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Criminal Procedure and Sentencing
Preliminaries
The structure of the criminal courts in England and Wales
Magistrates’ courts
The Crown Court
Public access to the courts
The overriding objective of the Criminal Procedure Rules
The court’s case management powers
"Better Case Management”
Sanctions for non-compliance
Investigative powers of the police
Power to stop and search
Searching premises
Entry with a warrant
Entry without a warrant
Powers of arrest
Arrest without warrant
Meaning of ‘reasonable grounds’
Information to be given on arrest
‘Citizen's arrest’
Voluntary attendance at a police station
Arrest with a warrant
Rules governing detention and interviews of suspects
Procedure after arrest
‘Street bail’
Arrival at the police station: duties of the custody officer
The right to have someone informed of the arrest
Release from custody or detention without charge
Detention without charge: reviews
Detention beyond 24 hours
Detention beyond 36 hours
Non-compliance with review timetable
Interviewing suspects
The caution
The police interview
Access to legal advice
Wrongful denial of access to legal advice
Securing access to legal advice
The role of the solicitor during police interviews
Special rules for interviewing juveniles and persons at risk
The decision to prosecute
The Full Code Test
The Threshold Test
Selection of charges
Accepting guilty pleas
Reconsidering a prosecution decision
Challenging a decision to prosecute
Challenging a decision not to prosecute
Discontinuing proceedings
Commencement of proceedings
Written charge and requisition
Laying an information and issuing a summons
Laying an information
Issuing a summons
Contents of the written charge (or information and summons)
Service of the requisition or summons
Charge after arrest
Involvement of the CPS in the charging decision
Police bail after charge
Imposition of conditions on police bail after charge
Further questioning
Release without charge on police bail
Early administrative hearings
Private prosecutions
Alternatives to prosecution
Cautions
Adults: ‘simple cautions’
Adults: conditional cautions
Youth offenders: cautions
Young offenders: conditional cautions
Fixed penalty notices
Abuse of process
Bail
Adjournments
Remands: procedure in court
Period of remand in custody prior to conviction
Remands in the absence of the defendant
Use of live links
Remand after conviction
The Bail Act 1976
Imprisonable offences
Grounds for withholding bail
Factors to be considered
The bail decision
Children and young persons
Murder, manslaughter and rape
Summary offences
Non-imprisonable offences
Conditional bail
Examples of commonly imposed conditions
Sureties
When may conditions be imposed?
Breaking conditions of bail
Application for variation of conditions
Options open to defendant where bail refused
Repeated bail applications
Application to the Crown Court
Appeal against conditions of bail
Jurisdiction of High Court
Prosecution challenges to decision to grant bail
Application for reconsideration of bail
Appeal to the Crown Court
Failure to surrender to custody
Adjournment
Police powers
Proceeding in the absence of the defendant
Bench warrants
Failure to attend to answer requisition or summons
After arrest under a bench warrant
Loss of presumption in favour of bail
Forfeiture of recognisance
The offence of absconding
The penalty for absconding
Custody time limits
Extending the time limit
Bail and the European Convention on Human Rights
Strasbourg case law
Classification of Offences and Allocation of Either-Way Offences
Classification of offences
Procedural consequences of classification
Either-way offences: the 'plea before venue’ hearing
Indication of guilty plea
Indication of not guilty plea
‘Mixed’ pleas
Proceedings in absence of defendant
Procedure for determining allocation
The mode of trial hearing
Presence of accused
Procedure where court decides in favour of summary trial
Procedure where court decides in favour of trial on indictment
Restriction on summary trial for either-way offences
The accused's decision
Failure to follow correct procedure in determining mode of trial
Challenging a decision to accept jurisdiction
Changing the decision as to mode of trial
Withdrawal of consent to summary trial
Criminal damage: special provisions
Low-value shoplifting
Adjusting the charge to dictate mode of trial
Procedural consequences of the classification of the offence
Disclosure
Initial details of the prosecution case
Disclosure of prosecution evidence
Prosecution disclosure of ‘unused’ material
The duty of the investigator
The duty of disclosure
The scope of the prosecution disclosure obligations under s.3
Continuing duty of disclosure
Disclosure by the defence
Alibis
Drafting defence statements
Disclosure of expert evidence
Notification of intention to call defence witnesses
Summary trial: voluntary disclosure by defence
Sanctions for failure to comply with defence disclosure obligations
Defence application for disclosure
Third-party disclosure
Public interest immunity
Principles underpinning public interest immunity
Use of ‘special counsel’ in Pll applications
Shortcomings in the disclosure regime
Territorial jurisdiction
Time limits
The contents of the charge
Case management
Active case management
Power to make pre-trial rulings
‘Special measures’ directions
Preparation for Trial Hearings
Securing the attendance of witnesses
Defects in the charge or information
Minor defects
Defects requiring amendment
Irremediable defects
Trying more than one offence or more than one defendant
Attendance of the parties
Non-attendance by the prosecution
Non-attendance by the defendant
Trial in absence of the defendant
Setting aside conviction where the defendant did not know of proceedings
Pleading guilty by post
The 'single justice’ procedure
Withdrawal of charge/offering no evidence
Summary trial procedure
Outline of a summary trial
Witnesses
Reading witness statements
Witnesses the prosecution must call
Admissions
Objecting to prosecution evidence in a summary trial
Section 76 of PACE
Section 78 of PACE
Submission of no case to answer
Reopening the prosecution case
The defendant’s evidence
Reopening the prosecution case after defence evidence has been called
Hearing further evidence after the justices have retired to consider their verdict
Change of plea
Seeing the magistrates in private
The magistrates’ decision
Alternative verdicts
Procedure where the defendant is convicted
The role of the court clerk/justices’ legal adviser
Committal for sentence
Section 3 of the Powers of Criminal Courts (Sentencing) Act 2000
Challenging a decision to commit for sentence
Procedure in the Crown Court
Committal for breach of Crown Court order
Section 4 of the Powers of Criminal Courts (Sentencing) Act 2000
Dangerous offenders: s.3A of the Powers of Criminal Courts (Sentencing) Act 2000
Section 6 of the Powers of Criminal Courts (Sentencing) Act 2000
Errors in the committal process
Young Defendants and Youth Court Trials
The aims of the youth justice system
Terminology
Age of criminal responsibility
Youth offending teams
Youth courts
Attendance of parent or guardian
Reporting restrictions in the youth court
Detention where bail is withheld
Remands to local authority accommodation
Remands to youth detention accommodation
Differences between the youth court and the adult magistrates’ court
Exclusion of the public
Summary trial procedure
Court of first appearance
Place of trial
Crown Court trial of child/young persons
Murder and manslaughter
Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000
The decision to send for trial in a s.91 case
Related offences
Challenging refusal to send for trial in a s.91 case
Challenging the decision to send for trial in a s.91 case
Joint charge with adult to be tried in the Crown Court
Plea before venue
Committal for sentence following plea before venue
Dangerous offenders
Special arrangements where a child/young person is tried in an adult court
Accused testifying via live link
Sentencing young defendants after Crown Court trial alongside an adult
Summary trial of child/young persons in adult magistrates’ court
Adult being tried in Crown Court
Adult being tried in the magistrates’ court
Determining the age of the defendant
Reporting restrictions in the adult courts
Relevant date for determining age
International instruments on youth justice
Reforming the youth justice system
Appeals from Magistrates’ Courts and Youth Courts
Setting aside conviction or sentence
Setting aside a conviction
Varying or rescinding a sentence
Appeals to the Crown Court
Procedure for appeal to the Crown Court
Bail pending appeal
The hearing of the appeal in the Crown Court
Appeals against conviction
Appeals against sentence
Decision
Reasons for the decision
Equivocal pleas
Powers of the Crown Court
Further appeal from the Crown Court
Appeal to the High Court by way of case stated
Procedure for appealing by way of case stated
Refusal to state a case
The statement of case
Bail pending appeal
The hearing
Powers of the Divisional Court
Effect on the right of appeal to the Crown Court
Judicial review
Grounds for seeking judicial review
Availability of appeal to the Crown Court
Procedure
Bail
Remedies
Appeals against sentence
Case stated or judicial review
Further appeals
From the Crown Court
Appeal from the Divisional Court
Proposals for reform of the system of appeals from magistrates’ courts
Sending Cases to the Crown Court for Trial
Introduction
Section 51 of the Crime and Disorder Act 1998
Linked offences
Co-accused
Reporting restrictions
Procedure after the case has been sent to the Crown
Applications for dismissal of charge
Power of the Crown Court to deal with summary offence
Procedure where main offence sent for trial is not on the indictment
Notices of transfer
Serious or complex fraud cases
Child witness cases
Submissions of no case to answer
Linked offences
Voluntary bills of indictment
Indictments
Terminology
Drafting the indictment
Time limit
Form of indictment
The rule against duplicity
Co-defendants
Joinder of counts
Same facts
Contradictory counts
Same or similar character
Joinder of defendants
Joinder of summary offences under s.40 of the Criminal Justice Act 1988
Discretion to order separate trials
Separate counts
Co-defendants
Deciding the contents of the indictment
Substituting offences
Adding additional offences
More than one indictment
Adding an additional defendant
Alternative counts
Amending the indictment
Quashing the indictment
Historical note: the previous rules on joinder
Crown Court Trial
Pre-trial hearings
Plea and Trial Preparation Hearing (‘PTPH’)
Arraignment
Seeking an indication as to sentence
Pleading guilty to an alternative offence
Offering no evidence; leaving counts on the file
Different pleas from different defendants
Preparatory hearings
Securing the attendance of witnesses
Presence of defendant
Bail
The jury
Who can serve on a jury?
Excusal and deferral
Empanelling a jury
Starting with more than 12 jurors
Challenges to jurors
Standing a juror by
Challenging for cause
Discharge of individual jurors during the trial
Discharge of the entire jury
Jury irregularities
Special measures
Special measures directions
Special measure for defendants
The trial
An outline of trial
Witnesses waiting to testify
The start of the trial: preliminary directions to the jury
Prosecution opening speech
Defence confirmation of the issues
Prosecution evidence
Formal admissions
Prosecution witnesses
Reading witness statements with the consent of the defence
Reading witness statements without the consent of the defence
Real evidence
Witnesses whom the prosecution must call
Expert evidence
Challenging the admissibility of prosecution evidence
Confessions: s.76 of PACE
Unfairness: s.78 of PACE
Submission of no case to answer
Acquittal by judge of his own motion
The defence case
Defence evidence
Closing speeches
Variation in procedure where there is more than one defendant
Defendants separately represented
Defendants jointly represented
The judge’s directions to the jury
The summing up to the jury
Respective functions of judge and jury
Burden and standard of proof
Burden of proof
Standard of proof
Exceptional cases where the burden is on the defendant
Explanation of the law involved and how it relates to the facts
Such warnings as are appropriate
Co-defendants or more than one count
Identification evidence
Adverse inferences for silence
Alibi evidence
Lies by the defendant
Defendant's previous convictions
The defendant's good character
Accomplices
Expert evidence
Alternative counts
Concluding directions
Retirement of the jury
No further evidence after retirement
Questions from the jury after retirement
Returning a verdict
Majority verdicts
Jury still unable to reach a verdict
The Watson direction
Discharge of jury
Verdict of guilty to an alternative offence
Express inclusion
Implied inclusion
Directing the jury on alternative offences
Change of plea
Procedure where defendant is convicted
Variation of sentence
Fitness to plead
Autrefois convict and autrefois acquit
Trial on indictment without a jury
Jury tampering
Appeals to the Court of Appeal
The Court of Appeal (Criminal Division)
Appeal against conviction
The need for leave to appeal
Appeal against conviction where the defendant pleaded guilty
Procedure for obtaining leave to appeal
Timelimit
Transcript of evidence and summing up
‘Perfecting’ the grounds of appeal
Change of representative
Granting of leave to appeal: the single judge
Bail
Presence of the appellant
The hearing of the appeal against conviction
Grounds of appeal against conviction
Errors in the course of the trial
Safety of conviction and fairness of trial
Appeals relating to the jury
Inconsistent verdicts
Fresh evidence in the Court of Appeal
Result of appeal against conviction
Appeal dismissed
Successful appeal
Ordering a retrial
Substituting a conviction for an alternative offence
Unmeritorious appeals: directions for loss of time
Appeal against sentence
Leave to appeal
Procedure for appealing against sentence
Grounds of appeal against sentence
Effect of appeal against sentence
Re-opening appeals
Appeals by the prosecution
Attorney General’s reference following acquittal
Attorney General’s reference: unduly lenient sentence
Prosecution appeals terminating rulings
Appeals to the Supreme Court
The role of the Divisional Court
The Criminal Cases Review Commission
Changes in the law as a ground of appeal
Retrials for serious offences
Court of Appeal statistics
Legal Aid and Costs
Advice and assistance for individuals in custody
Legal aid in criminal proceedings
The interests of justice test
The means test
Contribution orders
Recovery of Defence Costs Orders
Costs orders
Defendant’s costs orders
Prosecution costs from central funds
Defendant to pay prosecution costs
Wasted costs orders
Wasted costs orders against parties
Wasted costs orders against representatives
Wasted costs order against third parties
Appeals on costs
Sentencing Principles and Procedure
The purposes of sentencing
Sentencing guidelines
Duty of court to follow guidelines
Determining the seriousness of the offence
Culpability
Harm
Statutory aggravating factors
Previous convictions
Offending while on bail
Racial or religious aggravation
Non-statutory aggravating factors
Commission of offence whilst under the influence of alcohol or drugs
Offence committed as part of a group or gang
Offence involved use or threat of use of a weapon
Planning of an offence
Commission of the offence for financial gain
High level of profit from the offence
Abuse of trust or dominant position
Gratuitous degradation of victim/maximising distress to victim
Vulnerable victim
Victim providing a public service or performing a public duty at the time of the offence
Other(s) put at risk of harm by the offending
Offence committed in the presence of other(s) (especially children)
Actions after the event, including attempts to cover up/conceal evidence
Blame wrongly placed on other(s)
Failure to respond to warnings or concerns expressed by others about the offender’s behaviour
Offence committed on licence or post-sentence supervision or while subject to court order(s)
Location and/or timing of offence
Established evidence of community/wider impact
Prevalence
Thresholds
Custody threshold
Community sentence threshold
Reduction in sentencing for pleading guilty
The amount of the reduction
Relationship between guilty plea and remorse
Where the prosecution case is overwhelming
Procedure following a plea of guilty
Basis of plea agreements
The Newton hearing
Procedure for Newton hearings
Standard of proof in a Newton hearing
Effect of Newton hearing on guilty plea discount
Exceptional cases where Newton does not have to be applied
Appeals in Newton cases
Procedure following conviction after a ‘not guilty’ plea
Pre-sentence reports
Circumstances where a pre-sentence report is required
Disclosure of the pre-sentence report
Adjournments prior to sentence
Keeping sentencing options open
Victim Personal Statements
Community Impact Statements
Impact Statement for Business
The plea in mitigation
Factors reducing seriousness or reflecting personal mitigation
No previous convictions or no relevant/recent convictions
Good character and/or exemplary conduct
Remorse
Self-reporting
Cooperation with the investigation/early admissions
Little or no planning
Lesser or subordinate role
Involvement through coercion, intimidation or exploitation
Limited awareness or understanding of the offence
Little or no financial gain
Activity originally legitimate
Age and/or lack of maturity
Sole or primary carer for dependent relatives
Physical disability or serious medical condition
Mental disorder or learning disability
Determination to address addiction or offending behaviour
Assisting the authorities
Qualities of a good plea in mitigation
Sentencing only for offences of which defendant stands convicted or has admitted
Offences taken into consideration (‘TICs’)
‘Specimen’ or ‘sample’ counts
Reasons for sentencing decisions
Sentencing in the absence of the defendant
Deferring sentence
The responsibility of the advocates
Restorative Justice
Sentencing Adult Offenders
Custodial sentences
Imprisonment
Length of sentence
Concurrent and consecutive sentences
Effect of time spent on remand
Release from custody
Suspended sentences
Breach of suspended sentence of imprisonment
Dealing with breaches of suspended sentences
Life sentences
Mandatory life sentences
Discretionary life sentences
Life sentence for ‘second listed offence’
Life sentences for serious offences
Release of life prisoners
Dangerous offenders
Extended sentences for violent or sexual offences
Assessing dangerousness
Special custodial sentences for certain offenders of particular concern
Mandatory sentences
Third Class A drug trafficking offence
Minimum sentence for a third domestic burglary
Minimum sentence for certain firearms offences
Violent Crime Reduction Act 2006
Discount for guilty plea
Custodial sentencing powers of magistrates’ courts
Summary offences
Either-way offences
Consecutive terms of imprisonment
Community sentences
Unpaid work requirement
Rehabilitation activity requirement
Programme requirement
Prohibited activity requirement
Curfew requirement
Exclusion requirement
Residence requirement
Foreign travel prohibition requirement
Mental health treatment requirement
Drug rehabilitation requirement
Alcohol treatment requirement
Attendance centre requirement
Electronic monitoring requirement
Restrictions on community orders
Breach of community orders
Commission of further offences
Fines
Crown Court fines
Magistrates’ courts fines
Fixing the amount of the fine
Fine bands in magistrates’ courts
Enforcement of fines
Discharges
Absolute discharge
Conditional discharge
Breach of conditional discharge
Compensation orders
Surcharges
Other orders that may be made following conviction
Endorsement of driving licences and disqualification from driving
Forfeiture
Confiscation orders
Criminal Behaviour Orders
Registration of sex offenders
Bind overs
Sentencing Young Offenders
Sentencing young offenders
Welfare
Custodial sentences
Detention and Training Orders (DTО)
Duration of a detention and training order
Supervision under a DTO
Commission of further offences during the supervision period of a DTO
Detention under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000
Detention in a young offender institution
Life sentences
Youth rehabilitation orders (YROs)
Activity requirement
Supervision requirement
Unpaid work requirement
Programme requirement
Attendance centre requirement
Prohibited activity requirement
Curfew requirement
Exclusion requirement
Residence requirement
Local authority residence requirement
Mental health treatment requirement
Drug treatment requirement
Intoxicating substance treatment requirement
Education requirement
Electronic monitoring requirement
Intensive supervision and surveillance
Fostering requirement
Duration of YRO
Breach of YRO
Commission of subsequent offences
Reparation orders
Referral orders
Fines
Surcharge
Bind over: parental recognisance
Relevant age for determining age of offender
Powers of an adult magistrates’ court
Powers of youth court and Crown Court
Summary: sentences available according to age
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