What other evidence has been or can be given on the matter.
• How important the matter or evidence is.
• The circumstances in which the statement was made.
• How reliable the maker of the statement appears to be.
• How reliable the evidence of making a statement appears to be.
• Whether oral evidence of the matter stated can be given an dif not why it cannot.
• The amount of difficulty involved in challenging the statement.
• The extent to which the difficulty is likely to prejudice the party facing it.

A judge is not bound to reach a decision on admisability under s114 based on all the factors listed in s114.

All that is required is the exercise of judgement in the light of factors specifically identified, togehter with any others considered by the judge to be relevant.

An exercise of jusgement will ONLY be intereferred with on appeal IF it has involved the application of incorrect principles or it is outside of the band of legitimate deicisions.

Judges enjoy 'a relatively wide discretion' to admit hearsay.

• Important note - there is no requirement for the person who made the statement to be a compotent witness.
• Just matters how reliable the witness appears to be.

Judge and not jury is required to make the assessment in regard to:

• how reliable the statement of the maker appears to be.
• how reliable the evidence of making the statement appears to be.

• Factor (g) requires close attention to be paid to whether there is an alternative to admitting hearsay
• Which inlcude:  bringing  an available, though reluctant, witness to court (Y [2008] EWCA Crim 10).
• In assessing potential defence evidence, it is not the interest of the accused that the court is required to consider, it is the interest of arriving at the right conclusion (Marsh [2008] EWCA Crim 1816).
• A hearing on admissibility under s. 114(1)(d) cannot take account of material that has been presented to the judge on an ex parte application, and that was not available to the defence (Ali v RCPO

• Magistrates Court Act 1980 s8A (1) applies to cases that are going to be tried summarily where D has entered a not guilty plea.
• What is a pre-trial hearing: A pre-trial hearing is a hearing that takes place before the court begins to hear evidence from the the prosecution or if the issue is fitness to plea prior to the court deciding to exercise its powers under the Mental Health Act 1983 s 37 (3) - to make a hospital order without convicting the accussed.
• At pre trial hearings the magistrates may decide ANY question as to admissibility of evidence or questions of law that relate to the case.

Pre-trial rulings can ONLY be made if  2 conditions are met:

• the court has given the parites an opportunity to be heard
• and it appears to the court that it is in the interest of justice to make the ruling.

Pre trial rulings can be made following application from D or P or off of the courts own motion.

Are pre-trial rulings binding? Yes.

How long are they binding for?

• Pre trial rulings are binding until the case is disposed of.

When are cases deemed to be disposed of?

• If the accussed is acquitted or convicted or the prosecutor decides not to proceed with the case or the case is dismissed.

Questions:

• What section of the Magistrates Courts Act deals with pre-trial rulings in the magistrates court where D has pleaded not guilty?Define pre - trial ruling?What things can pre-trial rulings be made on?
• What conditions need to be met for a pre-trial ruling to be granted?Who can apply for a pre-trial ruling?
• Can the court grant a pre-trial ruling?
• How long are pre-trial rulings binding for?

Can pre-trial rulings be varied or discharged?

Yes. Pre-trial rulings can be varied or discharged.

Who can make an application to discharge or vary the pre-trial ruling?

• D or P
• Or the court off it's own motion.

When will the court vary or disccharge a pre-trial ruling?

• It is in the interest of justice to do so.
• The courts have given the parties the opportunity to be heard.
• ONLY if there has been a material change of circumstances since the ruling was made or 
• There has been a previous application made under section 8B2 since that application was made.
• Also helpful if there is a compelling reason. Compelling reason includes change of circumstances or fresh evidence.
• Material existed @ the time of the previous hearing but it was nt bought to the attention of the court.

IMPORTANT NOT SUFFICIENT FOR A DIFFERENT BENCH TO REACH A DIFFERENT CONCLUSION ON THE SAME MATERIAL.

Can pre-trial rulings be discharged of or varied?

Who can apply for this?

In what circumstances will this be granted?

Can you explain what is lkely to be deemed a compelling reason?

Appealig against pre-trial rulings 

There is no appeal process for appealing pre-trial rulings under 8A.

However, if there has been an error in law this can be used for an appeal re appeal by way of case stated once there has been a final determination of the proceedings in the magistrates court.

Important note- the court has a discretion to acquit the accused (WITHOUT A TRIAL) if there has been delay amounting to an abuse of the process of the court EVEN if the proceedings were commenced within the time limit. WHEN ABUSE OF PROCESS OCCURS.

Deliberate Delay

• Where the delay is deliberate it is likely to amount to an abuse of process where the prosecutor deliberately delayed this is likely to be an abuse of process.
• Example of deliberate delay being an abuse of process:  prosecutor deliberately delayed in effecting service of the summons.
• The reason the prosecutor did this was to enable them time to decide whether to continue the case against the accussed.

What if there is a delay but the delay is not deliberate?

D can still apply for the magistrates to exercise their discretion providing the following 2 conditions are met:

• There has been an INORDINATE OR UNCONSCIONABLE delay due to the prosecution's ineffiency 
• AND 
• Prejudice to the defence because of the delay is PROVED OR INFERRED.
• IMPORTANT - IF THE DELAY IS PARTLY ATTRIBUTABLE TO D IT IS UNLIKELY APPLICATION FOR COURT TO EXERCISE ITS DISCRETION WILL SUCCEED.

What does a submission of no case to answer mean?

When the magistrates acquit the accussed on the ground that the prosecution evidence is INSUFFICIENT FOR ANY REASONABLE COURT properly to convict.

Who can make an application of no case to answer?

• Defence.
• Court can make application off of their own initiative.

Regardless of who makes the application - THE PROSECUTION MUST BE GIVEN THE OPPORTUNITY TO MAKE REPRESENTATIONS.

When would the defence make an application for no case to answer?

• At the close of the prosecution evidence.

How do the magistrates/ justices decide if there is no case to answer?

• Might a reasonable tribunal convict - if they would there is a case to answer.
• Submission of no case to answer should succeed if a cnviction would e perverse in the sense that no reasonable bench could convict.

IMPORTANT - NO OBLIGATION ON JUSTICES TO PROVIDE REASON FOR NO CASE TO ANSWER.

Questions:

• What does no case to answer mean?
• Who can make an application of no case to answer?
• When can this application be made?
• What needs to be proved for the application to succeed?

Test for no case to answer : Is the prosecution evidence so tenuos that, even taken at its highest, a jury properly directed could not properly convict on it.

Direction that the Crown Court judge should 'take prosecution evidence at it highest' aim is to leave questions of witness credibility to the jury. - Meaning this is not something that tends to be looked at by justices UNLESS the case is the CLEAREST OF CASES.

Even if the prosecution evidence appears unconvincing however a reasonable tribunal could convict the trial still needs to be able to run.

Prosecution entitled to opportunity to present reasons why there is a case to answer UNLESS the magistrates rule against D's request for application of no case to answer  and indicate this to the prosecutor.

• Criminal Procedure Rule 24. 3 (5) provides that the court convicts D or makes a hospital order instead of convicting D they MUST give sufficient reasons to explain its deicison.
• No requirement for the justices to state their reasons in the form of a judgment or to give reasons in an elaborate form.
• If party wants more details re reasons they can make a request to state a case.
• What is the purpose of providing reasons?
• Inform the defendant of why they have been found guilty.
• Possible for this to be done in a few simple sentences however great care needs to be taken when doing this.

Case Law Example:

• D convicted of tampering with motor vehicle.
• Conviction was quashed because the reasons said D DID NOT SAY ANYTHING TO PERSUADE US THAT HE DID NOT TAMPER WITH THE MOPED.
• Suggested burden of proof was reversed.
• If the court acquits D it may give reasons but it does not need to.

Justices can only find D guility or not guilty for the offence that D is charged.

• D charged for unlawful 
• D found guilty for common assault (summary conivciton)
• The conviction was quashed.

Generally speaking there is no option to find D guilty of a lesser offence unless one of the exceptions apply:

• Road Traffic Offences Act - convicting D of careless driving instead of dangerous driving.
• Theft Act-vehicle taking without consent as opposed to aggrevated vehicle taking.

Applies to both summary and indicitable offences.

D is charged with 2 alternative offences from the start.

D pleads not guilty.

D should not be found guilty of both . Instead D should be convicted of one and if appropriate the lesser offence should be adjourned without a date under the MCA 1980 s10.

This is so the lesser charge can be brought back if appropriate. eg D appeals convcition of greater charge if successful lower chage can be applied.

However for this to be done the 2 offences need to be GENUINE OR TRUE ALTERNATIVES that OVERLAP IN TERMS OF THEIR INGREDIENTS.

Case Law Example:

• D charged with having bladed article & breaching KCPO.
• Both offences arose out of the same incident.
• The offences were not deemed to be alternatives.

Finding D guilty of both would be unfair and disproportionate. Persons criminal record should show what the person has done no more or no less.

Can the courts adjourn cases?

Yes.

When can the courts adjourn cases?

• One or both the parties are absent.
• Witnesses fail to attend.
• When the court adjourns are the required to fix date for hearing?
• Yes if D is remanded in custody.
• No if D is remanded on bail.

If D is on bail and date was not fixed at previous adjourned hearing - when can the hearing go ahead?

• Where the parties have had adequate notice for this the accussed needs to be sent an adjournmment notice.

Scenario: D = 18 or above, D does not show up but the prosecutor shows up. 

• The trial MUST go ahead in the absence of D UNLESS doing proceeding without D would not be in the interest of justice.
• This rule above is slightly different where proceedings were commenced by a summons and the accussed has not answered to the summons previously. 
• In this scenario there is an additional step - It MUST be proved to the satisfaction of the court that the summons (or requisition) was served on the acccused a reasonable time before the hearing.
• Additionally, where the case has previously been adjourned it is neccesssary to satifsy that the accused has had ADEQUATE NOTICE of the adjournment date/ reasonable notice of where and when the hearing will take place.

If the above conditons are satisifed. The hearing goes ahead as if D had entered a not guilty plea.

Prosecution then required to prove the case by the normal standard eg calling oral evidence or by reading statements served on the accussed.

Prosecution able to read statements in the absence of objection and as D did not attend they are not able to object.

If the prosecution evidence = insufficinet - D will be acquitted like normal.

• If the case is proved the courts can proceed immediately to sentence or 
• Adjourn to give the accused notice to attend for sentencing.

D Failing to Turn up 2 Trial Questions

• What happens if D turns up for trial?
• What plea is it presumed D entered?
• What happens if D does not turn up to a hearing after a previous adjournment or invited to hearings via summons?
• What are the 3 possible outcomes of hearing where D does not turn up?

The court should not proceed in D's abscence if there appears to be an "acceptable reason" for D's failure to appear 11(2A).

• s.11(6) provides that the court is not required to inquire into the reasons for the acccused's absence before deciding how to proceed.
• 11 (7) requires the court to state in open court its reasons for not proceeding in the absence of an accussed who has attained the age of 18 and fails to attend.
• Default positon to continue in D's absence when D was aware of the trial. Court not obliged to invesitgate if no reason has been offered.
• If a reason is put forward the court should take this reason into account.

In addition the court should also consider the following:

• the reliability of the information supplied in support of the reasons.
• The date when the reason for abscence became known to the accussed.
• What did the accussed once aware they were likely to be unable to attend trial.
• Accussed in absence can and does result in acquittal on some occassion.
• An accussed who is convicted can ask (can apply by asking under the MCA 1980 s.142) that the conviction be reopened in the interests of justice (examples include involuntary absence) and when D was convited and has a right to an appeal.

Davies 

• D arrived at court for D's trial.
• D committed disordely behaviour ad was removed and excluded from the court building by security.
• Initial held that by D's conduct he had voluntarily absented himself from the hearing.
• However this was overturned on appeal and it was concluded D was involuntarily abscent as D had tried to attend hearing but was exlcuded.
• Someone is also involuntarily absent if they are arrested on their way to court for commiting another offence.

Scenario:

• D does not show up.
• Court decides to adjourn 
• What can the court do secure D's attendance?

If the offence is an offence which D could serve a custodial sentence or if the court hasconvicted D and is proposing a disqualification (this applies to both adults and minors)- a warrent for arrest can be issued.

For the warrant for arrest to be issued the following must be proved:

Summons or requisition was served on the accused within a reasonable time befor ethe trial UNLESS the current trial is a second adjorunment and D was present @ the first adjournment when the date and time for this hearing was set.

• If the accused appears to be avoiding being served with a summons or requistion + the offence is an indictable offence it is open to the prosecution to start proceedings again by seeking an arrest warrant.
• If D is on bail anf fails to attend court an arrest warrant can be issued.

If D fails to show up for trial in the magistrates court the trial:

• MAY GO AHEAD IN D'S ABSENCE IF THEY ARE UNDER 
• MUST GO AHEAD IN D'S ABSENCE IF THEY ARE OVER 18 and it does not appear to the court to be contrary to the interest of justice to proceed in D's absence.

If D was notified of the hearing by issue of a summons or requisition it must be proved:

• the summons or requisition was served in a reasonable time before the hearing.
• or 
• the accused apeared on a peviousoccassion to answer the charge.

• If a plea was not entered on an earlier occassion, the accussed is asked to enter a plea.
• If not D is asked to enter a plea.

What happens at the start of a summary trial?

Opening Speech:

• If D pleads not guilty - the prosecution have a right to make an opening speech.
• The purpose of the opening speech is to summarise what the case is about.

Case Law Example:

• D pleaded not guility.
• Prosecution made opening speech.
• Case was adjourned for a month after the main prosecution witnesses had given evidence.
• The prosecution were invited to address the justices again to help them rejog their memory.
• Defence appealed felt this was unfair.
• Deemed not be unfair providing that the Defence had the opportunity to address the court to address any errors or differences in recollection.

To help the court understand the case and any issues in it immediately after the prosecutions opening speech D can be invited to "CONCISELY IDENTIFY WHAT IS IN ISSUE'. 

However, in most cases this is unnesscary.

• Are the prosecution entitled to make an opening speech?
• Can the prosecution rejog the justices memory?
• What is the purpose of an opening speech?

After the opening speech the prosecution MUST call evidence.

• If prosecution witness attends the prosecution are required to call the witness or atleast tender the witness for cross examination if the defence request so.
• Evidence containing statements of the witnesses that the prosecution intend to rely should be served on the defence and then these witnesses should be called UNLESS and exception applies.
• If this is not served on the Defence than the prosecution retains an unfeterred discretion until the case starts and then in the prosecutions opening speech the prosecution can outline the evidence.

What happens if the prosecution chooses to not to call a witness whose statement they serve on the defence?

The court cannot compel the prosecution to call a witness.

• However, if the court thinks failure to call a witness or certain witnesses will amount to an abuse of process the accussed cannot obtain a fair trial the case can be dismissed as an abuse of process
• OR 
• The justice may call the witnesses themselves - however this is rare as the justices need to remain impartial in the proceedings.

What happens when the parties jointly admit a fact or a party introduces a fact which is also admittted by the other party?

A written record MUST be made of the admission UNLESS the court directs otherwise.

What is the difference between staements being read by consent and a formal admission:

• Witness statements that are simply read out can be accepted or rejected by the tribunal.
• Where the admission is made via s.10 it is conclusive of the matter eg it is proven fact the tribunal do not need to determine it.

Questions:

• What is the procedure when party jointly admit facts?
• Difference between witness statements being read puruant to s.9 and parties admitting facts purusant ot s.10?

Admissibility of Prosecution Evidence being determined under s78 PACE:

• The court has a discretion to hear evidence on the issue of admissibility but it is not obliged to do so.
• May rule on the matter following submissions from the parties.
• Remains a matter for the juscies discretion when they determine admissibility.

Can deal with it when it arises or can leave it until the end of the hearing.

However it is impossibe to set out a general re when such arguments should be dealt with. BUT the aim should always be to ensure that the trial is fair on both sides.

Generally better for the magistrates to hear all the evidence even the disputed evidence.

When the defence object to a confession on the grounds of s.76 of PACE 1984 the terms of s.76 require the following:

Court shall not admit the confession unless satisifed that the confession was not obtained by oppression or by words or conduct likely to render a confession unreliable.

Magistrates and Crown Court are obliged to hear evidence on the obtaining of the confession.

When (in terms in timing) can the prosecution make a closing speech?

After the defence have adduced any evidence they wish and after any rebutal evidence.

In what circumstnaces will the prosecution be permitted to make a closing speech?

• If the accused is represented.
• Or if the accused is represented or not and has called evidence other than their own testimoney. - accussed makes closing speech - than Prosecution makes closing - D can reply.
• D is always given opportunity to reply and thus will always have the last word before the magistrates make their decision.

Can a party introduce evidence or make representations after their allocated opportunity?

• Yes but this is @ the court's discretion.
• Court should generally refuse to do this UNLESS there are exceptional circumstances.

Justices legal advisor = legal advisor in the magistrates court 

Statutroy functions of a justices legal advisor are set out in the Courts Act 2003 s 28 (1).

Legal advisers can do the following things:

• advice justices on legal matters (including procedure and practice), on questions relating to the discharge of their functions, questions arising when a person is not personally attending on them.
• and 
• bring points of law to the justices attention.

Additional functions for leglal advisors when advising lay justices.These include:

• provide the court with ANY legal advice that it needs to carryout its functions (whether the courts ask for this advice or not).
• The advice could include: questions of law, mixed (legal and factual), matters of practice and procedure, relevant judicial decisions that bind the court,the process to be followed to reach a deicision, range and penalty orders available when sentencing, matters to be taken into account in accordance with any relevant sentencing guideline.
• If advice is given in private the parties should be informed of the advice and be given the opportunity to make representations to the court re the advice.

Important - legal advisers can ask questions on the courts behalf to clarify representationsand evidence. Same if parties are represented or unrepresented

• Advisers also required to do the following:
• making the note of the substance of any oral evidence or representations 
• Marking as inadmissible any parts of written statements introduced in evidence that are ruled inadmissible 
• ensuring record kept of courts decisions and the reasons for them
• making any annoucment 

• If needed the adviser should assist with the writing of reasons for a decision.
• Advisers must avoid appearing as if they are advocating for a party.

As the following principles apply to advisers: 

• independence 
• impartiality
• integrity
• propriety 
• competence
• diligence 
• ensuring fair treatment

When a party has no legal representative?

The adviser should assist the party to understand the following:

• What the court requires and why 
• To provide information required by the court to prepare for trial or to enable the court to carryout its functions.
• Or if neccessary make representations to the court or to give evidence.

General principple that D should be present throughout the trial.

How do the courts secure D's attendance to the Crow Court?

D's attendance to the Crown Court is secured by remanding in custody or bail when the case is first sent for trial.

What happens if D fails to show having been notified?

Bench warrant may be issued for D's arrest under the Bail Act 1976 section 7.

Are there any circumstances when D must be present?

D MUST be present at the commencement of a trial on indictment in order to plead.

D must be physically present and have proceedings interpreted if that is neccessary.

When can the court proceed in someone's absence?

The court can proceed in someone's abscence providing that the court is satisfied that D has waived his right to attend trial and that the trial wll still be fair in spite of D's abscence.

Reminder of General Principle: D should be present throughout the trial.

As a result,  judge should not deal with matters which constitute part of the trial proceedings in the absence of counsel for the defence.

Case Law Example:

• Judge asked a witness in Chambers why the had failed to attend to give evidence.
• D was not present in Chambers.
• Defence counsel was not present in Chambers.
• Appeal successful.
• The appeal was successful because defence counsel should not have been excluded since the procedure went beyond a mere inquiry and affected the conduct of the trial itself.
• Deemed that the trial had become tainted.

The trial can go ahead in D's absence in the following circumstances:

Trial can go ahead in D's absence in exceptional circumstances examples include:

• As a result of the misbehaviour of the accussed.
• Where D's absence is voluntary.
• When the accussed is too ill to attend.
• Following the death of the accussed.

What factors should the court take into account when determining whehter the circumstances are exceptiona and as a result of these excpetional circumstances should they proceed in D's absence?

• D waives their right to attend in one of the following ways:
• D knew when and where the trial was taking place and voluntarily choose not to turn up. and or withdrew their instructions from their legal representative.
• During trial D acts in a way to disrupt the course of the proceedings and or withdraws their instructions from their representative.
• Trial judge has a discretion as to whether to continue in D's absence - trial judge is required to warn D at the PTPH of this possibility.
• Trial judges discretion MUST be exercised with great care. In very few circumstances will the trial go ahead in D's absence where D is not legally represented.
• In exercising the discretion fairness to the defence is the 1st priority BUT fairness to the prosecution MUST also be taken into account.
• Judge required to have regard to ALL the circumstances of the case.

What are the circumstances judge needs to consider when deciding if to proceed in D's Absence?

• Nature and circumstancs of the accused's behaviour
• Was the behaviour voluntary or deliberate 
• Would adjounrment result in D attending voluntary or not disrupting the proceedings
• likely legnth of such an adjounrment 
• In D's absence do they wish to be legally represented or have they waived this right
• In D's absence is D's lawyer able to present the defence 
• Disadvantage D will be subject to by not being able to give their version of events 
• Risk of the jury reaching an improper conclusion in the absence of the accused.
• The ersiousness of the offene to the accussed and the publc
• General public interest 
• Interest of the victim
• The effect of the delay on the memories of the witnesses 
• Where there is more than one D and D1 has absconded the undesriability of separate trials.

If trial goes ahead in D's absence the judge should ensure the trial is as fair as the circumstances permit.

• When determining whether to proceed in D's abscence the seriousness of the offence should not be considered. - This means that the principles are the same regardless of whether the offece is serious or minor.
• Even if D VOLUNTARILY ABSCONDED it is still desirable that the accused be represented.
• Deciding to proceed in D's absence is a step that should be taken with GREAT CAUTION.
• This step should ONLY be taken if UNAVOIDABLE.

Misbehaviour of the Accussed in the Dock 

• If D behaves in an unruly fashion in the dock eg the example from class of the Defendant shouting MUPPET at the top of his lungs.
• The judge MAY order that D be remoeved from the court so that the trial can continue in D's absence.

How does this actually happen in practice?

• Judge warns D if they do not fix up they will barr them from the courtroom.
• Appropriate for D to return to the courtroom at a later stage if they promise to fix up.
• Misbehvaiour can be deterred or discouraged by the court threatending to hold D in contempt of court.
• An accussed should not be handcuffed in the dock unless there is a real risk of violence or escape and there is no alternative. ONLY VISIBLE RESTRAINT IS AVAILABLE.

Revision Questions:

• What options are available to a judge when D misbehaves in court?
• If jusge decides to exercise their discretion and remove D from court what steps are usually taken?
• Can D return?
• Should D be handcuffed when in the dock?
• What else can be done to dissuade/ discourage bad behaviour?

D Refuses to Leave Cells 

• If D refuses to leave their cell trial can continue in absence.
• This is becuase D's refusal to leave the cell can be see as an unequivocal waiver of the right.
• If Judge does choose to exercise their discretion and proceed in D's absence great caution and close regard to the fiarness of the proceedings should be taken.
• It may be a good idea to pause allow D time to calm down/ think about their deicsion to not attend before continuing.

Scenario 1:

• D was present at the start of trial.
• D later is not present - eg D escapes from custody or they do not return to court when remanded on bail.

Scenario 2:

• D voluntairly gets drunk to the point they are incapable of participating in the proceedings or 
• D volunatrily inflicts upon themselves self-induced psychosis.

Judge can still proceed.

• If D is convicted in their absence sentence can also be given in D's absence.
• Proceeding in D's absence in the above circumstances is @ the judges discretion.
• When the judge is exercising their discretion they should consider the following:
• 1.Did D voluntarily absent themselves.
• 2.There were reasonable steps to be taken to secure D's attendance.

What does arraigned mean?

• Accusing D of offence in court and then asking them to enter their plea.

Scenario:D has not be arrraigned and they do not turn up.

• The court can proceed in D's absence.
• However, prior to proceeding the court need to be satisifed that D has waived their right to be arrainged.
• IF the indictment had been ammended after the accussed absconded it cannot be assumed that D waived their right on the ammended indictment. However, this is also fact specific.

What happens if the judge chooses not to proceed in D's absence?

• Jury discharge from giving a verdict - enabling a retrial to take place before a different jury once D's presence has been secured.
• Judge needs to consider the vidence to explain D's absence and the fairness of proceedings when making deicisons.
• Judge may issue warrant for D's arrest.

• If D is involuntarily absent the trial may not continue in D's absence unless D consents or if D's case can be fully presented in D's absence without unfairness.
• Sickness = most common example of involuntary absence.

What should the judge do if D becomes sick?

• Adjourn the trial until the accussed recovers or
• Discharge the jury

What happens if the court is not happy with the adequacy of the evidence relating to sickness?

• Court should provide an opportunity for further evidence to be provided before continuing the trial in D's absence.
• Fairness must always be had in regard in fairness
• There are exceptions to the principle that if D is involuntarily absent trial should not continue in their absence:
• 1.Several other Ds and one falls sick. Trial may continue in D's absence providing that the evidence and proceedings relate soley to the co-accused who are present and have no possible bearing on the absent accused case.
• 2. If D voluntarily makes themselves sick eg by deliberately digesting drugs - trial may go ahead in D's absence.
• 3. D had heart condition preventing his attendance but it was deemed his counsel were able to argue his case effectively and he was given the opportunity to give written evidence.

If an accussed is not legally represented the court will SEEK TO GIVE D SUCH ASSISTANCE IN CONDUCTING THEIR DEFENCE AS MAY SEEM APPROPRIATE.

What happens when the acccussed dismisses laywers in the course of the trial or they withdraw?

• If the accused remains entitled to public funding the judge may grant an adjournment for the accused to be represented.
• However, there is nothing that says the court MUST do this - meaning they can adjourn for this but they are not oblidged to adjourn for this.

At the end of the prosecution case the accused should ALWAYS be informed of their right to give evidence which includes:

• right to give evidence in person
• to call witnesses in his or her defence (regardless of whether D goes into the witness box)
• right to stay silence or give no evidence

Failure to provide D with this information can result in a convictin being quashed.

Unrepresented D's (EXTREMELY IMPORTANT) should be informed that a failure to give evidence may result in adverse inferences being drawn (pursuant to s35).

D Cross Examining Witnesses when D is unrepresented :

If D is unrepresented the trial judge can ask questions of witnesses.

For some offences D is not able to cross examine the victim and child witnesses.

Courts can also prohobit cross examination carrried out by unrepresented D if the court is satisified of the following:

• Circumstances of the case and witness warrant the prohibiting. 
• The prohibition would not be contrary to the interest of justice.

Advocates can be appointed to carryout cross examination on an unrepresented D's behalf.

This can include pre-trial application for bad character for victim if this is relevant to the cross examination.

What does it mean when criminal proceedings are stayed?

Case against D is stopped permanently.

When proceedings would amount to an abuse of process, the court may order that those proceedings are stayed.

Stays are permanent so they will only be lifted in excpetional circumstances.

Case Law Example of a Stay Being Lifted:

• D to be prosecuted for offences by a magistrates court.
• The proceedings had been stayed.
• Became apparant there wer eother allegations to be tried in connection to the offence.
• Interest of justice no longer required the stay.

There are 2 categories in which the court has the power to stay proceedings for an abuse of process:

1. It would be impossible to give the accussed a fair trial

For this one there is no requirement to balance competing interest - if it becomes apparant trial will be unfair proceedings will be stayed.

2.Where it offends the courts justice and proprierity to be asked to try the accused in the particular circumstances of the case.

• Balancing of interest required
• For this one the court is concerned with balacing the integrity of the criminal justice system.
• Does not have regard to the actual fairness of the trial.

Examples of when this will come into play include:

• Baf faith 
• Unlawfullness 
• Executive Misconduct 

IMPORTANT NOTE -Judge cannot stay proceedings simply becuase they thhink as a matter of policy the proceedings should not go ahead.

Stay can only be granted if the prosecution amounts to an abuse of process of the court and is oppressive and vexatious that the judge has the power to intervene.

Important an abuse of process DOES NOT INCLUDE: THE PROSECUTION HAVING WEAK EVIDENCE.

Notes on the 2 gcategories for stay:

• They are legally distinct and should be considered separately.
• Failures of the prosecution tend not to be relevant to the first limb unless the failures deprive  D of a fair trial.
• Often when abuse of process is raided it will only pertain to one of the categories.

Prosecution's Opening Speech:

• Prosecution are inivted to identify the issues in the case as well as providing a concise outline of the evidence which the prosecution propose to call.
• Judge can invite D to do the same after the prosecution opening speech.

Opening Speeches and Emotive Langugage 

• Opening speehes should not contain emotive langugage.
• This is becuase i is not in the prosecutors role to strive over-zealously for a conviction.
• Emotive langugage can prejudice the jury.
• Emotive langugage is deemed as not being in good taste or strictly in accordance wih the character which prosecuting counsel should always bear in mind.

Opening Speeches and Law 

• The extent to which the prosecutor deals with points of law that may arise during the course of the trial is @ the prosecutors discretion depending on the circumstances of the particular case.
• Presumption that opening speeches would not contain law UNLESS the case is one of of real complication and difficulty where counsel believes and the trial judge agrees that the jury may be assisted by a brief and well focused inclusion of law.

IF Counsel deals with a matter of law it is usual to remind the jury that matters of law are ultimately for the judge, and that counsel's remarks shoud therefore be disregarded insofar as they differ from the judges discretion.

Directions can be given at the start of trial or as the need arises.

- Prosecuting lawyer presents the case

- Witnesses and written statements under hearsay exceptions should be read out.

- Rules for these statements are in CrimPR Part 16

-Prosecution has discretion to call witnesses who statements have been served as part of the prosecution case.

- Recommended practice to call witnesses whose statements have been served.

- Discretion should be used properly, avoiding hidden motives

- Cautions against actions that may unfairly surprise or prejudice the defense, as per Lord Thankerton in Adel Muhammed El Dabbah v A-G for Palestine [1944] AC 156

• CJA 1967, s. 9, allows written statements in criminal proceedings to be deemed as admissible.
• CrimPR 16.4 outlines the procedure (see Supplement, R16.4).
• In trials on indictment, it's used when the prosecution wants to present additional evidence beyond what was initially served.
• The party proposing to tender the statement MUST serve s copy on each of the other parties.
• A party who is served with the statement can serve notice that they object to the statement being used as evidence.
• If an objection is raised by a party, the statement can't be used in the trial.
• The Deregulation Act 2015, s. 80, changed the seven-day objection period to be determined by CrimPR, typically set at five business days, with room for exceptions.

• s9 statements are only admissible if ALL the parties agree.
• Even if a statement is admissibe under s9 the court may require the maker to attend to give evidence.
• This is likely to take place when the defence dispute the cntents of the statement and previously failed to object due to an oversight.

• Alternative to reading witness statements: Facts from statements or other sources can be presented as agreed evidence.
• Presented under CJA 1967, s. 10 (details in F1.2).
• Admissions, agreed as true by all parties, should be in writing.
• Provided to the jury if relevant to the issues and free of inadmissible material.

• (a) Defense notifies prosecution of objection under CrimPR 16.4(4).
• (b) Alternatively of Further, defense counsel informs prosecution of the objection before opening to the jury, and prosecution avoids mentioning disputed evidence in the opening.
• (c) When admissibility is considered, the jury withdraws for the judge to resolve the matter alone.
• (d) If admissibility involves factual issues, a trial 'on the voir dire' may be needed. Both sides are entitled to witnesses at this stage.
• Witness evidence is limited to the disputed evidence.
• (e) Parties make representations to the judge about admissibility.
• (f) Judge rules on the admissibility of the evidence.
• (g) Jury returns; if judge rules against disputed evidence, jury remains unaware; if ruled admissible, defense can cross-examine on raised issues, focusing on the evidence's weight.
• (h) Judge retains discretion to review admissibility determination at a later stage (Watson [1980] 2 All ER 293, D16.48).

What happens if the prosecution evidence (statements) containes material which is of such prejudicial effect that the jury out not to hear it?

• The parties should edit it out the prejudicial bits before it is called.
• The best way for these edits to take place is for the evidence to appear unvarnished in the committal statements.
• Counsel should try to ensure tht the editing is done in the right way and to the right degree. If required the judge can also play a part in the process.

What happens when a jury ask to see the orginal of an edited document?

• Jury may be told that there are technical reasons why this cannot be permitted.
• Although this is not satsifactory it is a good way to deal with the problem.

After the prosecution have closed their case, the defence can submit that the evidence does not disclosee a case to answer in respectof any or al the counts on indictment.

Test 2 Be applied for No Case to Answer 

• (1) - If there is no evidence the crime alleged has been committed by the defendant, there is no difficulty - the case will not proceed.
• (2) - Difficulty arises whe n there is evidene but the evidence but the evidence is weak or vague.
• If the judge concludes that the prosecution evidence taken at is highest is such that a jury properly directed could not convict upon it then there is no case to answer.
• If the evidence appears weak but there is possibility (contigent on other factors such as the perceived reliability of witnesses) that the jury could convict the case should continue.

The First Limb 

Transpires when there is no evidence or no evidence to prove an essential element of the case.

Examples of when this will take place:

• An essential prosecution witness has failed to come up to proof.
• Or where there is no direct evidence to an element of an offence and the inferencs the prosecution ask to be drawn from the circumstantial evidence are impossible for a reasonable jury to draw (in the judges view).
• When making decisions under the first limb judges should be particularly careful  to avoid taking into account defence evidence which is yet to be called and potential defences which are yet to be made.

The Second Limb:

• Traditionally, the judge could rule that there's no case to answer if a conviction based on prosecution evidence would be considered 'unsafe.'
• This approach involves evaluating the evidence's quality and reliability rather than just its legal sufficiency, which is typically the jury's job.
• While it's not appropriate to argue that it would be unsafe for the jury to convict during a no-case submission as it would be an invitation for the judge to impose their own views of the veracity od the witness.
• the second limb of the Galbraith test allows the court to assess the evidence's reliability.
• If the prosecution's evidence is too weak or vague for any sensible person to rely on it.
• the court can decide that no reasonable jury could rely on it, leading to a ruling of no case to answer.
• Examples: witness undermines their own testimony eg being uncertain about vital points

• When applying the Galbraith test, it's crucial to evaluate the reliability of prosecution evidence.
• In Shippey [1988] Crim LR 767, even though there was evidence supporting the prosecution, the judge noted significant inconsistencies in the overall evidence.
• Traditionally, Galbraith and Barker suggest that in such cases, the jury should weigh the inconsistencies, but Turner J in Shippey took a different approach.
• Turner J asserted that it was the judge's role to assess the evidence, and if it seemed 'self-contradictory and unreasonable,' the judge could rule it 'inherently weak and tenuous' under the second limb of the Galbraith test.
• However, subsequent cases like Pryer [2004] EWCA Crim 1163, Silcock [2007] EWCA Crim 2176, and Christou [2012] EWCA Crim 450 clarified that Shippey's decision shouldn't be considered a legal principle.
• The proper test, as outlined in Galbraith, remains, and Shippey serves as an example of the court's duty to assess evidence comprehensively, considering both its strengths and weaknesses.

• If there is no evidence to prove a crucial element of the offense, a no-case submission should succeed.
• If there is some evidence establishing each essential element when taken at face value, the case is usually left for the jury.
• However, if the evidence is so weak that no reasonably directed jury could convict, a submission should be upheld. Weakness can result from witness statements being highly improbable, internal inconsistencies, or a type of evidence known to be unreliable based on court experience (especially in identification evidence cases).
• Determining if a witness is lying is generally a matter for the jury, except when inconsistencies are so significant that any reasonable tribunal would conclude it's improper for the case to proceed based solely on that witness's evidence.

• If the defense plans to present evidence about the case beyond what the accused will testify to, the defense counsel has the right to make an opening speech at the start of the defense case.
• However, if the only evidence comes from the accused (or the accused and character witnesses), counsel doesn't get an opening speech unless the judge invites a concise identification of the issues.
• During an opening speech, defense counsel can outline the expected defense and criticize the prosecution's evidence.
• However, the speech shouldn't make factual assertions that won't be proven by upcoming evidence.

Defence opening speech revision questions?

• In what circumstances does the defence have the right to make an opening speech?
• What can the defence include in their opening speech?
• What should the speech not include?

• Burden of proof rest with the prosecution.
• As a result, the defence are under no obligation to call witnesses.
• Also not required to call D as D is not a compellable witness.
• Most defence witness follow the same rules as prosecution witnesses.
• However, there is an additional rule for defence witnesses - the court has a duty to stop evidnence being given where it is irrelevant to the issues in the case or where the court is being used as a policitcal sounding board.

• Accused should usually be called before any other defence witness. s79 PACE.
• Rationale: D is present throughout the whole of the proceedings if D were to hear the witness testimonies of other defence witnesses before giving evidence D could alter their evidence.
• The usual order of things can be changed @ the discretion of the court.
• Court likely to exercise this discretion when a witness' evidence was not substantially disputed outside of usual order if the circumstances made this convenient.
• Other witnesses (witnesses that are not experts or parties to the proceedings) wait outside of the courtroom until it is their turn to give evidence.
• Psychiatrist evidence about D should be immediately after the prosecution case.
• D has a right to be present throughout the trial.
• Character witnesses should always be called after D.

Case Law Example:

Court of Appeal declined to exclude potentialy helpful evidence from a witness who had been in court during the prosecution case.

s79 PACE

If at the trial of any person for an offence—

(a)     the defence intends to call two or more witnesses to the facts of the case; and

(b)     those witnesses include the accused,

the accused shall be called before the other witness or witnesses unless the court in its discretion otherwise directs.

s2

Where the only witness to the facts of the case called by the defence is the person charged, he shall be called as a witness immediately after the close of the evidence for the prosecution.

• It is D's decision if they decide to testify or not.
• If D decides they do not want to give evidence the following steps steps should be taken:
• counsel should record the decision (this should be invaraible practice).
• D should sign the record giving a clear indication to the following;
• D has made a decision on their own accord to not give evidence.
• D has made that decision taking into account the advice that was given by counsel.

No right for D to give evidence twice.

Failure to carryout the above steps may give reason for the conviction to be deemed UNSAFE AND UNSATISFACTORY.

• Court can require a witness to give live evidence of its own initiative.
• A judge has discretion to call a witness that neither the defence or prosecution have chosen to call.
• This should be done sparingly and only in circumstances where it is NECCESSARY in interest of justice to do so.

Discussion of the Relevant Law 

• Before summing up the case or during the first part of the summing up (if it is divided), the court typically asks counsel to discuss certain aspects of the case in the absence of the jury.
• This is crucial to avoid confusion or uncertainty regarding points of law and evidence that have come up during the trial.
• Only in exceptional circumstanes is it appropriate for the court to discuss law with counsel after concluding the summing up.
• A method like asking counsel to correct errors during the summing-up, as seen in Charles [1976] 1 WLR 248, was criticized by the Court of Appeal for diminishing the judge's authority.

• Counsel has a duty to bring ALL relevant authorities to the court's attention.
• Even the authorities which are unfavourable to counsel's own argument.
• Procedural irregularities MUST be brought to the attention of the court during the hearing and not reserved to be raised on appeal.
• Example of procedural irregularity - juror seen talking to a witness.

These duties apply equally to both prosecution and defence counsel.

Case Law Example:

In the Smith [1994] Crim LR 458 case, one appeal ground was the claimed irregular contact with a child witness during her testimony. The Court of Appeal stated that counsel should have brought up this issue with the judge privately, away from the jury, when it happened.

The prosecutions closing speech is made first.

• Limitation on prosecution closing speeches
• Firstly, Prosecutors should remember their role as an officer of the court when making closing speeches.
• Should not include facts or other matters which have not been the subject of evidence.
• Jury should not be asked to be mercifiul if/ when handing down guilty verdict.
• counsel should not include personal criticisms of their oponent in closing speeches - if this does happen judges should ensure that it stops immediately and is not repeated.
• Appeal successful where prosectutors closing speech contained emotive and unjustified comments, insinutations that unadduced and damming material to the defence existed, and the prosecutor improperly vouched for the soundness of the prosecution case.
• Prosecutors should not comment on the serious implcations to a police if their evidence is not beleived even if the police officer mentions this themselves in evidence.
• Prosecution is not entitled to abandon or attack the credit of the prosecution's own witness (unless permission has been given to treat the witness as hostile).

• Prosecutin shuld ot invite inferences which are contrary to the evidence that has been called. - IMPORTANT NOTE THE PROSECUTION SHOUD REGARD ALL THEIR WITNESSES EVIDENCE AS RELIABLE BEFORE CALLING THEM AS A WITNESS.
• Pursuant to PACE s80A the prosecution should not comment on the failure of the accused's spouse or civl partner to give evidence.
• Prosecution can talk about failure to give evidence or answer questions in interview.
• The prosecution  may make such comment as appears appropriate providing the court grants leave about the failure of the accused to serve a defence statement or as to inconsistenticies between the defence statement and evidence given.

• In the closing speech, defense counsel is not limited to presenting the client's version of events.
• Theories beyond the client's version are allowed if there is supporting evidence (Bateson (1991) The Times, 10 April 1991).
• Avoid mentioning likely consequences of conviction since sentencing is not the jury's concern (A-G for South Australia v Brown [1960] AC 432).
• Can comment on your own failure to testify - if D is self-representing.
• Defense counsel can comment on their client's failure to testify and, i
• If D is a co-acccused D and the other D conflicts with co-accused and fails to testify D comment on the co-accused not testifying (Wickham (1971) 55 Cr App R 199).
• The judge can't prevent or restrict such comments but may personally comment if it seems unfair (Wickham).
• In Ekaireb [2015] EWCA Crim 1936, Lord Thomas CJ endorsed the duties of defense counsel in presenting the client's case and emphasized the judge's responsibility to ensure accurate representation of the defense case, even if it requires intervening in defense counsel's speech.

Trial judges summing up conventionally has 2 parts.

• Part 1 - Direction of the Law
• Part 2- Summary of the Evidence 
• Using written directions in summing up is strongly advocated for.
• Court of Appeal has discouraged courts from carrying out summing up late in the day or just before the weekend.
• Where the judge does not provide the summing up (or parts of it) in writing, both counsel should take as full a note of the summing up as is possible.
• Important where sentence is likely to be short.
• This speeeds up the appeal process as appeal can be applied for whilst waiting for full transcript.

• Prosecuting counsel duty:

• Attend carefully to the summing up.
• Identify and inform the judge of any errors (factual or legal) at the close (Donoghue (1987) 86 Cr App R 267).
• The court can rely on this assistance (McVey [1988] Crim LR 127).
• Defence counsel duties (traditionally had the option to remain silent, but this has changed):
• Alert the judge to evidence supporting provocation before summing up (Cox [1995] 2 Cr App R 513).
• Request a good character direction if the accused is entitled to one (Gilbert v The Queen [2006] UKPC 15; Hunter [2015] EWCA Crim 631).
• Focus during the summing-up, identifying and addressing any material error or omission at that time (Sakin [2021] EWCA Crim 291).
• Appeal will not automatically be dismissed where defence counsel failed to correct an error.

• Judge's duty under CrimPR 25.14(3)(b) and (4):

  Provide the jury with a written list of questions (route to verdict), legal directions, and other helpful material.
• Encouraged by CrimPD 8.5.3 as a 'written route to verdict.'
• Submit draft directions to counsel for suggestions before giving them to the jury.
• Failure by counsel to comment on draft directions may not always impact an appeal, but it could affect the weight given to the deficiency (Gammans).

• Written directions:

  Lawson [1998] Crim LR 883 suggested the judge could decline, but CrimPD 8.5.3 and recent Court of Appeal pronouncements make it clear that cases not requiring written directions are very few, and their provision should be the 'norm' (Atta-Dankwa [2018] EWCA Crim 320; PP [2018] EWCA Crim 1300).

• Grant [2021] EWCA Crim 1243 emphasized the expectation for written directions, and CrimPR 25.14(3)(b) specifies their use 'as a general rule.'
• Crown Court Compendium, ch. 1-4, strongly supports giving written directions.

• Procedure:

• Jury receives the written list at the start of the summing up.
• The judge guides them through the directions one by one, addressing each point (McKechnie [1992] 94 Cr App R 51; Taxquet v Belgium [2012] 54 EHRR 26 (933)).

Summing up purpose:

• According to Lord Hailsham in Lawrence [1982] AC 510, it should be custom-built to help the jury understand their task in a specific case.

• Legal directions and standard forms:

  From the 1970s, the Judicial Studies Board issued specimen directions, now found in the Crown Court Compendium.
• Court of Appeal encourages using these standard forms for frequently recurring legal matters (G [2018] EWCA Crim 1393; Miah [2018] EWCA Crim 563).
• Directions are guidelines, and judges should adapt them to the case (Lord Judge CJ's foreword to the Crown Court Bench Book).

Individual judge responsibility:

• The objective is to move away from perceived rigidity towards judges crafting case-appropriate directions (Lord Judge CJ).

• Case law importance:

  Crown Court Compendium provides guidance and suggested formats, not prescribed text for legal directions.
• Case law on appropriate direction forms remains crucial.

• Significance of model directions:

• In Hayes [2010] EWCA Crim 773, Hughes LJ emphasized that conformity to Judicial Studies Board model directions is not a ground for appeal.
• Model directions are examples, not orders, and judges use them as a reference tailored to the individual case.
• It's a misunderstanding to treat Judicial Studies Board materials as carrying any force of law.

• Beginning of Summing Up:

• Judge must guide the jury on their roles and the different status of the law and fact parts of the summing-up.

• Judge's Role (Law):

• Judge is the final arbiter in matters of law.

• Jury's Role (Fact):

• Jury holds the role of judges regarding facts.
• Wootton [1990] Crim LR 201 emphasizes the jury as the ultimate decision-makers on facts.

• Impact on Jury View:

• If judge expresses a certain view on facts or evidence, but the jury disagrees, the jury's view prevails.
• The importance they assign to evidence or their perspective on facts is what matters.
• Jury's perspective takes precedence in various scenarios, including disagreement on views or omission/stress of certain evidence (Crown Court Compendium, ch. 4).

• Burden and Standard of Proof:

• Every summing-up must include a direction to the jury on the burden and standard of proof.
• Ingredients of the offense must also be clarified for the jury (McVey [1988] Crim LR 127; Crown Court Compendium, ch. 5).

• Importance of Proper Direction:

• Failure to properly direct on the prosecution's burden and the requirement to prove beyond reasonable doubt can lead to quashing a conviction (Donoghue [1987] 86 Cr App R 267; Edwards [1983] 77 Cr App R 5; F3.48).
• Judges were warned of risks even in responding to jury questions about terms like 'sure' (JL [2017] EWCA Crim 621).
• Mohammed [2022] EWCA Crim 380 emphasizes the proper response to a question about the meaning of 'sure,' = 99-100% and Desir [2022] EWCA Crim 1071 addresses a question about 'absolute certainty.'

Special Cases:

• In cases involving injuries to a small child (Bowditch [1991] Crim LR 831), a clear direction on the burden of proof is crucial to counteract emotional influences on the jury.
• In cases where the statute imposes an evidential burden on the accused (Malinina [2007] EWCA Crim 3228), the court may seek agreement on the discharge of this burden, focusing on the prosecution's burden for the jury.

Crown Court Not go ahead unless D has unequivocally waived right and the trial will still be fair in D’s absence.

Mags Court – Must go ahead unless good reason not to.

What does absolute discharge actually mean?

• Absolute discharge refers to discharging an accussed absolutely/ completely from an offence.

When is absolute discharge available?

• When the defendant is convicted by or before the court and the offence that D is convicted for is not one that carries a MANDATORY SENTENCE REQUIREMENT.

When is the court likely to make an order for absolute discharge?

When the court is of the opinion that it is "inexpedient" (this basically means that it is not advisable or practical) to inflict punishment having regard to the circumstances of the case including:

• Nature of the offence 
• Character of the offender 

What criminal courts have the power to grant an absolute discharge?

• All criminal courts have the power to grant absolute discharge whatever the age of the offender and whatever the offence committed.
• However, in exceptional circumstances set out in the Sentencing ct 2020 s 80 (2) (b) no court can grant an absolute discharge.

What are these exceptional circumstances set out in the Sentencing Act?

• This is basically where a mandaotry sentencing requirement is operating for D or the offence.
• IMPORTANT NOTE - Absolute discharge is not a community sentence.

What can the granting of an absolute discharge order reflect?

• Trviality of the offence 
• Circumstances the offence came to be prosecuted 
• Special factors relating to the offender

Is a surcharge payable when an absolute discharge ordered/ granted? 

• No surcharge is payable.

IMPORTANT - ABSOLUTE DISCHARGE CANNOT BE COMBINED WITH A PUNITIVE MEASURE FOR THE SAME OFFENCE.

SO FOR EXAMPLE D = DRUNK DRIVING - ABSOLUTE DISCHARGE GRANTED - AS THE ASBOLUTE DISHCARGE HAS BEEN GRANTED D CANNOT THEN BE PUT ON HOUSE ARREST FOR THE SAME OFFENCE. HOWEVER, IF DO WAS CHARGED WITH DRINK DRIVING AND THEFT - D COULD BE SENTED TO ABSOLUTE DISCHARGE FOR ONE OFFENCE AND THEN A CUSTODIAL SENTENCE FOR THE OTHER OFFENCE.

ABSOLUTE DISCHARGE CAN BE COMBINED WITH DISQUALIFICATIONS.

What disqualifications can absolute discharge be combined with?

• Driving disqualifications 
• Disqualifications from being a company  director 
• Confiscation order CAN accompnay absolute discharge.
• IMPORTANT - FOOTBALL BANNING/ DISQUALIFCATION CANNOT ACCOMPANY ABSOLUTE DISCHARGE.

Define a conditional discharge?

• Discharged on the condition of not committing any further offences during the period of a conditional discharge.
• No other requirement may be inserted.
• The time period is to be set by the court but this can be up to 3 years (MAX).

When is a conditional discharge available?

• The offender has been vonvicted by the court or before the court.
• No manadotory sentence requirements pertain to the offene that D is charged.

In what circumstances is a conditional discharge not available?

• section 66ZB (6) of the Crime Disorder Act 1998
• Section 66F of the Crime Disorder Act 
• Section 1031 (4) of the Sexual Offences Act 2003 - breach of sexual harm prevention order and interim sexual harm prevention order.
• Section 339 (3) - breach of criminal behaviour order 
• Section 342G (4) - offences relating to a serious violence reduction order 
• Section 354 (5) - breach of sexual harm prevention order

When will the court's exercise their power to order conditonal discharge?

• When the court is of the opinion it is inexpedient (not advisable or practical) to inflict punishment, having regard to the circumstances including :
• nature of the offence 
• character of the offender.

How long can a conditional order last?

• Period is fixed by the court - however it cannot exceed 3 years and time begings to run from the day on which the order is made.
• If the court thinks it would be helpful someone who consents to give security for the good behaviour of the offender.

IMPORTANT NOTE - CONDITIONAL DISCHARGE CANNOT BE GRANTED WHERE THERE ARE MANDATORY SENTENCING REQUIREMENTS.

Can a conditional discharge be combined with a punitve thing for the same  offence?

• No - cannot be combined with a custodial sentence, a community ordeer or a fine. But the court can exercise it's normal sentencing powers for other offences.
• Can a conditonal discharge be combined with a disqualification?
• Yes a conditonal discahrge can be combined with ANY disqualifcation which includes:
• dqiaulification from driving, company director, consifscation order and a football ban (big difference here with absolute discharge).

In what circumstances will a conditional discharge be breached?

• Conditional discharge can ONLY be breached by the conviction of an offender of a further offence during the time period of the discharge.
• Are the Ssetencing offence specific guidelines applicable = No
• However, the overacrching guideline Sentencing Children and Young People is applicable when the breach is committed by someone under the age of 18.

Sentencing when there has been a breach?

• If D is before court who made the order (MC and then reapperaing before MC or CC and then reapperaing before CC) - the court can sentence D the way they would have intiialy.
• Or if order made by MC and at the breach D appears before the CC D is limited to the sentencing powers of the MC. 
• D would be before the CC in the cirucmstacne that they were there on other matters - eg several offences at once.
• No committal required.
• One MC can deal with breach of discharge where discharge is imposed by different MC. However, for this they will require the permission of the initial MC.
• If D under 18 at the time of discharge, then breach then being sentence but has had their 18th they may be dealt with as if they were the age they were when the original discharge was set.
• Sentencing of orginal conviction discharges the conditional discharge so any fines after this point = valid.

When is punishment by fining available to the Crown Court?

• The court is dealing with an offender who is convicted on indictment for an offence.
• Fines can be the ONLY punishment or there can be other punishments that accompnay it.

When is punishment by fining not available?

When a mandatory sentencing requirement by virtue of the following provisions inn 399:

• paragraph (a) - life sentence murder 
• paragraph (b) - other mandaotry life sentences 
• paragraph (ba) - serious terrorism sentences
• paragraph (c) (iv) - minimum sentence for third domestic burgularly offence.

Fines can be combined with other punishments. However, a fine cannot be combined with the following:

• A hospital order (Mental Health Act 1983 s37 (8)
• absolute discharge
• conditional discharge .

Under the Criminal Law Act 1977, section 32(1), if a person is convicted of an offense that could result in a fine within a specified limit, this section allows them to be fined any amount without the usual limit.

When fine imposed the Crown Court can make an order:

• allowing time for the paymen tof the fine or 
• setting up payment plan.

Crown MUST make a default order in the following circumstances:

• offender over 18 when convicted 
• D is not a LTD Company 
• does not apply to fines imposed by the CC on appeal of a decision from the MC..

What is a default order?

• An order that fixes one of the follwing terms if D does not pay the fine they will face:
• imprisonment or 
• Detention under section 108 of the Powers of Criminal Courts Sentencing Act 2000.
• Failure to fixed default order does not invalidate the fine.
• The term that is fixed should relate to the whole sum not just an installment.

- Magistrates' courts can impose fines for offenses if the corresponding law permits fines as a penalty.

- If the law sets a specific fine amount, the court cannot exceed it, but can choose a lesser amount, unless a law after December 31, 1879, says otherwise.

- Exceptions include restrictions on combining fines with other orders and limits on fines for young offenders.

- "Relevant offence provision" refers to the law creating the offense or specifying the penalty, with additional considerations.

- Section 119 applies when a magistrates' court can sentence someone to imprisonment but not a fine. It allows fines instead of imprisonment, unless a law after December 31, 1879, specifies otherwise.

- Fine amounts under Section 119 are subject to limitations based on the nature of the offense.

• Before fixing the amount of any fine to be imposed on the offender who is an individual a court must inquire into the offender's financial circumstances.
• The amount of the fine should reflect the seriiousness of the case. However, the court MUST take into account in particular the circumstances of the case and the financial means of the Defendant as far as they are known or appear to be for the court.
• When someoneone is convicted of an offence the court can make a financial circumstances order.

What is a financial circumstances order?

• An order that requires D to provide the court with (before the deadline specified in the order) details of their assets and financial circumstances as the court may require.

What court can make a financial circumstances order?

• MC and CC.

What happens if D (in the abscene of a reasonable excuse) fails to comply with financial circumstances order?

• summary conviction to a fine not exceeding level 3.
• Lying or hiding material facts = liable on summary conviction to a fine not exceeding level 4.

• Level 1 = £200
• Level 2 = £500
• Level 3 = £1000
• Level 4 = £2,500
• Level 5 = unlimited for offences committed after after 13th March 2015.

The monetary value of the fine should reflect:

• The seriousness of the offence 
• A fine being selected as sentence should also reflect the seriousness of the offence.
• Fines will be inappropriate where the seriousness of the offence warrants a custodial sentece.

Case Law Example:

• D fined £350 in total.
• D plead guilty to wounding with intent to cause GBH.
• Court of Appeal deemed the setence to be "absurd" and "unduly lenient" as it substituted a custodial term for of 30 months.

Conversely, there are cases which are not serious enough to justify a fine:

• D had no previous convictions
• D had substantial mitgation
• D convicted of theft from shop - stole 1/2 a bottle of whisky 
• Fine imposed = £300
• Court of appeal varied the sentence to a conditional discharge.

Case of K

• Judge wrong to impose fine on D becuase D pleaded hopeless case.
• It was acknowledged and appreciated that D had wasted courts time and money but this should have been refleted in application for prosecutions cost.

Does Reduction for a Guilty Plea apply to fines?

• Yes.
• Guilty plea can reduce a community sentence to a fine - if this happens there will be no further reduction in the fine.
• Imposition of the maximum fine should be reserved for the most serious instances of the offence which are reasonably likely to occur.
• Guilty plea should usally stop max fine being imposed Same for other forms of mitigation.
• Judge annoyed D had chosen to contest a hopeless case and wasted the jury's time for 2 days.

Imposing a fine should subject the offender to some degree of hardship. However, the fine should not be beyond the means of the Defendant.

If D cannot pay a fine that is proportionate to the seriousness of the offence it is not appropriate to put D in prison soley for this reason.

Case Law Example:

• D pleaded guilty to obtaining £600 by deception and received a prison sentence instead.
• Felt that D received the prison sentence becuase of his inability to pay the fine.
• This is entirely wrong and unacceptabe.

RICH DEFENDANT 

• When D is STINKING RICH and paying a fine proportionate to the offence would cause little inconvenience not acceptable to impose a custodial sentece. 
• However, the level of the fine can be increased to increase the impact on the offender. 
• important when the court is doing this there still needs to be some proprotionality between the monetary value of the fine and the seriousness of the offence.

Case Law Example:

• D - RICH 
• D made £2739 from handling stollen goods.
• D was fined £10,000 this was deemed to be manifestly excessive.
• Fine reduced to £6000

Section 125 (3) level of fine should be reduced or increased dependent on D's means.

If D is rich and the offence warrants custodial sentence their ability to pay large sums of money should not mean that they avoid prison.

Another Case Law Example

• D = Rich defendant with an assumed worth of £300 million 
• D admitted to committing offences under the Wildlife and Countryside Act 1981.
• D was fined £450,000 alongside similar bill for prosecution cost.
• This was upheld by the Court f Appeal becuase the judge has proceeded on the assumption that D was worth 300 million ££££.
• However, it would have been better practice for D to complete a financia circumstances form to ensure this was true before the fine was imposed.
• IMPORTANT - when the level of fine is being assessed it is only the defedants means that are taken into account not the menas of their spouse or their parents.

• MC sentencing guidelines state that 'normally a fine should be an amount capable of being paid in 12 months". However, the guidelines acknowledge that there may be exceptions to this.
• May be unrelasitic to expect low paid earners to keep with payments for as long as 12 months. However, the maximum time limit is not limited to 12 months and can be longer if neccessary.
• Cooperate defendants (businesses) have longer than individual defendants to pay.
• Nothing wrong with payment period being longer than a year providing that it is not an undue burden and too severe a punishment having regard to the nature of the offence and Defedant.
• 2 -3 years seems too long but it does all depend on the nautre of the offence and the nature of the offender.

Combining Fines with other sentences 

• It is possible to combine a fine with a custodial sentence
• However, this is undesriable as D being in prison s likely to deprive them of their means and ability to pay the fine.
• Likely to result in a default order being enforced.
• Which is undesribale.

What is a community order?

• A community order is an order imposed on an offender aged 18 or over when convicted.

In what circumstances will a community order be given as a sentence?

• The offence or 
• Combination of the offence and one or more offences associated with it 
• are serious enoguh to warrant the making of such an order.

What will the court take into account when making this decision?

• All available information about the circumstacnes of the offence
• All available infromaton about the associated offences 
• Aggrevating and or mitigating factors.

Pre setence reports can help with forming these opinions.

Just becuase the court CAN make a community order in the circumstacnes of a case it is not required to do so.

Important - a community order is only available if the offence is punishable with imprisonment.

A community order is not available when there is a MANDATORY SENTENCING REQUIREMENT.

A community order CANNOT be made in combination with the following:

• A hospital order 
• A guardanship order in respect of the same offence 

A court can not make a communityorder if it grants a suspended sentence to the offence or any other offence at the same time.

• Pre sentencing reports can assist the court in making decisions about sentencing - should a community order be granted.
• However, the court does not need to obtain a pre-sentencing report if it considers it unnesscary to do so.
• In many cases a pre-sentence report will be pivotal in helping the court to decide whehter to impose a community order .
• May be helpful to indicate to the probation service the court's preliminary opinion as to which of the three sentences ranges will be relevant.
• Ideally pre-sentence report should be completed on the same day to avoid adjourning the case.

The Sentencing Act 2020 s201 provides list of community order requirements:

• unpaid work requirement 
• rehabillitation activity requirement 
• programme requirement 
• prohibited activity requirement 
• curgew requirement 
• exclusion requirement 
• residence requirement 
• foregin travel prohibition requirement 
• mental health treatment requirement 
• drug rehabilitation requirement 
• alcohol treatment requirement 
• alcohol abstinence and monitroing requirement 
• electronic compliance monitroing requirement 
• electronic whearabouts monitoring requirement

previously attendance centre requirement was on the list but this was removed on 28 June 2022.

How much unpaid work can the court order?

40-300 hours.

Is there anything the court must do before granting an unpaid work requirement?

If the ocurt deems it necessary the court should hear from an appropriate officer (probation officer) that D is sitable to perform work under the requirement and that local arrangements exist for the requirement to be carried out.

What happens if the probation service is having difficulty finding unpaid work for D to do?

Similar to what happened in Covid-19 lockdowns - if unpaid work not available at the time of the sentencing order that the unpaid work be carried out within 12 months of when the unpaid work becomes available.

If D recieves 2 sentences which both contain unpaid working elements the court can order that the hours are earned consecutively or that D earns one set and then earns another. Providing that this does not increase the 300 hour limit.

How long does a Defendant have to complete an unpaid work requirement?

• The Defendant will usually have 12 months to complete an unpaid work requirement.
• After 12 months probation can apply to court for breach of community order or for an extension.
• Important - If D completes the hours in less than 12 months this does not affect the status of the order.

• - A rehabilitation activity requirement (RAR) mandates an offender to follow instructions from the responsible officer during the relevant period, involving attending appointments or participating in activities (SA 2020, sch. 9, para. 4(1)).
• - The 'relevant period' is determined by the duration of the community order or the supervision period for a suspended sentence (para. 4(3)).
• - Appointments and activities under RAR can occur at any time during the order.
• - In Lindsay [2018] EWCA Crim 2171, the Court of Appeal emphasized that RAR may be used to ensure compliance with supervision appointment instructions.
• - The court does not specify the activities but must set the maximum number of days the offender must complete (para. 4(2)).
• - Activities can include those from accredited programs and reparative ones like restorative justice (para. 5(6)).
• - 'Restorative justice' activities are defined in para. 5(7).
• - The responsible officer needs the agreement of any necessary person other than the offender for compliance (para. 5(5)).
• - According to the Imposition of Community and Custodial Sentences guideline, the length of a RAR should be suitable and proportionate to ensure effectiveness.

• - The Sentencing Council's guideline, "Sentencing Offenders with Mental Disorders, Developmental Disorders, or Neurological Impairments," is applicable (See Annex C).
• - The mental health treatment requirement under SA 2020, sch. 9, para. 16(1) mandates offenders to undergo mental health treatment during specified periods, including in-patient, out-patient, or practitioner-based treatment, directed by a registered medical practitioner or psychologist.
• - In-patient treatment may occur in a hospital not a special hospital or care home  under the Care Standards Act 2000.
• - Before inserting a mental health treatment requirement, the court must ensure the offender's mental condition warrants treatment but not a hospital or guardianship order (para. 17(2)).
• - The court must confirm arrangements for specified treatment and the offender's willingness to comply (para. 17(3) and (4)).
• - The supervising officer's role is limited to revoking or amending the order (para. 16(6)).
• - In cases like Wakefield Metropolitan District Council v DN [2019] EWHC 2306 (Fam), willingness to comply with a residential treatment order for two years was considered, involving a severe autistic spectrum disorder.
• - Schedule 9, para. 18, allows a registered medical practitioner or chartered psychologist to change the treatment location for better or more convenient care (making 'alternative arrangements'). The offender's consent is required, and the responsible officer must be notified in advance in writing.

• - Drug Rehabilitation Requirement under SA 2020, sch. 9, para. 19(1):
•    - Allows the court to include a drug rehabilitation requirement in a relevant order.
•    - Encompasses drug treatment and testing during a specified period (treatment and testing period).
•    - Mandates the offender to undergo treatment directed by a qualified person and provide samples to determine drug presence.
• - Conditions for Imposing Requirement (SA 2020, sch. 9, para. 20):
•    - Court satisfaction of offender's dependency or propensity to misuse a controlled drug (MDA 1971, s. 2).
•    - Dependency or propensity necessitating and being susceptible to treatment.
•    - Ensuring arrangements for proposed treatment are in place.
•    - Recommendation of suitability by a probation services provider's officer.
•    - Offender's expressed willingness to comply.
• - Treatment and Testing Period:
•    - No minimum duration specified.
•    - Can be treatment as a resident or non-resident in a specified institution or place (para. 19(1)).
• - Amendments:
•    - Secretary of State empowered to amend time periods specified in a drug rehabilitation requirement through an order.

• - Alcohol Treatment Requirement under SA 2020, sch. 9, para. 23(1):
•    - Court's authority to include an alcohol treatment requirement in a community order.
•    - Mandates offender to undergo treatment by a qualified person to address alcohol dependency within a specified period.
• - Conditions for Imposing Requirement (SA 2020, sch. 9, para. 24):
•    - Court's satisfaction with the offender's dependency on alcohol.
•    - Dependency requiring and being susceptible to treatment.
•    - Ensuring arrangements for proposed treatment are in place.
•    - Offender's expressed willingness to comply.
• - Treatment Period:
•    - No minimum duration specified.
•    - Treatment may involve residency in a specified institution, non-residency, or treatment by a qualified person (para. 23(5)).

Aim of alcohol treatment it to either reduce dependency or get rid of it completely

•  - Electronic Monitoring under SA 2020, sch. 9, para. 29(1):
•    - Court's authority to require electronic monitoring of offender's compliance with other order requirements.
•    - Applicability when the order includes a curfew or exclusion requirement, with the relevant area defined accordingly (para. 34(2)).
• - Monitoring Period:
•    - Periods of electronic compliance monitoring can be specified by the court or set by the responsible officer (para. 29(1)).
• - Co-operation Requirement:
•    - Inclusion of electronic monitoring requires the co-operation of a person, other than the offender; without their consent, it cannot be included (para. 33). - EG being tagged your grandparents you will need your grandparents address.
• - Availability and Provision:
•    - Court's responsibility to ensure electronic monitoring arrangements are available in the local area and that necessary provisions can be made (para. 34).
• - Alcohol Abstinence and Monitoring Requirement:
•    - Electronic compliance monitoring for alcohol abstinence and monitoring may only be included if it serves a different purpose from monitoring compliance with another requirement in the order (para. 29(4) and (5)).

• - SA 2020, sch. 9, para. 30 allows the court to order electronic monitoring of an offender's location, either instead of or in addition to other requirements in the order.
• - This means electronic monitoring can be a standalone part of a community order.
• - The court must specify the duration of this monitoring within the order's term, and if someone else's cooperation is needed, their consent is required (para. 33).
• - The court must ensure that electronic monitoring is feasible in the local area and that the necessary arrangements can be made (para. 35).

• - SA 2020, sch. 9, para. 30 allows the court to order electronic monitoring of an offender's location, either instead of or in addition to other requirements in the order.
• - This means electronic monitoring can be a standalone part of a community order.
• - The court must specify the duration of this monitoring within the order's term, and if someone else's cooperation is needed, their consent is required (para. 33).
• - The court must ensure that electronic monitoring is feasible in the local area and that the necessary arrangements can be made (para. 35).

The Sentencing Act 2020, sch. 10 contains provisions which deal with the following:

• breach of a conmunity order 
• revocation of a community order 
• ammendment of community orders.

Sentencing Council's - Breach of a Community guidelines applies to offenders sentenced for a breach of community order after the 1st October 2018.

Example 

• It is the date of sentenc that is relevant to the above not the date that D committed the ofence.
• So for example D committed an offence on 6th April 2012 but was sentenced on the 2nd of October 2018 - the Breach of Community order guidelines would apply.
• Conviction of a further offence does not constitute breach of a community order, but the guidelines also provides guidance in relation to the matter.

•   - Responsible officer  MUST issue a warning if offender fails to comply with community order requirements without reasonable excuse.
•   - Warning describes failure circumstances, states unacceptability, and informs the offender that a repeat failure within 12 months will bring them back to court.
•   - No warning if issued within the preceding 12 months or if matter is referred to an enforcement officer.
• - **Enforcement Process (SA 2020, sch. 10, para. 7-9):**
•   - If a further failure occurs within 12 months after a warning, the responsible officer refers the matter to an enforcement officer.
•   - Enforcement officer considers the matter and, if appropriate, lays an information regarding the failure to comply (para. 7).
• - **Judicial Interpretation (West Yorkshire Probation Board v Robinson [2009] EWHC 2517 (Admin)):**
•   - Divisional Court interprets warning provisions as granting probation officer a one-time discretion.
•   - A subsequent breach within 12 months necessitates court review.
•   - No legal impediment for probation service to include details of both breaches when laying information.
• - **Reasonable Excuse Clarification (West Midlands Probation Board v Sadler [2008] EWHC 15 (Admin)):**
•   - Mere lodging of an appeal against conviction or sentence does not constitute a reasonable excuse for non-compliance with a community order.

Starting position - what court deals with a breach of a community order?

• The Crown Court.

In what circumstances is this changed?

• When the CC included in the community a direction that any breach is to be dealt with by the MC.

On what basis should the offender be sentenced?

• The offender should be sentenced on the basis of his or her age @  the time the original order was made.

Breaches - specifically proving breaches?

• Any breach should be admitted by D.
• if D is denying the breach it needs to be proved by the prosecution beyond reasonable doubt.
• What position should the prosecution be in?

The prosecution should be in a position to put the following before the court:

• facts of the original offence 
• at least an outline of the facts of the breach.

When dealing with a breach of community order the court MUST deal with the offender in one of the following ways:

• Ordering D to pay a fine not exceeding £2500
• Amend the order to include worse terms which the court could have included @ the point of convicting D of the offence.
• If the community order qualifies for special procedures - ordering D go to prison for a period not exceeding 28 days as the court sees appropriate.
• Re-sentencing the offender for the offence that the order was made for,

When the court is dealing with a breach they must always consider the following:

• nature of the breach 
• extent of the compliance with the order 
• If the breach report indicated that the probation wshed to continue workign with D this should be given considerable weight.

IMPORTANT - IT IS NOT POSSIBLE TO TAKE NO ACTION IN LIGHT OF A BREACH OF COMMUNITY ORDER ONE OF THE PRESCRIBED OPTIONS NEED TO BE PICKED BY THE COURT.

Changed Circumstances:

•   - Magistrates' court or Crown Court may consider revoking a community order if changed circumstances warrant it.
•   - Application can be made by the offender or a probation services officer.
•   - Changed circumstances may include the offender's progress or satisfactory response to order requirements.

Revocation for Further Offence:

  - Magistrates' court or Crown Court has powers to revoke a community order if the offender commits a further offence during the order's currency.

  - Revocation power depends on the community order still being in force; it cannot be exercised after the order has expired.

  - Different procedures apply based on whether the order was made by a magistrates' court or the Crown Court.

Magistrates' Court Powers (Para. 23):

  - Magistrates' court may revoke the community order or both revoke and resentence the offender.

  - Resentencing takes into account the extent of offender compliance with order requirements

- **Crown Court Involvement (Para. 24):**

•   - If the community order was made by a magistrates' court, and the offender is before the Crown Court, it may commit the offender to custody or release on bail.
•   - If committed to the Crown Court, the magistrates' court ensures the offender is also committed for the new offence (De Brito [2013] EWCA Crim 1134).

Crown Court Powers (Para. 25):**

•   - Crown Court may revoke the community order or both revoke and resentence for a subsequent offence.
•   - Resentencing considers the extent of offender compliance with the community order.

General Resentencing Powers (SA 2020, s. 402):

•   - Additional references to general resentencing powers under the SA 2020, s. 402, for both magistrates' and Crown Court.
•   - Resentencing accounts for the offender's compliance with community order requirements.

Amendment of Community Order Requirements (SA 2020, Sch. 10, Paragraphs 16-21):

Change in Residence (Paras. 16 and 17):

  - Appropriate court may amend community order requirements due to a change in the offender's residence.

General Amendment of Requirements (Para. 18):

  - Court can amend requirements within the community order upon application by the offender or a probation services officer.

Change in Treatment Requirement (Para. 19):

  - Court can alter a treatment requirement based on a medical practitioner's report.

Extension of End Date (Para. 20):

•   - Amendment to the order by substituting a later end date.
•   - May extend the order beyond the normal three years but not exceeding six months from the originally specified end date.

Extension of Unpaid Work Requirement (Para. 21):

  - Court may extend the 12-month period for completing an unpaid work requirement.

These amendments can be initiated by application from the offender or a probation services officer 

• Programme Requirement (SA 2020, Sch. 9, Para. 6):
• Definition:A programme requirement mandates the offender to participate in an accredited programme per instructions from the responsible officer.

Specification:

•   - The order must specify the particular place and the number of days the offender must engage in the accredited programme.
• Programme Types:
•   - Accredited programmes cover various aspects such as anger management, domestic violence, sex offending, substance misuse, etc.
• -Sentencing Council Guidelines:
•   - Sentencing Council guidelines highlight that, when rehabilitation is feasible, a community order with a sex offender treatment programme can be a viable alternative to a short or moderate custodial sentence.
• Judicial Ruling (Price [2013] EWCA Crim 1283):**

•   - The responsible officer holds discretion in choosing the appropriate programme and location.
•   - However, the court must explicitly specify the need for an accredited programme and the number of days.
•   - Failure to provide such details renders the order unlawful.

Prohibited Activity Requirement (SA 2020, Sch. 9, Para. 7):

• - Definition:
•   - A prohibited activity requirement, as per SA 2020, sch. 9, para. 7, involves the court instructing an offender to abstain from specific activities.
• - Scope:
•   - The requirement can restrict participation in certain activities on specified days or over a designated period (e.g., attending football matches).
•   - It may include directives like refraining from contacting specific individuals or prohibiting the possession, use, or carrying of firearms by the offender (para. 7(3)).
• - Consultation Requirement:
•   - Before incorporating a prohibited activity requirement into a community sentence, the court must consult with an officer of a local probation board or a provider of probation services (para. 7(4)).
• - Purpose and Proportionality:
•   - The primary goal of a prohibited activity requirement is to prevent or minimize the risk of further offending.
•   - The requirement should align with and be proportionate to addressing the identified risk (Marney [2016] EWCA Crim 1944).

Curfew Requirement (SA 2020, Sch. 9, Para. 9):

Definition:

•     - A curfew requirement mandates the offender to stay at a specific location determined by the court during designated curfew periods.
•     - Different places or curfew periods may be specified for different days.

Time Restrictions:

•     - Curfew periods must be a minimum of two hours and a maximum of 16 hours per day.
•     - As of June 28, 2022, amendments by PCSCA 2022, s. 150(2) and (3), extended the maximum curfew period to 20 hours and restricted the total curfew hours to 112 within a seven-day period.

Duration Limitations:

•     - A curfew requirement in a community order cannot extend beyond the initial 12-month period from the order's issuance.
•     - Effective June 28, 2022, amendments by PCSCA 2022, s. 150(4) and (5), extended this duration to two years.

Court Considerations:

•     - Before imposing a curfew requirement, the court must gather and assess information about the proposed location(s) in the order.
•     - Typically, a curfew requirement is accompanied by an electronic monitoring requirement, unless deemed inappropriate by the court.

Judicial Review:

•     - The duration of the curfew requirement should align with the offender's culpability and needs.
•     - In Finlay [2015] EWCA Crim 328, the Court of Appeal highlighted the necessity for proportionality in curfew duration.

Variation Authority:

•     - PCSCA 2022, s. 151, introduced para. 10A into SA 2020, sch. 9, para. 5, granting the responsible officer, with the offender's consent, the power to adjust curfew start times or locations through written notice.

Exclusion Requirement (SA 2020, Sch. 9, Para. 11):

 Definition:

•     - An exclusion requirement prohibits the offender from entering specified places, areas, or town centers during periods determined by the court.
•     - Different exclusions for various places and periods may be specified in the order.
• Duration Limitations:
•     - An exclusion requirement within a community order cannot extend beyond two years (Sch. 9, Para. 11(4)).

Scope and Purpose:

•     - May be used to keep the offender away from a specific person, requiring the person's protection to be notified (S. 219 and Sch. 14). Victim can have a copy of order.
•     - Aims to prevent or reduce the risk of further offending, necessitating proportionality to the risk.

Electronic Monitoring:

•     - Generally accompanied by an electronic compliance monitoring requirement unless deemed inappropriate by the court (Para. 12).

Legal Considerations:

•     - Prohibiting an offender from entering the UK through an exclusion requirement within a community order is considered unlawful (R (Dragoman) v Camberwell Green Magistrates' Court [2012] EWHC 4105 (Admin)).

Judicial Guidance:

•     - Courts should ensure that the duration and scope of exclusion requirements align with the goal of preventing further offending, as emphasized in J [2008] EWCA Crim 2002.

Residence Requirement (SA 2020, Sch. 9, Para. 13):

 Definition:

•     - A residence requirement mandates the offender to reside at a place specified in the order for a predetermined period (Para. 13(1)).
•     - The order may allow residing at another location with prior approval from the responsible officer (Para. 13(2)).

Limitation on Institutional Residency

•     - The court cannot specify residence at a hostel or institution unless recommended by a probation board officer or provider of probation services (Para. 13(3)).

Pre-Approval Consideration:

•     - Before imposing a residence requirement, the court must evaluate the offender's home surroundings (Para. 14).

What is classed as a custodial sentence under the sentencing act 2020?

• A detention and training order under section 233.
• A sentence of detention under chapter 2 of this part.
• A sentence of detention in a young offenders institution.
• A sentence of custody for life under section 272 or 275 or 
• A sentence of life imprisonment 

IMPORTANT A CUSOTIDAL SENTENCE DOES NOT INCLUDE A SENTENCE OF IMPRISONMENT OR A COMMITTAL OF COURT OR A KINDRED OFFENCE.

Revision Questions:

• What is classed as a custodial sentence?
• What is not classed as a custodial sentence?

Custody of People Under the Age of 21:

Criminals under the age oof 21 cannot be committed to prison for any reason.

Examples include: non-payment of a fine.

IMPORTANT - This does prevent the committal of a person under 21 to prison in the follwoing circumstances:

• they are remanded in custody;
• they are committed in custody for sentence,
• or sent in custody for trial

Max prison sentences for indicitable offences - usually always laid out in the statute that deals with the offence.

What happens when someone is convicted on indictment and there is no maximum sentence specified anywhere or life sentence prescribed somewhere the maximum prison sentence available is 2 years.

No limit on setneces given by the Crown Court for common law offences. However, there is one and only one requirement - sentence should not be disproportionate to the offence committed.

General Limits on Imprisonment in Magistrates' Courts:

•   - Specified by the SA 2020, s. 224, and the MCA 1980, s. 32.
•   - Minimum sentence: 5 days (MCA 1980, s. 132).
•   - Maximum: 6 months for a single summary offense (SA 2020, s. 224(1)) unless a statute prescribes a shorter term.
•   - For either way offenses, the Secretary of State can vary the limit from 6 to 12 months under SA 2020, sch. 23, para. 14A.

Maximum Sentence for Single Either Way Offense:

•   - Before 2 May 2022: 6 months.
•   - On or after 2 May 2022, conviction before 30 March 2023: Varies from 6 to 12 months.
•   - Conviction on or after 30 March 2023: Varies from 12 to 6 months (Sentencing Act 2020 (Magistrates' Court Sentencing Powers) (Amendment) Regulations 2023).

Temporary Variation and Government Response:

•   - Variation to 6 months from 30 March 2023 is temporary, easing prison pressures (Lord Chief Justice's letter, 10 March 2023).

Crown Court Sentencing for Summary Offenses:

•   - Limitations for common assault (6 months) and criminal damage (3 months) under MCA 1980, s. 133.
•   - Maximum aggregate custodial sentence: 6 months, less any reduction for guilty plea.
• - **Case Examples and Appeals:**
•   - Moore [2015] EWCA Crim 1621: Sentence reduced from 12 to 4 months, suspended.
•   - Hester-Wox [2016] EWCA Crim 1397: Activation of suspended sentence allowed for a total of 12 months.
•   - Brindle [2019] EWCA Crim 813: Total sentence reduced to 5 months for domestic assault.

Alternative to Imprisonment in Magistrates' Court:

•   - Power to order detention within precincts or police station until 8 p.m. on the day of the order (MCA 1980, s. 135(1)).
•   - Should not deprive the person of a reasonable opportunity to return home on the same day (s. 135(2)).

-Threshold for Custodial Sentence:

•   - Court must not pass a custodial sentence unless it deems:
•     - (a) the offence, or
•     - (b) the combination of the offence and one or more associated offences,
•   to be so serious that neither a fine nor a community sentence is justifiable

Imposition of Community and Custodial Sentences Guideline:

•   - Intent of the 'threshold test' is to reserve custodial sentences for the most serious offences.
•   - No general definition of the custody threshold; individual offense circumstances and offense-specific guidelines determine seriousness.
•   - Passing the custody threshold doesn't mandate a custodial sentence, per SA 2020, s. 77(2) (effect of mitigation).

Exceptions and Special Cases:

•   - Section 230(3): Doesn't apply if a mandatory sentence requirement is in place (see s. 399).
•   - Section 230(4): Allows custodial sentence if an offender refuses to comply with a proposed requirement in a community order (e.g., mental health treatment, drug rehabilitation, or alcohol treatment) that necessitates an expression of willingness.

Considerations for Court Opinion (s. 230(2)):

•   - Court must consider all available information about the offense and associated offenses.
•   - Factors include aggravating or mitigating elements (s. 230(6)).
•   - Pre-sentence report requirements (s. 30) are applicable to help form the court's opinion (s. 230(7)).

Association of Offences:

•   - Defined for the Code's purposes.
•   - Offence is associated with another if:
•     - (a) Offender is convicted of both in the same proceedings or sentenced for both at the same time.
•       - (i) Convicted in the same proceedings.
•       - (ii) Convicted earlier but sentenced simultaneously.
•     - (b) In the sentencing proceedings for one offence, the offender:
•       - (i) Admits committing the other.
•       - (ii) Requests the court to consider it during sentencing for the primary offence.

Case Examples Illustrating Association:

•   - Baverstock [1993] 2 All ER 32:
•     - Offences dealt with on the same occasion, even if offence committed while on bail for the first, they will be considered associated under s. 400.
•   - Godfrey (1993) 14 Cr App R (S) 804:
•     - Sentencing for a new offence while revoking a community sentence or resentencing for an earlier offence associates the two offences.
•   - Crawford (1993) 98 Cr App R 297:
•     - Offences are not associated if committed to the Crown Court for a new offence that breaches a suspended sentence for an earlier offence.
•   - Cawley (1994) 15 Cr App R (S) 25:
•     - Follows Crawford; breaches of suspended sentences and resentencing for the same offence are not associated offences.
•   - Canavan [1998] 1 Cr App R (S) 79; Hartley [2011] EWCA Crim 1957:
•     - Offences not included in the indictment or taken into consideration are not associated when D is convicted on 'sample counts.'

• - Section 231(2) mandates the shortest possible custodial sentence, considering the severity of the offense or a combination of associated offenses.
• - The goal is to minimize imprisonment length while achieving sentencing objectives.
• - Post-sentence requirements like supervision should not influence this assessment, as emphasized by the guideline.
• - The Court of Appeal, in AYO [2022] EWCA Crim 1271, underscores the universal application of this principle, regardless of offense severity.
• - The court can factor in a combination of offenses when determining custodial sentence length.
• - "Associated with" offenses are defined in SA 2020, s. 400.
• - Exceptions include fixed murder sentences or those carrying a required life term.
• - Section 231(2) is subject to s. 399 (minimum sentences).
• - For extended sentences, it primarily determines the custodial term, with public protection achieved through the extended license period.
• - In forming its opinion, the court considers all available information about offenses and associated factors, including aggravating or mitigating elements.
• - Pre-sentence report requirements outlined in s. 30 apply to the court in this process.

- **Dealing with Multiple Offenses:**

•   - Concerns arise when sentencing for multiple offenses may result in a disproportionate total sentence compared to the overall seriousness of the offending behavior.

- Legislation Acknowledgment:

•   - SA 2020, s. 77(3), explicitly allows courts to mitigate an offender's sentence by applying the totality principle when convicted of multiple offenses.

- **Totality Principle:**

•   - The totality principle, discussed in E2.18, is formally recognized by this statutory provision.

- Severity of Offenses:

•   - When an offender is facing charges for various offenses, some of which may warrant only custodial sentences, the court can still consider custodial terms for lesser offenses.

- Concurrent Sentences:

•   - Custodial sentences for less severe offenses should typically run concurrently with sentences for more serious offenses.

-Overall Term Limitation:

•   - It's emphasized that custodial sentences for lesser offenses should not increase the total length of the overall term, as established in the case of Oliver [1993] 2 All ER 9.

• Lord Woolf CJ's Statement in Kefford (2002):
•   - Prison conditions relevant when sentencing and when deciding between custodial/ non custodial Grave concern expressed over prison overcrowding.
•   - Emphasis on imprisonment only when necessary and for the minimum required duration.
• Relevance of Prison Conditions - Ali (Arie) [2023]:
•   - High prison population highlighted as of March 2023.
•   - Some prisoners held in police cells without access to rehabilitative programs.
•   - Relevance to shorter sentences during periods of high prison population levels. Availability of non-custodial options also relevant.
• Operation Safeguard Implementation (February 20, 2023):
•   - Sentencing courts can consider the impact of high prison population levels on sentencing.
•   - Government communication needed for the return to normal prison conditions.
• Exceptional Considerations:
•   - Serving a sentence in isolation for protection generally not relevant (Kay; Parker).
•   - Exception in Holmes (1979) 1 Cr App R (S) 233.

Guidance from Manning [2020] EWCA Crim 592:

•   - Covid-19 emergency's impact on custodial sentences.
•   - Acknowledgment of increased impact during lockdown.
•   - Judges and magistrates should consider these factors during sentencing.

Brehmer [2021] EWCA Crim 390 - Covid-Related Effects:

•   - Covid-related adverse effects considered potent factors for shorter sentences.
•   - Impact less significant for longer sentences, especially those with minimum terms.

Clarifications on Manning Decision:

•   - Not a ground for appeal for offenders sentenced before the first lockdown (Randhawa [2020] EWCA Crim 1071).
•   - Limited impact on longer custodial sentences, including minimum sentences (Pierre [2021] EWCA Crim 2049).

Applicability:

•   - Applies when an offender is serving a term of imprisonment for an offense.
•   - Offender has been remanded in custody in connection with the offense or a related offense.

Immaterial Factors:

•   - Immaterial whether the offender was remanded in custody for other offenses during the same period (except as noted in subsection (5)).

Time Counting:

•   - Number of days the offender was remanded in custody for the offense or a related offense counts as time served.

Exceptions (Subsections 4 to 6):

•   - If the offender was detained for any other matter on a day of remand, that day does not count as time served.
•   - Each day counts as time served in relation to only one sentence and only once for that sentence.
•   - Days do not count as part of any automatic release period served by the offender.

Declaration under Section 327 of the Sentencing Code:

•   - If a court makes a declaration under section 327, this section applies to specified days as if they were days of remand in custody for the offense or a related offense.

Treatment of Suspended Sentence:

•   - A suspended sentence is treated as a sentence of imprisonment when taking effect under Schedule 16 to the Sentencing Code.
•   - It is treated as imposed by the order under which it takes effect.

Automatic Crediting Under Section 240ZA:

•   - Automatically credits periods of remand in custody toward the sentence.
•   - No discretion for judges to give directions; it is mandatory.

Applicability of Section 240ZA:

•   - Applies to various types of sentences, including imprisonment, detention in a young offender institution, detention under s. 250 or s. 252A, the detention and training order, custodial sentences for certain offenders of particular concern, and extended sentences of imprisonment or detention.

Exception for Certain Sentences under s. 321 and s. 322:

•   - For sentences requiring a specified period under s. 321, the court must consider the effect of s. 240ZA.
•   - In fixing the minimum term for a murder case, the court is similarly required by s. 322(2) to take into account the effect of s. 240ZA.

Administrative Function and Court Relevance:

•   - As per Bhayani [2015] EWCA Crim 352, granting credit for time spent on remand is an administrative function of the prison service.
•   - Court relevance in cases where substantial time is spent on remand, influencing decisions on further punishment justification.
•   - Examples include Barrett [2010] EWCA Crim 365 and Maughan [2011] EWCA Crim 787. - if the sentence is 6 months and D serves 3 on remand that is enough.

Adjustments and Disqualification Period:

•   - Importance of accurate information on remand days for a clear understanding of the sentence's practical effect.
•   - Court may adjust disqualification periods based on time spent on remand to avoid injustice, as indicated in Needham [2016] EWCA Crim 455.
•   - Care needed to avoid infringing any applicable minimum disqualification period when making adjustments for time spent on remand.

-CJA 2003, s. 240A - Credit for Curfew and Electronic Monitoring:

•   - Applies when an offender has been remanded on bail with a 'qualifying curfew condition' and an 'electronic monitoring condition.'
•   - Court must normally direct that the 'credit period' counts as time served.

Responsibility of the Court:

•   - The court is responsible for making this direction, unlike the adjustment for time spent on remand in custody under s. 240ZA.

-Sothilingham [2023] EWCA Crim 485 Case:

•   - Court of Appeal emphasized giving credit for qualifying curfew even if an electronic tag error occurred.

-Calculation Steps - SA 2020, s. 325:

•   1. Add the first day of bail subject to conditions and other days subject to conditions (excluding the last day if spent partly in custody).
•   2. Deduct days subject to electronic monitoring or temporary release.
•   3. Deduct days where the offender broke conditions.
•   4. Divide the result by two.
•   5. Round up to the nearest whole number if necessary.

-Direction by the Court:

•   - The court must direct that the credit period counts as time served, subject to certain conditions.

-Restrictions (s. 240A(3A) and (3B)):

•   - A day of the credit period counts in relation to only one sentence and only once for that sentence (s. 240A(3A)).
•   - A day of the credit period does not count as time served for any automatic release period (s. 240A(3B)).

Statement in Open Court:

•   - The sentencer must state the number of days under conditions and the deductions in open court (SA 2020, s. 325(4)).

-Application of Provisions - SA 2020, s. 325(5) and (6):

•   - Applies to sentences of imprisonment, detention in a young offender institution, determinate sentences of detention, detention and training orders.
•   - A suspended sentence counts when activated due to a breach (s. 325(6)).

Sentencing for Multiple Offences:

•   - Separate sentences for each offence, unless 'no separate penalty' is indicated.
•   - Imprisonment or detention sentences may run concurrently or consecutively.
•   - The court must specify which sentence relates to each count and the concurrency.

Determinate Custodial Sentences on Multiple Offences:

•   - When imposing a custodial sentence on an offender already serving one or more, the court must specify if the new sentence is concurrent or consecutive.
•   - Passing a sentence partly concurrent and partly consecutive is unlawful (Salmon [2002] EWCA Crim 2088).

Commencement of Sentence - SA 2020, s. 384:

•   - The sentence usually takes effect from the day it is imposed unless the court directs otherwise (s. 384(1)).
•   - The power to direct commencement is subject to statutory exceptions (s. 384(3)).
•   - No power to antedate the sentence's commencement (AJ [2013] EWCA Crim 908; Babiak [2017] EWCA Crim 160).

No Commencement on Expiry of Previous Licence - SA 2020, s. 225:

•   - A determinate custodial sentence cannot commence on the expiration of a previous sentence's licence, whether or not the offender has been recalled (McStravick [2018] EWCA Crim 1207; Owusu [2018] EWCA Crim 1959).
•   - Costello [2010] EWCA Crim 371 emphasized that passing a sentence disproportionate to the most recent offence to extend the licence period is wrong in principle.

Ordinary Circumstances for Concurrent Sentences:

  - Concurrent sentences are usually appropriate when:

    - (a) Offences arise out of the same incident or facts, or

    - (b) There is a series of offences of the same or similar kind, especially when committed against the same person.

Lead Sentence Consideration:

  - When passing concurrent sentences, the lead sentence should be:

•     - Just and proportionate.
•     - Reflective of the overall criminality involved.
•     - May take the lead offence outside the category range appropriate for a single offence.

Guidance on Consecutive Sentences:

  - Refer to the overarching sentencing guideline, "Totality," for guidance on the imposition of consecutive determinate sentences on the same sentencing occasion.

Ordinary Circumstances for Consecutive Sentences:

  - Consecutive sentences are typically appropriate when:

•     - (a) Offences arise out of unrelated facts or incidents.
•     - (b) Offences committed in the same incident are distinct, involving an aggravating element requiring separate recognition.
•     - (c) Offences are of the same or similar kind, but overall criminality won't be sufficiently reflected by concurrent sentences.
•     - (d) One or more offence(s) qualifies for a statutory minimum sentence, and concurrent sentences would improperly undermine that minimum.

Prohibited Use of Consecutive Sentences:

•   - It is not permissible to impose consecutive sentences for offences committed at the same time to evade the statutory maximum penalty.

Determining Consecutive Sentences for Offenders Currently Serving:

•   - The Sentencing Council's guideline, "Totality," provides the proper approach for sentencing when imposing a determinate sentence on an offender currently serving one, distinguishing between cases where the new offence was:
•     - (a) Committed before the original sentence was imposed, and
•     - (b) Committed after the original sentence was imposed.

Determinate Sentences of Imprisonment and Release:

•   - Normally, for determinate sentences of imprisonment, detention in a young offender institution, or detention under SA 2020, s. 250:
•     - Duty on the Secretary of State to release the offender on licence once half of the sentence is served (CJA 2003, s. 244).
•     - The licence remains in force until the sentence expires (CJA 2003, s. 249).
•     - Offender can have the licence revoked, returning to custody to complete the sentence.

Secretary of State's Power to Refer to Parole Board:

•   - Effective from 28 April 2022, the Secretary of State can refer an offender to the Parole Board if there's a significant risk of serious harm, particularly for murder or specified offences (CJA 2003, s. 244ZB).
•   - Referral power applicable if the offender is aged 18 or over on the first eligible release day.

Legal Case Reference:

  - Simpson v Secretary of State [2022] EWHC 3181 (Admin): The first referral decision by the Secretary of State was quashed due to the absence of reasonable grounds.

Special Sentences for 'Offenders of Particular Concern':

•   - Different early release provisions for special sentences under SA 2020, s. 265 or 278, imposed on certain 'offenders of particular concern' and for the special sentence of detention for certain terrorist 'offenders of particular concern' under SA 2020, s. 252A (CJA 2003, s. 244A, and E16.39).

Extended Sentences:

•   - Separate early release provisions for extended sentences (CJA 2003, s. 246A, and E16.13).
• Detention and Training Order:
•   - Different early release regime applies to the detention and training order (E15.19).

Murder Sentences Based on Age:

•   - Offender aged 21 and over convicted of murder must receive a sentence of imprisonment for life (Murder (Abolition of Death Penalty) Act 1965, s. 1(1)).
•   - Offender aged under 21 on the conviction date receives custody for life (SA 2020, s. 275; see E17.11).
•   - If the offender convicted of murder was under 18 at the time of the offence, regardless of age on the conviction date, the sentence is detention at His Majesty's pleasure (s. 259: see E17.12).

Statutory Scheme for Minimum Terms in Murder Cases (SA 2020, s. 321, s. 322, sch. 21):

•   - Applies to all mandatory life sentences for murder, including life imprisonment, detention at His Majesty's pleasure (SA 2020, s. 259), and custody for life for 18-20-year-old offenders (s. 275).
•   - Court must make an order under s. 321 for early release provisions once a specified part of the sentence is served.
•   - The specified part is determined by the court, considering the seriousness of the offence and the effect of relevant provisions (CJA 2003, s. 240ZA, s. 240A).
•   - If the offender was 21 or over when the offence occurred, the court may order that early release provisions not apply, resulting in a 'whole life' minimum term order (s. 321(3A)).
•   - For offenders aged 18-20 on or after 28 June 2022, a whole life minimum term order is possible if the offence's seriousness is exceptionally high (s. 321(3B)).

Determining Minimum Term:

•   - Judge focuses on the seriousness of the offence, not the offender's dangerousness.
•   - Public protection responsibility shifts to the Parole Board after the minimum term is served.
•   - The judge can express views on release timing or recommend no release, with the option to provide these comments to the Parole Board (Duncan [2008] EWCA Crim 1055).

Considerations in Determining Seriousness (SA 2020, s. 322):

•   - Court must consider the 'general principles' in sch. 21 and relevant sentencing guidelines that are consistent with sch. 21.
•   - When making a minimum term or whole life order, the court must state reasons in open court, specifying the chosen starting point from sch. 21 and any deviations (s. 322(4)).

Summary of Section 313 (Class A Drug Trafficking Offences):

•   - Applies when a person is convicted of a class A drug trafficking offence committed on or after October 1, 1997, and meets specific criteria related to age and prior convictions.
•   - Pertains to situations where the offender, aged 18 or over, has two other relevant drug convictions, one of which occurred after the conviction of the other.

  - Two scenarios based on when the index offence was committed:

•     - Before Section 124 of the PCSCA 2022: - basically before 28 June 2022 
•       - Court must impose an appropriate custodial sentence of at least 7 years unless particular circumstances make it unjust.

 On or After Section 124 of the PCSCA 2022:

•       - Court must impose an appropriate custodial sentence of at least 7 years unless exceptional circumstances justify otherwise.
•   - Defines 'relevant drug conviction' and includes convictions in the UK or member states for specific drug trafficking offences.
•   - Specifies that the class A drug trafficking offence is triable only on indictment.
•   - Defines 'class A drug' and 'drug trafficking offence' based on the Misuse of Drugs Act 1971 and the Proceeds of Crime Act 2002.
•   - Differentiates 'an appropriate custodial sentence' based on the age of the offender at the time of the index offence.

Summary of Section 73 (Guilty Pleas in Class A Drug Trafficking Offences):

•   - Applies when the defendant (D) has pleaded guilty, and the court must consider the stage and circumstances of the guilty plea (SA 2020, s. 73).
•   - Refers to the overarching guideline, "Reduction in Sentence for a Guilty Plea," paragraph F5.
•   - For offences under s. 313, the court cannot impose a sentence less than 80% of the minimum specified sentence (SA 2020, s. 73(3) and (4)).
•     - Example: 80% of a seven-year minimum produces a sentence slightly under five years and eight months.
•   - If the starting point is higher than the minimum, a one-third sentence reduction for a timely guilty plea may be appropriate, as long as the final sentence is not below 80% of the minimum (Gray [2007] EWCA Crim 979).
•   - In Darling [2009] EWCA Crim 1610, if the sentencing judge deems particular circumstances making the minimum sentence unjust, the limited reduction for a guilty plea may not apply, allowing the judge to reduce the sentence below 80% of the minimum in suitable cases.

Summary of Section (Domestic Burglary Offences):

•   - Applies when a person is convicted of a domestic burglary (index offence) committed on or after 1 December 1999.
•   - Conditions for application:
•     - The offender was aged 18 or over when the index offence was committed.
•     - The offender had 2 other relevant domestic burglary convictions.
•     - One of the burglaries related to the other occurred after the person had been convicted of the other.
•   - If the index offence was committed before the effective date of section 124 of the Police, Crime, Sentencing and Courts Act 2022:
•     - The court must impose an appropriate custodial sentence for a term of at least 3 years, except in cases where particular circumstances make it unjust to do so (Section 2).
•   - If the index offence was committed on or after the effective date:
•     - The court must impose an appropriate custodial sentence for a term of at least 3 years, unless exceptional circumstances justify not doing so (Section 2A).

  For the purposes of subsection (1), 'relevant domestic burglary conviction'

•     - A conviction in England and Wales of a domestic burglary committed on or after 1 December 1999.
•     - A conviction in another part of the United Kingdom of an offence committed on or after 16 August 2010, which would constitute domestic burglary if committed in England and Wales at the time of the conviction.

- Summary of Section 73 (Guilty Plea and Minimum Sentence):

•   Eligibility 
•     - Applies when the accused (D) pleads guilty.
•     - Relevant in cases coming within Section 314 (minimum sentences basically)!!
•   Considerations for Sentencing Court:
•     - The court must consider the stage at which D indicated the intention to plead guilty and the circumstances of this indication.
•     - The overarching guideline, "Reduction in Sentence for a Guilty Plea," para. F5, is also relevant.
•   Minimum Sentence Requirement:
•     - Section 73(3) and (4) stipulate that, for offenses falling under Section 314, the court may not impose a sentence less than 80% of the minimum sentence specified.
•     - Notable legal references: Gray [2007] EWCA Crim 979, Darling [2009] EWCA Crim 1610, and the discussion at E18.6.

•  Calculation Example:
•     - For a minimum sentence of three years, 80% equates to just under two years and five months.
•   Starting Point and Sentence Reduction:
•     - If the starting point is higher than the minimum sentence, a one-third reduction for a timely guilty plea may be appropriate.
•     - The final sentence, however, must not be less than 80% of the minimum sentence (reference: Gray).
•   Case Example (Nelson [2013]):
•     - Nelson fell under Section 314 but participated in an 'early guilty plea scheme.'
•     - The Court of Appeal determined that, based on the circumstances, a starting point of four years and three months was appropriate, allowing a full one-third discount without violating Section 73(3).
•     - The case emphasizes the precedence of statutory provisions over expectations under an early guilty plea scheme when there is a clash.

Summary of Suspended Sentences under SA 2020:

•   Applicability:
•     - Applies to sentences of imprisonment and detention in a young offender institution under the SA 2020.
•     - Available when a court imposes a determinate custodial sentence not exceeding two years.
•     - Inapplicable to sentences of less than 14 days' imprisonment.
•     - For detention in a young offender institution, sentences less than 21 days cannot be suspended (minimum term for this sentence is 21 days).
•     - Detention and training orders cannot be suspended.
•     - Committal to custody for criminal contempt of court is not a sentence of imprisonment (SA 2020, s. 222) and cannot be suspended.

  Reference Cases:

•     - Notable cases include Yaxley-Lennon [2018] EWCA Crim 1856 and Hussain [2022] EWCA Crim 1298.

 Special Sentences for 'Particular Concern':

•     - In theory, the suspension of special sentences for certain offenders of 'particular concern' is possible.
•     - LF [2016] EWCA Crim 561 deems this possibility 'wholly undesirable.'
•     - Reference to E16.38 for further details.

  Minimum Sentence for Repeat Offence Involving a Weapon or Bladed Article (SA 2020, s. 315):

•     - The Court of Appeal, in Uddin [2022] EWCA Crim 751, held that the minimum custodial sentence of six months for a repeat offence involving a weapon or bladed article may lawfully be suspended.
•     - Suspension, however, will rarely be appropriate due to the punitive and deterrent nature of the minimum sentence.

Summary of Conditions for Imposing a Suspended Sentence:

Preliminary Requirements:

•     - A suspended sentence is not permi**ible unle** all statutory provisions for immediate imprisonment or detention in a young offender institution are observed.
•     - Compliance with the relevant provisions of SA 2020, **. 230 and 231 is mandatory before any custodial sentence is pa**ed.
•     - Magistrates' court powers for imposing suspended sentences are subject to similar limitations as their powers for prison sentences (see E13.5).

  Guidelines and Principles:

•     - The overarching sentencing guideline, "Imposition of Community and Custodial Sentences," is applicable.
•     - States that a suspended sentence must not be a more severe form of a community order, and sentencers should expre** a clear intent to impose immediate custody if suspension were not an option.
•     - A suspended custodial sentence should be for the same term as if it were to be served immediately.
•     - The operational period for suspension should reflect the length of the sentence, with up to 12 months being appropriate for a suspended sentence of up to six months.

  Factors Weighed in Consideration:

  Inappropriate for Suspension:

•       - "Offender presents a risk/danger to the public."
•       - "Appropriate punishment can only be achieved by immediate custody."
•       - "History of poor compliance with court orders."

  Appropriate for Suspension:

•       - "Realistic prospect of rehabilitation."
•       - "Strong personal mitigation."
•       - "Immediate custody will result in significant harmful impact on others."

•   - If multiple sentences are given at once and are to be served consecutively:
•     - The power to suspend any sentence is not allowed.
•     - Exception: If the total combined terms of all sentences are two years or less.
•   - Relevant Sections:
•     - Sentences of Imprisonment: SA 2020, s. 277
•     - Sentences of Detention in a Young Offender Institution: SA 2020, s. 264

Summary: Combining Sentences with Suspended Sentences

•   - Immediate prison and suspended sentences should not be imposed together on the same occasion.
•   - A suspended sentence cannot be given to an offender currently serving a prison term.
•   - A court giving a suspended sentence cannot simultaneously impose a community order for the same or another offense by the same offender (SA 2020, s. 203).
•   - Combining a suspended sentence with a discharge for a single offense might not be allowed, but a discharge could be given for a different offense sentenced on the same occasion.
•   - A fine can be combined with a suspended sentence, especially when a confiscation order is not anticipated, no clear victim for compensation exists, and the offender has resources to pay a fine (**** [2018] EWCA Crim 1617).
•   - It is appropriate when the offense is related to the defendant's business, involves substantial means, or allows the offender to continue well-paid work.
•   - Ancillary provisions like compensation orders, restitution orders, or deprivation orders can be imposed simultaneously with a suspended sentence.

• Summary: Suspended Sentence and Community Requirements
•   - Lawful to impose a suspended sentence without including a community requirement (SA 2020, s. 286(2)).
•   - Section 287 lists available community requirements during the supervision period of a suspended sentence:
•     - Unpaid work requirement (Part 1, Sch. 9)
•     - Rehabilitation activity requirement (Part 2, Sch. 9)
•     - Programme requirement (Part 3, Sch. 9)
•     - Prohibited activity requirement (Part 4, Sch. 9)
•     - Curfew requirement (Part 5, Sch. 9)
•     - Exclusion requirement (Part 6, Sch. 9)
•     - Residence requirement (Part 7, Sch. 9)
•     - Foreign travel prohibition order requirement (Part 8, Sch. 9)
•     - Mental health treatment requirement (Part 9, Sch. 9)
•     - Drug rehabilitation requirement (Part 10, Sch. 9)
•     - Drug testing requirement (Part 10A, Sch. 9)
•     - Alcohol treatment requirement (Part 11, Sch. 9)
•     - Alcohol abstinence and monitoring requirement (Part 12, Sch. 9)
•     - Attendance centre requirement (Part 13, Sch. 9)
•     - Electronic compliance monitoring requirement (Part 14, Sch. 9)
•     - Electronic whereabouts monitoring requirement (Part 14, Sch. 9)
•   - Same requirements as those inserted into a community order (details in E12.8 to E12.26).
•  

• - Crown Court's suspended sentence order with community requirement may be subject to magistrates' court supervision (s. 297).
•   - Duty for the offender to keep in touch with the responsible officer (s. 301).
•   - Offender must obtain permission before changing residence (s. 302).
•   - PCSCA 2022, s. 149(3), will amend s. 301 to allow the responsible officer to give instructions for rehabilitation purposes.
•   - PCSCA 2022, s. 152(3), abolished the attendance centre requirement from 28 June 2022, unless the offender was under 25 when convicted prior to this date.
•   - Electronic compliance monitoring requirement requires at least one other community order requirement (except alcohol abstinence and monitoring or electronic whereabouts monitoring) (s. 291).

Summary:

•   - Whenever the court issues a suspended sentence with multiple requirements (s. 292(3)):
•     - Must assess compatibility of requirements in the specific case.
•   - Power to include requirements is subject to avoiding conflicts with:
•     - Offender's religious beliefs.
•     - Requirements of any other relevant order the offender may be subject to.
•     - Interference with the offender's normal work, school, or educational schedule (s. 292(4)).
•   - The suspended sentence must specify the local justice area of the offender's residence (s. 296).

Provisions for Breach or Amendment of Suspended Sentence Community Requirements

•   - Provisions found in SA 2020, sch. 16, cover breach or amendment of community requirements in suspended sentence orders and the impact of a subsequent conviction during the operational period.
•   - The Sentencing Council's guideline, "Breach of a Suspended Sentence Order," applies to offenders sentenced on or after October 1, 2018, regardless of the offense date.

Warning Process (Para. 6):

•     - Responsible officer issues a warning if the offender breaches a community requirement without reasonable excuse.
•     - Warning includes details of the failure, states its unacceptability, and notifies the offender that a repeated breach within the next 12 months will lead to a court appearance.
•     - Exceptions: No warning if a previous one occurred in the last 12 months or if the matter is referred to an enforcement officer.

Subsequent Breach (Para. 7):

•     - If a further breach occurs within 12 months of a warning, the responsible officer must refer the matter to an enforcement officer.
•     - The enforcement officer is obligated to consider the case and, if appropriate, initiate legal proceedings for the breach.
•     - Legal Proceedings: The enforcement officer lays an information before the relevant court.
•   - **Court Arrangements (Paras. 8 and 9):**
•     - Summons or warrant issuance by a magistrates' court or Crown Court in response to an alleged breach.
•     - Information must be laid before the operational period expires, although the court hearing may extend beyond this period (West Yorkshire Probation Board v Cruickshanks [2010] EWHC 615 (Admin)).

Summary: Powers and Procedures for Breach or Subsequent Conviction of Suspended Sentence Orders

 Sentencing Code Provisions (SA 2020, sch. 16, paras. 13 and 14):

•     - Describes the powers of a magistrates' court or the Crown Court when an offender breaches a community requirement or is convicted of an offense during the operational period of a suspended sentence order.
•     - Applies to all offenders aged 18 and over sentenced on or after October 1, 2018.
•   - **Court Powers (Para. 13):**
•     - Court must choose one of the following when dealing with a case:
•       - Activate the suspended sentence with its original or lesser term.
•       - Order the offender to pay a fine (not exceeding £2,500).
•       - Amend the order for community requirements or extend the supervision or operational period. -
• mkaing the community order more ORENOUS 
• extending the superivision period of the community order 288 (4)
• excluding the operational period 288 (2) 

  Notification (Para. 13(3)):

    - The court dealing with the case must notify the court that passed the sentence about the method adopted.

  Activation Order (Para. 14):

•     - The court must make an "activation order" (order under para. 13(1)(a) or (b)) unless it deems it unjust, considering the circumstances, community requirement compliance, and facts of subsequent offenses.
•     - The court must state its reasons if it decides not to make an activation order.
•   - **Important Notes:**
•     - The court must choose one of the specified actions in para. 13; revoking the order or not making any order is not permissible (Clarke [2018] EWCA Crim 2201).
•     - Para. 13(1)(d) is subject to any provision applicable to making a suspended sentence order as if the court were originally making it.
•     - Para. 14(1) mandates activation of the suspended sentence unless deemed unjust, not necessarily in whole (McDonagh [2017] EWCA Crim 2193).
•     - If activated, the suspended sentence may run consecutively or concurrently to any new custodial sentence, subject to certain restrictions and totality principle.
•     - The court dealing with a breach cannot impose a custodial term longer than originally suspended.
•     - Activation in part replaces the whole suspended sentence with an immediate sentence of reduced term.

• -Summary: Sentencing Council's Guideline on Breach of a Suspended Sentence Order
•   Applicability:
•     - The guideline applies to all offenders aged 18 and over sentenced on or after October 1, 2018, regardless of the offense date.
•   - Distinction in Approach: A and B
•     - Conviction for a Further Offense (Category "a"):
•       - The primary consideration is the "facts/nature of the new offense."
•       - Four breach categories are outlined, guiding the approach, considering the unjustness of activating the sentence in whole or in part.
•       - Relevant factors include strong personal mitigation, prospects of rehabilitation, and the impact of immediate custody on others.
•       - Only "new and exceptional" factors not present during the original suspended sentence order imposition should be considered.
•       - In less serious cases, a reduction in the activated sentence may apply based on completed unpaid work or curfew requirements (Bell [2019] EWCA Crim 2079).

•   - Failure to Comply with a Community Requirement (Category "b"):
•       - The court must consider "the extent to which the offender has complied" with the suspended sentence order.
•       - Three breach categories are outlined, guiding the approach, considering the unjustness of activating the sentence in whole or in part.
•       - Relevant factors are reiterated, and the need to consider only "new and exceptional" matters is emphasized.

• Summary: Costs Orders in Criminal Cases
•   Legal Provisions:
•     - The Prosecution of Offences Act 1985, s. 18(1) and (2), along with the Costs in Criminal Cases (General) Regulations 1986, reg. 14, authorize the courts to make cost orders against convicted individuals, unsuccessful appellants, or those in breach of court orders.
•     - Applicable rules are found in CrimPR 45.5 and 45.6, extending the scope of cost orders to various scenarios.
•     - Reg. 14 specifies the application of the Prosecution of Offences Act 1985, s. 18, to Crown Court proceedings on committals for sentence, including cases of breach of suspended sentences, probation orders, or conditional discharge.
•  Jurisdiction and Considerations:
•     - Hamilton-Johnson v RSPCA [2000] clarified the Crown Court's jurisdiction to order costs when an appellant unsuccessfully appeals from magistrates' court decisions.
•     - The court, while having the authority, is advised to exercise caution and allow magistrates to decide on costs where possible.

•     - In Constantine [2010] EWCA Crim 2406, the Court of Appeal ruled that prosecution costs shouldn't be ordered until issues of confiscation under the POCA 2002 are resolved.
•     - Darroch v A-G for the Isle of Man [2019] UKPC 31 established a 28-day time limit under POCA 2002, s. 15(4), for making costs orders after postponed confiscation proceedings.
•   - **Private Prosecution Costs:**
•     - In D Ltd v A [2017] EWCA Crim 1604, a private prosecutor recovered costs for a successful appeal against a terminating ruling.
•     - The court emphasized that these costs should align with those of a public prosecutor and consider individual financial circumstances of defendants.
•     - Payment was directed at the end of the trial.

• Summary: Prosecution Costs Orders
•  Legislation and Principles:
•     - The Prosecution of Offences Act 1985, s. 18, empowers courts to order the payment of prosecution costs.
•     - The court determines a "just and reasonable" amount under s. 18(2) and specifies this sum in the order (s. 18(3)).
•     - Delegation of the duty to determine the payment amount is not allowed (Bunston v Rawlings [1982] 2 All ER 697).
•     - The court can seek assistance from the Criminal Cases Unit of the Legal Aid Authority or Registrar of Criminal Appeals (Practice Direction [2015] EWCA Crim 1568, para. 1.2.4).
•  Determining Costs:
•     - The CPS publishes average costs for their proceedings, but other prosecutors and claimants must justify claimed amounts and demonstrate their relevance to the specific prosecution (R (Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)).
•  Case-Specific Considerations:
•     - In Rahal [2017] EWCA Crim 1779, the Court of Appeal clarified that local authorities, when properly bringing proceedings related to obtaining services by deception (e.g., a tenancy), are entitled to receive reasonable costs.
•     - The court emphasized that such costs are not restricted to CPS rates and must be justified.
•     - The court ruled that the use of two counsel in Rahal was deemed unreasonable.