CRIMINAL |2021

PRACTICE sae
SOLICITORS
QUALIFYING
EXAMINATION
 SQE MCQ App
Scan the code or go to
the URL to access
exclusive MCQs

tO.
@

= i=
re
tats
e

o ww @

() real td] @ Ps)

No QR scanner?
Go to e.law.ac.uk/s2iw
CRIMINAL PRACTICE |

“WO
S38244
 The
University
of

CRIMINAL PRACTICE
Sean Hutton
Published by
The University of Law,
2 Bunhill Row
London EC1Y 8HQ
© The University of Law 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted,
in any form or by any means, without the prior written permission of the copyright holder, application for which
should be addressed to the publisher.
Contains public sector information licensed under the Open Government Licence v3.0
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
ISBN 978 1 914219 139
 Preface

This book is part of a series of Study Manuals that have been specially designed
to support the reader to achieve the SQE1 Assessment Specification in relation to
Functioning Legal Knowledge. Each Study Manual aims to provide the reader with
a solid knowledge and understanding of fundamental legal principles and rules,
including how those principles and rules might be applied in practice.
This Study Manual covers the Solicitors Regulation Authority’s syllabus for the SQE1
assessment for Criminal Practice in a concise and tightly focused manner. The
Manual provides a clear statement of relevant legal rules and a well-defined road
map through examinable law and practice, including the Sentencing Act 2020 which
came into force in December 2020. The Manual aims to bring the law and practice
to life through the use of example scenarios based on realistic client-based problems
and allows the reader to test their knowledge and understanding through single
best answer questions that have been modelled on the SRA’s sample assessment
questions.
For those readers who are students at the University of Law, the Study Manual is
used alongside other learning resources and the University’s assessment bank to
best prepare students not only for the SQE1 assessments, but also for a future life in
professional legal practice.
We hope that you find the Study Manual supportive of your preparation for SQE1 and
we wish you every success.
The legal principles and rules contained within this Manual are stated as at 1
October 2020.

Author acknowledgments
| should like to thank Deborah Sharpley, Cheryl Weir and Gary Atkinson for their
help in the preparation of this book and my fellow SQE1 Criminal Practice course
designers, Sue Evans and Matthew Nash, for their comments cind support. Thanks
must also go to David Stott for his editorial support and guidance.
For Pippa, Perran, Briana, Tobias, Amie, Naomi, Tom and Alfie
 ‘1 oe"

-s9!s yttulucaa aad. twee igdh teana putz ke toon e hae, €) god alt
vy ol ualoe ates gA es 2) aT dydetion of ibhue et heqgue dF
riny ad baking OP ares lene efit thiod apteewowt’ lenges Derenait Us et
weaQiinne | agen. dev ernaeer sont 2a pt) jeichorn? [iy meiner worn biloar
nilying at align iy Od) Weigh eeie! PMe a sla) send! wad priibulyed
AOE avtherwoh elles ie ITH: ge MIRE seat ApeeRS 1 word Vout? ait
wit pean cobeaeet’ Vila fi Malev) B/ eye bani tO) Weettitange>

pede lek Rew. coving auhanto pele rental fos heaenetat mets aubhicke aDAgIVS
os ACT f 12 ofan bead
PO iv emremc mk A |
i ng win! ef cet zh OP \ aft figs Li dak Pad yu geicat pare: wen

or" 7 cyt te Te is OPO ADaL wi tye iy ord apt dient om ot,

ft ont Be @Sheiigod ed? Daher Meese Ot avyie AD

Wee one ee sd panehoy enettanup vaworicy repel
i’ panne

1 X doit amr Meee tl a) ie rivrar vale: ovit ory ¢ oP dye AZe Zi fag

coe ete owlield eal) poe Saat Ae) Geinipal Wate abienrolo amy
sale turd cleoyeeees PIS Ore 16 ie lon Haas agen f
goreted (pel loocWeatAg
rays
: we Pk He et i iy te) cigs mary / :* Dike , ul on i? 1ON nt aS A ew

deeqoue YlONe Uny civy aw

je oo lodnoM.ett oti Reales eon he weliQahe toga til,

ly HOV. *eeietyO
‘ i

; met wotiion “on

sung
nko tne wie aw Aaa yraptc Heagiie:) dao al alt) DAioee |
ye Leer Ney LAGS elle uae Byam zit ion a de ort nh Gert
etn ahipemimes et) it etl wen One tod gut penglieh \»
SUT Dae Mayes give Ser ae ith le jerk od Of Osim feprn -

HA bles mel Jove tier ‘nodal onoi® pons? pager

* ve ¢ .
,

© t
oe
Ai eephd> eeetivene (pas 2 aaa eepraw idecrt
an nm oN yy ’ es wwa
pt teeaile oune
wv? vel up ehiyeeoe Wh. aw

(et jen uty paghaneo

Malgher Line mi ely hae ee iia se) .

ee rt
A \Stacegus Hers fey toy ot Late wee sey fr ey

ran 8 Wate 8 mee C8) ee

a i ' Ne W ha ’
-
 Contents
Preface Vv

Table of Cases XV

Table of Statutes XVii

PART 1 ADVISING CLIENTS ABOUT THE PROCEDURE AND PROCESSES

AT THE POLICE STATION 1
Chapter 1 Detaining a Suspect at the Police Station and Police Interviews 5
Learning outcomes 5
Fe Introduction 6
se Procedure on arrival at the police station 6
1.2.1. The custody officer 6
1.2.2. The decision to detain a suspect Z
i Rights of a suspect being detained by the police for questioning 8
1.3.1 Right to legal advice 9
1.3.2 Right to have someone informed of arrest 10
1.3.5 Detention time limits and reviews of detention under PACE 1984,
Code C 11
1.3.4 The rights of a volunteer attending the police station 15
1.4 Advising a client whether to answer police questions 1S
1.4.1. Information gathering on arrival at the police station 15
1.4.2. The client’s options in interview and identifying the safest option 18
1.5 Procedure for interviewing a suspect under PACE 1984 24
| Requirements of Codes C and E 24
1.5.2 Start of the interview 26
1.5.3. Conduct of the interview 28
1.5.4 Role and appropriate conduct by defence legal
representative/solicitor 28

1.6 Conduct issues at the police station 31

1.6.1. The client who admits guilt 31
1.6.2 Conflict of interest 32
1.6.3 Should a solicitor disclose to one client information
they have been given by another client? 33
1.6.4 Disclosing the client's case to a third party 33
1.6.5 The solicitor’s duty of disclosure to a client 33
1.6.6 Withdrawing from acting 34
Summary 34
Sample questions 35
Contents

Chapter 2 Identification Procedures

Learning outcomes
He Introduction

2.2 When an identification procedure must be held

25 Different types of identification procedure under PACE 1984, Code D
7
ae Which type of identification procedure should be used?
Load Can an identification procedure be used if a witness has
recognised a suspect from a photograph?
2.4 Procedure to be followed for carrying out an identification procedure 43
2.4.1 Video identification (Code D, Annex A)
2.4.2 Identification parades (Code D, Annex B)
2.4.3 Group identification (Code D, Annex C)
2.4.4 Confrontation (Code D, Annex D)
2.4.5 Who is responsible for the running of an identification procedure?
25 Legal adviser’s role at an identification procedure and advising a client
oat Initial advice to the client
aad Video identification
25.35 Identification parades
2.5.4 Written records

Summary
Sample questions
Chapter 3 Charging the Suspect
Learning outcomes
Du Introduction
di2 Release under investigation
3.3 Bail before charge
Bho | Release on bail (or detain in custody) whilst the file
is passed to the CPS
3.4 The decision to charge
3.5 Interviewing after charge
3.6 Bail after charge
3.6.1. When may the police deny bail to a suspect?
3.6.2 Conditional bail
3.6.3 When will the suspect make their first appearance at court?
3.6.4 Breaching police bail (after charge)
5.7 Alternatives to charging
3.7.1. Informal warnings
3.7.2. Penalty notices
3.7.3. Simple cautions
3.7.4 Conditional cautions
3.7.5 Commencing a case other than by charge (CrimPR, Parts 4 and 7)
Summary

viii
 Contents

Chapter 4 Representing Vulnerable Clients 63

Learning outcomes 63
4.1 Introduction 64
4.1.1 Informing the person responsible for the juvenile’s welfare 64
4.1.2 | Where the suspect doesn’t speak or understand English or
has a hearing or speech impediment 64
4.1.3. Where the suspect is blind or suffers from a serious
visual impairment 65
4.2 The appropriate adult 65
4.2.1. | Who may be an appropriate adult? 65
4.2.2 What is the role of the appropriate adult? 66
4.3 Role of the legal representative/solicitor 66
4.4 Interviewing vulnerable suspects 67
4.5 Identification procedures 67
4.6 Charging juveniles 68
4.6.1 Juveniles refused bail after charge 68
4.7 Alternatives to charging juveniles 69
4.7.1 | Community resolution 69
4.7.2 Youth cautions 69
4.7.3 Youth conditional cautions 69
47.4 The effect of youth cautions and youth conditional cautions 70
Summary 71
Sample questions 71

PART 2 THE PROCEDURES AND PROCESSES INVOLVED IN CRIMINAL

LITIGATION AND THE LAW OF EVIDENCE 75
Chapter 5 First Hearings Before the Magistrates’ Court dd
SQE1 syllabus 77
Learning outcomes ei
oma Introduction 78
5.2 Classification of offences 78
5.2.1. Offences triable only on indictment 78
5.2.2 Either-way offences 79
5.2.3 Summary offences 79
5.3 Public funding available to a defendant and applying for
a representation order 80
5.3.1. Work done at the police station 80
5.3.2 Work done after the client is charged 80
5.4 Procedural overview - what will happen at the first hearing 85
5.4.1. Summary offences 86
5.4.2 __Either-way offences 86
5.4.3 Offences triable only on indictment 86
Contents

5.5 The role of the defence solicitor at the first hearing 87

Summary 87
Sample questions 88
Chapter 6 Plea Before Venue and Allocation of Business Between the Magistrates’
Court and Crown Court 91
SQE1 syllabus 91
Learning outcomes 91
6.1 Introduction 92
6.2 Prosecution obligation to provide IDPC 92
6.2.1 Summary and either-way offences (CrimPR, Part 8) 92
6.2.2 | Offences triable only on indictment 93
6.3 Advising a client on plea and trial venue 93
6.3.1 Advising on plea 93
6.3.2 Advising on trial venue 94
6.3.3 Professional conduct 96
6.4 Procedure on defendant indicating plea (for either-way offences) 97
6.4.1 Indicating a guilty plea oF
6.5 Procedure ss 19-20 and s 22A Magistrates’ Courts Act 1980 98
6.5.1 Allocation 98
6.5.2 Different pleas at the plea before venue hearing 101
6.6 Sending without allocation s 50A Crime and Disorder Act 1998 102
Summary 102
Sample questions 103
Chapter 7 Bail 107
SQE1 syllabus 107
Learning outcomes 107
Ted Introduction 108
72 Remands and custody time limits 108
Tale Remands before conviction 108
Wego Jt Remands after conviction 110
15 The right to bail 110
7.3.1 Exceptions to the right to bail 110
7.4 Conditional bail 115 |
hao Procedure for applying for bail 118
7.6 Further applications for bail 120
ra Appeals against decisions on bail 120
7.7.1. Appeals by the defendant (CrimPR, r 14.8) 120
7.7.2 Appeals by the prosecution (CrimPR, r 14.9) 121
 Contents

7.8 Absconding and breaches of bail 121

7.8.1 Failing to surrender (absconding) 121
7.8.2 Breaching bail 122
Summary pee:
Sample questions 124
Chapter 8 Case Management and Pre-trial Hearings 127
SQE1 syllabus 12¢
Learning outcomes 127
8.1 Introduction 128
8.2 Magistrates’ court case management directions 128
8.2.1 Case management hearing 128
8.2.2 Additional trial preparation 128
8.3 Plea and trial preparation hearing 130
8.3.1. Offences triable only on indictment 130
8.3.2 Either-way offences 131
8.3.3. Preliminary hearings in the Crown Court 132
8.3.4 The PTPH pers
8.4 Disclosure - prosecution, defence and unused material 134
8.4.1 Initial prosecution duty of disclosure 134
8.4.2 Defence disclosure 136
8.4.3. Further disclosure obligations on the prosecution 138
8.5 Magistrates’ court trial preparation form 1SY
8.6 Disclosure flowchart (magistrates’ court and Crown Court) 146
Summary 147
Sample questions 147

Chapter 9 Principles and Procedures to Admit and Exclude Evidence 151

SQE1 syllabus 151
Learning outcomes 152
9.1 Introduction 152
7:2 Burden and standard of proof hoe
9.2.1 The legal burden 153
9.2.2 The evidential burden 153
9.3 Visual identification evidence and Turnbull guidance 154
7.5.1 Challenging the admissibility of disputed visual
identification evidence 154
9.3.2 The Turnbull guidelines 155
9.3.3. The Turnbull guidelines in the magistrates’ court 158
9.4 Inferences from silence ss - 34, 35, 36, 37, 38 Criminal Justice and
Public Order Act 1994 158
9.4.1. The ‘right to silence’ 158

xi
Contents

9.4.2 Inferences under s 34 CJPOA 1994 1S?

9.4.3. Inferences under s 36 CJPOA 1994 162
9.4.4 Inferences under s 37 CJPOA 1994 163
9.4.5 Silence at trial and inferences under s 35 CJPOA 168
ae) Hearsay evidence 169
9.5.1 Definition 169
9.5.2 Grounds for admitting hearsay evidence 170
9.5.3 Procedure for admitting hearsay 176
9.6 Confession evidence 177
9.6.1 Definition 177
9.6.2 Admissibility 178
9.6.3 Challenging admissibility s 76 PACE 1984 179
9.6.4 Challenging admissibility s 78 PACE 1984 182
9.6.5 Procedure for challenging the admissibility of confession evidence 183
9.6.6 Evidence obtained as a result of an inadmissible confession 183
oF Character evidence — 185
aad oid Definition of bad character 185
9.7.2 The 7 gateways s 101(1) Criminal Justice Act 2003 185
9.7.3 Court's powers to exclude defendant's bad character 195
9.7.4 Procedure for admitting evidence of bad character 197
9.8 Exclusion of evidence 197
9.8.1 Scope and application of s 78 PACE and the right to a fair trial 197
9.8.2 Evidence obtained by entrapment and abuse of process 199
Summary 199
Sample questions 200
Chapter 10 Trial Procedure in the Magistrates’ Court and Crown Court 203
SQE1 syllabus 203
Learning outcomes 203
10.1 Introduction 204
10.2 Burden and standard of proof 204
10.3 Stages of a criminal trial, including submission of no case to answer 204
10.3.1 Trial in the magistrates’ court (CrimPR, Part 24) 204
10.3.2 Trial in the Crown Court 212
10.4 Modes of address and court room etiquette 217
10.5 Difference between leading and non-leading questions 217
10.5.1 Examination-in-chief 217
10.5.2 Cross-examination 218
10.5.3. Re-examination 219?
10.6 = Competence and compellability 219
10.6.1 The general rule 219
10.6.2 Exception to the general rule on competence 219

xii
 Contents

10.6.3 Exceptions to the general rule on compellability 220

10.7 Special measures 222
10.8 — Solicitor’s duty to the court 223
10.8.1. Preparing the defendant to give evidence 223
Summary 224
Sample questions 224
Chapter 11 Sentencing 227
SQE1 syllabus 227
Learning outcomes 227
dat Introduction 228
HAZ Role of sentencing guidelines 228
11.2.1 The Sentencing Council of England and Wales 228
11.2.2 The principle of seriousness 229
11.3. Determining seriousness (aggravating and mitigating facts) 230
11.3.1 Statutory aggravating factors 230
11.3.2 Other aggravating and mitigating factors 230
11.3.3 Reduction in sentence for a guilty plea 231
11.3.4 Totality principle 251
11.3.5 Offences taken into consideration 232
11.4 How the Sentencing Guidelines work 232
11.5 Concurrent and consecutive sentences 234
11.6 = Mitigation 205
11.6.1 Objective and structure 235
11.7. Types of sentence 238
11.7.1 Custodial sentences 238
11.7.2 Suspended sentences 240
11.7.3. Generic community orders 241
11.8 Newton hearings 244
Summary 244
Sample questions 245
Chapter 12 Appeals Procedure 249
SQE1 syllabus 249
Learning outcomes 249
12.1 Introduction 250
12.2 Appeals from the magistrates’ court to the Crown Court 250
12.2.1 Appeals against conviction 250
12.2.2 Appeals against sentence 250
12.3. Procedure for appeal against conviction and/or sentence 250

xiii
Contents

12.4 Powers of the Crown Court 251

12.5 Appeal to the High Court by way of case stated 251
12.5.1 Procedure 251
12.5.2 The hearing 252
12.5.3 Advising a client 253
12.6 = Judicial review 253
12.7. Appeals from the Crown Court by a defendant 253
12.7.1. Appeal against conviction 254
12.7.2 Appeal against sentence 257
12.7.3 Prosecution appeals 258
Summary 260
Sample questions 260
Chapter 13 Youth Court Procedure 263
SQE1 syllabus 263
Learning outcomes 263
13.1 Introduction 264
18.2 The aims of the youth justice system 264
13.2.1 Role of the Youth Offending Team (YOT) 264
13.2.2 Role of parents/guardians 264
13.2.3 Reporting restrictions 265
13.2.4 Legal representation 265
13:3 The Youth Court's jurisdiction 265
13.4 Differences with the adult magistrates’ court 266
13.4.1 Age 266
13.4.2 Determining mode of trial of juveniles 267
13.4.3. Plea before venue and allocation 268
135 Bail 268
13.5.1 Consequences of refusal of bail 268
13.6 Sentencing 269
13.6.1 Sentencing procedure 269
13.6.2 Role of the Sentencing Children and Young
People - definitive guidelines 270
13.6.3 Referral orders 272
13.6.4 Youth rehabilitation orders (YRO) 272
13.6.5 Detention and training orders 272
13.7 Appeal jurisdiction from the Youth Court 273
Summary 273
Sample questions 274
Index 277

xiv
 Table of Cases

Alladice (1998) 87 Cr App R 380 181

Anderson (2010) The Times, 23 December 17
Andrews [1987] AC 281 174
Argent [1997] 2 Cr App R 27 156, 161

Ball [2005] EWCA Crim 2826 194

Barker [2010] EWCA Crim 4 219
Beckles [2004] EWCA Crim 2766 161, 162
Bennabou [2012] EWCA Crim 3088 189, 190
Betts and Hall [2001] 2 Cr App R 257 160
Bowden [1999] 1 WLR 823 162
Boyle and Ford [2006] EWCA Crim 2101 254
Brett v DPP [2009] EWHC 440 253
Brima [2006] EWCA Crim 408 188
Broome [2012] EWCA Crim 2879 186

Campbell [2005] EWCA Crim 248 186

Canale [1990] 2 All ER 187 182
Charles v The Queen [2007] UKPC 47 42
Condron v UK (2001) 31 EHRR 1 160, 161
Cowan; Gayle; Ricciardy [1995] 4 All ER 939 168

Daniel Harvey [2020] EWCA Crim 354 79

Davis (2008) 172 JP 358 186
Dunlop [2006] EWCA Crim 1534 259

Edwards and Others [2005] EWCA Crim 3244 193

Friend [1997] Crim LR 817 168, 201

Friend (No2) [2004] EWCA 2661 168, 201
Fulling [1987] 2 WLR 923 180

Galbraith [1981] 2 All ER 1060 153, 208, 224

Goodyear [2005] EWCA Crim 888 133

H v DPP [2003] All ER (D) (Jan) 41

Hanson, Gilmore & Pickstone [2005] Crim LR 787 188, 189, 191
Harris [2003] EWCA Crim 174 41, 49
Highton & Others [2005] EWCA Crim 1985 195
Hodgin (Lee) [2020] EWCA Crim 1388 231
Howell [2003] Crim LR 405 161
Table of Cases

K Keenan [1990] 2 QB 54 182, 197

Khan v United Kingdom [2000] Crim LR 684 199
Knight [2003] EWCA Crim 1977 160
Knight [2007] All ER (D) 381 (Nov) 169

L Loosely; AG’s Reference No 3 of 2000 [2001] UKHL 53 199

M Maher v DPP [2006] EWHC 1271 (Admin) 176

McEvoy [1997] Crim LR 887 155

N Newton (1983) 77 Cr App R 13 244

P Paris (1993) 97 Cr App R 1999 180

Paton [2007] EWCA Crim 1572 186

Q Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 208

R Rafferty [1999] 1 Cr App R 235 98

Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 14
Roble [1997] Crim LR 449 161

S Samuel [1988] 1 WLR 920 10

Sang [1980] AC 402 199
Sardar [2016] EWCA Crim 1616 208
Scott [2007] All ER (D) 191 (Oct) 121
Seed; Stark [2007] EWCA Crim 254 237-239

T Taylor [2006] EWCA Crim 260 175

Thornton (1995) 1 Cr App R 578 155
Trussler [1998] Crim LR 446 181
Turnbull [1977] QB 224 155

W Walsh (1989) 91 Cr App R 161 182

Ward [1993] 1 WLR 619 136
Williams [2007] EWCA Crim 1951 195
Woolmington v DPP [1935] AC 462 153

Z Z [2009] Crim LR 519 176

xvi
 Table of Statutes

A Access to Justice Act 1999

Sch 3, para 5(2) 81

B Bail Act 1976 268

s 3(6) T6.123
s 3A(4) 56
s 3A(5) 56
s4 MG io, 122
s 6(1) 121,125
s 6(2) 11 i anBA ME
Sf 57, 114) 425
s 7(1) 121
s 7(3) Bf; 122
Sch 1 124
Sch 1, Pt 1 123
paras 2 to 7 110, 111
para 2(1) 111
para 9 111
Sch 1, Pt Il 114
Sch 1, Pt IIA 118, 125
Bail (Amendment) Act 1993
$1 120
s4 251

Cc Children Act 1989

s 25(1) 68
Children and Young Persons Act 1933
s4 271
s 31 64
s 34(8) 64
s 49 265
Code of Practice to Police and Criminal Evidence Act 1984 6
Code C 6, 24, 34, 180-181
para 1.1 6
para 1.4 64
para 1.5 64
para 1.7 65
para 1.13(d) 64
para 2.1A 6
para 2.4 Pb
para 2.4A 15
para 3.12 64
para 3.13 64
para 3.14 64
para 3.17 65
Table of Statutes

para 3.20
para 3.20A
para 3.21
para 3.4 7,
para 3.4(a)
para 3G
para 4.1
para 4.2
para 6
para 6.1
para 6.4
para 6.5A 65
para 6.6 25
para 6.6(a) 26
para 6.6(b) 26
para 6.6(b)(ii) 25
para 6.6(c) 25
para 6.6(d) 26
para 6.9 31
para 6.10 31
para 6.15 2
para 6D 14, 29, 31, 38
para 6G
para 6ZA
para 8.2
para 8.3
para 8.4
para 8.6
para 8.7
para 9.3
para 9.5
para 9.5A
para 10.1
para 10.2
para 10.3
para 10.11
para 10.12
para 11.1A
para 11.2 26
para 11.4 16, 24, 27, 182
para 11.5 27, 28
para 11.6 28
para 11.7(a) 182
para 11.11 182
para 11.15 67
para 11.17 67,72
para 11.17A 67,72
para 11.18 67
para 11.18(b) 25
para 11C 67
para 11F 67
para 12.2 28
para 12.8 28

XViii
 Table of Statutes

para 16.2 54
para 16.3 55
para 16.3 68
para 16.5 55
para 16D 68
Note for Guidance 1E 66
Code D 6/8206
para 1.2 40
para 2.12 fotnFo94
para 3.1 40, 47
para 3.11 45
para 3.12 40-41, 46, 48, 49, 50, 154
para 3.13 41, 48, 49
para 3.14 42, 48
para 3.16 42
para 3.17 46
Annex A, para 2 AS, OU a1o4:
Annex A, para 2A 43
Annex A, para 2C 43
Annex A, para 3 43
Annex A, para 7 43
Annex A, para 10 43
Annex A, para 11 43
Annex B, para 9 43
Annex B, para 10 44
Annex B, para 14 44, 154
Annex B, para 16 44
Annex B, para 23 44
Annex C, para 2 44
Annex C, para 4 44
Annex C, para 6 44
Annex D, para 1 45
Annex E, para 2 42
Annex E, para 4 42, 50
Annex E, para 6 42, 50
Annex E, para 9 42, 43
Code E 6, 24, 34
Code F 6
Code G fps:
para 4.3 7
Coroners and Justice Act 2009
s 114(2) 110
s 115 110
Crime and Disorder Act 1998
s 37(1) 264
s 40(1) 131
s 50A 91, 102, 103, 104
s 50A(3)(a) 102, 104
s 50A(3)(b) 98
s 51 78, 131, 132
s 51(1) 86, 130, 131, 148
s 51(11) 130
s 51B 102

xix
Table of Statutes

s 51¢ 102
s 51D 131
s 66G 69
s 66ZA 69
Criminal Appeal Act 1968
s 1(4) 253
Sez 254, 256, 261
Wf 256
s9 254, 207
s 11(3) 258
SeZ5 256
s 29 255, 256
Criminal Evidence Act 1898
s 1(1) 164, 209
Criminal Justice Act 1967
s9 129-130, 145, 170, 206, 213, 214
s 10 142, 145, 170
Criminal Justice Act 1988
s 36 258
Criminal Justice Act 2003 259
s 22 59
S'25 59
S525 59
s 29(1) 60
s 29(2) 60
ss 58 to 63 258
s75 258
185
82
82
151, 185
196, 200
196
196
196
196
193, 196
196
195, 196
1892190, 191, 192) 195, 396
191
186
s 103(1) 187
s 103(1)(b) 189
s 103(2) 187"
s 103(3) 187, 191, 192, 196
s 103(4)(a) 187
s 103(4)(b) 187
s 104(1) 193
s 105(2) 194
s 106(2) 194
s 107 195, 197
$112 185
s 114 82, 170
 Table of Statutes

s 114(1) 169, 184

s 114(1)(a) 170
s 114(1)(b) 174
s 114(1)(c) 175
s 114(1)(d) 175; 176
s 114(2) 175, 176
s 115 169
s 115(2) 169
s 115(3) 169
s 116 170, 172, 176, 202
s 116(2) 173, 202
s 116(2)(a) THA, 172; 202
s 116(2)(b) 181
s 116(2)(c) 174,202
s 116(2)(d) 174,202
s 116(2)(e) V2, 220
s 116(4) 172
SPAT £0; 172, 175;.174, 176
s 117(2) 172
s 117(4) 173
s°117(5) 173, 174
s 118 170
s 118(1) 174
S19 170
s 120 170
s 121 176
Sch 12, para 8 81
Criminal Justice and Courts Act 2015
s 17(2) 58
s 17(3) 58
s 17(4) BY
s 78 265
Criminal Justice and Immigration Act 2008
s 48 69
s 52 114
s 60 136
Sch 12 114
Criminal Justice and Public Order Act 1994
s 25 55, 110
s 34 18, 20, 22, 26, 82, 151, 158-165, 168, 200, 214, 254
s 34(1)(a) 160
s 34(1)(b) 160
8 35 151, 158, 164, 168, 200, 209, 210, 214, 220
s 35(1)(b) 168, 201
s 35(2) 164
s 36 18, 20, 22, 82, 151, 158-159, 162-166, 168, 200, 214
s 37 18, 20, 22, 82, 151, 158-159, 162-165, 167, 168, 200, 214
s 38 151, 158, 200
s 38(3) 159, 168
Criminal Procedure and Investigations Act 1996 134
s3 129, 135, 136, 146, 148, 149
s5 96, 136, 146, 149
s 5A 136, 146
sé 96, 145, 146
Table of Statutes

s 6A 96, 136
s 6B(3) 137
s 6C 129, 145
s 6E 137
s7A 135, 138
s 8 145
s 8(2) 135, 138
Selig 129, 137, 146
s21A 129
Criminal Procedure and Investigations Act 1996
(Defence Disclosure Time Limits) Regulations 2011 (SI 2011/209) 129, 136
Criminal Procedure Rules
r 1.2(1) 139, 143, 144
ro.2 139
r 3.2(2)(a) 141
r 3.2(3) 144
15:5 139, 145
r 3.3(a) 141
Pow 139
r 3.8 144
r 3.8(4) 144
r 3.8(6) 144
cow 139, 143, 145
noe0 144
r 8.2 92
r 8.4 92
r 9.2(6)(a) 100, 103
ri0.2 141
r 14.5(2) 118
r 14.6 56
r 14.18 109, 120
r 14.19 109, 120
reZz02 176, 177
r 20.2(3) 177
r 20.2(4) 177
r 20.5 177
214 197
r 21.4(1) 197
r 21.4(2) 197
r 22.2 145
r 22.4 145
22.5 145
r 24.3(h) 211
r 24.3(g) 211
r 24.10 212°
r 25.16(6) 235
255 212
r 27.4 145
TGS 145
r 29.13 145
M2947 145
r 29.22 145
r 29.26 145

xxii
 Table of Statutes

row 145
r 31.4 145
r 33.6 145
r 34.2 145
r 34.3 145
552 145
Robs 145
1.54 145
r 36.2 145
r 36.3 145
r 36.4 145
m565 145
‘eee 211
1 37.6 142, 145
nore 140
Pt 1 139
Pt 2 139
Pt 3 139
Pt 4 60, 139, 144
Pt5 139
Pt 7 60
Pt 8 92
Pt9 99
Pt 14 110
Pt 15 136, 138
Pt 17 128
Pt 20 176, 177
Pt 24 204
Pt 28 144
Pt 31 144
Pts 34 to 43 250
Pt 38 258
Pt 41 258

European Convention of Human Rights

art 6 175, 198, 200
art 6(3) 80
art 6(3)(a) 81
art 6(3)(c) 25

Juries Act 1974

an 213
s 17 216

Legal Aid, Sentencing and Punishment of Offenders Act 2012 69

s 83 272
s 84 272

xxiii
Table of Statutes

M Magistrates’ Courts Act 1980

s 19 91, 98, 103
98
98
98
98
99
91, 98, 99, Ta
99
s 20(2) 99
ss 20(3)-(7) 99
s 20(8) 99
s 20(9) 99
s 20(9)(a) 100
s 20(9)(b) 100
s 20A(1) 99
s 20A(3) 99
s 21 99
s 22(1) 79, 89, 103
s 22A 79, Fie
s 25 100
s 43(B)(1) 56
s 51 146
s 97 128, 219
$111 251
s 128(7) 109
Murder (Abolition of Death Penalty) Act 1965
s 1(1) 238

Offences Against the Person Act 1861

s 18 258, 267

Police and Criminal Evidence Act 1984 5, 24; 83

s 18 8
s 29 14
s 30(1A) 6
s 30A 11
8, 34
7
8
55
68
68, 73 -
8
s 40 14, 34, 37
s 40(2)(b) 14
s 41 11, 34, 35, 37
s 41(2)(c) 11
s 41(2)(ca) 11
s 41(2)(d) 11
s 42 11, 13, 34, 37

XXiV
 Table of Statutes

s 43 13, 34, 57
s 43(1) 13
s 43(4) 13
s 44 13; 3432
s 44(1) 1)
s 46(2) 57
s 46A 53, 54
s 47(1A) 53, 54, 56
s 47(3)(b) oz, Oo
s 47(3)(b) 54
s 47(3A) 57
ss 47ZD to 47ZG 53
s 54(1) 7
s 54(2) 7
s 54(3) 7
s 56 9, 10, 11, 34, 64
s 56(1) 10
s 56(2)(a) 11
s 56(2)(b) 11
s 56(3) 11
s 56(4) 11
s 56(5) 11
s 58 9, 10, 14, 25, 34, 64, 181, 182
s 58(1) 9
s 58(4) 9
s 58(5) 10
s 58(6) 10
s 58(7) 10
s 58(8) 10
s 58(8) 25
s 76 S2715 lubes, 162, 206
s 76(1) 174, 178, 179, 184
s 76(2) 179, 183, 200
s 76(2)(a) 184, 201
s 76(2)(b) 180-184, 201
s 76(4) 183, 201
s 76(8) 180
s 76A(1) 181
s 76A(2) 181
s 78 27, 82, 151, 154, 155, 165-167, 182-186, 190, 194-200, 201, 206, 259
s79 210, 259
s 80 221
s 80(3) 221
s 80(5) 221
s 82(1) 177, 184
Police and Justice Act 2006 a
s 37B 53
Policing and Crime Act 2017
ss 52 to 67 52
Powers of Criminal Courts (Sentencing) Act 2000
s3 98
Table of Statutes

Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI 1987/299) 109
Prosecution of Offences Act 1985
SiZZ 109
Public Order Act 1984
s4 79
s5 79

Sentencing Act 2020 (Sentencing Code) 228

Part 4, Chapter 1 228, 233
Part 4, Chapter 2 233
Part 4, Chapter 3 229, Za)
Part 9, Chapter 2 241
Part 10, Chapter 1 238, 239
Part 10, Chapter 5 240
Part 10, Chapter 6 239
Sexual Offences Act 1956 259
Sexual Offences Act 2003 259
Pt 2 70
SRA Code of Conduct
para 1.4 31, 96
para 2 223
para 6.3 31, 32, 54, 37, 225
para 6.2 32
para 6.4 32, 33
SRA Principles
Principle 1 223

Theft Act 1968

S| 79

Youth Justice and Criminal Evidence Act 1999

ss 16 to 33 222
s 32 222
s 33A 222
S05 219
s 53(3) 219
s 53(4) 220, 225
s 53(5) 220, 225
s 55 219
s 58 159
Sch 1A 222

XXvi
PART 1
ADVISING CLIENTS
ABOUT THE PROCEDURE
AND PROCESSES AT THE
POLICE STATION
 ~ “ Z job "a? gh 108 >
7a a ee

14D SMIRINVGA
“ )
Be:

Os ST TuO8A*:
é
;
—e

¥
990A |
a
*

f .

~
* p >

Si¥i 4 @
PART Advising clients about
the procedure and
processes al the
police station
SQE1 syllabus
The first four chapters will enable you to achieve the SQE1 Assessment
Specification in relation to Functioning Legal Knowledge concerned with the
following procedures and processes:
Rights of a suspect being detained by the police for questioning:
¢ right to legal advice;
* right to have someone informed of arrest;
¢ reviews and detention time limits under PACE 1984, Code C.

Advising a client, including vulnerable clients, whether to answer police questions:

¢ right to silence;
* adverse inferences.
Procedure for interviewing a suspect under PACE 1984:
¢ role and appropriate conduct by defence legal representative/solicitor
including representation of vulnerable client;
¢ role of appropriate adult and who can be an appropriate adult.
Identification procedures:
¢ when an identification procedure must be held;
¢ different types of identification procedure under PACE 1984, Code D;
* procedure for carrying out an identification procedure.
Note that, for SQE1, candidates are not usually required to recall specific case
names or cite statutory or regulatory authorities. These are provided for illustrative
purposes only unless otherwise stated.
D SAE OOES orit |4 *
awBoe:Z92200010 |”
NOHD ¢99ilog |!

wuts Fag
yw

one A TENTS. Ly euiiiore-wit te it >

sul 1a it ena) ee " fenfint} ey

ie 1 apie Hay ey. 6trast tel

Hel Seep “ii Cae),

— (eae © I ae ae
r

aAVem tL a <A hin ’ } - :

yi uSlet GaSe Gyo yf wgn B /

“il SoH Aaah bre aeeive!

S84, Cero

we
,
aA, | ii ’ ye ~vytt j RB? tee me
: :
¢ vs ry ' | < rite ot

{ig oily Rak duae siehoiqge leaks, 6

ois Lenanes, gilts quits
L te 2 CA) ie] i=plVinate Ag? *
~¥
2
boon) Al styrene 1 wes i ie)

2 soony Hoss hinshy Am ud Oley cer at ’ oN Soe |

=,

J Lwiugier apd Sth aatce PMN CRD? toh Pranit

4 i” - iit apa yoann ais an
 Detaining a Suspect at the
Police Station and Police
Interviews |
Da as Introduction 6
Nat Procedure on arrival at the police station 6
1.3. Rights of a suspect being detained by the police for questioning 8
1.4 Advising a client whether to answer police questions 15
1.5. Procedure for interviewing a suspect under PACE 1984 24
1.6 | Conduct issues at the police station 31

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
¢ How the decision to detain a suspect is made and the maximum periods a
suspect may be detained for before charge.
¢ The rights of a suspect who has been arrested and detained (or who attends as
a volunteer).
¢ How to advise a client whether or not to answer police questions.
¢ The procedure for interviewing a suspect under PACE 1984.
¢ The role of a legal adviser before and during interview.
« Arange of conduct issues which may arise at the police station.
Criminal Practice

1.1 Introduction
This chapter examines the powers the police may exercise when a suspect has been arrested
and detained at the police station and what rights a suspect has whilst so detained and
what advice a solicitor (or accredited police station representative) would be expected to
give such a client. What occurs at the police station is likely to represent a critical stage of the
investigation and influence the decision whether or not to charge the suspect with any offences.
This may also be of great significance when a case gets to trial, particularly if the defendant's
solicitor attempts to argue that prosecution evidence obtained whilst their client was detained
at the police station is inadmissible because the police behaved improperly or unlawfully.
References to section numbers in Part 1 (Chapters 1 to 4) are, unless otherwise stated, to
the Police and Criminal Evidence (PACE) Act 1984. References to Code C are to the Code of
Practice to PACE for the Detention, Treatment and Questioning of Persons by Police Officers.
References to Code D are to the Code of Practice for the Identification of Persons by Police
Officers. References to Code E are to the Code of Practice on Audio Recording Interviews
with Suspects, and references to Code F are to the Code of Practice on Visual Recording with
Sound of Interviews with Suspects.
This chapter looks at:
e the procedure on arrival at the police station;
¢ the rights of a suspect being detained by the police for questioning;
* advising a client whether to answer police questions;
e the procedure for interviewing a suspect under PACE 1984 and the role of the legal
adviser before and during the interview; and
* how to deal with a range of conduct issues which may arise at the police station.

1.2 Procedure on arrival at the police station

A suspect who has been arrested other than at a police station must usually be taken to the
police station ‘as soon as is practicable after the arrest’ (s 30(1A)) unless the arresting officer
decides to grant ‘street bail’. Paragraph 1.1 of Code C provides that ‘all persons in custody
must be dealt with expeditiously, and be released from the police station as soon as the need
for detention no longer applies’.

121 The custody officer

A suspect who has been arrested must be brought before a custody officer in the custody suite
on their arrival at the police station (or after their arrest if they were arrested at the police
station). The custody officer is responsible for authorising the detention of the suspect and
supervising their welfare whilst in police custody. The custody officer will normally be a police
officer holding at least the rank of sergeant, who should not be involved in the investigation of
the offence for which the suspect has been arrested.
Paragraph 2.1A of Code C confirms that a suspect who has been arrested (or who is
attending the police station to answer bail) should be brought before the custody officer as
‘soon as practicable’.

5 a Fy What initial steps must the custody officer take?

The custody officer is responsible for opening and then maintaining a custody record for
each suspect who has been arrested and brought to the police station. This is an electronic
document which records certain key information:
 Detaining a Suspect at the Police Station and Police Interviews

(a) the suspect's name, address, telephone number, date of birth and occupation;
(b) the offence for which the suspect has been arrested and why the arresting officer
considered it necessary to arrest the suspect (Code G, para 4.3);
(c) the time of the suspect’s arrest and the time of their arrival at the police station;
(d) the reason why the suspect’s ongoing detention at the police station has been authorised
by the custody officer;
(e) the time such detention was authorised;
(f) confirmation that the suspect has been given details of the rights they may exercise whilst
detained at the police station (see below), and whether they have requested legal advice
from a solicitor; and
(g) details of the items of property the suspect has on their person, and details of any
medical condition they suffer from.
The custody record will also have attached to it a detention log. This is a record of all the
significant events that occur whilst the suspect is in police custody. The custody officer must
also inform the suspect about their ongoing rights (see 1.3 below).

T2152 Search of the detained person

The custody officer must also find out what items of property a suspect has on their person
and will make a record of these items (ss 54(1) and (2)). The custody officer will therefore
authorise a search of the suspect, to the extent the officer considers necessary to ascertain
what items the suspect has on their person (Code C, para 4.1).
Section 54(3) allows the custody officer to seize and retain any items the suspect has on their
person. Items of clothing and personal effects may be seized only if the custody officer has
reasonable grounds for believing that they may be evidence (for example, a blood-soaked
shirt), or if the custody officer believes that the suspect may use them:
(a) to cause physical injury to themself or others;
(b) to cause damage to property;
(c) to interfere with evidence; or
(d) to assist them to escape (Code C, para 4.2).
Obvious examples of such items are a penknife, a key, a sharpened comb or a razor blade,
but this will also include items such as shoelaces, ties and belts.

1.2.2 The decision to detain a suspect

After opening the custody record and informing the suspect of their rights (see 1.3 below),
the custody officer must determine whether there is already ‘sufficient evidence’ to charge the
suspect with the offence for which they have been arrested (s 37(1)). To do this, the custody
officer will ask the investigating officer - usually in the presence of the suspect - for details of
the evidence that already exists against the suspect. If not, what steps the officer proposes to
take if the further detention, before charge, of the suspect is authorised (this will normally be
some form of investigative procedure such as an audibly recorded interview with the suspect
or the holding of an identification procedure - see 1.5 and Chapter 2 below). The custody
officer should note in the custody record any comments made by the suspect in relation to
the account given by the arresting officer of the reasons for the arrest (Code C, para 3.4).
The custody officer should not put any questions to the arrested person about their suspected
involvement in any offence (Code C, para 3.4).
It is unusual for there to be sufficient evidence at this early stage of the investigation. If there
is such evidence, the suspect should be charged straight away, and either released on bail to
Criminal Practice

appear before the magistrates’ court on a later date or remanded in police custody until they
can be brought before the magistrates’ court.

42.2.1 Grounds for detention

If there is not sufficient evidence to charge a suspect immediately, the suspect should de
released either on bail or without bail, unless:
(a) the custody officer has reasonable grounds for believing that detaining the suspect
without charge is necessary to secure or preserve evidence relating to an offence for
which they are under arrest; or
(b) it is necessary to obtain such evidence by questioning (s 37(2)).
Despite the wording of s 37, in practice the usual decision will be for the custody officer to
authorise the suspect’s detention before charge because one or both of these grounds are
likely to be satisfied.
The first ground above may be useful in situations where the police want to carry out a
search of the suspect’s premises (under s 18), or where they are still looking for evidence of
the offence. In such cases the police may want to detain the suspect in the police station so
that the suspect has no opportunity to hide or destroy the evidence before it can be found.
This ground can also be used where the police want to obtain some form of identification
evidence and can do so only whilst the suspect is in the police station.
In practice, the second ground tends to be the most common ground to authorise detention
but note these grounds may both apply, and they are not mutually exclusive.
If the custody officer becomes aware at any time that the grounds on which a suspect's
detention was authorised have ceased to apply (and that no other grounds to justify their
continued detention exist), the suspect must be released immediately (s 39).

W222 Conditions of detention

The cell in which a suspect is held must be adequately heated, cleaned and ventilated, and
also adequately lit (Code C, para 8.2). Any bedding supplied to a suspect must be of a
reasonable standard and in a clean and sanitary condition (Code C, para 8.3). A suspect
must be provided with access to toilet and washing facilities (Code C, para 8.4). A suspect
must be offered at least two light meals and one main meal in any 24-hour period, and drinks
should be provided at mealtimes and upon reasonable request between meals (Code C,
para 8.6 and Note for Guidance 8B). A suspect should be offered brief outdoor exercise daily
if this is practicable (Code C, para 8.7). Suspects should be visited in their cells at least every
hour (Code C, para 9.3).
If the custody officer considers that a suspect is injured, appears to be suffering from physical
illness or mental disorder or appears to need clinical attention, the custody officer must make
arrangements to ensure that the suspect receives appropriate clinical attention as soon as
reasonably practicable (Code C, paras 9.5, 9.5A and Annexes G and H). Normally in such
cases the custody officer will arrange for the suspect to be seen by the nearest healthcare
professional, or an ambulance must be called immediately.

1.3 Rights of a suspect being detained by the police for questioning

Before the custody officer decides whether or not the suspect will be detained before charge,
the suspect must first be informed about their ongoing rights which may be exercised at any
time whilst the suspect is in custody:
 Detaining a Suspect at the Police Station and Police Interviews

(a) the right to have someone informed of the suspect's arrest (s 56);
(b) the right for the suspect to consult privately with a solicitor (the suspect must be told that
free, independent legal advice is available; s 58); and
(c) the right to consult the Codes of Practice.
The suspect must also be advised of their right to be informed about the offence and (as the
case may be) any further offences for which they are arrested whilst in custody, and why they
have been arrested and detained.

1.3.1 Right to legal advice

A suspect who has been arrested and detained at the police station has the right to receive
free and independent legal advice.
Section 58(1) states:
A person arrested and held in custody in a police station or other premises shall be
entitled, if he so requests, to consult a solicitor privately at any time.
lf a suspect makes such a request, they must be allowed to consult a solicitor ‘as soon as
practicable’ (s 58(4)).
Paragraph 6.1 of Code C reinforces this by providing that:
all detainees must be informed that they may at any time consult and communicate
privately with a solicitor, whether in person, in writing or by telephone, and that free
independent legal advice is available.
In all cases where legal advice is sought, unless a suspect asks for lega! advice to be paid for
privately, the police must contact the Defence Solicitor Call Centre (DSCC) - even if the suspect
has asked for a named solicitor or firm. The DSCC will then determine whether the case is
such that telephone advice is sufficient or whether a solicitor should attend.
Telephone advice, where appropriate, is provided for free through Criminal Defence Direct
(CDD). A solicitor/accredited police station representative will provide the necessary advice
over the telephone. Should the suspect want to speak to their own solicitor, they will be told
that they may have to pay for the call.
Should attendance be required, the suspect's own solicitor, or the duty solicitor (if the suspect
has not specified a particular solicitor), will be notified. If a solicitor attends the police station
to see a particular suspect, that suspect must be informed of the solicitor’s arrival at the police
station (whether or not they are being interviewed at the time of the solicitor’s arrival). The
suspect must then be asked if they would like to see the solicitor, even if they have previously
declined legal advice (Code C, para 6.15). The solicitor’s attendance and the suspect's
decision must be noted in the custody record.
Code C also states that at no time should a police officer do or say anything with the intention
of dissuading a person from obtaining legal advice (Code C, para 6.4). In addition, para 6ZA
of the Notes for Guidance to Code C states that:
No police officer or police staff shall indicate to any suspect, except to answer
a direct question, that the period for which he is liable to be detained, or, if not
detained, the time taken to complete the interview, might be reduced:

¢ if they do not ask for legal advice or do not want a solicitor present when they are; or
e if they have asked for legal advice or ... asked for a solicitor to be present when they
are interviewed but change their mind and agree to be interviewed without waiting for a
solicitor.
Criminal Practice

Pe Can the right to legal advice be delayed?

Unlike delaying the right under s 56 (see 1.3.2 below), the police have a very limited right to
delay the exercise of the right to legal advice. Any delay must be authorised by an officer
of at least the rank of superintendent and can be authorised only when a suspect has been
arrested for an indictable offence (s 58(6)). The length of any delay can be for a maximum of
36 hours from the relevant time (s 58(5)). Authorisation for delaying a suspect's access to legal
advice can be given orally but, if it is, it must be confirmed in writing as soon as is practicable
(s 58(7)).
Delay to the suspect receiving access to legal advice may only be authorised if the officer has
reasonable grounds for believing that the exercise of this right, at the time when the suspect
wishes to exercise it, will:

(a) lead to interference with or harm to evidence connected with an indictable offence, or
interference with or physical injury to other persons; or
(b) lead to the alerting of other persons suspected of having committed such an offence but
not yet arrested for it; or
(c) hinder the recovery of any property obtained as a result of such an offence (s 58(8)).
Guidelines which the police must follaw when determining whether to delay a suspect’s access
to legal advice are contained in Annex B to Code C.

© In R v Samuel [1988] 1 WLR 920, the accused was arrested for armed robbery and taken
to a police station where he signed the custody record to the effect that he did not want a
solicitor at that time. Later in the evening of the same day he changed his mind and
requested a solicitor, but this was refused. During the following morning, his mother
arranged for a solicitor to attend the police station to represent him. Access to legal
advice was again refused. Later that evening he was again interviewed and finally
confessed to the robbery. It was submitted that evidence of the final interview should not
be admitted because refusal of access to a solicitor was unjustified throughout. HELD: The
appeal was allowed, and the conviction quashed. In doing so the CA set down some
guidelines on the power to delay this right. Hodgson J said that the superintendent
authorising delay must have a subjective belief that consultation with a legal adviser will
result in one of the above three conditions happening and that this ‘will very probably
happen’. In other words, that the legal adviser will either deliberately do this or do so
inadvertently. It follows that this will therefore be very rare and that further, the belief must
be towards a particular legal adviser. The CA went on to confirm that the right to legal
advice in s 58 of the Act was fundamental. The fear that a solicitor might advise his client
not to answer questions would never be an adequate ground to delay such access.

1.3.2 Right to have someone informed of arrest

Section 56(1) states:
Where a person has been arrested and is being held in custody in a police station
or other premises, he shall be entitled, if he so requests, to have one friend or
relative or other person who is known to him or who is likely to take an interest in
his welfare told, as soon as practicable ... that he has been arrested and is being
detained there.
In certain situations, the police may delay the exercise of this right. Any delay must be
authorised by an officer of at least the rank of inspector and can only be authorised when
the suspect has been detained for an indictable offence (ie either-way and indictable-only

10
 Detaining a Suspect at the Police Station and Police Interviews

offences, see ss 56(2)(a) and (b)). The length of any delay can be for a maximum of 36
hours from the ‘relevant time’ (s 56(3)). Authorisation may be given orally but, if it is, must be
confirmed in writing as soon as is practicable (s 56(4)).
The police officer who authorises the delay may do so only if they have reasonable grounds
for believing that telling the named person of the arrest will:
(a) lead to interference with or harm to evidence connected with an indictable offence, or
interference with or physical injury to other persons;
(b) lead to the alerting of other persons suspected of having committed such an offence but
not yet arrested for it; or
(c) hinder the recovery of any property obtained as a result of such an offence (s 56(5)).
In making this decision the police officer must follow the guidelines set out in Annex B to
Code C.

© Example
Ashley is a member of a notorious criminal gang. Ashley is arrested on suspicion of
having taken part in an armed robbery at a bank, after an image of his face was
captured on the bank’s CCTV system. A number of other people took part in the robbery,
but they have not yet been identified. Several thousand pounds were stolen in the
robbery.
Ashley wants to notify Ben, his brother, that he has been arrested. Ben is known to be a
member of the gang. The police believe that, if notified that Ashley has been arrested,
Ben will alert the other gang members who participated in the robbery and these people
will then take steps to dispose of the money that was stolen. The police will be able to
take advantage of the provisions in s 56 to delay Ben being notified of Ashley’s arrest
for up to 36 hours. Armed robbery is an indictable offence (it is in fact an offence triable
only on indictment), and the police appear to have reasonable grounds for believing that
notifying Ben of Ashley’s arrest will lead to the alerting of other suspects and will hinder
the recovery of property obtained as a result of the offence.

1.3.3 Detention time limits and reviews of detention under PACE 1984, Code C
Prior to charge there are time limits on how long a suspect can be detained at the police
station. There are two different clocks that will apply to such detention.

1.3.3.1 The initial maximum period of detention before charge (the ‘detention clock’)
Section 41 provides that a person ‘shall not be kept in police detention for more than 24 hours
without being charged’. This 24-hour period begins from the ‘relevant time’. The relevant time
is determined as follows:
(a) in the case of a person attending voluntarily at the police station (see 1.3.4 below) who is
then arrested at the police station, the time of their arrest (s 41(2)(c));
(b) in the case of a person who attends a police station to answer ‘street bail’ granted under
s 30A, the time when they arrive at the police station (s 41(2)(ca));
(c) in the case of a suspect who has been arrested away from the police station, the relevant
time is generally the time when the suspect arrives at the first police station to which they
are taken after their arrest (s 41(2)(d)). (Note there are some limited exceptions to this
usual rule.)

1]
Criminal Practice

Figure 1.1 The ‘relevant time’

Status of suspect ‘Relevant time’

Volunteer attending the police At time of arrest at the police

station station

At time of arrival at the police

station

Suspect arrested away from the At time of arrival at the first

police station Eee | police station

) Example 1
Sam is attending the police station as a volunteer to answer questions about his
suspected involvement in an assault. Sam arrives at the police station at 11.00 hrs. His
interview begins at 11.15 hrs. During interview, Sam admits to the assault and he is then
arrested at 12.10 hrs. The ‘detention clock’ will start running from 12.10 hrs, the time of
Sam’s arrest. The police will be able to detain Sam for a maximum period of 24 hours
from this time.

© Example 2
Jo is arrested by PC Long on suspicion of theft. There are witnesses to the theft from
whom PC Long wants to take statements before interviewing Jo. The officer therefore
grants Jo street bail, requiring her to attend at the police station at 13.00 hrs the following
day. Jo complies with the terms of her street bail and attends the police station at
13.00 hrs the following day. The ‘detention clock’ will start running from this time. The
police will be able to detain Jo for a maximum period of 24 hours from this time.

o Example 3
Hamid is arrested at home at 15.30 hrs on suspicion of theft. He is taken to the police
station and arrives there at 15.45 hrs. His detention is authorised by the custody officer at
16.00 hrs. The ‘detention clock’ will start running from 15.45 hrs, the time of Hamid’s arrival
at the police station. The police will be able to detain Hamid for a maximum period of
24 hours from this time.
Note: In practice the police will not usually need the full 24-hour period and will either release —
the suspect under investigation (RUI), bail the suspect before charge or charge the suspect
well within this 24-hour period. Very occasionally they may need longer.

15.5.2 Can the police extend the maximum period of detention?

Under s 42, the police have the power to extend the period of a suspect's detention in the
police station up to a period of 36 hours (ie an additional 12 hours on top of the original 24
hours) from the ‘relevant time’ if certain conditions are met.

12
 Detaining a Suspect at the Police Station and Police Interviews

Such an authorisation must be given by an officer of the rank of superintendent or above, and
may only be given if the superintendent has reasonable grounds for believing that:
(a) the detention of the suspect without charge is necessary to secure or preserve evidence
relating to an offence for which the suspect is under arrest, or to obtain such evidence by
questioning them;
(b) the offence is an indictable offence (ie an either-way or an indictable-only offence); and
(c) the investigation is being carried out diligently and expeditiously.

o Example
Damian is arrested on suspicion of the murder of Esme. He arrives at the police station at
09.00 hrs and is questioned about the offence. Damian refuses to answer any questions,
but at 08.00 hrs the following day, during the course of searching Damian's house, the
police find a bloodstained knife that they believe Damian used as the murder weapon. The
investigating officer wants to question Damian about this new piece of evidence and asks
the superintendent to authorise Damian's continued detention to enable him to do this.
The superintendent is likely to authorise the extension of the initial detention period.
Murder is an indictable offence (it is indictable-only) and the investigating officer wants
to question Damian to find out what Damian has to say about the knife which has only
just been found. As long as the superintendent believes that the investigating officer is
carrying out the investigation diligently and expeditiously, the officer’s request will be
granted. If the request is granted, Damian may be detained at the police station until
21.00 hrs that day (a total of 36 hours from the ‘relevant time’).

1.5.3.5 Are any further extensions possible?

The police are able to obtain a warrant of further detention from a magistrates’ court if the
conditions set out below are satisfied (s 43). If the magistrates are persuaded to grant a
warrant of further detention, this can be for such period of time as the magistrates think fit,
but up to a maximum period of 36 hours. This is on top of the police superintendent's power
to extend the basic detention period up to a maximum of 36 hours from the ‘relevant time’.
Therefore, if the magistrates grant a warrant of further detention, this may result in the suspect
being detained in the police station for a total of 72 hours (ie three days).
The magistrates have the power to grant such a warrant of further detention on very similar
grounds to those used by the superintendent under s 42. So only if they consider that there
are ‘reasonable grounds for believing that the further detention of the person to whom the
application relates is justified’ (s 43(1)). Such detention may be justified only if:
(a) the suspect's detention without charge is necessary to secure or preserve evidence
relating to an offence for which they are under arrest, or to obtain such evidence by
questioning them; and
(b) the investigation is being conducted diligently and expeditiously (s 43(4)).
In exceptional cases, the police may make an additional application to a magistrates’ court
under s 44 for an extension of the warrant of further detention granted under s 43. The
magistrates will grant an extension only if the grounds under s 43 above are satisfied and
there are reasonable grounds for believing that the further detention is justified (s 44(1)).
An extension granted under s 44 ‘shall be for any period as the court thinks fit’ but cannot:
(a) be longer than 36 hours; or
(b) end later than 96 hours (ie four days) after the ‘relevant time’.
This means that the police can detain a suspect in police custody for a maximum period of
four days before that suspect must be either released or charged.

13
Criminal Practice

1.3.3.4 Detention reviews (the ‘review clock’)

In addition to the time limits for detention set out above, the police must carry out periodic
reviews of the suspect's detention to ensure that the grounds on which the detention was
initially authorised by the custody officer are still applicable (s 40). This is a mandatory
requirement, and if such reviews are not carried out, any detention after this time will be
unlawful and will amount to the tort of false imprisonment (Roberts v Chief Constable of the
Cheshire Constabulary [1999] 1 WLR 662).
Reviews of detention that take place before a suspect is charged are carried out by an officer
of at least the rank of inspector who is not directly involved in the investigation (s 40(2)(b)).
This officer is usually referred to as the ‘review officer’.
The first review must take place no later than six hours after the custody officer first authorised
the detention of the suspect (note: not six hours after the suspect first arrived at the police
station). The second review must take place no later than nine hours after the first review.
Subsequent reviews must take place at intervals of not more than nine hours. -

© Example
Tom is arrested at 08.00 hrs. He arrives at the police station at 08.15 hrs (the ‘relevant
time’ for the purpose of the ‘detention clock’ - see above). The custody officer authorises
his detention at 08.30 hrs. The first custody review must be carried out no later than
14.30 hrs (ie within six hours of the ‘review clock’ starting). If that review takes place at, for
example, 14.15 hrs, the next review would need to take place no later than 23.15 hrs that
day (ie no more than nine hours after the first review). Further reviews after that would
then need to take place at intervals of no more than nine hours.

Table 1.1 Detention and review clocks

s 40 PACE | Within 6 hours from A review by an officer not below the rank of inspector to
detention being determine whether detention is still necessary
authorised

s 40 PACE | Within 9 hours from the A review by an officer not below the rank of inspector to
first detention review determine whether detention is still necessary

s 41 PACE | Within 24 hours The detainee must be charged or released unless an officer
from arrival not below the rank of superintendent authorises continued
detention (s 42)

s 42 PACE | Within 36 hours The detainee must be charged or released unless a

from arrival magistrates’ court grants a warrant of further detention (s 43)

s 43 PACE | Within 72 hours The detainee must be charged or released unless a

from arrival magistrates’ court grants an extension to the warrant of
further detention (s 44)

s 44 PACE | Within 96 hours The detainee must be charged or released

from arrival

14
 Detaining a Suspect at the Police Station and Police Interviews

1.3.4 The rights of a volunteer attending the police station

lf the police do not have sufficient evidence to arrest a suspect, or where an arrest is not
necessary (for example, where a suspect has indicated a willingness to assist the police with
their investigation), they may ask that person to attend voluntarily at the police station to
answer questions. Section 29 sets out the rights of a volunteer at the police station. There is no
obligation to attend as a volunteer, and the volunteer can leave at any time unless formally
arrested. Generally, a legal adviser will advise a client to attend voluntarily if the client is
given this choice. In addition, the volunteer can request that a friend or a solicitor be present
at the interview (see Code C, para 3.21). The police may then arrest a ‘volunteer’ if, when
interviewed, the volunteer makes admissions which then give the police sufficient grounds to
arrest them.

1.4 Advising a client whether to answer police questions

A suspect who has been arrested and detained at the police station is entitled to free legal
advice and to be represented by a solicitor (s 58 and Code C, para 6).
The role which a solicitor plays at the police station is set out in para 6D of the Notes for
Guidance to Code C. This states:
The solicitor’s only role in the police station is to protect and advance the legal rights
of their client. On occasions this may require the solicitor to give advice which has the
effect of the client avoiding giving evidence which strengthens the prosecution case.
Section 1.4 must be read in conjunction with Section 9.4, which deals with the evidential
implications of a client exercising their right to remain silent when interviewed at the police
station.

1.4.1 Information gathering on arrival at the police station

There are usually three key sources available to a solicitor who attends the police station to
represent a suspect. Namely:
¢ The custody officer (and the custody record)
¢ The investigating officer
¢ The client.

1.4.1.1 The custody officer

On arrival at the police station the first person the solicitor is likely to speak to is the custody
officer. Although the custody officer is not involved in the investigation of the offence, this
officer will be able to supply the solicitor with basic information about the circumstances of the
client's detention in police custody. In particular, the custody officer should allow the solicitor
to inspect the custody record and detention log (Code C, para 2.4) in which the custody officer
will have recorded all the significant events which have occurred since the client arrived at the
police station (see above). The solicitor should use the custody record to obtain (or confirm)
the client's basic details (name, address, date of birth, etc), unless they already have this
information. The solicitor then needs to obtain (or confirm) the following additional details
from the custody officer and/or the custody record:
(a) the alleged offence(s) for which the client has been arrested;
(b) the time at which the custody officer authorised the client’s detention and the reason such
authorisation was given (ie was detention authorised to obtain or preserve evidence and/
or to obtain such evidence by questioning);

15
Criminal Practice

(c) any significant comments made by the client whilst at the police station (for example, an
admission of guilt) (Code C, para 3.4);
(d) any samples, fingerprints or impressions of footwear which may already have been taken
from the client;
(e) any identification procedure which may already have taken place (see 1.6 below); |
(f) any interview which may already have taken place at the police station (if, for example,
the client has decided to obtain legal advice only after already having been interviewed
by the police);
(g) whether the client is under any form of physical or mental disability, or requires the
attendance of an appropriate adult;
(h) any illness which the client may be suffering from, or any indication that the client is in any
way vulnerable or requires medical treatment (or details of any medical treatment which
the client has already received whilst at the police station). Similarly, the solicitor should
find out if the client is suffering from the effects of drink-and/or drugs;
(i) any significant items found as a result of a search either of the client’s person, or of
any premises owned, used or occupied by the client or premises where the client was
arrested (for example, items it is alleged the client has stolen or used in the commission
of the offence); and
(j) if the client has already been at the police station for six hours or more, details of any
detention reviews which have been carried out and the reason why the client’s continued
detention has been authorised (see above).
Code C, para 2.4A allows a legal representative or an appropriate adult to request a copy
of the custody record when a detainee leaves police detention or is taken before a court. In
practice solicitors will usually be provided with a printout of the custody record and detention
log when they first arrive at the police station.

1.4.1.2 The investigating officer

Once the solicitor has obtained some basic details about the circumstances of the client's
detention, they will then need to speak to the officer who is dealing with the case. The
purpose of speaking to the investigating officer is to obtain the following information:
(a) disclosure (the facts of the offence and the evidence supporting those facts);
(b) significant statements and/or silence; and
(c) the next steps the investigation officer proposes to take.

Disclosure
The solicitor first needs to know what the client is alleged to have done which constitutes
a criminal offence. Although the police are not obligated to provide the solicitor with any
evidence of the case against the client (subject to the requirements under para 11.1A of
Code C below), they will normally provide the solicitor with some (if not all) of the details
they have. The investigating officer will summarise orally the contents of the witness
statements which they have obtained, possibly allow the solicitor to view copies of such
statements or supply the solicitor with a typed disclosure statement summarising the
evidence which the police have. The last form of disclosure is the more common method now
used by the police. The solicitor should push the investigating officer to disclose as much
information as possible about the case against their client. The solicitor should try to find out
if the police have any other evidence in addition to statements from witnesses. The police
may, for example, have obtained forensic evidence such as samples or fingerprints, there
may well be CCTV evidence, or there may be an item of documentary or real evidence (such
as a weapon it is alleged the suspect used, or drugs found on the suspect's person). If the

16
 Detaining a Suspect at the Police Station and Police Interviews

investigating officer refuses to make any disclosure, or discloses only a very limited amount
of information, the solicitor should point out that in those circumstances the solicitor cannot
properly advise the client as to the nature of the case against them. This in turn may affect
the advice the solicitor gives the client about whether or not to answer questions in interview.
An amendment made to para 11.1A of Code C assists the solicitor (and a defendant who is
not represented) in respect of obtaining disclosure from the investigating officer. Paragraph
11.1A includes the following:
Before a person is interviewed, they and, if they are represented, their solicitor must
be given sufficient information to enable them to understand the nature of any such
offence, and why they are suspected of committing it (see paragraphs 3.4(a) and
10.3), in order to allow for the effective exercise of the rights of the defence. However,
whilst the information must always be sufficient for the person to understand the
nature of any offence (see Note 11ZA), this does not require the disclosure of details
at a time which might prejudice the criminal investigation. The decision about what
needs to be disclosed for the purpose of this requirement therefore rests with the
investigating officer who has sufficient knowledge of the case to make that decision.
The officer who discloses the information shall make a record of the information
disclosed and when it was disclosed. This record may be made in the interview
record, in the officer’s pocket book or other form provided for this purpose.

Significant statements
The solicitor also needs to find out if, prior to their arrival at the police station, the client has
made any significant statement (or significant silence) in the presence of a police officer. The
client may, for example, have made an admission on arrest which the police will be required
to put to the client at the start of the interview and ask the client whether they confirm or deny
saying this (see para 11.4 of Code C).

Next steps
The solicitor then needs to find out from the investigating officer what their intentions are. For
example, is the client going to be interviewed straight away, will the police require the client
to take part in an identification procedure, or to provide fingerprints or samples? It may also
be useful to ask the investigating officer their views on bail as this is usually something the
client will be concerned about.

1.4.1.3 The client

The solicitor should then speak to the client once they have obtained as much information as
they can about the case from the custody officer and the investigating officer. The solicitor
needs to discuss the following matters with the client:
(a) The solicitor’s identity and role
Unless the solicitor has represented the client previously, this is likely to be the first
meeting between the solicitor and the client. Although the solicitor may have already
spoken to the client on the telephone, this is likely to have been several hours earlier and
the client is unlikely to recall much of what the solicitor said. Furthermore, the client may
be in a vulnerable, emotional state and may not fully understand who the solicitor is and
what their role is at the police station. The solicitor needs to make it clear to the client that
they are there to provide the client with free, independent legal advice and that they have
no connection with the police. The solicitor should point out to the client that their only role
at the police station will be to protect and advance the client's legal rights. The solicitor
must also tell the client that anything they are told by the client will remain confidential
(even after the solicitor has stopped acting for the client), although the solicitor is bound
by certain rules of professional conduct which in certain circumstances may limit what they
are able to do or say on the client’s behalf.

17
Criminal Practice

(b) Details of the alleged offence

The solicitor should give the client details of what they have been told by the investigating
officer about the offence the client is being investigated for. The level of information the
solicitor can give to the client will depend upon the level of disclosure given by the police,
but it is important that the client has a clear picture of what the solicitor has been told. As
part of telling the client about the police case, the solicitor should also advise the client
about the relevant substantive law. In particular, the solicitor should advise the client as to
what the police will need to prove in order to obtain a conviction for the offence for which
the client has been arrested.
(c) The client's instructions
Once the client knows what the police case against him is, the solicitor should then get
the client’s version of events. Given the pressures of time that exist at the police station,
it may not be possible for the solicitor to obtain a full proof of evidence from the client.
The solicitor should, however, try to take detailed instructions from the client. Any advice
which the solicitor subsequently gives to the client will be based on this information,
and it is therefore important that the solicitor takes as full instructions as time permits.
In R v Anderson (2010) The Times, 23 December, the Lord Chief Justice recommended
that counsel and solicitors in criminal cases make a note recording both their client's
instructions and the advice that had been given on essential issues.
(d) The next step in the police investigation
The client may already have been detained at the police station for several hours and
be anxious to know what the police intend to do. The solicitor needs to advise the client
as to what the next step in the police investigation is likely to be. In the majority of cases,
the next step will be for the police to require the client to take part in an audibly recorded
interview.
(e) Prepare the client for interview
This involves:
(i) advising the client on whether or not to answer questions put to them in the interview
(ie advising the client what is the ‘safest option’ in the interview);
(ii) preparing a written statement on the client’s behalf if the client is to give a ‘no
comment’ interview, but hand the statement to the police so that their defence is put
‘on record’ (see below);
(iii) advising the client how the interview will be conducted by the police (see below); and
(iv) advising the client what role the solicitor will play in the interview (see below).

1.4.2 The client's options in interview and identifying the safest option
The usual ground upon which the custody officer will authorise the detention of a suspect at
the police station is to enable the investigating officer to obtain evidence by questioning the
suspect in an audibly recorded interview. One of the main reasons for the police wanting to
interview a suspect is their hope that the suspect will make admissions to the offence they
have been arrested for. Many suspects who are interviewed by the police end up either
making an admission of guilt or contradicting themselves, so that their account of the case
is shown to lack credibility when the audibly recorded interview is either played or read out
to the court at trial. The most important role the solicitor has at the police station is to advise
their client whether or not to answer questions in police interview. A client whom the police
wish to interview has four options:
* to answer all the questions put to them;
* to give a ‘no comment interview’;

18
 Detaining a Suspect at the Police Station and Police Interviews

* selective silence, where the client answers some questions but not others;
* to give a ‘no comment interview’, but either during the interview or before being charged,
hand a written statement to the police setting out facts the client will rely upon in their
defence at trial.
Each of these options will be examined in turn below. Whilst the final decision as to which
option to take is that of the client, the client is likely to follow the advice received from their
solicitor. It is therefore vital that the solicitor makes an accurate note of the advice given to the
client, and the reasons for giving such advice.

1.4.2.1 Answer all questions

Advantages
The advantage of a client answering all questions in interview is that this allows the client
to put his version of events on record straight away. This can be particularly important if
the client is raising a specific defence which imposes an evidential burden on them, such
as self-defence or the defence of alibi (see Chapter 9). If the client’s defence is particularly
strong and the client comes across well when interviewed, answering questions in full may
even result in the police deciding not to pursue the case any further if they accept the truth
of the client's version of events. Even if the client is subsequently charged by the police,
the credibility of their evidence at trial will be boosted if it can be shown that the client
placed their defence on record at the earliest opportunity, and have told a consistent ‘story’
throughout.
Answering all the questions put by the police is also likely to ensure that at trial the court or
jury will not be allowed to draw adverse inferences against the client under ss 34, 36 or 37 of
the Criminal Justice and Public Order Act (CJPOA) 1994 - see 9.4.
If the client is admitting guilt, it may also be sensible to answer questions in interview to
confirm this, particularly where the police appear to have a strong case. If the client has
no previous convictions and has never previously been cautioned, the police may decide to
deal with the matter by way of a caution rather than charging the client with the offence if,
when interviewed, the client admits their guilt. Even if the police decide to charge the client
with having committed the offence, an admission of guilt during the interview at the police
station is a matter that may be raised when the client's solicitor is giving a plea in mitigation
to the court prior to the client being sentenced (see Chapter 11). The solicitor will be able
to tell the court that their client co-operated with the police from the first opportunity and
that, by making a prompt admission of guilt, the client saved the police spending additional
time and resources investigating the offence. Guidelines produced by the Sentencing Council
suggest that, when determining the reduction in sentence a defendant will receive for entering
an early guilty plea, the court may consider that the defendant should have indicated a
willingness to plead guilty when interviewed at the police station.

Disadvantages
The disadvantage in answering questions put by the police in interview is that many suspects
will either say something incriminating or make comments which undermine their credibility.
Police officers are particularly adept at ‘tripping up’ suspects in interview, and it is very easy
for a suspect to become flustered, confused or angry, particularly if they are in an emotional
condition. Suspects in such a state may be led into admitting their involvement in the offence,
or into asserting facts which are contradictory or which the police can show to be untrue.
lf the suspect is subsequently charged with the offence and pleads not guilty, a transcript
of the interview record will be read out at court (or the recording of the interview may be
played). A suspect who comes across as being confused or angry, who makes admissions,
or who gives a contradictory or implausible account of events is likely to have their credibility
severely damaged in the eyes of the jury or magistrates.

19
Criminal Practice

Even clients who are able to give their solicitor a clear version of events may be vulnerable to
confusion in an interview situation. This is particularly the case with young or immature clients,
clients who have not previously been in trouble with the police or clients whom the solicitor
believes may be emotionally vulnerable.
The solicitor also needs to consider whether the police have provided sufficient disclosure of
the evidence which they have obtained in the course of their investigations in order to enable
the client to answer all the questions which the police put. A common tactic employed by the
police is to hold back from the suspect's solicitor a particular piece of information which is
then put to the suspect in interview, hoping to catch them off-guard. If the solicitor does not
consider that the police have made a full disclosure of their case, it is a hazardous step for the
solicitor then to advise the client to answer questions in the interview. The client is likely to be
caught out when the police raise a matter which was not disclosed to their solicitor.
An additional potential problem with the client answering questions is that the line of
questioning pursued by the police may lead the client to make an attack on the character of
another person. If the client is subsequently prosecuted for the offence, such an attack may
enable the CPS to raise in evidence at trial any previous convictions the client may have
(see 9.7).

1.4.2.2 Remaining silent

Advantages
The advantage of a client exercising their right to remain silent by declining to answer
questions in interview (other than to say ‘no comment’ or ‘no reply’ to each and every question
put) is that there is no danger of the client incriminating themself by making any admissions,
or inadvertently giving the police a piece of evidence which they would not otherwise have
obtained. If the case against the client is weak and the police are hoping to bolster it by
getting the client to say something damaging in interview, giving a ‘no comment’ interview
may mean that the police will not then have sufficient evidence to enable them to charge the
client with the offence, and the client is likely to be released without charge.

Disadvantages
The disadvantage of a client giving a ‘no comment’ interview is that, if the client is
subsequently charged and pleads not guilty, the magistrates or jury may in certain
circumstances draw an adverse inference under ss 34, 36 or 37 of the CJPOA 1994 from the
client's silence in interview. The circumstances in which an adverse inference may be drawn
are examined fully in Chapter 9.4. In summary, however, if the client fails to answer questions
in police interview and then at trial raises a defence, the details of which could reasonably
have been given to the police in interview, the court or jury are entitled to conclude that the
defence is a sham and was fabricated by the defendant after they had left the police station,
when they had the opportunity to ‘get their story straight’.

When is a solicitor likely to advise the client to give a ‘no comment’ interview?
A solicitor may advise a client who admits their guilt to the solicitor to give a ‘no comment’
interview. This will be important if the solicitor considers that the case against the client is
weak and the police do not currently have sufficient evidence to prove the allegation. A client
who answers questions in such a situation may make a damaging admission which will give
the police sufficient evidence to charge. This course of action would not involve the solicitor
being a party to the client lying to or misleading the police, and the police may decide not to
pursue the case if they are unable to obtain any admissions from the client in interview.
The other occasions on which a solicitor may advise their client to give a ‘no comment’
interview are where:
(a) the solicitor considers that the police have not provided adequate disclosure of the
evidence they have obtained against the client (so that the solicitor is unable to properly

20
 Detaining a Suspect at the Police Station and Police Interviews

advise the client on the strength of the police case against them). Lack of disclosure
from the police creates a real risk that the client may implicate themself if they answer
questions in interview. This is a particularly important consideration if a co-accused
has also been arrested and interviewed by the police, especially if the police are not
prepared to disclose what they consider the role of the co-accused to have been, or if the
police are not prepared to disclose what the co-accused has said in interview;
(b) linked to (a), the solicitor considers that the police may attempt to ‘ambush’ the client
during the interview by revealing a piece of evidence which they had not disclosed to the
solicitor in advance of the interview (in the hope that, when confronted with this evidence,
the client will say something incriminating or be lost for words);
(c) the client denies involvement in the offence and the police do not currently have sufficient
evidence to charge the client (since if the client agrees to answer questions in interview
they run the risk of giving the police the additional evidence they need to enable them to
charge the client);
(d) the client is physically or mentally unfit to be interviewed (if, for example, the client is
suffering from the effects of drink or drugs), or the solicitor considers that the client would
fail to give a good account of their case in interview because the client is distressed,
emotional or fatigued. This is likely to be the case if the interview is to take place late at
night, the client has been at the police station for a number of hours before the interview
takes place, or the client has been involved in an upsetting incident (often in connection
with the alleged offence);
(e) the client is likely to perform badly in interview due to his:
(i) age
(ii) lack of maturity
(iii) psychological vulnerability or
(iv) previous inexperience of police detention and questioning.
lf the client is particularly young, they may lack the maturity to answer questions
properly or may become aggressive during the interview. Elderly clients may
become easily confused or ‘lost’ during interviews at the police station. If the client
appears particularly agitated or ill at ease, the solicitor may consider that the client
is psychologically vulnerable to the questioning techniques the police may employ
during the interview. Similar considerations will apply if this is the first time the client
has been arrested and they have no previous experience of custody or questioning by
the police. A solicitor may also have suspicions that the client could be suffering from
some form of mental impairment if the client is behaving strangely, or if the client is
unable to give the solicitor coherent instructions;
(f) the facts of the case are so complex, or relate to matters occurring so long ago, that
the client cannot reasonably be expected to provide an immediate response to the
allegations made against them, or that any immediate response they are able to give
will not be accurate. This may be a particular consideration in a fraud case in which
the police want to ask the client about complex financial matters, or in a case involving
allegations of physical or sexual abuse carried out many years previously;
(g) although the client says they did not commit the offence, the client does not have a viable
case or defence. If the solicitor considers that the client has no case that will, at that time,
stand up to police questioning, the safest course of action may be to give a ‘no comment’
interview, since the client will only come across badly in interview if they attempt to
answer questions to which they have no real response; or
(h) where the client has other good personal reasons for remaining silent. A common
situation when a client may have such a reason for remaining silent is if the client would
suffer extreme embarrassment if they were to tell the police what actually happened.

21
Criminal Practice

© Example
Peter is arrested on suspicion of burglary in the early hours of the morning. Peter instructs
his solicitor that he did not commit the burglary and has an alibi. The alibi is that, at the
time the burglary is alleged to have occurred, Peter was at the home of Olivia, with whom
he is having an affair. Peter is married and doesn’t want his wife to find out about the
affair. If, when interviewed, Peter tells the police details of his alibi, the police will check
it and it is likely that Peter’s wife will find out about the affair. Peter may have a personal
reason for wanting to remain silent. (In this situation the solicitor would advise Peter that
he would need to balance the risk that his wife might find out about the affair against
the greater likelihood of his being convicted if he fails to put forward a defence to the
allegation made against him.)
If a client decides to give a ‘no comment’ interview on the basis of the legal advice they
have received, the solicitor must explain to the client that this will not necessarily prevent
a court from drawing adverse inferences from this silence at any subsequent trial. If the
solicitor has advised a client to remain silent, they should ensure that they make a full
written note of the reasons for this advice. Such a record may have important evidential
value at trial (see 9.4).

1.4.2.3 Selective silence

A solicitor should not generally advise a client to answer some of the questions put by the
police but not others. Doing this comes across very badly at trial when the interview transcript
is read out or the recording of the interview is played to the court. By answering some
questions but not others, it will appear to the magistrates or the jury that the defendant has
something to hide and is refusing to reply to those difficult questions for which they have no
satisfactory answer.

1.4.2.4 Making a prepared written statement

(a) When might a written statement be used?

Handing in a written statement to the police is a useful strategy to employ if the solicitor
considers that the client needs to place their version of events on record to avoid an
adverse inference being drawn at trial (if, for example, the client has a positive defence
such as self-defence or alibi), but the solicitor is concerned that the client may perform
badly if they answer questions in interview. This is likely to be the case if the client is
young, emotional or has never previously been arrested and detained at the police
station. If the client is to hand in a prepared written statement to the police, the solicitor
will advise the client to answer ‘no comment’ to questions put by the police in interview.
The written statement will be read out and then handed to the police either during the
interview, or after the interview but prior to the client being charged.
What should the statement contain?
A written statement will be drafted by the solicitor and will allow the client to set out their
defence in a clear and logical way, but it should be in their own words. As long as the
written statement sets out all the facts which the client later relies upon in their defence at .
trial, handing in a written statement should avoid the risk of any adverse inferences being
drawn at trial under s 34 of the CJPOA 1994, even if the client then answers ‘no comment’
to the questions put by the police in interview. In drafting the statement, the solicitor
should also take care to cover those matters about which the police might also ask the
client in interview and which may at trial be the subject of an adverse inference under s
36 or s 37 of the CJPOA 1994 (see 9.4).
The statement should say no more than is necessary to prevent the drawing of adverse
inferences at trial, although the statement may need updating if the police make further
disclosure of their case.

22
 Detaining a Suspect at the Police Station and Police Interviews

(c) When should the statement be handed in to the police?

The written statement can be handed in to the police either during the interview, or
just prior to charge or even kept on the client's file and not disclosed at either of these
stages. It is normal practice for the statement to be handed in at the start of the interview
and for the suspect to then answer ‘no comment’ to questions put by the police during
the interview. If, however, the defence solicitor feels that the police case is particularly
weak, it may be better to hold back the handing-in of the prepared written statement
until the police have actually decided to charge the client (but before the client is
formally charged). Handing in the statement earlier may give the police some additional
information, which might lead them to decide to charge the client when otherwise they
might not have done so. For example, in the statement the client may make a partial
admission which gives the police sufficient evidence to enable them to charge the suspect
with the offence.

o Example
Jayne is arrested on suspicion of burglary of shop premises and is to be interviewed at
the police station. Before the interview takes place, Jayne's solicitor obtains disclosure of
the case from the investigating officer. The solicitor considers that the police case against
Jayne is weak and that Jayne is unlikely to be charged if she gives a ‘no comment’
interview. In particular, the police do not have any direct evidence placing Jayne at the
shop premises at the time of the burglary. When the solicitor takes instructions from Jayne,
she instructs the solicitor that she did not commit the burglary but was outside the shop
premises when the burglary took place. Jayne’s solicitor advises her that if she discloses
this fact to the police, this will strengthen the case against her and make it more likely
that she will be charged. Jayne accepts her solicitor’s advice and gives a ‘no comment’
interview. However, Jayne’s solicitor also prepares a written statement setting out Jayne’s
defence. The solicitor will not hand this statement in to the police during the interview
(but may explain that the client has provided a prepared written statement setting out
her defence, which at this stage will be kept on the client file). If the police do decide
to charge Jayne, however, the solicitor may then hand in the statemerit before Jayne is
charged. If the statement contains the facts Jayne will later raise in her defence at trial,
this may prevent an adverse inference being drawn as to recent fabrication.
Very occasionally a solicitor will take a written statement from their client but, rather
than hand the statement to the police whilst the client is at the police station, retain
the statement on the client's file. This may occur when the solicitor has doubts as to
the accuracy of the instructions they have received from their client and are reluctant
to disclose this defence to the police because they believe the facts put forward by
the client either will not stand up to scrutiny, or may ‘change’ later in the case. In such
circumstances, the solicitor will retain the statement on file and produce it at a later
stage in the case, if necessary, to try and prevent the court drawing an inference that
the client’s defence was fabricated after they had left the police station. Adopting such a
tactic will not, however, prevent other adverse inferences being drawn by the court at trial.
This could include an inference that the defendant was not sufficiently confident in their
defence to expose it to police scrutiny or investigation, or that they had not thought up all
the details of this defence at the time of the interview.

© Example
Fergus is arrested on suspicion of assault and is to be interviewed at the police station.
Fergus tells his solicitor that it is a case of mistaken identity and that he was elsewhere at
the time of the assault (although he cannot recall exactly where he was). The identification
evidence against Fergus is extremely strong and Fergus’s solicitor doubts that Fergus’s
account will stand up to police scrutiny. The solicitor takes a written statement from Fergus

23
Criminal Practice

who then gives a ‘no comment’ interview. The solicitor does not hand a copy of the
statement to the police but retains the statement on his file.
Scenario 1 - Fergus is subsequently charged with assault. Fergus’s defence at trial is the
same as the account he gave to his solicitor at the police station. Fergus’s solicitor can
produce the statement to the court to prevent the court drawing an inference of recent
fabrication (that Fergus thought up his defence only after he had left the police station).
The court will, however, be able to draw the adverse inference that Fergus was not
sufficiently confident in his defence to expose it to police questioning at the police station.
Scenario 2 - Fergus is subsequently charged with assault. Fergus changes his version of
events and now tells his solicitor that he was present at the time of the assault but claims
to have been acting only in self-defence. The solicitor will not use Fergus’s statement
obtained at the police station because the basis of Fergus’s defence has changed. The
court will be able to draw an inference of recent fabrication. However, by not handing
in Fergus’s statement when Fergus was originally detained at the police station, Fergus’s
solicitor has avoided the far more damaging situation of Fergus saying one thing at the
police station and then saying something totally different when his case comes to trial.
Note: there are also potential ethical issues with continuing to represent a client who
has changed their account. Here the solicitor would have to be satisfied that Fergus’s
new account is the truthful one, otherwise the solicitor would be misleading the court by
allowing Fergus to run a positive defence they believed to be untrue.

Conclusion
Giving the correct advice to a client on whether or not to answer questions in an interview at
the police station is one of the hardest tasks a defence solicitor will face, because there are a
number of considerations that need to be taken into account. Giving the right advice though
can have a significant impact on the outcome of a client's case.

1.5 Procedure for interviewing a suspect under PACE 1984

Once the custody officer has authorised the detention of a suspect at the police station, the
officer investigating the offence will then take steps to further the investigation. The steps that
an investigating officer can take to secure, preserve or obtain evidence whilst the suspect is
detained at the police station will involve one or more of the following:
(a) carrying out an audibly recorded interview with the suspect about the suspect's alleged
involvement in the offence(s);
(b) arranging for an identification procedure to be conducted by another officer to see if a
witness to, or a victim of the offence is able to identify the suspect (see 2.3);
(c) taking fingerprints from the suspect to see if these match fingerprints found at the scene
of the crime, or on any relevant objects or articles which the police have recovered; and
(d) taking samples from the suspect to see if these match any samples obtained during the
course of the police investigation.
The first two investigative powers will be considered below, starting with police interviews.

1.5.1 Requirements of Codes C and E

Interviews that take place in the police station must comply with the requirements of Codes C
and E. Such interviews are recorded (usually on tape, disc or digitally depending on the police
force area) and are referred to in the Codes of Practice as ‘audibly recorded’ interviews.
Code E provides detailed guidance as to the procedure that needs to be followed in such
interviews.

24
 Detaining a Suspect at the Police Station and Police Interviews

The interview will normally be recorded on two or three tapes/discs or as one digital
recording. If the recording is on tape/disc, the master tape/disc, is sealed in the presence
of the suspect at the end of the interview. This seal will only be broken, and the tape/disc
opened at trial, if there is any dispute about what was said. One of the other tapes/discs
is called a working copy and will be used by the investigating officer to prepare a written
summary or transcript of the interview if the suspect is subsequently charged with an offence.
Some police forces will use a third tape/disc, which will be given to the suspect if they are
subsequently charged so they will also have a record of what was said in the interview and
which they may pass on to their solicitor if they are legally represented.
An interview is defined in para 11.1A of Code C as:
the questioning of a person regarding their involvement or suspected involvement
in a criminal offence or offences which, under paragraph 10.1, must be carried out
under caution.

ve Fe Should the suspect be interviewed at all?

Paragraph 11.18(b) of Code C provides that suspects who, at the time of the interview,
appear unable to:
(a) appreciate the significance of questions or their answers; or
(b) understand what is happening because of the effects of drink, drugs, or any illness,
ailment or condition, should not generally be interviewed (although there are some
limited exceptions to this in cases where an interview needs to be held as a matter of
urgency).

1.5.1.2 Can a suspect be interviewed before receiving legal advice?

The general position
In general, a suspect who requires legal advice should not be interviewed (or continue to
be interviewed) until such advice has been received (Code C, para 6.6). This means that
the police should not seek to interview a suspect who has indicated that they require legal
advice. Similarly, where a suspect has indicated that they do not require legal advice, is then
interviewed and indicates at some point during the interview that they have changed their
mind and now require legal advice, the police should stop the interview to allow the suspect
to obtain such advice.

Exceptions to the general position

The police may interview a suspect before that person has obtained independent legal
advice, but given that access to legal advice is so important (see s 58 and Article 6(3)(c) of
the European Convention of Human Rights), the rules permitting this are quite detailed and
complex:
(a) Section 58(8) allows the police to delay a suspect receiving legal advice for up to 36
hours. If the police exercise these powers, they may (and usually will) want to interview
the suspect prior to allowing them access to legal advice (see 1.3.1.1).
(b) If the relevant solicitor has agreed to attend the police station but awaiting their arrival
would ‘cause unreasonable delay to the process of investigation’ (Code C, para 6.6(b)(ii)).
(c) If the solicitor the suspect has asked to speak to either cannot be contacted or has
declined to attend the police station, and the suspect has then declined the opportunity
to consult the duty solicitor (Code C, para 6.6(c)).
(d) If a suspect asks for legal advice and changes their mind about this, the police may
interview the suspect, provided:
(i) an officer of the rank of inspector or above speaks to the suspect to enquire
about the reasons for their change of mind, and makes, or directs the making of,

25
Criminal Practice

reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform
the solicitor that the suspect has stated that they wish to change their mind and the
reason for it;
(ii) the suspect’s reason for the change of mind and the outcome of the efforts to contact
the solicitor are recorded in the custody record;
(iii) the suspect, after being informed of the outcome of the efforts in (i) above, confirms in
writing that they want the interview to proceed without speaking or further speaking to
a solicitor, or without a solicitor being present, and do not wish to wait for a solicitor,
by signing an entry to this effect in the custody record;
(iv) an officer of the rank of inspector or above is satisfied that it is proper for the
interview to proceed in these circumstances and gives authority in writing for the
interview to proceed; and if the authority is not recorded in the custody record,
the officer must ensure that the custody record shows the date and time of the
authority and where it is recorded, and takes or directs the taking-of reasonable
steps to inform the solicitor that the authority has been given and the time when
the interview is expected to commence, and records the outcome of this action in the
custody record;
(v) when the interview starts and the interviewer reminds the suspect of their right to
legal advice, the interviewer shall then ensure that the following is recorded in the
interview record:
(1) confirmation that the detainee has changed their mind about wanting legal
advice or about wanting a solicitor present, and the reasons for it if given;
(2) the fact that authority for the interview to proceed has been given;
(3) that if the solicitor arrives at the station before the interview is completed, the
detainee will be so informed without delay, and a break will be taken to allow
them to speak to the solicitor if they wish, unless para 6.6(a) applies, and that at
any time during the interview, the detainee may again ask for legal advice, and
that if they do, a break will be taken to allow them to speak to the solicitor, unless
para 6.6(a), (b) or (c) applies (Code C, para 6.6(d)).
In the situations at (a) and (b) above, the caution given to the suspect at the start of the
interview will be as follows:
‘You do not have to say anything, but anything you do say may be given in evidence.’
The reason for this wording is that no adverse inferences may be drawn at trial from the
suspect's silence in interview if the suspect had not at the time of the interview been allowed
access to legal advice (see 9.4). The suspect is therefore said to have an absolute right to
remain silent. This will not apply to the situations at (c) and (d) above, because in these cases
the suspect is allowed to speak to the duty solicitor (situation (c)) or a solicitor of their own
choice (situation (d)). The caution in these cases will be the normal caution given at the start
of the interview (see below).

1.5.2 Start of the interview

1325 The caution
At the start of the interview, the police officer conducting the interview will caution the suspect.
The wording of the caution is the same as that used at the time of the suspect's arrest and is
set out in para 10.2 of Code C:
You do not have to say anything. But it may harm your defence if you do not mention
when questioned something which you later rely on in court. Anything you do say may
be given in evidence.

26
 Detaining a Suspect at the Police Station and Police Interviews

The normal caution is worded in this way because, although the suspect has a right to
remain silent and cannot be compelled to answer questions in the interview, if the suspect
exercises this right but then at trial raises facts as part of their defence which they could have
mentioned during the interview, the court may draw an ‘adverse inference’ from such silence
under s 34 of the CJPOA 1994 (see 1.4.2 above and 9.4 below).

1.5.2.2 The continuing right to legal advice

After cautioning the suspect, the officer must also remind the suspect that they are entitled to
free and independent legal advice, even if the suspect has a solicitor present at the interview
(Code C, para 11.2). The caution and the reminder that the suspect is entitled to free and
independent advice must be given at the start of each interview the police have with the
suspect.

125 Significant statements and silences

After complying with the above, the interviewing officer must then put to the suspect ‘any
significant statement or silence which occurred in the presence and hearing of a police
officer ... before the start of the interview’ (Code C, para 11.4). The interviewing officer
must ask the suspect whether they confirm or deny that earlier statement or silence, and
if they want to add anything to it. The terms ‘significant statement’ and ‘significant silence’
are defined in Code C, para 11.4A. A ‘significant statement’ is a statement which appears
capable of being used in evidence against the suspect at trial, in particular a direct
admission of guilt. A ‘significant silence’ is a failure or refusal to answer a question or to
answer satisfactorily when under caution, which might allow the court to draw adverse
inferences from that silence at trial (see 9.4).

© Example 1
PC Singh is called to a public house where one of the customers has been assaulted. The
customer did not recognise his assailant but is able to provide PC Singh with an accurate
description of this person. PC Singh leaves the public house and sees Oscar nearby.
Oscar closely matches the description of the assailant given by the customer. PC Singh
asks Oscar where he has just come from. Oscar replies by saying ‘I came from the pub
and | was only acting in self-defence’. This would be a significant statement. Oscar has
not been told by PC Singh that an assault took place at the pub, and the only explanation
for Oscar's reply is that he was at the pub and has some involvement in the incident. This
is therefore a partial admission by Oscar and should be put to him at the start of the
interview.

o Example 2
PC Minnikin is called to a jewellery shop in connection with the suspected theft of a gold
bracelet by Alice. Following PC Minnikin’s arrival at the shop, and in his hearing, the
owner of the shop says to Alice: ‘I saw you pick the bracelet up and put it in your pocket
when you thought | wasn’t looking. Why did you try to steal it?’ Alice doesn’t reply to
this. This is a significant silence. Although Alice has not admitted her guilt, had she not
done what the owner of the shop accused her of doing, it would have been reasonable
to expect her to have denied the shop owner's version of events. The significant silence
should therefore be put to Alice at the start of his interview at the police station.
Should the police officer fail to put to a suspect at the start of the interview a significant
statement or silence made outside the police station, this may result in the contents of that
statement or the nature of that silence being ruled inadmissible at trial under s 78 of PACE
1984 (see Chapter 9).

27
Criminal Practice

1.5.3 Conduct of the interview

The way in which the interviewing officer may conduct the interview is subject to limitations
imposed by Code C. Paragraph 11.5 provides: ‘No interviewer may try to obtain answers or
elicit a statement by the use of oppression’.
‘Oppression’ might occur if the interviewing officer:

(a) raises their voice or shouts at the suspect;

(b) makes threatening gestures towards the suspect;
(c) leans towards the suspect so that they are ‘in the suspect's face’;
(d) stands over or behind the suspect; or
(e ) threatens to detain the suspect indefinitely unless they make a confession.
Paragraph 11.5 also states that ‘no interviewer shall indicate, except to answer a direct
question, what action will be taken by the police if the person being questioned answers
questions, makes a statement or refuses to do either’. This means that an interviewing officer
should not offer any inducements to a suspect to admit their guilt. This may occur if the
interviewing officer indicates to the suspect that they will be released from police detention
much more quickly if they admit to having committed the offence under investigation.

ee When must an interview cease?

When the officer in charge of the investigation is satisfied all the questions they consider
relevant to obtaining accurate and reliable information about the offence have been put to
the suspect; this includes allowing the suspect an opportunity to give an innocent explanation
and asking questions to test if the explanation is accurate and reliable, eg to clear up
ambiguities or clarify what the suspect said; or the officer in charge of the investigation, or
in the case of a detained suspect, the custody officer reasonably believes there is sufficient
evidence to provide a realistic prospect of conviction for that offence (Code C, para 11.6).
If interviews with a suspect take place over more than one day, in any period of 24 hours the
suspect must be given a continuous period of at least eight hours for rest. This period will
usually be at night and must be free from questioning or any other interruption in connection
with the offence (Code C, para 12.2).
Similarly, breaks from interviews should take place at recognised mealtimes, and short
refreshment breaks should be taken at approximately two-hour intervals (Code C, para 12.8).
If the conduct of an interview breaches any of the above provisions of Code C, at any
subsequent trial the court may rule inadmissible any admission or confession made by the
defendant in that interview (see 9.6).

1.5.4 Role and appropriate conduct by defence legal representative/solicitor

1.5.4.1 Preparing the client for interview
The solicitor needs to explain to the client the procedure to be followed in the audibly
recorded interview, and to warn the client about the tactics the police are likely to adopt in an
attempt to get them to answer questions if they give a ‘no comment’ interview. The following
points need to be explained to the client:
(a) The interview will be audibly recorded and all parties (including the client and the
solicitor) will be asked to identify themselves at the start of the interview.
(b) The interview may be stopped at any time if the client requires further legal advice from
the solicitor. The client should be told that they can ask for the interview to be stopped
for this purpose, or the solicitor may intervene of their own volition to suggest that the
interview be stopped so they can give further advice to the client.

28
 Detaining a Suspect at the Police Station and Police Interviews

(c) The solicitor will be present in the interview to protect the client's interests, and will
intervene in the interview when necessary if the solicitor considers that the police
questioning is in any way inappropriate, or considers that the client would benefit from
further legal advice in private.
(d) If the client is to remain silent in the interview, they should be advised to use the stock
phrase of ‘no comment’ in answer to all the questions which are put to them. It is easier
for clients to answer questions in this way rather than to remain totally silent.
(e) Aclient who is to remain silent should be advised that the police will often employ certain
tactics to get them to talk. In particular the police may:
(i) try to get the client to talk by asking apparently innocuous questions that have nothing
to do with the offence under investigation;
(ii) try to alienate the client from the solicitor by suggesting that the legal advice they
have received from their solicitor is incorrect; or
(iii) warn the client that certain adverse consequences may arise unless they answer
questions.
The client should be advised to ignore such tactics and to maintain their silence.

(f) If the client is advised to answer questions in the interview, the solicitor should remind
them not to ‘lose their cool’ during the interview, and not to become hostile or abusive
in their comments towards the interviewing officer. If the recording of the interview is
subsequently played out at trial, the client is likely to lose credibility in the eyes of the jury
or magistrates if they act in this way. The client should also be warned against making
personal attacks on others during the interview. An attack on the character of another
person made during the course of an interview may enable the prosecution to adduce
evidence of the suspect's previous convictions at his trial (see 9.7).

1.5.4.2 The interview

Seating arrangements
The solicitor should ensure that they are allowed to sit beside their client during the interview
and must never allow the police to prevent them from being able to make eye contact with
their client. The police will occasionally try to ‘distance’ the client from the solicitor by asking
the solicitor to sit behind them, so that they are unable to make proper eye contact with their
client, thereby isolating the client and making them feel more alone and vulnerable in the
interview. The client and the solicitor need to be able to make eye contact, both to give the
client the psychological support of being reminded that the solicitor is present in the interview
and also to enable the solicitor to detect from the client’s facial expressions or gestures if they
are becoming fatigued, emotional, confused or frustrated.

The solicitor’s role

The solicitor will not play a passive role in the interview. It may be necessary for the solicitor
to intervene to object to improper questioning, or to give the client further advice (which may
entail the interview being stopped if such advice needs to be given in private).
Paragraph 6D of the Notes for Guidance to Code C provides that the solicitor may intervene
in order to seek clarification, challenge an improper question to their client or the manner in
which it is put, advise their client not to reply to particular questions or if they wish to give their
client further legal advice.
Paragraph 6D also provides that a solicitor may only be excluded from the interview when
they are deemed to be engaging in ‘unacceptable conduct’, such as answering questions on
behalf of their client or writing down answers for the client to read out.

29
Criminal Practice

Opening statement by the solicitor

It is standard practice at the start of the interview for the solicitor to make an opening
statement explaining the role which they will play in the interview. This will put the police
officer(s) conducting the interview on notice that the solicitor intends to play an active role in
the interview, and may also provide an opportunity for the solicitor to state the advice given
to the client and if necessary, the reasons for that advice. A suggested form of wording for the
statement is as follows:
| am [name], a solicitor/accredited or probationary representative with [firm name]. | am
now required to explain my role. My role is to advance and protect my client’s rights.
! shall continue to advise my client throughout the interview and if necessary | shall ask
that the interview be stopped in order to allow me to advise my client in private.
| shall intervene in the interview if:

¢ my client asks for, or needs, legal advice;

* your questioning or behaviour is inappropriate;
e information or evidence is referred to that has not been disclosed to me before this
interview;
¢ clarification of any matter is required; or
¢ a break is required.
After receiving legal advice my client has decided:
[either]
¢ to exercise his right to silence [if appropriate, give a reason for this advice] because
[reason]. Please respect that decision. [My client is however prepared to hand to you a
written statement about this matter. ]

[or]
* to answer questions which you may raise which are relevant to my client's arrest/voluntary
attendance.
It is important that a solicitor makes an opening statement, both to make it clear to the police
that the solicitor knows their role (and if the solicitor does need to intervene, to justify such
intervention in advance) and to give the client confidence in the solicitor’s ability, which in
turn will give the client important psychological support. The Law Society advises that an
opening statement should be made at the start of every interview, irrespective of the client's
‘experience’ at the police station or the seriousness of the charge.

When should a solicitor intervene during the interview?

A solicitor should intervene during the course of the interview if they consider that:
(i) the questioning techniques employed by the police are inappropriate or improper;
(ii) the police are behaving in an inappropriate manner; or
(iii) the client would benefit from further (private) legal advice.
Set out below is a non-exhaustive list of the types of situation which may occur during an
interview when it would be appropriate for the solicitor to intervene:
¢ The solicitor is unhappy about the seating arrangements for the interview.
¢ The police are acting in an oppressive manner.
¢ The police are asking inappropriate questions because they are:
° irrelevant questions
° making a statement/asserting facts

30
 Detaining a Suspect at the Police Station and Police Interviews

° misrepresenting the law

° misrepresenting the strength of the case against the client
° ‘upgrading’ a response from the client/putting words in the client’s mouth/making
assumptions 5
° hypothetical/speculative questions.

* The police make threats/give legal advice on the consequences of silence.

¢ The police offer inducements.
e There is reference to a client’s previous convictions.
¢ New information is introduced that was not disclosed earlier.
¢ The police ask the client if they would be prepared to take part in further investigative
procedures before the solicitor has been able to give the client advice on this.
¢ The solicitor is concerned about the client’s behaviour or conduct.
¢ The client is making comments that may have adverse consequences later in the case.
¢ The police provide an inaccurate summary by the interviewing officer.
¢ There is already sufficient evidence to charge.

1.5.4.3 Can a solicitor be removed from the interview?

Paragraph 6.9 of Code C states that a solicitor may be required to leave the interview only
if their conduct is such that the interviewer is unable properly to put questions to the
suspect.

Paragraph 6D of the Notes for Guidance to Code C provides that para 6.9 will apply only if
the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being
put to the suspect, or the suspect’s response being recorded. Examples of such unacceptable
conduct would include answering questions on a suspect's behalf or providing written replies
for the suspect to quote. A solicitor should not be removed from the interview simply because
they tell their client not to answer questions, or because they intervene when they consider the
police are asking questions in an inappropriate manner.
lf the officer conducting the interview considers that the conduct of the solicitor is preventing
them from properly putting questions to the suspect, the interviewer must stop the interview
and consult an officer of at least the rank of superintendent (Code C, para 6.10). This officer
must then speak to the solicitor and decide if the interview should continue in the presence
of the solicitor or not. If it is decided that the solicitor should be excluded from the interview,
the suspect must be given the opportunity to consult another solicitor before the interview
continues, and that other solicitor must be given an opportunity to be present at the interview.

1.6 Conduct issues at the police station

There are a number of potential conduct issues which can arise at the police station. They
may be with a range of different people the solicitor has contact with, including the client, the
police or the appropriate adult where there is a vulnerable client (see Chapter 4).

1.6.1 The client who admits guilt

A solicitor may take instructions from a client who confirms that they did in fact commit the
offence for which they have been arrested but wants to deny the offence when interviewed
by the police. If the client admits guilt to their solicitor, the solicitor must advise the client
that they cannot then attend an interview to represent the client if the client intends to deny

31
Criminal Practice

having committed the offence. The solicitor cannot be a party to the client giving information
to the police which the solicitor knows to be false since this would amount to a breach of
the solicitor’s duty not to mislead the court under para 1.4 of the SRA Code of Conduct.
The solicitor could attend such an interview where the client intends to give a ‘no comment’
response to police questions, since this would not involve the giving of false information.
If the client insists on giving false information in interview, the solicitor should decline to act
any further on the client’s behalf. As the solicitor owes an ongoing duty of confidentiality to the
client (SRA Code of Conduct, para 6.3), the police should not be told why the solicitor is no
longer acting on the client’s behalf. It is usual in such a case for a solicitor to say that they are
withdrawing from the case for ‘professional reasons’.
A solicitor representing a client who intends to lie to the police in interview should attempt
to dissuade the client from doing so. From the client's perspective, this would be because it
will usually be easy for the police to disprove such lies and because it may also result in the
client being charged with a more serious offence such as perverting the course of justice. It
may also be appropriate for the solicitor to advise the client that, if they admit their guilt in the
interview, they will receive credit from the court for cooperating with the police when they are
later sentenced.

1.6.2 Conflict of interest

162A When a conflict may arise
A solicitor will often be asked to advise two (or more) suspects at the police station who are
jointly alleged to have committed an offence. Although a solicitor is allowed to act for two
or more suspects where there is no conflict of interest, the difficulty faced by a solicitor at the
police station is spotting when such a conflict may arise. On arrival at the police station the
solicitor will know little more than the names of the clients and the offence for which they have
been arrested. Until the solicitor knows what the police version of events is (and what version
of events their potential clients are giving), the solicitor is not going to know whether there is
an actual or potential conflict of interest. It is the responsibility of the solicitor to determine
whether a conflict of interest exists. If the custody officer suggests to the solicitor that there is
a conflict, the solicitor should ask the officer to clarify why they consider this to be the case,
but stress to the officer that ultimately it is the decision of the solicitor alone as to whether a
conflict exists and not that of the police (Code C, Notes for Guidance, para 6G).

Steps the solicitor should take:

* Once the solicitor has spoken to the investigating officer, the solicitor should speak to
one of the suspects (usually the first suspect to have requested the solicitor’s attendance
at the police station). If that suspect’s account suggests a clear conflict of interest (if, for
example, the suspect denies guilt and accuses the other suspect of having committed the
offence), the solicitor should decline to act for the second suspect and inform the police
that this suspect should receive separate legal advice. To act for both suspects in such
circumstances would be a breach of para 6.2 of the SRA Code of Conduct, whereby a
solicitor must not act where there is a conflict of interest between two or more clients or a
significant risk of a conflict.
¢ ven if there is no obvious conflict of interest, the solicitor should be alert to a potential
conflict of interest arising later in the case. This could occur, for example, if both suspects
admit the offence but, when the case comes to court, the mitigation for one of the
suspects is going to be that they only played a minor role in the commission of the
offence and that the larger role was played by the other suspect, and this is something
the other suspect disputes.
* If a conflict of interest emerges only after the solicitor has seen both suspects, the
appropriate course of action is for the solicitor to withdraw from the case completely. To

32
 Detaining a Suspect at the Police Station and Police Interviews

continue acting for both suspects would be a clear conflict of interest. It would also be
inappropriate to continue to act for only one of them because the solicitor would be in
possession of confidential information from the other, which could not be passed on to the
one whom the solicitor was continuing to represent. Only if the solicitor is able to act for
one client without putting at risk their duty of confidentiality to the other may they continue
to represent that first client (SRA Code of Conduct, para 6.3). This is unlikely to be the
case, because the confidential information received from the other is likely to assist the
case of the client the solicitor is continuing to represent and so confidentiality will be put
at risk (and also because the solicitor is under a duty to disclose all relevant information
to the remaining client - SRA Code of Conduct, para 6.4).

1.6.3 Should a solicitor disclose to one client information they have been given by another
client?
lf a solicitor decides that there is no conflict of interest and they are able to represent both
suspects, they must still not disclose to one client anything they have been told by the other (in
order to comply with their duty of confidentiality to the other client), unless:
(a) the solicitor has obtained the other client’s consent (preferably in writing) to disclose this
information (ie the client waives their right to confidentiality);
(b) both clients are putting forward consistent instructions; and
(c) the solicitor considers it in their clients’ best interests for the information to be disclosed.
Even if the above considerations are satisfied, the solicitor must also have regard to their
overriding duty not to mislead the court. Co-accused who are represented by the same
solicitor may attempt to use that solicitor to pass information between each other so that
they can jointly fabricate a defence and give the police a consistent ‘story’. To guard against
this, the solicitor should ensure that before telling the second client what they have been told
by the first client, they obtain an account of the second client's version of events. If this is
consistent with the account given by the first client, the solicitor will then be able to pass on
the relevant information (provided the first client has authorised this). If, however, the stories
are inconsistent, the solicitor will need to withdraw from the case. As mentioned above, it
would be inappropriate for the solicitor to continue to act for just one of the clients because
they would be in possession of confidential information about the other and yet also under a
duty to disclose it.

1.6.4 Disclosing the client's case to a third party

A solicitor representing a client at the police station may be asked for details of their client's
defence by another solicitor representing a co-accused who has been arrested in connection
with the same offence. Such a request should be treated with caution. The solicitor owes a
duty of confidentiality to their client and should therefore not respond to such a request by
releasing any such information. The only exception to this is if the solicitor considers it is in
their own client's best interests for such information to be disclosed. This will only very rarely
be the case. If the solicitor does consider that it would be in the client's interests to disclose
this information, the solicitor should first explain their reasoning to the client and obtain the
client’s authority (ideally in writing) to disclose this information.

1.6.5 The solicitor’s duty of disclosure to a client

This duty is described in para 6.4 of the SRA Code of Conduct. It requires a solicitor to make
the client aware of all material information of which the solicitor has knowledge. This is
subject to a limited range of exceptions such as where:
¢ disclosure is prohibited by national security or the prevention of crime;
¢ the client gives informed consent (in writing) to the information not being disclosed;

33
Criminal Practice

you have reason to believe that serious physical or mental injury will be caused to the
client or another if the information is disclosed; and
the information is contained in a privileged document that has been mistakenly disclosed
to you.

o Example
You represent Jayne who has been arrested on suspicion of fraud. Whilst obtaining
disclosure from the investigating officer, DC Edwards, he says to you: ‘Look, | really respect
you, so I’m going to disclose some very sensitive information to you about the case, but
only if you first promise not to disclose it to anyone’.
In replying to DC Edwards, you should explain that you are required by your professional
code of conduct to disclose all relevant information to your client. You should also try to
persuade the officer to still disclose this information to you even though you are obliged
to let your client know about it (unless you believe that one of the limited exceptions
above applies).

1.6.6 Withdrawing from acting

If, for reasons of professional conduet, a solicitor is unable to continue acting for a client (or
clients) at the police station, the solicitor needs to do the following:

(a) explain to the client why they are no longer able to represent them;
(b) tell the client that they are entitled to free legal advice from another solicitor of their
choice or the duty solicitor;
(c) tell the client that, although they are no longer able to represent them, the solicitor still
owes them an ongoing duty of confidentiality and will not therefore tell the police why
they are unable to act; and
tell the custody officer that they are no longer able to act (for professional reasons),
but not disclose the reason why. If the solicitor told the custody officer why they were no
longer able to act, this would be a breach of the ongoing duty of confidentiality owed to
the former client under para 6.3 of the SRA Code of Conduct.

Summary
In this chapter you have considered what powers the police have to detain and question a
suspect and what rights the suspect has whilst at the police station, including the right to free,
independent legal advice and the role a solicitor plays whilst representing a client at the
police station, particularly when the client is to be interviewed. Notably:
The procedure on arrival at the police station. The role of the custody officer who
decides whether an arrested person should be detained before charge (s 37) and their
responsibility for the suspect who is so detained.
The rights of a suspect being detained by the police for questioning. The right to free,
independent legal advice (s 58); the right not to be held incommunicado (s 56) and how
these two rights can be delayed and also the right to consult the codes of practice.
The period of detention and the requirement for regular reviews. The operation of the
‘detention clock’ (ss 41, 42, 43 and 44) and the ‘review clock’ (s 40).
Advising a client whether to answer police questions. The suspect's solicitor will first
gather as much relevant information as they can before advising their client of the options
open to them in the interview, the advantages and disadvantages of these and which
option they believe to be the safest.
 Detaining a Suspect at the Police Station and Police Interviews

The procedure to be followed when interviewing a suspect. Codes C and E provide

detailed guidance for the conduct of audibly recorded interviews at the police station.
These include: what exactly an interview is; when a suspect should not be interviewed;
when an interview can take place without a suspect first receiving legal advice; when
the caution and any significant statements or silence shall be given; how the interviewing
officer must then conduct the interview; and finally when the interview should stop.
The role of the legal adviser. This is described in para 6D of the Notes for Guidance
to Code C. The legal adviser is expected to actively represent and defend their client
before and during the interview. This will include preparing the client to cope with the
interview; ensuring the seating arrangements are appropriate; explaining their role at the
start of the interview by making an opening statement; intervening during the interview
whenever the questioning techniques employed by the police are inappropriate, improper
or where the police behave in an inappropriate manner; or where the client would benefit
from further (private) legal advice.
Dealing with a range of conduct issues at the police station. This included what to do
when a client admits guilt; how to deal with a conflict of interest or a significant risk of
such a conflict; whether a solicitor can disclose to one client information they have been
given by another client; whether a solicitor can disclose the client's case to a third party;
and what to do when withdrawing from acting for a client.

Sample questions

Question 1
A man has been arrested on Tuesday at 10.00 hrs on suspicion of common assault (a
summary offence) and taken to the local police station by the arresting officer. He arrives at
10.15 hrs and the custody officer authorises his detention to obtain evidence by questioning
him at 10.30 hrs.
Which of the following best describes the maximum period of time this man can be
detained before charge?
A Hecan be detained up until an inspector conducts a review of his detention which must
be by 16.30 hrs on Tuesday.
B He-can be detained up until an inspector conducts a review of his detention which must
be by 19.30 hrs on Tuesday.
C He can be detained up until 10.00 hrs on Wednesday.
D Hecan be detained up until 10.15 hrs on Wednesday.
E Hecan be detained up until 10.50 hrs on Wednesday.

Answer
Option D is the best answer. The ‘custody clock’ as opposed to the ‘review clock’ starts from
the time the man arrives at the police station, which here is 10.15 hrs on the Tuesday (not
the time of his arrest away from the police station, so option C is wrong, nor from the time
detention is authorised, so option E is also wrong). According to s 41, the maximum period
of detention before charge is 24 hours (note this cannot be extended as common assault is
a summary-only offence) so he can only be detained up until 10.15 hrs on the Wednesday.
Option A correctly sets out the time by which the man’s detention must be initially reviewed
by an inspector, but the question asks for the maximum period of detention, not when the
first review must be conducted. Option B is wrong because this also refers to a review, and
in any event, it gives the wrong time period (9 hours) for the first review to be conducted.
Criminal Practice

Question 2
A woman has been arrested and taken to the police station. When she is given her rights,
she requests legal advice, but she subsequently changes her mind when she learns the
police are ready to interview her and there is a delay in her solicitor attending the police
station. The custody officer authorises the interview to proceed in the absence of the
solicitor and makes an entry to this effect in the custody record. The woman also confirms
her change of mind in writing by signing an entry to this effect in the custody record.
Can the interview lawfully proceed on this basis?
A Yes, because the right to legal advice is an ongoing right, the suspect is entitled to
change her mind at any stage during her detention.
B_ No, because written authority can only be given by an officer not below the rank of
inspector.
C Yes, because the custody officer has authorised this and made-a record of the
authorisation in the custody record.
D No, because written authority can only be given by an officer not below the rank of
superintendent.
E No, because once a suspect has requested legal advice the interview cannot proceed
without the solicitor’s attendance.

Answer
Option B is the best answer. Whilst a suspect can change her mind about wanting legal
advice (so option E is wrong), this must be authorised in writing by an officer not below the
rank of inspector (so options C and D are also wrong). Whilst option A is correct in that the
right to legal advice is an ongoing right, and the suspect is entitled to change her mind at
any stage during her detention, there are some additional safeguards that must be followed
for this to be done correctly. These safeguards are actually very detailed (see the key points
below), but option B is the best answer because this correctly identifies the role played by an
officer not below the rank of inspector, provided:
¢ this officer speaks to the suspect to enquire about the reasons for their change ef mind,
and makes reasonable efforts to contact the solicitor;
* the suspect's reason for the change of mind and the outcome of the efforts to contact the
solicitor are recorded in the custody record;
¢ the suspect confirms in writing that they want the interview to proceed without first
obtaining legal advice by signing an entry to this effect in the custody record; and
¢ the officer of the rank of inspector or above is satisfied that it is proper for the interview to
proceed in these circumstances and gives authority in writing for the interview to proceed.

Question 3
A solicitor is acting for a client at the police station when it becomes apparent that there is
a conflict of interest with an existing client the solicitor is already representing.
Assuming the solicitor will withdraw from acting for the client, what should she now say
to the custody officer?
A_ That she no longer wants to represent the client.
B That she can no longer represent the client because there is a conflict of interest with
an existing client.

36
 Detaining a Suspect at the Police Station and Police Interviews

C_ That she can no longer represent the client and the custody officer should speak to the
client to find out why.
D_ That she can no longer represent the client but someone else from her firm will be
attending to represent the client.
E That she is no longer able to represent the client for professional reasons.

Answer
Option E is the best answer because all the solicitor can tell the custody officer is that
she can no longer act (for professional reasons) - she must not disclose the reason why.
Arguably she could just tell the custody officer that she is no longer able to act, but some
practitioners would say it would be discourteous not to explain that it is for professional
reasons. Option A is not the best answer because it is misleading for the solicitor to say
that she no longer wants to represent the client. The reason she can no longer represent
the client is because of her professional obligations to this client and her existing client
rather than because she no longer wants to do this. If the solicitor told the custody officer
why she was no longer able to act (other than for professional reasons) this would be a
breach of the ongoing duty of confidentiality owed to the client under para 6.3 of the SRA
Code of Conduct, so option B is wrong. It would also be wrong to tell the custody officer
to speak to the client about why the solicitor can no longer act, so option C is also wrong.
Option D is wrong because if the solicitor has a conflict with this client and an existing
client, this will also prohibit anyone else in the firm from representing the client.

37
 “se ie a c=

29 ea nee Mes
. hy Kal ta? fe
Liters ett Hav Hfoy.
yy ‘eu ‘7 ey * ReyVEAa NTS
ae oe a of sdiakate Ss:
ATONE SL
fk dea ahi 7 4 le te tae hl Se“Ut caked ¥
: r * a nt 1 ae iv re .

haha art ee a
i? ons vontiaa OO UI wie Tonga Inet
a La uP ne r, Fale ine ao ot a wa raul
' Mi .

| c) al tala Ned Rae ho, aah ed biafhpned<»-

{ he eg)—on ; Phigetel idhy iy ane eM te eeetuinh ys 2 ay

: a Sit.
osAE or at i

‘sal
‘ i on
Py
Vi
: in
MINT) &‘Niece
" aie a
Coie
we teePa re SOS
be Thr: ee NS dee cy yihve Weck! a wil Gs Mt
b } imi AUN, 457] Dae pote or¥
IMR io. |ket eos) me a 1 ae
a ‘4
; y

i_ } odngalt
ay roe cae
rf “> (pee ne
‘y \ ‘ n

’ ret
é
- ee |
4 i 7 3%
4 '

gg ii oa ; i ie

cl | Me i opaline
‘a pe cae vre

mae an
a tiie
yrs

¢ ' —. Var iap® en jt

UO (Oo WI ie
=e “
mitedj dat) SOA 94 ly »

se lt tee
 Identification Procedures

Introduction 40

When an identification procedure must be held 40

Different types of identification procedure under PACE 1984, Code D 42
Procedure to be followed for carrying out an identification procedure
2.5 Legal adviser’s role at an identification procedure and
advising a client 46

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
¢ When an identification procedure must be held.
¢ The different types of procedure available.
¢ How such procedures should be conducted and who is responsible for
conducting these.
¢ The role of a legal adviser during such procedures and the advice a client should
be given about participating in an identification procedure.

39
Criminal Practice

2.1 Introduction
In addition to wanting to interview an arrested person about their suspected involvement in a
criminal offence, the other main reason for the police to arrest a suspect is to enable them to
obtain additional evidence which points to that suspect's guilt. One method which the.police
use to obtain such evidence is to see if the victim or witnesses to the offence are able to
visually identify the suspect, where the suspect is claiming they were not involved.
The procedures which the police need to follow when obtaining identification evidence are
contained in Code D. Paragraph 1.2 of Code D provides:
In this code, identification by an eye-witness arises when a witness who has seen
the offender committing the crime and is given an opportunity to identify a person
suspected of involvement in the offence in ‘avidéo identification, identification.parade
or.similar.procedure. These eye-witness identification procedures ... are designed to:

¢ test the witness’ ability to identify the suspect as the person they saw on a previous
occasion
¢ provide safeguards against mistaken identification.
If the police do not know the identity of the suspect, they are allowed to take a witness to
a particular neighbourhood or place to see if that witness is able to identify the person
they saw.
lf the identity of the suspect is known to the police and the suspect has been arrested, the
police may then use a form of identification procedure to see if the witness can identify the
suspect.
The police must keep a record.of.the suspect’s description. as. first.given to them by
a_potential witness (Code.D;para 3.1). Before any form of identification procedure
takes place, a copy of this record should be given to the suspect or their solicitor. This
may prove useful at trial if there are discrepancies between this description and the
actual appearance of the suspect.

2.2 When an identification procedure must be held

Whenever:

(a) a witness has identified or purported to have identified a suspect; or

(b) a witness thinks they can identify the suspect, or there is a reasonable chance that the
witness can identify the suspect, and the suspect disputes being the person the witness
claims to have seen, para-3:12.0f.Code»D states that an identification procedure shall be
held unless it is not practicable or would serve no useful purpose in proving or disproving
whether the suspect was involved in committing the offence.
Code’D, para 3:12 goes on to give two examples of when it would not be necessary to hold
an identification procedure, namely:
(a) when the suspect admits being at the scene of a crime and gives an account which does
not contradict what the witness saw; and
(b) when it is not disputed that the suspect is already known to the witness.
In such cases, an identification procedure would serve no purpose because the witness would
inevitably pick out the suspect.

40
 Identification Procedures

© In RVHarris:[2003] EWCA Crim 174 the victim to a robbery claimed that he knew the
accused on the basis that he had gone to the same school. However, they had not been
in the same class and it had been two years ago when the accused was only 14 at the
time. The accused disputed the identification and also disputed that he was known to the
witness. It was held that this was a case where an identification procedure should have
been held under Code D, para 3.12.
By contrast, in Hw-DPP.{2003) All-ER (D) (Jan) the Court of Appeal held that it would have
served no useful purpose for the police to hold an identification procedure given that it
was accepted that the victim prior to the assault in question had known his aggressor
well for a period of 18 months and the assault had lasted a full seven minutes and so no
useful purpose would have been served in then holding a formal identification procedure.
An identification procedure should also be held if a witness to a crime has purported
to identify the suspect in the street some time after the crime was committed, since
the purpose of an identification procedure is to test the reliability of the eyewitness’
identification.
An eyewitness identification procedure may also be held if the officer in charge of the
investigation considers it would be useful (CodeD, para 3.13).

© Example 1
Liam is arrested on suspicion of assault. A witness, Baljeet, saw the assault. She does
not know Liam but thinks she can identify the person she saw commit the assault. Liam
disputes being the person Baljeet claims to have seen. An identification procedure should
be held to see if Baljeet can pick out Liam as the person she saw committing the assault.

© Example 2
Liam is arrested on suspicion of assault. A witness, Baljeet, saw the assault. She recognised
Liam as the person who committed the assault because she was at school with him some
years previously. Liam disputes being the person Baljeet claims to have seen. He also says
that he only vaguely recalls Baljeet from school but did not know her very well. He also
comments that it is several years since he left school and Baljeet was two years ahead of
him. An identification procedure should be held to see if Baljeet can pick out Liam, since
Liam is disputing the fact that he is known to Baljeet (see R v Harris above).

o Example 3
Liam is arrested on suspicion of assault. A witness, Baljeet, saw the assault. She identifies
Liam as the person who committed the assault. Liam disputes being the person Baljeet
claims to have seen. Baljeet has known Liam for several years as they are both members
of the same gym. Liam does not dispute that he is known to Baljeet. So unlike Example 2,
there would be no useful purpose in holding an identification procedure since Liam is
known to Baljeet who would clearly pick out Liam were a procedure to be held (see H v
DPP above).

o Example 4
An assault takes place outside a pub and is witnessed by Baljeet. The assailant runs
away before he can be apprehended. Baljeet does not know the identity of the person
who carried out the assault but thinks she will be able to identify this person if she sees
him again. PC Smith later takes Baljeet to the area where the assault occurred. Baljeet
sees Liam and recognises him as the person who committed the assault. An identification
procedure should be held to test the reliability of Baljeet’s street identification of Liam if
Liam claims that Baljeet is mistaken.

41
Criminal Practice

2.3 Different types of identification procedure under PACE :

1984, Code D
There are four different types of identification procedure:
(a) video identification;
(b) an identification parade;
(c) a group identification; and
(d) confrontation by a witness.

2.3.1 Which type of identification procedure should be used?

Paragraph. 3.14.0f.CGode.D provides that a suspect should initially be offered a video
identification unless:
(a) a video identification is not practicable;
(b) an identification parade is both practicable and more suitable than a video
identification; or
(c) the officer in charge of the investigation considers that a group identification is more
suitable than a video identification or identification parade, and the identification officer
considers it practicable to arrange a group identification (Code.D,,.para.3.16),
The decision on which type of procedure is offered to the suspect will be made by the
investigating officer in conjunction with the identification officer. A video identification is now
the most common form of identification procedure used by the police. Identification parades
and group identifications are held only rarely. A video identification is normally preferred to
an identification parade, if it can be arranged and completed sooner than an identification
parade. Paragraph 3.14.states:
An identification parade may not be practicable because of factors relating to
the witnesses, such as their number, state of health, availability and travelling
requirements. A video identification would normally be more suitable if it could be
arranged and completed sooner than an identification parade.
Confrontations are very much a last resort.

2.3.2 Can an identification procedure be used if a witness has recognised a suspect

from a photograph?
The police will keep photographs of individuals with previous convictions and may show these
photographs to a witness when they are trying to identify the person responsible for a crime
(see below).
Before a witness is shown any photographs, that witness’ first description of the suspect must
have been recorded (Gode-D,Annex.E,.para,2).
The witness must be shown at least 12 photographs at a time (Code DyAnnex —;-para.4). As
soon as a witness makes a positive identification from photographs, no other witnesses should
be shown the photographs. The witness who made the identification and any other witnesses —
should then be asked to take part in one of the identification procedures outlined above
(Code-D,-Annex.E, para.6).
The suspect or his solicitor must be notified if a witness attending an identification procedure
has previously been shown photographs, or a computerised or artist's composite (Code Dy
Annex E, para. 9).
If the case subsequently comes to trial, when giving evidence the witness will not be allowed
to say that they originally identified the suspect from photographs shown to them by the police
(see also Charles v The Queen [2007] UKPC 47).

42
 Identification Procedures

2.4 Procedure to be followed for carrying out an identification

procedure alse 4 (i

2.4.1 Video identification (Code-D, Annex A) ae? a

A video identification occurs when the witness is shown moving images of a known suspect,
together with similar images of others who resemble the suspect.
The images must include the suspect and ‘at least eight/other people who, so far as possible,
resemble the suspect in age, height, general a ition in_life’ (Code D, Annex
A, para 2). Where two suspects of roughly similar appearance are shown in the same images,
they must be shown together with{@tTeast12 otherpeoplal(Code D, Annex A, para 2). The
images that are shown to the witness must show the suspect and the other people in the
same positions or carrying out the same sequence of movements (Code D, Annex A, para 3).
The suspect or their solicitor must be given a reasonable opportunity to see the full set
of images before they are shown to any witness. If there is a ‘reasonable objection’ to
the images or to any of the other participants (such as one of the other participants not
resembling the suspect), the police must take steps, if practicable, to remove the grounds
for objection (Code D, Annex A, para 7). Such steps may include not using the image of a
participant who does not resemble the suspect, and instead replacing this with an image of
someone who does resemble the suspect.
If a suspect has any unusual features (such as a facial scar, a tattoo or distinctive hair style
or colour) which do not appear on the images of the other people, the police may take steps
to conceal those features on the video or to replicate those features on the images of the
other people (Code D, Annex A, para 2A). Such concealment or replication may be done
electronically. If a witness, having seen video images where concealment or replication has
been used, wants to see an image without the concealment or replication of the unusual
feature, the witness may be allowed to do so (Code D, Annex A, para 2C).
A suspect will not be present at the video identification, although the suspect will have
attended the police station on an earlier date to be video recorded for the purpose of the
video identification. The suspect's solicitor should be given reasonable notice of the time
and place of the video identification so that they may attend to ensure that it is carried out
properly (Code D, Annex A, para 9).
Only one witness may see the video at a time. The playback of the video may be frozen and
there is no limit on the number of times the suspect may see the video (Code D, Annex A,
para 11). Before they see the set of images, witnesses must not be able to:
(a) communicate with each other about the case;
(b) see any of the images which are to be shown;
(c) see, or be reminded of, any photograph or description of the suspect, or be given any
other indication as to the suspect's identity; or
(d) overhear a witness who has already seen the material (Code D, Annex A, para 10).
The police must not discuss with the witness the composition of the set of images, and a
witness must not be told whether a previous witness has made an identification. If a suspect
refuses to consent to take part in a video identification, alternative procedures may be
followed (see below), includinga covert video identification.

2.4.2 Identification parades (Code D, Annex B)

An identification parade occurs when a witness sees the suspect in a line of other persons
who resemble the suspect.
The identification parade will consist of at least eight people (in addition to the suspect) who,
so far as possible, resemble the suspect in age, height, general appearance and position in
life (Code D, Annex B, para 9).

43
Criminal Practice

As with a video procedure, if a suspect has any unusual features (such as a facial scar, tattoo
or distinctive hair style or colour) which it is not possible to replicate on the other participants
in the parade, the police may take steps to conceal those features. For example, a plaster
may be used to hide a facial scar, or a hat may be used to hide distinctive hair colour (Code
D, Annex B, para 10).
Paragraph 14 of Code D, Annex B provides that the police must make appropriate
arrangements to ensure that, before attending the parade, witnesses are not able to:
(a) communicate with each other about the case, or overhear a witness who has already
seen the identification parade;
(b) see any member of the identification parade;
(c) see, or be reminded of, any photograph or description of the suspect, or be given any
other indication as to the suspect's identity; or
(d) see the suspect before or after the identification parade.
The suspect is allowed to choose their own position in the line (and may change positions
between witnesses if more than one witness is to attend the parade), but cannot otherwise
alter the order of people forming the line. Paragraph 16 of Code D, Annex B states:
Witnesses shall be brought in one at a time. Immediately before the witness inspects
the identification parade, they shall be told the person they saw on a specified
earlier occasion may, or may not, be present and if they cannot make a positive
identification, they should say so. The witness must also be told they should not make
any decision about whether the person they saw is on the identification parade until
they have looked at each member twice.
Sometimes a witness will ask to have a parade member speak, move or adopt a particular
posture. If a witness makes such a request, they should first be asked whether they can
identify any person on the parade on the basis of appearance only. A witness who asks a
parade member to speak must be reminded that the participants in the parade have been
chosen on the basis of physical appearance only. Only when the police have done that may
a member of the parade then be asked to comply with the request to hear them speak, move
or adopt a particular posture. (If a suspect is picked out after they have been asked to speak,
whilst this evidence will be admissible at trial, the judge will give a very strong warning to the
jury to treat such evidence with the utmost caution.)
A colour photograph or video recording of the identification parade must always be taken
(Code D, Annex B, para 23) to help guard against any later dispute that the other members
of the parade were not sufficiently similar to the suspect ‘in age, height, general appearance
and position in life’.
As with a video procedure, the police cannot compel a suspect to take part in an identification
parade, but there are practical and evidential implications when this occurs (see 2.5.1 below).

2.4.3 Group identification (Code D, Annex C)

A group identification occurs when the witness sees the suspect in an informal group of
people. Group identifications may take place either with the consent and cooperation of the
suspect, or covertly if the suspect does not consent (Code D, Annex C, para 2).
The place where a group identification should be held is a place where other people are
passing by or waiting around informally (such as on an escalator, or in a shopping centre or
bus station). The suspect should be able to join these people and be capable of being seen
by the witness at the same time as others in the group (Code D, Annex C, para 4).
In selecting the location for the holding of a group identification, the police must reasonably
expect that the witness will see some people whose appearance is broadly similar to that of
the suspect (Code D, Annex C, para 6). Beyond that, however, there is no requirement that the
 Identification Procedures

other persons whom the witness sees in addition to the suspect have any particular likeness to
the suspect.
lf a suspect refuses to consent to a group identification and such an identification is held
covertly, the police will be required to take the witness to a place where the suspect is likely
to be at a given time. If, for example, the suspect is in employment, the group identification
could take place outside the suspect’s place of work at the time when the suspect is known to
start or finish work, since it is likely that the suspect would then be in a group of fellow workers
arriving or leaving work at the same time.

2.4.4 Confrontation (Code D, Annex D)

A confrontation occurs when a witness is brought face-to-face with a suspect in the police
station. Confrontations are extremely rare and very much a last resort.
Prior to a confrontation taking place, the witness must be told that the person they saw may,
or may not, be the person they are to confront and that if they are not that person, the witness
should say so (Code D, Annex D, para 1).
Confrontations will usually take place in the presence of the suspect's solicitor and usually
occur where the suspect refuses to take part in any of the above alternative procedures.

2.4.5 Who is responsible for the running of an identification procedure?

2.4.5.1 The identification officer
Identification procedures are the responsibility of an officer not below the rank of inspector
who is not involved with the investigation. This officer is known as the ‘identification officer’
(Code D, para 3.11). The identification officer will be in charge of the identification procedure
and must ensure that it complies with the requirements of Code D. The identification officer
will be present throughout the procedure and must be in uniform. When an identification
procedure needs to be held, para 3.11 of Code D provides that ‘it must be held as soon as
practicable’. lf the police decide to hold an identification procedure, the suspect will normally
be released on police bail (see 3.3) with a requirement to re-attend the police station at a
later date when the identification procedure will take place. This will then enable the police to
arrange for witnesses to attend the police station (in the case of an identification parade) or
to obtain the necessary images (in the case of a video identification).
The investigating officer will have no involvement in the conduct of the identification
procedure. Paragraph 3.11 of Code D states:
No officer ... involved with the investigation of the case against the suspect ... may
take part in [identification] procedures or act as the identification officer.
This is to ensure there is no risk of the investigating officer seeking to influence in any way the
witnesses who are to take part in the identification procedure.

2.4.5.2 Steps to be taken by the identification officer

Before a video identification, identification parade or group identification is arranged, the
identification officer must explain the following matters to the suspect:
(a) the purpose of the identification procedure to be used;
(b) the suspect's entitlement to free legal advice;
(c) the procedure to be followed, including the suspect's right to have a solicitor or friend
present;
(d) that if the suspect refuses to consent to the identification procedure taking place, such
refusal may be given in evidence at trial, or the police may proceed covertly without
the suspect's consent (ie by holding a covert video or group identification), or make
Criminal Practice

other arrangements to test whether a witness can identify the suspect (ie by arranging a
confrontation);
(e) that if the suspect has significantly altered their appearance between being offered an
identification procedure and the time of the procedure, this may be given in evidence at
trial and the identification officer may consider other forms of identification;
(f) whether, before the suspect's identity became known, the witness was shown
photographs, or a computerised or artist’s composite likeness or image by the police; and
(g) that the suspect or their solicitor will be provided with details of the description of the
suspect as first given by any witnesses who are to attend the identification procedure
before the procedure takes place (Code D, para 3.17).

2.5 Legal adviser’s role at an identification procedure and advising

a client
2.5.1 Initial advice to the client
An identification procedure will generally take place after the suspect's first interview. It will
usually only be at this stage of the investigation that the police will be aware if the suspect
disputes they were the person the witness saw at the relevant time (usually committing the
offence). If the suspect is then positively identified at such a procedure, they are then likely to
be either re-interviewed in light of the positive identification and/or charged with the offence.
As mentioned above, the most likely identification procedure will be a video identification
(or possibly an identification parade) and this will usually require the suspect's consent. In
such circumstances, there are several matters which the solicitor will need to explain to their
client, and various checks which the solicitor will need to carry out prior to the identification
procedure taking place. On the assumption that the police will want to hold a video
identification or identification parade, the solicitor should advise the client to agree to such a
procedure being carried out. If the witness attending the procedure cannot identify the client,
the police may release the client without charge.
If the client is not prepared to take part in a video identification or identification parade,
the solicitor should warn the client that the police may hold a less satisfactory form of
identification procedure, such as group identification or even a confrontation. These
procedures are less satisfactory than a video identification or an identification parade
because it is more likely that the suspect will be identified by the witness, as the suspect will
not be seen in a group of people who resemble them in appearance. The police may also
choose to video the suspect covertly for a video identification.
Refusal to take part in an identification procedure is admissible at trial, and the court
may therefore draw an adverse inference from the refusal of a suspect to take part in an
identification procedure. The adverse inference will be that the suspect refused to take part in
the procedure because they thought they would be recognised by the witness(es) who would
have attended the procedure.
Occasionally the police will decide not to organise an identification procedure even if the
suspect disputes their involvement and is willing to take part in such a procedure and the
police have a witness who believes they would be able to identify the person who committed
the offence. If the police decide not to hold an identification procedure in such circumstances,
this would be a breach of Code D, para 3.12 (see 2.2 above). If the solicitor considers that
the police should carry out an identification procedure in order to comply with Code D, they
should make representations to this effect to the investigating officer and also ensure their
representations are recorded in the custody record as such a failure may allow them to
 Identification Procedures

subsequently challenge the admissibility of any later disputed visual identification evidence at
trial (see Chapter 9).

2.5.2 Video identification

If the police intend to hold a video identification, the solicitor will be entitled to attend this
procedure. The solicitor needs to obtain from the police details of the first description of the
suspect given by the potential witness (Code D, para 3.1). The solicitor needs to check in
advance that the images which are to be used resemble the suspect in age, height, general
appearance and position in life. Again, the solicitor will need to object if the images do not
comply with this requirement and ensure that the police obtain further images. If the suspect
has a distinctive feature (such as a prominent tattoo) the solicitor should ensure that this is
covered up both on the image of the client and on the other foils.
The solicitor should attend the video identification to ensure that the witnesses attending the
procedure are segregated from each other and that no unauthorised persons (such as the
investigating officer) are present. The solicitor should check the number of witnesses who are
to attend, where the witnesses will be kept before and after the procedure (making sure that
a witness who has attended the procedure has no opportunity to speak to a witness who has
not yet taken part), and the route the witnesses will take both to view and then to leave the
procedure.
If the solicitor considers that the video identification has been contaminated in any way, they
should ask the witness if they have discussed the description of the offender with anyone, either
before attending or whilst at the police station. They should also ask that a note of their concerns
be made by the identification officer in the written record of the video identification procedure.

2.5.3 Identification parades

Before the parade takes place, the solicitor should ensure that the police provide them with
details of the first description of the suspect given by the potential witness (Code D, para 3.1).
The solicitor should explain to their client what will happen at the parade (see 2.4.2 above).
The solicitor should tell the client that they may choose where to stand on the parade and that
whilst the parade is taking place they should not speak or do anything to draw attention to
themselves.
The solicitor needs to check that the other participants in the parade resemble their client in
age, height, general appearance and position in life. If they do not, the solicitor should make
representations to the identification officer and ask either for the parade to be postponed,
or for some form of disguise to be used to overcome any disparity in the appearance of
the other participants. If, for example, the other participants in the parade are taller than
the suspect, the solicitor may ask that all the people taking part in the parade be seated.
Alternatively, if the suspect has a distinctive style or colour of hair, the solicitor could ask that
all participants in the parade wear hats.
The solicitor should check that the witnesses are properly segregated before the parade and
that there is no opportunity for the witnesses to see either the client or the other participants
in the parade before the parade takes place. This may involve the solicitor checking the route
which the witnesses will take to get to the parade and ensuring that the witnesses who are
waiting to take part in the procedure are kept in separate rooms. The solicitor should ensure
that there is no opportunity for a witness who has already attended the parade to speak to
another witness before that witness has attended the parade. The solicitor should also ensure
that the investigating officer is to play no part in the identification parade.
lf the solicitor considers that the parade has been contaminated in any way, they should ask
the witness if they have discussed the description of the offender with anyone, either before
attending or whilst at the police station. They should also ask that a note of their concerns be
made by the identification officer in the written record of the parade.

47
Criminal Practice

2.5.4 Written records

Whichever form of identification procedure is used, the solicitor needs to keep a detailed
record of what happens. The solicitor must ensure that the identification officer complies with
the procedural requirements of Code D, Annex A (in the case of a video identification), or
Annex B (in the case of an identification parade) when conducting the procedure. The solicitor
should also make sure that any objections they make to the conduct of the procedure (if, for
example, the solicitor considers that the witnesses have not been properly segregated before
an identification parade takes place) are recorded in full by the identification officer. Any
comments made during the procedure (whether by the witness, the identification officer or
anyone else) should also be recorded.

Summary
In this chapter you have considered when and how the police will be required to conduct an
identification procedure and the importance of Code D of the Codes of Practice to PACE 1984
in relation to identification procedures. Notably:
¢ When an identification procedure must be held. This is dealt with by para 3.12 which
makes such a procedure mandatory where the police have an identification witness and
the suspect disputes being the person the witness claims to have seen, unless it is not
practicable or would serve no useful purpose in proving or disproving whether the suspect
was involved in committing the offence. Paragraph 3.13 also gives the police a discretion
to hold an identification procedure if the officer in charge of the investigation considers it
would be useful.
¢ The different types of identification procedure. These are a video identification; an
identification parade; a group identification; and a confrontation by a witness. Paragraph
3.14 provides that a suspect should initially be offered a video identification unless this is
not practicable.
* The procedure to be followed when carrying out an identification procedure. These
are set out in considerable detail at Annexes A, B, C and D of Code D and for all four
types of procedure an officer not below the rank of inspector and not involved with the
investigation is responsible for conducting the identification procedure and preparing a
formal record of this.
* The legal adviser’s role at an identification procedure. The legal adviser will initially advise
their client whether or not to consent to taking part in such a procedure and will then be
present during the procedure to ensure that it is conducted in accordance with Code D.

Sample questions

Question 1

A man has been arrested on suspicion of burglary. A witness claims to have seen the man
climbing out of a window of the burgled premises at the time of the burglary. The witness
claims she recognised the man because they were at school together. During interview, the
man denies any involvement in the burglary and claims the witness is mistaken. He also
claims the witness could not have recognised him on the basis that he is known to her as
they were not in the same class or year group at school and he left school six years ago.
 Identification Procedures

Which of the following statements best describes whether the police will now be
required to hold an identification procedure?
A The holding of an identification procedure will be required because the man claims the
witness is mistaken and disputes that he is known to the witness.
B_ The police may hold an identification procedure if they believe it will help the
investigation into this offence.
C_ The police may hold an identification procedure if the officer in charge of the
investigation considers it would be useful.
D_ An identification procedure would not be necessary because the witness would
inevitably pick out the man.
E_ An identification procedure would serve no useful purpose as it is not disputed that the
man is already known to the witness.

Answer
Option A is the best answer. An identification would be mandatory in this case according
to Code D, para 3.12. There is a witness who has purported to recognise the man and
the man disputes being the person the witness claims to have seen, so an identification
procedure shall be held unless it is not practicable or would serve no useful purpose in
proving or disproving whether the man was involved in committing the offence. The man
disputes that he is known to the witness because they were not in the same year group at
school and also because of the passage of time since they were at school. This scenario
is therefore very similar to R v Harris (2003) where the CA stated that an identification
procedure was required in such circumstances. Options B and C are not the best answers
because although an eyewitness identification procedure may also be held if the officer in
charge of the investigation considers it would be useful (Code D, para 3.13), this would not
apply where the requirement to hold the procedure is already caught by para 3.12. Option
D is wrong because it is not at all inevitable that the witness would pick out the man since
the man has proper grounds to dispute that he is known to her. Option E is not the best
answer because it is disputed that the man is already known to the witness.

Question 2
Two brothers have been arrested on suspicion of affray. The police have a witness to
the incident who believes he would be able to identify the two offenders. Both brothers
deny being involved in the incident and both claim they were elsewhere at the time.
Because the two brothers are roughly of similar appearance, the police hold a video
identification procedure with the images of the two brothers and 10 images of other
people who all resemble the suspects in age, height, general appearance and position
in life. The investigating officer, who is an officer of inspector rank, conducts the video
identification procedure.
Has the video identification procedure been properly conducted?
A Yes, because the correct number of images have been used and an officer not below
the rank of inspector has conducted the procedure.
B No, because two separate procedures should have been used with one of the suspect's
video image and eight other images. used for each procedure.
C Yes, because the other images are of people who all resemble the suspects in age,
height, general appearance and position in life.

49
Criminal Practice

D No, because the investigating officer must not be involved in the conduct of the
identification procedure.
E No, because 12 other images should have been used and the investigating kite must
not be involved in the identification procedure.

Answer
Option E is the best answer. The video identification procedure has not been conducted
lawfully in accordance with Annex A to Code D of PACE 1984 because 12 other images (not
10) should have been used and the investigating officer must not be involved in the conduct
of the procedure, so option A is wrong. Where two suspects of roughly similar appearance
are shown in the same images, they may be shown together with at least 12 other people
(Code D, Annex A, para 2), so although separate procedures would usually be held, option
B is not the best answer. Although option C is correct about the other images all resembling
the suspects in age, height, general appearance and position in life, it fails to explain why
the procedure is still not conducted correctly. Option D is partially correct, because the
investigating officer must not be involved in the conduct of the identification procedure, but
it is not the best answer, because it fails to mention that the wrong number of images (10
rather than 12) have been used.

Question 3
A street robbery takes place and the victim provides a first description of the robber. The
victim does not know who the robber was and so she is shown photographs, in batches of
12, of people who fit this description. The victim makes a positive identification of a man
who is then arrested on suspicion of committing the robbery. The man is interviewed and
denies any involvement, claiming that he was elsewhere at the time of the robbery.
What are the police now required to do?
A The victim has already made a positive identification so the man should now be
charged.
B_ The victim should now be asked to take part in an identification procedure.
The police will be required to hold an identification procedure because the officer in
charge of the investigation will consider it to be useful.
D_ The police should not have shown the victim photographs in batches of 12 so they will
not be able to proceed further against the man.
E The man should now be compelled to take part in an identification procedure.

Answer
Option B is the best answer. The victim has made an identification from viewing the
photographs and should now be asked to take part in an identification procedure (Code
D, Annex E, para 6). Option A is wrong because a positive identification has not yet been
made. Option C is not the best answer because although this may be one of the reasons
for conducting an identification procedure the victim must first be asked to take part in such
a procedure and in the circumstances of this case, para D 3.12 will be the reason why such
a procedure is required. Option D is wrong because the victim must be shown at least 12
photographs at a time (Code D, Annex E, para 4). Option E is wrong because the suspect
cannot be compelled to take part in such a procedure.

50
 Charging the Suspect

a
oiee8
lieniir
ereninves Introduction 52
3.2 Release under investigation 52
3.3 Bail before charge 52
3.4 The decision to charge 54
3.5 Interviewing after charge oo
3.6 Bail after charge 55
3.7 Alternatives to charging 57

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
Releasing a suspect under investigation.
Bailing a suspect before charge.
Charging a suspect and the role played by the CPS.
Interviewing and bailing a suspect post-charge.
Alternatives to charging.
Note that, none of the above outcomes are specifically mentioned in the SRA
syllabus, but these cover some fundamental legal principles and rules that a
competent, newly qualified solicitor representing clients in the police station would be
expected to know. Knowledge of these will also help you to better understand topics
that are on the syllabus. As a result, please note there are no sample questions at the
end of this chapter.

51
Criminal Practice

3.1 Introduction
Once the police have exercised their investigative powers whilst the suspect is detained in
the police station (such as interviewing, conducting identification procedures and obtaining
forensic evidence) they will then need to determine what step to take next. The decision on
what to do next will ultimately be made by the custody officer who has four main options:
(a) release the suspect (either without taking any further action or release under
investigation);
(b) release the suspect without charge but on bail whilst the police make further enquiries;
(c) charge the suspect (and either release on bail or keep in custody until the suspect's first
court appearance); or
(d) offer the suspect an alternative to charge.
Each of these options will be examined in turn.

3.2 Release under investigation

If, having investigated the offence, the police determine that the suspect did not in fact commit
the crime (or there is insufficient evidence against the suspect and it is unlikely that any further
evidence will be obtained), the custody officer should release the suspect without charge
and without any requirement that the suspect return to the police station at a later date. This
means that, from the suspect's point of view, the matter is closed, although there is nothing to
prevent the police from re-arresting the suspect at a later date should any further evidence
come to light which implicates the suspect. This is sometimes referred to as ‘NFA’, where the
police release the suspect having decided to take no further action.
Another very common scenario is that, after exercising their investigative powers in the police
station, the police will then need to make further enquiries before deciding whether to charge
a suspect or to pass their file to the CPS to determine if there is sufficient evidence to charge
the suspect. In such circumstances the police would traditionally release the suspect on bail
under s 47(3)(b) (see 3.3 below).
However, ss 52-67 of the Policing and Crime Act 2017 amended PACE 1984 and effectively
introduced a presumption against pre-charge bail. So, where the police have insufficient
evidence upon which to charge and where any further investigation is likely to take longer
than 28 days to conclude, the police will now release the suspect under investigation (RU)).
This power has proved to be controversial, because suspects, victims and witnesses can be
left in limbo for lengthy periods of time not knowing what is going to happen to the case.
[Note: in light of growing concerns about the use of RUI, the Home Office in February 2020
published a consultation to review the law on pre-charge bail, with proposals including reform
that would remove the presumption against pre-charge bail and/or increase the period of
pre-charge bail to either 60 or 90 days from the present 28-day period.|
Where the suspect is released without bail in such circumstances, the police may re-arrest the’
suspect where new evidence comes to light or an examination or analysis of existing evidence
has been made which could not reasonably have been made before the suspect's release.

3.3 Bail before charge

The presumption against pre-charge bail does not apply if:

52
 Charging the Suspect

(1) the case has been submitted to the CPS for a charging decision (see below); here the
custody officer can release the suspect on bail; or
(2) (a) the custody officer is satisfied that releasing the suspect on bail is necessary and
proportionate in all the circumstances (having regard, in particular, to any conditions
of bail which would be imposed); and
(b) an officer of the rank of inspector or above authorises the release on bail (having
considered any representations made by the suspect or the suspect's solicitor).
Bail before charge will therefore be granted by the custody officer under s 47(3)(b). Where it is
necessary and proportionate to bail the suspect, a maximum period of 28 days (starting from
the day after the day that the suspect was arrested) applies. This initial period of 28 days can
be extended once for up to three months, if authorised by an officer of superintendent rank
or above. A further extension (of three months) can be granted by the court in exceptionally
complex cases (PACE 1984, ss 47ZD-47ZG).
Where a suspect is released on bail, details of the time and date when the suspect needs to
re-attend the police station will be contained in a written bail notice given to the suspect by
the police.
When the suspect answers their bail, the police may:
(a) release them without charge (if, after making further enquiries, the police have insufficient
evidence to charge);
(b) exercise further investigative powers (such as re-interviewing the suspect or conducting an
identification procedure);
(c) release the suspect again on bail if their further enquiries are incomplete (but subject to
the maximum 28-day time period referred to above) or, having completed their enquiries,
they wish to pass their file to the CPS for advice; or
(d) charge the suspect (if, after making further enquiries, the police now have sufficient
evidence to charge).
lf the suspect fails to answer bail at the police station, they may be arrested without warrant (s
46A). Although failing to answer bail at the police station is technically a criminal offence, it is
very rare in practice for the police to charge a suspect with this offence.
The police may impose conditions on bail granted to a suspect whilst the police make further
enquiries into the alleged offence (s 47(1A)). The police may, for example, impose a condition
of residence or a condition preventing a suspect from entering a certain area or contacting
or communicating with named people such as the complainant or prosecution witnesses. The
police may arrest without warrant a suspect who breaches such conditions.

3.3.1 Release on bail (or detain in custody) whilst the file is passed to the CPS
The Police and Justice Act (PJA) 2006 made significant changes to the procedure for deciding
whether and with what offence a suspect should be charged. The Act created a new s 37B,
which provides that in cases other than straightforward ones, it is for the CPS to determine
whether the suspect should be charged and, if so, with what offence.
So when the police believe there is sufficient evidence to charge a suspect (particularly in
contested or more serious cases), they will send the case papers to the CPS for it to determine
whether or not to charge, and if so with what offence(s).
The CPS will apply a two-part test to determine whether or not the suspect should be charged:
(a) there must be sufficient evidence to provide a ‘realistic prospect of conviction’; and
(b) if there is sufficient evidence, the CPS will then need to determine if it is in the ‘public
interest to charge the suspect, or whether the matter should be dealt with other than by
way of charge (see 3.7 below).

53
Criminal Practice

In urgent or very straightforward cases, advice from the CPS can be given from a CPS lawyer
at the police station or by telephone (especially if it is out of hours). In other cases, it can take
several weeks for the CPS to review a file, and the police will therefore need to release the
suspect on bail under s 47(3)(b) whilst this is done. As with releasing the suspect on bail whilst
the police make further enquiries, the suspect will be required to re-attend the police.station
at a future time and date and will be given a notice to this effect. When the suspect answers
their bail, the police may:
(a) charge the suspect (if the CPS found there was sufficient evidence to charge and a
charge was in the public interest);
(b) exercise further investigative powers if the CPS considered that further evidence was
needed (eg re-interviewing the suspect or obtaining more evidence from witnesses);
(c) release the suspect without charge (if the CPS found there was insufficient evidence to
charge); or
(d) deal with the matter other than by way of a charge if the CPS found there was sufficient
evidence to charge the suspect, but a charge was not in the public interest (see 3.7
below).
The police may impose conditions on a suspect who is released on bail pending consultations
with the CPS (s 47(1A)). For example, conditions may be imposed requiring a suspect to reside
at a particular address, not to enter a specified area or not to contact specified persons.

© Example
Karl is arrested on suspicion of inflicting grievous bodily harm following a fight that
took place outside a public house. It is alleged that he has a vendetta against the
complainant, and this is not the first time an incident between the two has taken place
outside this public house. Karl claims he was acting in self-defence. The police refer
the file to the CPS to determine whether and if so, what charge Karl should face. Karl is
released on bail whilst the CPS reviews the file. The police impose conditions on the bail
granted to Karl, requiring him not to contact or communicate with the complainant and
not to go within a 400-metre radius of the public house.
If the suspect fails to answer bail at the police station, or the police reasonably suspect
that the suspect has broken any conditions attached to bail, they may be arrested without
warrant (s 46A). Failing to answer bail at the police station is a criminal offence, although
it is rare in practice for the police to charge a suspect with this offence.

3.4 The decision to charge

If the police consider that they have sufficient evidence to charge the suspect, they will either
charge or pass the case papers to the CPS for it to determine what the appropriate charge
should be (see 3.3 above).
The usual practice will be for the police to refer the case to the CPS for it to determine
the appropriate charge. However, the police will still decide on the appropriate charge
themselves in minor cases, particularly if the offence is summary-only and it is expected that
the suspect will enter a guilty plea.
When a decision has been made to charge a suspect, the suspect will be formally charged at
the police station. In accordance with para 16.2 of Code C, the suspect must be cautioned on
charge and anything the suspect says in response to the charge should be written down.
 Charging the Suspect

The suspect should also be given a written notice (the ‘charge sheet’) which gives the
particulars of the offence. Paragraph 16.3 of Code C states:
As far as possible the particulars of the charge shall be stated in simple terms, but
they shall also show the precise offence in law with which the detainee is charged.
In certain circumstances, a suspect against whom there is sufficient evidence to bring a
charge may be offered an alternative means of having the matter disposed of. These
alternatives are described at 3.7 below.

3.5 Interviewing after charge

A suspect who has been charged cannot be interviewed further by the police about the
offence for which they have been charged, unless the interview is necessary:
(a) to prevent or minimise harm or loss to some other persons, or the public;
(b) to clear up an ambiguity in a previous answer or statement; or
(c) in the interests of justice for the suspect to have put to him, and to have an opportunity
to comment on, information concerning the offence which has come to light since he was
charged (Code C, para 16.5).
lf the police do interview a suspect after they have been charged, the suspect must be
cautioned before any interview takes place. The wording of the caution is the ‘old’ caution
which was used prior to the court being given the power under the CJPOA 1994 to draw an
adverse inference from a suspect's silence at the police station. The wording of the caution
will be:
You do not have to say anything, but anything you do say may be given in evidence.
This means that the suspect may remain silent in the interview and not have any adverse
inference drawn from that silence at trial. Before the interview, the suspect must also be
reminded of their right to legal advice.

3.6 Bail after charge

3.6.1 When may the police deny bail to a suspect?
When a suspect is charged at the police station, the custody officer must then decide:
(a) whether to keep the person in police custody until they can be brought before a
magistrates’ court, or to release them; and
(b) if the latter, whether to release them on bail with conditions or without conditions (s 38(1)).
Section 38(1)(a) provides that only if one or more of certain circumstances are satisfied may
bail be denied to a suspect who has been charged with an offence:

(1) Where a person arrested for an offence ... is charged with an offence, the custody officer
shall, subject to section 25 of the Criminal Justice and Public Order Act 1994, order their
release from police detention, either on bail or without bail, unless:
In summary, where the custody officer has reasonable grounds:

* to doubt the name or address provided is the suspect’s proper name or address or where
such name or address cannot be confirmed;

55
Criminal Practice

* to believe that the person arrested will fail to appear in court to answer bail;
* to believe that the detention of the person arrested is necessary to prevent them from
committing an offence;
* to believe that detention of the person is necessary to enable a sample to be taken;
* to prevent them from causing physical injury to any other person or from causing loss of or
damage to property;
* to prevent them from interfering with the administration of justice or with the investigation
of offences or of a particular offence; and
* to believe that the detention of the person arrested is necessary for their own protection.

o Example 1
Tariq is charged with burglary. He has several previous convictions for failing to attend
court to answer bail. The custody officer may refuse bail as he would have reasonable
grounds for believing that Tariq would fail to appear in court if he were granted bail.

© Example 2
Meghan is charged with theft. She has numerous previous convictions for theft and related
offences, including several offences that were committed whilst she was on bail in the
course of previous proceedings. The custody officer may refuse bail with reasonable
grounds for believing that Meghan may commit further offences whilst on bail.

3.6.2 Conditional bail

If the custody officer decides to grant bail to a suspect who has been charged, they must
then decide whether it is necessary to impose conditions on that bail (PACE 1984, s 47(1A)).
Conditions may be imposed only if they are necessary:
(a) to prevent the suspect from failing to surrender to custody;
(b) to prevent the suspect from committing an offence whilst on bail;
(c) to prevent the suspect from interfering with witnesses or otherwise obstructing the course
of justice (whether in relation to themself or another person); or
(d) for the suspect's own protection or, if the suspect is a child or young person (ie 17 or
under), for their own welfare or in their own interests (Bail Act 1976, s 3A(5)).
The custody officer may impose most of the same types of condition which a magistrates’
court could impose on bail granted to a defendant (see Chapter 7), although the custody
officer cannot impose a condition that a suspect reside at a bail hostel, undergo medical
examination or see their legal adviser. The custody officer may, for example, impose
conditions requiring the suspect:
(a) to reside at a particular address;
(b) not to speak to or contact any witnesses;
(c) not to enter a particular area or set of premises; or
(d) to observe a curfew at night between specified hours.
A suspect who wishes to vary conditions imposed on bail which the police have granted may
either:
(a) ask the custody officer who imposed the conditions (or another custody officer at the
same police station) to vary the conditions (Bail Act 1976, s 3A(4)); or
(b) make an application to the magistrates’ court for the conditions to be varied (Magistrates’
Courts Act 1980, s 43(B)(1) and CrimPR, r 14.6).

56
Criminal Practice

(c) a formal caution

(d) a conditional caution.
Each of these is briefly examined below.

3.7.1 Informal warnings

In minor cases the police have always had discretion to release a suspect without charge but
to give an informal warning about their future conduct. An informal warning will not appear on
a defendant's criminal record if they are later charged with another offence.

3.7.2 Penalty notices

The police may issue a penalty notice to dispose of minor offences without the need for the
offender to go to court. Fixed penalty notices (FPNs) are used for minor road traffic offences,
and for offences such as littering and dog fouling. Penalty notices for disorder (PNDs) may be
used for anti-social behaviour, such as being drunk and disorderly. The receipt of a FPN is not
a criminal conviction. The use of PNDs has recently been expanded to cover a wider range of
offences (for example, first-time offenders who have committed a minor shoplifting offence or
criminal damage).

3.7.3 Simple cautions

Instead of giving an informal warning, the police (in conjunction with the CPS) may instead
decide to issue a simple caution. The giving of simple cautions was originally developed for
cases involving juveniles but can now be used only for adult offenders. Although criminal
records are kept of cautions, a simple caution is not the same as a criminal conviction. If a
defendant who has received a caution is later convicted of a separate offence, the caution
may be mentioned to the court when the court is considering what sentence to pass.
Cautions are usually given in the police station by a police officer of at least the rank of
inspector. The offender must sign a form acknowledging that they agree to the caution
and admit the offence for which the caution is being given. Before a caution is given, three
conditions must be satisfied:
(a) sufficient evidence must have been collected to have justified a prosecution;
(b) there must be clear and reliable evidence of a voluntary admission by the offender that
they have committed the offence;
(c) the offender must agree to being cautioned, having been made aware that the caution
might be raised in court were they to be convicted of a later offence.
Section 17(2) of the Criminal Justice and Courts Act 2015 restricts the use of simple cautions
for indictable-only offences (offences which, if committed by an adult, are triable only on
indictment in the Crown Court). A defendant must not be given a simple caution for such an
offence unless a police officer of at least the rank of superintendent determines that there are
exceptional circumstances relating to the defendant or the offence, and the CPS agrees that a
caution should be given.
In addition, under s 17(3), a defendant must not be given a simple caution for an either-way -
offence that has been specified by the Secretary of State unless a police officer of at least the
rank of inspector determines that there are exceptional circumstances relating to the offender
or the offence.
The either-way offences that have so far been specified by the Secretary of State are
summarised as follows:
* offensive weapon and bladed article offences;
* carrying a firearm in a public place;

58
 Charging the Suspect

¢ child cruelty;
* sexual offences against children (including those relating to child prostitution and
pornography);
¢ sex trafficking offences;
¢ indecent and pornographic images of children;
¢ importing, exporting, producing, supplying and possessing with intent to supply to another
Class A drugs.
Further, s 17(4) restricts the use of simple cautions for repeat offending. A defendant must not
usually be given a simple caution if in the two years before the offence was committed the
defendant has been convicted of, or cautioned for, a similar offence.

3.7.4 Conditional cautions

One of the principal goals of the Criminal Justice Act (CJA) 2003 is to achieve ‘restorative
justice’. This is best described as bringing offenders and their victims into some form of
contact, with a view to an agreement being reached as to what the offender should do to
make reparation for the crime they have committed. The intention is to make an offender
appreciate the effect their crime has had upon the victim, and to improve victim satisfaction
with the criminal justice process. Conditional cautions must be seen against this backdrop.
Conditional cautions do not replace the system of police cautioning detailed above. However,
in contrast to formal cautions, they have a statutory basis and may be given only with the
approval of the CPS.
Under s 22 of the CJA 2003, a conditional caution can be given to a person aged 18 or over,
provided that the following five requirements are satisfied:
(a) there must be evidence that the offender has committed an offence;
(b) a relevant prosecutor or an authorised person must determine that there is sufficient
evidence to charge the offender with the offence, and that a conditional caution should
be given to the offender in respect of that offence;
(c) the offender must admit that they committed the offence;
(d) the effect of the conditional caution must be explained to the offender, and they must be
warned that any failure to comply with any of the conditions attached to the caution may
result in them being prosecuted for the offence itself; and
(e) the offender must sign a document containing the details of the offence, an admission
that they committed the offence, their consent to a conditional caution and the conditions
attached to the caution (CJA 2003, s 23).
Section 25 of the CJA 2003 provides that if an offender fails ‘without reasonable excuse’ to
comply with any conditions attached to the caution, he may be arrested and prosecuted for
the original offence and the document he has signed may be used in evidence against him
(ie as evidence that he admits having committed the offence).
The conditions that are likely to be attached to cautions will be geared either towards
rehabilitating the offender, or towards the offender making reparation to his victim.

3.7.4.1 Disadvantages of accepting a (conditional) caution

A client who accepts a caution will not be prosecuted for the offence. They must, however, be
told about the following potential disadvantages in accepting a caution:
(a) a caution is a formal recorded admission of guilt which will form part of an offender's
criminal record and may affect how they are sentenced should they re-offend in future;

59
Criminal Practice

(b) the client will almost certainly lose the opportunity of receiving a caution on a subsequent
occasion;
(c) the existence of the caution will be disclosable should the client apply for certain types of
employment (particularly entry to a profession);
(d) if the offence is sexual, the client will also be placed on the sex offenders register; and
(e) the police may retain fingerprints and other identification data taken from the client (a
record of cautions is usually kept for a minimum of five years).
A client should accept a caution only if they accept their guilt and there is sufficient evidence
against them. If there is insufficient evidence, the CPS may choose not to prosecute. A solicitor
should not advise a client to accept a caution as a matter of convenience, simply to dispose
of the case.

3.7.5 Commencing a case other than by charge (CrimPR, Parts 4 and 7)

For some offences (particularly summary-only offences including many road traffic offences), a
suspect may not have been arrested by the police and may not even have needed to attend
the police station. An alternative method of commencing criminal proceedings exists for such
offences.
The CJA 2003 has put in place arrangements for commencing prosecutions in this type
of case. Under these arrangements, a relevant prosecutor can now send to the person a
document called a ‘written charge’, which charges that person with the offence (CJA 2003, s
29(1)). The prosecutor must also send the person charged a document called a ‘requisition’
or single justice procedure notice. The requisition requires that the person appear before a
magistrates’ court at a given time and place to answer the charge (CJA 2003, s 29(2)).
Interestingly, this has also become a fairly common way to commence proceedings where
the suspect has been RUI by the police once they have concluded their investigation and this
procedure is therefore also being used in practice for more serious offences.

Summary
In this chapter you have considered when and how the police will charge a suspect and other
issues related to this. Notably:
¢ Releasing a suspect under investigation. lf further investigation is going to take longer
than 28 days, the police will now generally release a suspect under investigation (RUI).
* Bailing a suspect before charge. This will usually only be possible where the investigation
will be completed within 28 days. It does enable the police to impose conditions on such
a suspect's police bail.
* Charging a suspect and the role played by the CPS. There is an obligation on the police
to consider charging a suspect once they have sufficient evidence to charge. However, in
many cases the police will first have to obtain advice from the CPS on charge. The CPS
will base their advice on a dual evidence and public interest test.
¢ Interviewing and bailing a suspect post-charge. Generally, this is not allowed. Where in
the limited circumstances it is, the defendant has an absolute right to remain silent.
¢ Alternatives to charging. Even where a suspect admits their involvement in an offence,
charging the suspect is not the only way the matter may be dealt with. Alternatives
include an informal warning; a penalty notice; a formal caution; and a conditional
caution.
 Charging the Suspect

Figure 3.1 (Flowchart - Procedure at the police station)

Suspect arrested and taken Suspect arrested at Suspect attends police

to police station the police station ‘station to answer street bail

Custody officer authorises detention to:

® secure or preserve evidence; or
@ to obtain evidence by questioning

police exercise investigative powers

Identification procedure Samples Fingerprints/impressions of

footwear/photographs

Sufficient evidence to charge?

File reviewed by CPS to determine level

of charge or whether alternative to Released on
charge is possible police bail

Charged Alternatives to charge:

e informal warning Police pass file to
Police make
e penalty notice CPS for advice on
further enquiries
® formal caution evidence
® conditional caution

Appears before magistrates’

court on bail or in police Answers police bail
custod

Police need to
Charged (or Released
exercise
alternative to without
investigative
charge) charge
powers further

61
 (eeu Hatley Si? HY oA

oe af e ied

ae

ry

ri

x r : at
. my

a { ee i
' ¢ ew
« ‘granny
A i patie aiiitanier

5 ~ ofp. ee bay ‘we ae pr alfa ge

| iekeuaatiraees

tO id
 Representing Vulnerable
Clients
| 4.1 Introduction 64
4.2. The appropriate adult 65
4.3 Role of the legal representative/solicitor 66
rae Interviewing vulnerable suspects 67
45 Identification procedures 67
ere 4.6 Charging juveniles 68
47 Alternatives to charging juveniles 69

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
¢ The additional matters which must be taken into account when representing a
vulnerable person (including a juvenile) who has been arrested and detained at
the police station.
¢ The role of an appropriate adult at the police station.
¢ The role of a legal adviser when representing a vulnerable client.
¢ Identification procedures involving vulnerable clients.
¢ Charging a juvenile.
¢ The alternatives to charging a juvenile suspect.
¢ The power of the police to refuse to grant bail to a juvenile suspect who has
been charged with a criminal offence.
Criminal Practice

4.1 Introduction
A solicitor will often be called to the police station to represent an individual who falls within
one of several special categories of suspect, all of whom can be described as pene
vulnerable, and to whom specific rules apply. These categories are:
(a) juveniles - suspects who are aged between 10 and 17 inclusive (although para 1.5 of
Code C provides that the police should treat anyone who appears to be under 18 as a
juvenile in the absence of clear evidence to the contrary);
(b) suspects who suffer from a mental health condition or mental disorder, although para 1.4
of Code C provides that if the police suspect that someone suffers from such a condition,
then in the absence of any clear evidence to dispel such suspicion, they should treat
that person as suffering from such a condition (see para 1.13(d) of Code C for a more
detailed analysis of such a vulnerable person);
(c) suspects who are deaf, unable to speak or blind; and
(d) suspects who cannot speak or understand English.
This chapter will concentrate in particular on the specific rules that apply to juveniles, but there
will also be some mention, where applicable, of these other groups of vulnerable suspects.
Paragraph 3.20A of Code C requires that arrangements must be made for ensuring that a girl
under the age of 18, whilst detained in a police station, is under the care of a woman (see
Code C, Notes for Guidance, para 3G, and the Children and Young Persons Act 1933, s 31).

Informing the person responsible for the juvenile’s welfare

All suspects who have been arrested and detained at the police station have the right to have
a person informed of their arrest under s 56 (see 1.3.2 above) and the right to receive free
and independent legal advice from a solicitor under s 58 (see 1.3.1 above). This right applies
to adult and juvenile suspects alike.
In addition, however, if a juvenile has been arrested, the custody officer must, if practicable,
find out the person responsible for their welfare (Code C, para 3.13). That person may be:
(a) the juvenile’s parent or guardian;
(b) if the juvenile is in local authority or voluntary organisation care, the person appointed by
that authority or organisation to have responsibility for the juvenile’s welfare (Children and
Young Persons Act 1933, s 34(8)); or
(c) any other person who has, for the time being, assumed responsibility for the juvenile’s
welfare.
That person must be informed as soon as practicable that the juvenile has been arrested, why
they have been arrested and where they are being detained. Unlike ss 56 and 58, this right
cannot be delayed.
Moreover, if a juvenile is known to be the subject of a court order under which a person or
organisation is given any statutory responsibility to supervise or monitor them (for example, a
supervision order), reasonable steps must also be taken to notify that person or organisation:
The person notified is known as the ‘responsible officer’ and will usually be a member of a
Youth Offending Team (Code C, para 3.14).

Where the suspect doesn’t speak or understand English or has a hearing or speech
impediment
Where a suspect either doesn’t speak or understand English or has a hearing or speech
impediment, the custody officer must obtain an interpreter or someone able to assist the
suspect with communication (Code C, para 3.12).
 Representing Vulnerable Clients

Where the suspect is blind or suffers from a serious visual impairment

Where a suspect is either blind or suffers from a serious visual impairment, the custody officer
must ensure there is someone (not involved in the investigation) such as an appropriate adult,
relative, solicitor or someone likely to take an interest in their welfare, to help them check any
documentation (Code C, para 3.20).

4.2 The appropriate adult

4.2.1 Who may be an appropriate adult?
The ‘appropriate adult’ is a person who attends the police station to provide support and
assistance to a juvenile (or suspect with a mental health condition or mental disorder). There
is a hierarchical order the police should follow when contacting an appropriate adult for a
juvenile, as follows:
(a) The police should initially attempt to contact the juvenile’s parent or guardian (or a
representative from the local authority where the juvenile is in local authority care) to act
as an appropriate adult.
(b) If no one in (a) is available, the police should then ask a social worker from the local
authority to act as an appropriate adult.
(c) If a social worker is not available, the police should finally contact another responsible
adult who is aged 18 or over and not connected to the police (Code C, para 1.7). This
may, for example, be an aunt or uncle, or a grandparent. Although the adult must be
aged 18 or over, the police may consider that an adult who is only just 18 or over may not
be sufficiently responsible to fulfil the role.
An appropriate adult for a suspect with a mental health condition or mental disorder will be:
* a relative, guardian or other person responsible for that person’s care or custody;
* someone experienced in dealing with vulnerable people; or
* some other responsible adult.
A solicitor should never be an appropriate adult, because support and assistance from an
appropriate adult is in addition to any legal advice a suspect receives from his solicitor at the
police station. Other persons who should not fulfil the role of appropriate adult include:
¢ police officers or persons employed by the police;
* an interested party such as the victim of the offence, another suspect, a potential witness
or anyone else involved in the investigation (this would, for example, prevent a juvenile’s
mother acting as appropriate adult if the juvenile has been arrested on suspicion of
assaulting her, as she would be the victim);
* a person, such as a parent or social worker, to whom the juvenile has made admissions
prior to that person being asked to attend the police station to fulfil the role of an
appropriate adult; and
* an estranged parent (but only when the juvenile expressly and specifically objects to the
presence of such a person).

© Example
Fay, aged 14 years, has been arrested and detained at the police station on suspicion of
causing damage to a mobile phone belonging to her father following an argument. Fay
lives with her father. She is estranged from her mother who she has not seen for over a
year, even though she lives nearby. Fay tells the custody officer that she wants her father
Criminal Practice

to attend as her appropriate adult as she does not know any other responsible adult who
would be able to attend. When asked by the custody officer, she objects to her mother
attending.
In these circumstances the custody officer will have to contact a social worker from
the local authority to attend as Fay’s appropriate adult. Despite Fay’s request, her
father cannot act as appropriate adult as he is the ‘victim’ of the offence and Fay
has specifically said she doesn’t want her mother attending. Usually a juvenile cannot
determine who their appropriate adult will be, but because she is ‘estranged’ from her
mother, Fay’s views must be respected. That would mean the only other person who
would appear to be eligible would be a social worker.

4.2.2 What is the role of the appropriate adult?

The Home Office has produced a document entitled Guide for Appropriate Adults that will be
issued to an appropriate adult upon their arrival at the police station. The.guidance can be
found on the Home Office website: www.homeoffice.gov.uk.
The guidance provides that the appropriate adult has ‘a positive and important role’, and that
the appropriate adult is not at the police station simply to act as an observer but rather to
ensure that the suspect ‘understands what is happening to them and why’. The key roles and
responsibilities of an appropriate adult are:
(a) to support, advise and assist the suspect, particularly when the suspect is being
questioned;
(b) to ensure that the suspect understands their rights whilst at the police station, and the role
played by the appropriate adult in protecting those rights;
(c) to observe whether the police are acting properly, fairly and with respect for the rights of
the suspect; and
(d) to assist with communication between the suspect and the police.
The guidance makes it clear that it is not the role of the appropriate adult to provide the
suspect with legal advice, and any conversations the appropriate adult has with the suspect
are not covered by legal privilege (see also Code C, Note for Guidance 1E).
Code C, para 6.5A provides that an appropriate adult should consider whether legal advice
from a solicitor is required. Even if the juvenile or mentally vulnerable suspect indicates that
they do not want legal advice, the appropriate adult has the right to ask for a solicitor to
attend if this would be in the best interests of the suspect. However, the suspect cannot be
forced to see the solicitor if they are adamant that they do not wish to do so.
The custody officer should explain a juvenile’s rights whilst at the police station in the presence
of the appropriate adult, or repeat those rights in the presence of the appropriate adult if
they have already been explained to the juvenile before the appropriate adult arrived at the
police station (Code C, para 3.17).

4.3 Role of the legal representative/solicitor

The vulnerable person’s solicitor also needs to ensure that the appropriate adult is aware
of their role and must ensure that the appropriate adult understands that it is not their
role to help the police. The solicitor should also make it clear to the appropriate adult
that, whilst they are there to help the suspect understand what the police are doing, they
should not answer questions on behalf of the suspect, particularly in an interview situation.
The appropriate adult should, however, intervene in an interview if they consider that the
vulnerable person has not understood a question which has been asked and that clarification
of the question is necessary.
 Representing Vulnerable Clients

4.4 Interviewing vulnerable suspects

Paragraph 10.12 of Code C provides that if a juvenile or suspect with a mental health
condition or mental disorder is cautioned in the absence of the appropriate adult, this caution
must be repeated in the appropriate adult’s presence.
Similarly, they must not normally be interviewed, or asked to provide or sign a written
statement under caution or record of interview, in the absence of the appropriate adult
(Code C, para 11.15).
When an appropriate adult is present in an interview, they must be informed by the
interviewing officer that they are not there simply to act as an observer, and that the purpose
of their presence in the interview is to:
(a) advise the person being interviewed;
(b) observe whether the interview is being conducted properly and fairly; and
(c) facilitate communication with the person being interviewed (Code C, para 11.17).
The appropriate adult’s presence at the police station (and particularly during the interview)
is necessary to help the suspect cope with the demands of custody and questioning, and to
appreciate the seriousness of the situation.
Paragraph 11.17A of Code C provides that an appropriate adult may be required to leave
the interview if their conduct is such that the interviewer is unable properly to put questions
to the suspect. This will include situations where the appropriate adult's approach or conduct
prevents or unreasonably obstructs proper questions being put to the suspect or the suspect's
responses from being recorded (see Code C, Notes for Guidance, para 11F).
If the interviewing officer considers an appropriate adult is acting in such a way, they will stop
the interview and consult an officer not below superintendent rank, if one is readily available,
and otherwise an officer not below inspector rank, not connected with the investigation. After
speaking to the appropriate adult, the officer consulted must remind the adult that their role
under para 11.17 does not allow them to obstruct proper questioning and give the adult an
opportunity to respond.
The officer consulted will then decide if the interview should continue without the attendance
of that appropriate adult. If they decide that it should, another appropriate adult must be
obtained before the interview continues, unless the provisions of Code C, para 11.18 apply.
The Notes for Guidance to Code C clarify the role an appropriate adult should play in an
interview. Paragraph 11C states that:
Although juveniles ... are often capable of providing reliable evidence, they may,
without knowing or wishing to do so, be particularly prone in certain circumstances to
provide information that may be unreliable, misleading or self-incriminating. Special
care should always be taken when questioning such a person, and the appropriate
adult should be involved if there is any doubt about a person’s age, mental state
or capacity. Because of the risk of unreliable evidence it is also important to obtain
corroboration of any facts admitted whenever possible.

4.5 Identification procedures

In addition to the requirements imposed by Code C, if the police require a juvenile (or
someone suffering from a mental health condition or mental disorder) to take part in an
identification procedure, or to obtain other forensic evidence such as samples, fingerprints or
an impression of their footwear, they must comply with additional provisions in Code D.

67
Criminal Practi

Paragraph 2.12 of Code D provides that where any procedure in Code D requires a person's
consent (for example, if a suspect is asked to consent to taking part in an identification
procedure), the following conditions apply:
(a) if the suspect is a juvenileaged 14 or over, consent must be obtained both from the
juvenile and from the juvenile’s parent or guardian;
(b) if the suspect is a juvenile aged under 14, consent must be obtained from the juvenile’s
parent or guardian (rather than from the juvenile);
(c) If the suspect is suffering from a mental health condition or mental disorder, then the
consent must be given in the presence of the appropriate adult.

46 Charging juveniles =
The focus will now only be on juvenile suspects. Once the police have conducted their
investigations, they will need to decide what the next steps in the case will be. The range
of options open to the police is the same as for adult suspects. However, in relation to the
refusal of bail after charge, in addition to the considerations in s 38{1\a), the custody officer
may also deny the juvenile bail ifthey have reasonable grounds for believing that the juvenile
oughtto be detained in their own interests.
On charge, the written notice (the ‘charge sheet’), which gives the particulars of the offence
with which the suspect has been charged, should be given to the appropriate adult (Code C,
para 16.3).

446.1 Juveniles
refused bail after charge
Ifthe custody officer denies bail after charge to a juvenile, the suspect will normally be
remanded into the care of the local authority rather than at the police station pending their
first appearance before the Youth Court. The only two situations when a juvenile may be kept
in police custody after charge are:
(a) if it is impracticable to move the suspect to local authority accommodation; or
(b) if the juvenile is aged at least 12, there is no secure local authority accommodation
available and keeping them in other local authority accommodation would not be
adequate to protect the public from serious harm from them (s 38(6)).
Note: ‘Secure accommodation’ is accommodation provided for the purpose of restricting
liberty (Children Act 1989, s 25(1)).
if either of these criteria is satisfied and the juvenile is detained at the police station, para 8.8
of Code C provides that the juvenile must be kept separate from adult suspects and must not
be detained in a cell unless it is not practicable to supervise the juvenile other than in a cell.
The suspect will normally be kept in a juvenile detention room.
The guidance notes to Code C provide that, unless one of the conditions in s 38(6) is satisfied,
neither a juvenile’s behaviour nor the nature of the offence provides grounds for the custody -
officer to decide that it is impracticable to arrange the juvenile’s transfer to local authority
care (Code C, Notes for Guidance, para 16D). This paragraph also states that the lack of
secure local authority accommodation does not moke it impracticable to transfer the juvenile _
unless the juvenile is aged 12 or over and the local authority accommodation would not be
adequate to protect the public from serious harm from the juvenile.
 en
Yassin, aged 11 years, has been arrested, detained and chorged with attempted
murder. There ts no local authority secure accommodation available. The custody officer
therefore believes that if remanded into the care of the local authority before his first court
appearance, the public would not be properly protected from serious harm from Yassin.
In such Circumstances, the custody officer would sill be required to remand Yassin into
local authority core (and not keep him detained at the police station), becouse Yassin
is not aged 12 years or over and the lack of secure accommodation would not mote z
impracticable
fo transfer Yassin.

4.7 Alternatives
to charging juveniles
The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 deals with out-of
court disposal systems available in respect of juveniles under 18 years of age. The decision to
authorise a youth caution or youth conditional caufion (see below) will be dependent on the
severity of the offence. Indictable-only offences will be referred to the CPS; first-time summary
and either-way offences can be decided by the police: second and subsequent offences will
be by a joint decision from the police, following assessment by the Youth Offending Team.

Community resolution
This ts the starting point for out-of-court disposals. It is a non-stotutory disposal for the
resolution of a minor offence or anti-social behaviour incident through informal agreement
between the parties involved. li is primarily aimed at first-time offenders where there hes
been an admission of guilt, and where the victim's views have been token into occount — will
not form part of the offender's criminal record retained by the police.

472 Youth cautions

Section 66ZA of the Crime and Disorder Act (CDA) 1998 sets out the circumstances
iin which a
youth caution can be offered, namely where-
(a) there is sufficient evidence to charge the offender with an offence-
(b) the offender admits that they committed the offence: and
(c) the police do not consider that the offender should be prosecuted or given a youth
conditional caution in respect of the offence, ie itis not in the public interest to deci with
the matter in another way.
A youth caution given to a person aged 17 or under must be given in the presence of an
appropnate oduit.
in determining whether a coution is available the police must also toke into account the
seriousness of the offence.

473 Youth conditional cautions

These were introduced by s 48 of the Criminal Justice and immigration Act 2008, which
inserted s 66G into the CDA 1998. The requirements thot must be met before a youth

(a) there is sufficient evidence ogainst the offender to provide a realistic prospect of
conviction;
® @ must be determined that a youth conditional caution should be given to the offender:
Criminal Practice

(c) the offender admits to having committed the offence;

(d) the effect of the youth conditional caution must be explained to the offender and they
must be warned that failure to comply with any of the conditions may result in prosecution
for the original offence (where the young person is aged 16 years or under, the
explanation and warning must be given in the presence of an appropriate adult); and
(e) the offender must sign a document containing details of the offence, their admission,
consent to be given to a youth conditional caution and details of the conditions attached.
The type of conditions that can be attached to a youth conditional caution must have one
or more of the following objectives in mind - rehabilitation, reparation and punishment. All
rehabilitative, reparative and punitive conditions must be capable of being completed within
16 weeks of the date of the original offence where it is a summary-only offence. A period of
longer than 16 weeks from the date the conditional caution is administered may be suitable
for an offence triable either way or an indictable-only offence, depending on¢ the facts of the
particular case, but it must not exceed 20 weeks.

4.7.4 The effect of youth cautions and youth conditional cautions

A solicitor advising a client at the police station needs to identify the circumstances in which
the client may be eligible to receive a youth caution or a youth conditional caution, and to be
able to advise the client of the consequences of accepting such cautions. The solicitor must
also ensure that they do not persuade a client to agree to such cautions when the client is
adamant that they did not commit the offence. A client should not be allowed to admit to
something they have not done simply because this may appear to be an easy short-term
option.
The advantages of a client accepting such cautions are that:
(a) this avoids the client being charged with the offence and having to appear at the
Youth Court;
(b) such cautions are not criminal convictions.
There are, however, consequences of accepting such cautions which must also be pointed out
to the client:
(a) A record of such cautions will be retained by the police; this includes having
fingerprints, photographs and DNA samples taken.
(b) Although not a conviction, as an admission of guilt the caution will form part of the client's
criminal record retained by the police and may be referred to if an employer makes a
Criminal Records Bureau check. In addition, the fact that a caution has already been
issued will be taken into consideration before a decision is made regarding a future
offending disposal.
(c) It may also need, in certain circumstances, to be disclosed to an employer or prospective
employer.
(d) The police must refer the client to the appropriate Youth Offending Team who will assess
the client and must arrange for them to participate in a rehabilitation programme (unless
it is inappropriate to do so).
(e) Failure to comply with any conditions imposed under a conditional youth caution can
result in prosecution for the original offence.
(f) Any youth cautions given and/or any report on a failure by a person to participate
in a rehabilitation programme may be cited in criminal proceedings similar to how a
conviction may be cited.
(g) If the offence is covered by Part 2 of the Sexual Offences Act 2003, the client will be
placed on the sex offenders register.

70
 Representing Vulnerable Clients

Summary
In this chapter you have considered the additional safeguards given to vulnerable suspects
and the types of suspect likely to enjoy such additional protection. Notably:
¢ Who may be described as a vulnerable suspect. This includes juveniles (aged 10 to 17);
those suffering from a mental health condition or mental disorder; those who do not
speak or understand English or have a hearing or speech impediment; and those who
are either blind or have a severe visual impairment. In relation to each type of vulnerable
suspect, who needs to be contacted by the custody officer and what they need to be told.
¢ The appropriate adult. Including who can be an appropriate adult and the role this
person is required to take at the police station.
¢ The role of the legal representative/solicitor. In relation to the vulnerable suspect and the
appropriate adult.
¢ Identification procedures involving vulnerable suspects. Including who is required to
provide consent under Code D for a range of identification procedures.
* Charging a juvenile. Including when and how bail may be refused based on the age of
the juvenile.
¢ The alternatives to charging a juvenile suspect. Including the use of community resolution,
youth cautions and youth conditional cautions and the consequences of receiving any
of these.

Sample questions

Question 1
A 16-year-old girl has been arrested and is being interviewed about her suspected
involvement in relation to an allegation of burglary of shop premises. Her mother is present
as the appropriate adult. During the course of the interview, the mother keeps interrupting
the interviewing officer, stopping them from asking proper questions of the girl. The
interviewing officer stops the interview and speaks to the custody sergeant who listens to a
recording of the interview and then reminds the appropriate adult of her role and gives her
an opportunity to respond. The custody sergeant then authorises the removal of the girl’s
mother as appropriate adult and contacts a social worker to continue to act as appropriate
adult for the girl.
Have the police acted correctly when removing the girl’s mother from acting as
appropriate adult?
A Yes, because the mother has prevented the interviewing officer from putting proper
questions to the girl.
B_ Yes, because the girl still has an appropriate adult attending to support, advise and
assist her.
C Yes, the custody sergeant followed the correct procedure before authorising the
removal of the girl's mother.
D No, because the custody sergeant is not of the correct rank of officer to make such an
authorisation.
E No, because the mother’s role is not just to act as an observer, she is entitled to
intervene during the interview.

71
Criminal Practice

Answer
Option D is the best answer. Although the mother has prevented the interviewing officer
from putting proper questions to the suspect (option A) and the suspect still has an
appropriate adult attending to support, advise and assist her (option B) and the custody
sergeant followed the correct procedure before authorising the removal of the suspect's
mother (option C), such a removal can only be authorised by an officer not below the rank
of superintendent, or if such an officer is not available, an officer not below the rank of
inspector, so option D is the best answer. Although option E is correct in that the mother’s
role is not just to act as an observer and she is entitled to intervene during the interview,
she is not entitled to prevent the interviewing officer from putting proper questions to the
suspect (see Code C, para 11.17 and 11.17A).

Question 2
A boy, aged 13 years, has been arrested on suspicion of robbery. He denies any
involvement in the offence and claims that a witness who has recognised him is mistaken.
The police propose to carry out a video identification procedure and the solicitor
representing the boy advises him and his appropriate adult, a local authority social worker,
to agree to take part in the procedure. The boy refuses to give his consent to such a
procedure, but the appropriate adult does give her consent and when the boy's mother is
contacted, she also gives her consent.
Can the police now lawfully carry out an identification procedure?
A Yes, because the relevant consent from the boy’s parent has been given.
B No, because consent must be given by the appropriate adult and the boy.
C Yes, because consent is not required to carry out a video identification procedure.
D Yes, because the boy’s solicitor has advised the boy to consent to the video
identification procedure.
m No, because the parent and the boy must both give their consent.

Answer
Option A is the best answer. Where a juvenile suspect is under 14 years of age, only the
consent of the parent (or guardian) is required (Code D, para 2.12). Option B is therefore
wrong, as the suspect's consent and the appropriate adult’s consent (where this person is
not also the parent or guardian) are not required. Option C is not the best answer because
although consent is not required to carry out a covert video identification procedure, most
video identification procedures are not covert and do require consent. Option D is wrong
because although the solicitor’s advice will be important in practice, it is not a requirement
of Code D. Option E would have been correct had the juvenile suspect been aged 14 years
or over, where both the parent/guardian and the suspect must give their consent.

Question 3
A boy, aged 10 years, has been charged with rape, it being alleged that he raped his
younger sister. There is no local authority secure accommodation available. The boy’s
behaviour whilst detained at the police station has given the custody officer genuine
concern that if released from the police station the boy will interfere with witnesses. The
custody officer also believes that keeping the boy in other local authority accommodation
would not be adequate to protect the public from serious harm from the boy.

72
 Representing Vulnerable Clients

Where can the custody officer authorise the boy to be remanded following charge?
A_ The boy can be remanded at the police station, but he should be detained in a juvenile
detention room.
B_ The boy can be remanded at the police station, but he must be kept separate from
adult suspects and must not be detained in a cell unless it is not practicable to
supervise him.
C_ The boy can only be remanded to other local authority accommodation because he is
under the age of 12.
D_ The boy must be released on either unconditional or conditional bail.
E The boy can only be remanded on bail if it is impracticable to move him to local
authority accommodation.

Answer
Option C is the correct answer. The key point to spot here is that the boy is only aged 10 and
therefore under the age of 12. Had the boy been aged 12 or over, then s 38(6) provides that
the lack of secure local authority accommodation does not make it impracticable to transfer a
juvenile to local authority accommodation unless a juvenile is aged 12 or over and the local
authority accommodation would not be adequate to protect the public from serious harm from
the juvenile. So options A and B may have been correct had the boy been older. Option D is
wrong because although the custody officer may remand the boy on either unconditional or
conditional bail, the boy may also be remanded into the care of the local authority (which is
most likely on these facts). Option E is wrong for the same reason.

73
 * aryoipvadion harcd)yn oe
sgt apy asia pio wb yond
or afHiean 4 4g eA nite aoea y PEP dfe CES sen nenil
‘ ; Pe - ‘ i eve ail;

ea aS: a oe cre 0) ‘hhre Be ere ate

Heecey Oye aE WV Pate tev a Sid peat ye a
ue | nt

1 7 ‘o

’
4
?

\ i

—
= — _ :
i

‘ x A
’ -
aa Bie b(an LP .‘

ty | Patahuny" athe OPA 2

Le ae
Th aye AIBA TiWow valnoony bed
is i 4 ee yer ott Tosh é ePrnn 12 “2
+ yi at
oii ‘ak
yuan ie, 20) Sox a
& peo BO Le * ial | ‘ae ‘tied wr
ia.
ihe
Mi

es ine vat

if
+!

i} ae Pe

F sue

aa te! as ©
: oe e Ad my vat eth)
iy be bs eta y ewes Be
fo OP 9 taterE ver iF
ane Mua te Ch
er
hes at ee
'

7*

ey
PART 2
THE PROCEDURES AND
PROCESSES INVOLVED IN
CRIMINAL LITIGATION AND
THE LAW OF EVIDENCE
 Bea: 13099 HT”
OME 2 veeDORI |
1AVIMISD:
i a 150 WA] 2H
ae
=
<j
See

A
 First Hearings Before the
Magistrates’ Court
5.1 Introduction 78

SW Classification of offences 78

Public funding available to a defendant and applying for

a representation order 80
Procedural overview - what will happen at the first hearing 85
5.5 The role of the defence solicitor at the first hearing 87

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
¢ classification of offences;
* applying for a representation order;
* procedural overview - what will happen at the hearing;
¢ the role of the defence solicitor at the hearing.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
¢ The matters which will be dealt with at a first hearing in the magistrates’ court
based on the classification of the offence.
¢ The forms of public funding available to a defendant and applying for a
representation order.
¢ What will happen at the first hearing.
¢ The role played by the defendant's solicitor at the first hearing.

77
Criminal Practice

5.1 Introduction
All defendants, no matter the charge, who are aged 18 or over, will make their first court
appearance before the magistrates’ court. If the defendant is charged with an offence triable
only on indictment, the magistrates will immediately send the case to the Crown Court under s
51 of the Crime and Disorder Act (CDA) 1998. Defendants aged 17 and under will usually be
dealt with in the Youth Court (see Chapter 13).
This chapter concentrates on adult defendants who are charged with an either-way offence
or a summary offence. It describes what happens when the defendant makes their initial
appearance at court and the role played by the defence solicitor at this stage in obtaining
funding for the case, finding out details of the prosecution case against their client and
advising the client as to their plea.
Between April and December 2007, the implementation of CJSSS - ‘Criminal Justice: Simple,
Speedy, Summary’ - was rolled out in England and Wales. The idea of CJSSS was to speed up
proceedings before magistrates’ courts and to deal with cases-as quickly as possible:
Some key principles of CJSSS are as follows:
(a) There is a common presumption that a plea will be entered at the first hearing.
(b) For guilty pleas which will be’sentenced in the magistrates’ court it is expected that
sentence should take place on the same day unless a more detailed pre-sentence report
is required.
(c) For not guilty pleas, it is expected that the trial issues should be identified, and a trial
date fixed within six to eight weeks.
(d) The CPS should provide sufficient information at the first hearing to ensure the hearing is
effective.

5.2 Classification of offences

All criminal offences fall into one of three categories of offence:
¢ those triable only on indictment;
¢ those triable either way; and
¢ those triable only summarily.

Note though that where an Act refers to the phrase ‘indictable offence’ without any further
qualification, this is actually referring to the first two above classifications which, in the case of
an adult, either must or may be tried in the Crown Court on indictment.

5.2.1 Offences triable only on indictment

These are the most serious form of criminal offence and must be dealt with by the Crown
Court (you may sometimes see these referred to as ‘indictable-only offences’). Although a
defendant charged with an offence triable only on indictment will make their first appearance
before the magistrates’ court, the magistrates will immediately send the case to the Crown
Court under s 51 CDA 1998.
Examples of such offences include murder, manslaughter, causing grievous bodily harm/
wounding, rape, robbery, aggravated burglary, blackmail, kidnap and conspiracy.

78
 First Hearings Before the Magistrates’ Court

5.2.2 Either-way offences

Either-way offences can be dealt with either by the magistrates’ court or by the Crown Court.
A defendant charged with an either-way offence will make their first appearance before the
magistrates’ court, and if the defendant indicates a not guilty plea, the magistrates will then
decide whether to keep the case before them or send the case to the Crown Court for trial if
it is too serious for them to deal with. If the magistrates do decide to keep the case before
them, the defendant then has the right to elect trial by a judge and jury in the Crown Court or
consent to summary trial (see Chapter 6).
Examples of either-way offences include theft, fraud, most forms of burglary, handling stolen
goods, going equipped to steal, inflicting grievous bodily harm/wounding, assault occasioning
actual bodily harm, sexual assault, affray, threats to kill, criminal damage, dangerous driving,
possession of an offensive weapon, possession/possession with intent to supply and supply of
controlled drugs.

se Low-value shop theft

Section 22A of the Magistrates’ Courts Act 1980 makes ‘low-value shoplifting’ a summary
offence. ‘Low-value shoplifting’ means an offence under s 1 of the Theft Act 1968 in
circumstances where the value of the stolen goods does not exceed £200. (Note: if the
defendant is charged at the same time with more than one allegation of shop theft then the
‘aggregate’ value must be under £200 for it to be treated as a summary offence.)
Low-value shoplifting offences will be treated as summary-only unless an adult defendant
enters a plea of not guilty when they will still be given the opportunity to elect trial in the
Crown Court.
The offence therefore attracts a maximum penalty of six months’ custody when sentenced
in the magistrates’ court. If an adult defendant pleads guilty to an offence of low-value
shoplifting, they cannot be committed to the Crown Court for sentence.

) Example
George is arrested and charged with three allegations of theft from shops. The value
of the goods alleged to have been stolen are £75, £50 and £100 respectively. George
intends to plead guilty to all three allegations. Although each theft relates to a value
under £200, the aggregate value comes to £225 and so George’s case will not be treated
as ‘low-value shoplifting’. This means that these offences will be dealt with as either-way
offences. So, if for example, George has a bad criminal record for similar offending he
could be committed to the Crown Court for sentence. Consequently, George could be
imprisoned for more than six months - R v Daniel Harvey [2020] EWCA Crim 354 (see
Chapters 6 and 11).

5 .2:eue Criminal damage

Although criminal damage is an either-way offence, where the value of the property damaged
is less than £5,000 this will also be treated as a summary offence (Magistrates’ Court Act
1980, s 22(1)) unless the damage was caused by fire.

5.2.3 Summary offences

Summary offences are the least serious form of criminal offence and as a general rule may
only be dealt with by the magistrates’ court.
Examples of summary offences include common assault, ss 4 and 5 of the Public Order Act
1984, taking a vehicle without consent and most road traffic offences.

79
Criminal Practice

5.3 Public funding available to a defendant and applying

for a representation order
For defendants without sufficient means, defence solicitors will normally make applications
on behalf of their client for the client's case to receive public funding from the Legal Aid
Agency (LAA). The public funding of a defendant's legal representation in a criminal case is
specifically provided for by Article 6(3) of the European Convention on Human Rights (ECHR),
which states that defendants who do not have sufficient means to pay for legal assistance
should receive this free from charge when this is in the interests ofjustice.
In order to obtain public funding for their clients, a firm of solicitors must have a contract with
the LAA to represent defendants in criminal proceedings. This is known as a ‘general criminal
contract’.

5.35.1 Work done at the police station

The first advice solicitors normally provide to their clients will be at the police station. All
persons attending at the police station (whether under arrest or attending voluntarily) are
entitled to free legal advice, regardless of their means. Work done by a solicitor at the
police station will be claimed as a fixed fee under the Police Station Advice and Assistance
Scheme. There is just one fixed payment for every police station case regardless of how many
attendances and how long the legal adviser was in attendance at the police station (although
special provision is made for cases that are either of the most serious type or are very time-
consuming). Non-solicitors (such as trainees) can attend the police station and charge for this
work as long as they are either accredited or probationary police station representatives.
Most criminal defence solicitors will be members of duty solicitor schemes for a given police
station. These solicitors have their names entered on a rota, and they may be called out to
attend the police station if they are ‘on duty’ and the person who has been arrested does not
have their own solicitor.

5.3.2 Work done after the client is charged

O.O2al The duty solicitor scheme
The duty solicitor scheme operates in the magistrates’ court in a similar way to the scheme
at the police station. Solicitors who are members of a court duty scheme will again have
their names on a rota. On the day when it is their turn to attend court as the duty solicitor,
the particular solicitor will be available to advise any defendants who do not have their own
solicitor but who require legal advice and/or representation. The duty solicitor will claim their
costs in attending court from the LAA under the Advocacy Assistance (Court Duty Solicitor)
Scheme.

Bid:2.2 Applying for a representation order

A defendant who wishes to apply for criminal legal aid in the magistrates’ court must satisfy
two tests:

(a) the interests ofjustice test - the defendant must show that it is in the interests of justice ©
that they receive public funding to cover the cost of their legal representation; and
(b) the means test - the defendant must demonstrate that their finances are such that they
are unable to pay for the cost of their legal representation.
In order to apply for legal aid in the magistrates’ court, the defendant must submit an online
application form (Form CRM14 - Application for Legal Aid in Criminal Proceedings). Unless
the defendant automatically satisfies the means test (see below), they must also submit a
financial statement (Form CRM15), together with any supporting evidence.

80
 First Hearings Before the Magistrates’ Court

The interests of justice test

Legal aid will be granted by the magistrates’ court only if it is in the interests of justice for
a defendant to have their legal costs paid from public funds. This ensures compliance with
Article 6(3)(a) of the ECHR.
The factors that are taken into account in deciding whether a defendant can satisfy the
interests of justice test are set out in Sch 3, para 5(2) to the Access to Justice Act 1999:
In deciding what the interests of justice consist of in relation to any individual, the following
factors must be taken into account:
(a) whether the individual would, if any matter arising in the proceedings is decided
against them, be likely to lose their liberty or livelihood or suffer serious damage to their
reputation;
(b) whether the determination of any matter arising in the proceedings may involve
consideration of a substantial question of law;
(c) whether the individual may be unable to understand the proceedings or to state their
own case;
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination
of witnesses on behalf of the individual; and
(e) whether it is in the interests of another person that the individual be represented.
These factors are repeated in Form CRM14. A solicitor completing Form CRM14 must
discuss each factor with their client and, if that factor is relevant to the client’s case, tick the
appropriate box. Full details in support must then be provided. Further guidance on what
might be said about each factor is set out below:
It is likely that I will lose myliberty if any matter in the proceedings is decided
against me.
This is relevant if the defendant is charged with an offence which is likely to result in a
custodial sentence if they are convicted. This may either be because the offence itself is
a serious offence and/or because the defendant has a bad criminal record which will be
regarded as an aggravating factor, making the present offence more serious. A solicitor can
find out the likely sentence for the offence their client has been charged with by consulting
the Sentencing Guidelines (see Chapter 11). The solicitor will effectively be presenting the
prosecution case against their client ‘taken at its most serious’ in order to justify why their
client should receive public funding for their case. The solicitor will need to refer to any factual
allegations made by the prosecution which aggravate the seriousness of the offence, and
will also need to make reference to any previous convictions the defendant may have for the
same or similar types of offence. Such previous convictions will be taken into account by a
sentencing court and are likely to lead to the court imposing a more severe sentence than if
the defendant had no previous convictions.
This factor is also relevant if, regardless of the sentence which the court is likely to impose
if the defendant is convicted, it is likely that the defendant will be refused bail in the
proceedings and will be remanded in custody whilst the case is ongoing (see Chapter 7).
| have been given a sentence that is suspended or non-custodial. If | break this,
the court may be able to deal with me for the original offence.
This will be relevant if the defendant is subject to for example, a suspended sentence of
imprisonment in respect of a previous offence (see Chapter 11) and commits a further offence
during the period of the suspension. There is a statutory presumption that a defendant who is
convicted of a further offence during the period of suspension will have their earlier sentence
activated and so will go to prison (CJA 2003, Sch 12, para 8).

81
Criminal Practice

It is likely that I will lose my livelihood.

This will usually be relevant if the defendant intends to plead not guilty and is in employment
and a conviction is likely to lead to the loss of that employment. It will always apply to
any defendant in employment who is likely to face a prison sentence if convicted, but can
also be relevant for other defendants who are not likely to receive a prison sentence but
have particular types of job which may be lost in the event of conviction. For example, the
defendant may be a bus driver charged with a road traffic offence (such as dangerous
driving), which will result in their disqualification from driving if they are convicted.
Alternatively, the defendant may be a teacher charged with common assault (since a
conviction for an offence of violence will preclude a defendant from working with children in
the future). This is also relevant for a defendant who is in a position of trust at work and who
may lose their job if convicted of an offence involving dishonesty (such as an employee of a
bank accused of theft).
The remaining factors (unless otherwise stated) will only be applicable where the defendant
intends to plead not guilty:
It is likely that | will suffer serious damage to my reputation.
‘Serious’ damage will occur when the disgrace of a conviction is more than the direct effect
of the sentence received and will result in the defendant losing their reputation for honesty
or trustworthiness. This will only apply to defendants who either have no previous convictions
or convictions for very minor offences. If the defendant has no previous convictions and has
a position of standing or respect in the community (such as a vicar, local councillor or school
governor), a conviction for any criminal offence, even if the offence is relatively minor, may
cause serious damage to their reputation.
A substantial question of law may be involved (whether arising from an act,
judicial authority or other source).
This is relevant where either the prosecution evidence is in dispute, or the defendant wishes
to adduce evidence which the CPS may argue is inadmissible. Examples of when this may
arise are:
(a) if there is disputed identification evidence and the court needs to apply the Turnbull
guidelines to such evidence (see Chapter 9);
(b) if there is a possibility that the court may draw adverse inferences under ss 34, 36 or 37
of the CJPOA 1994 from the defendant's refusal to answer questions at the police station
(see Chapter 9);
(c) if either the prosecution or the defence are seeking to persuade the court to admit
hearsay evidence under s 114 of the CJA 2003 (see Chapter 9);
(d) if the defence are seeking to use ss 76 or 78 of PACE 1984 to argue that a confession
made (or allegedly made) by the defendant should be excluded (see Chapter 9); and
(e) if the prosecution want to adduce at trial evidence of the defendant's previous convictions
under s 101 of the CJA 2003, or either party is seeking to adduce bad character evidence
of any other person under s 100 of the same Act (see Chapter 9).
| may not be able to understand the court proceedings or present my own case.
This factor may apply to a defendant who intends to plead guilty or not guilty. Reasons which
may prevent the defendant from being able to understand the court proceedings or present
their case include:
(a) mental or physical disability;
(b) poor knowledge of English (particularly relevant for defendants from overseas);

82
 First Hearings Before the Magistrates’ Court

(c) age (a defendant who is particularly young or old); and

(d) vulnerability (a defendant who is emotionally immature or otherwise vulnerable).
Witnesses may need to be traced or interviewed on my behalf.
This will be relevant where a defendant wishes to call a witness in support of their case, such
as a witness who can support a defence of alibi or, for a defendant charged with assault, a
witness who will say that the defendant was acting in reasonable self-defence. Such witnesses
will need to be traced and a statement taken from them. This may also be important if the
defendant needs to call expert evidence in support of their defence (for example, a forensic
scientist in a murder case). The defendant will need to explain why they require legal
representation to trace or interview such witnesses.
The case involves expert cross-examination of a prosecution witness (whether an
expert or not).
This will be relevant if a witness needs to be cross-examined to determine a question of law
or to decide on the admissibility of a particular piece of evidence, or if the evidence given by
the witness is complex or technical. For example, if the defendant's solicitor is attempting to
persuade the court to exclude a confession their client made when interviewed at the police
station (on the basis that the confession was made only as a result of improper conduct by
the police), it may be necessary to cross-examine the interviewing officer to establish that
the Codes of Practice issued under PACE 1984 were breached. Only a person with legal
expertise could properly conduct such a cross-examination. Similarly, only someone with
a detailed knowledge of the law concerning disputed visual identification evidence could
properly conduct a cross-examination of a prosecution witness who claims to have identified
the defendant as the person who committed the offence when the defendant disputes this
identification.
This factor will also be relevant if the prosecution seeks to rely on any expert evidence,
such as evidence from a forensic scientist. If the contents of the evidence to be given by the
forensic scientist are disputed, this will require expert cross-examination to cast doubt upon
the expert's conclusions.
It is in someone else's interests that | am represented.
This factor will apply when it would be inappropriate for a defendant to represent themself
because they would then need to cross-examine prosecution witnesses in person. For
example, where a defendant is charged with a sexual or violent offence, it would be
inappropriate for the defendant to cross-examine in person the complainant in such a case.
It would also be inappropriate for a defendant to cross-examine a child witness in person
(particularly if the defendant were charged with having abused the child). Note that this
factor should not be used to argue that legal representation is in the general interests of the
defendant's family or the court.
Any other reasons.
This is designed to cover any matters not falling under any of the above headings. The
guidance notes suggest that further details should be given here if the defendant is likely to
receive, for example, a ‘demanding’ community sentence if convicted. To determine if this is
likely, the solicitor will need to consult the relevant section of the Magistrates’ Court Sentencing
Guidelines. Details should also be provided under this heading if a defence witness requires
skilful examination-in-chief in order to bring out their evidence in a way which is most
favourable to the defendant.
It is also common practice when using this factor to state that the defendant intends to enter a
not guilty plea, since a defendant who is pleading not guilty is likely to need much more in the
way of legal advice than a defendant who intends to plead guilty, particularly if the charge is
a serious one and the case is likely to be tried in the Crown Court.
Criminal Practice

The means test

The following defendants will receive criminal legal aid automatically without needing to
satisfy the means test:
(a) applicants who receive income support, income-based jobseeker's allowance, guaranteed
state pension credit, income-based employment and support allowance or universal
credit; and
(b) applicants who are under the age of 18.
Those applicants who do not automatically satisfy the means test must complete Form CRM15.
They will also be required to supply to the court the necessary evidence to substantiate
their financial details as given on Form CRM15. This will include items such as pay slips, tax
returns (if the applicant runs their own business), bank statements, other tax forms, mortgage
statements or rental/tenancy agreements and proof of childcare costs.
Upon receipt of Form CRM15, an initial means test to determine whether-the applicant is
financially eligible for legal aid will then be applied. The means test considers the applicant's
income and expenses, but not the applicant's capital.
The purpose of the full means test is to calculate the applicant’s disposable income. This is
done by deducting the following items from the applicant's gross annual income:
(a) tax and national insurance
(b) annual housing costs
(c) annual childcare costs
(d) annual maintenance to former partners and any children and
(e ) an adjusted annual living allowance.
An applicant does not have the right to appeal against a refusal of legal aid because of
a failure to satisfy the means test. If, however, an applicant does not satisfy the means test
but can demonstrate that they genuinely cannot fund their own defence, the applicant may
ask that their entitlement to criminal legal aid be reviewed on the grounds of hardship by
completing an application for review on the grounds of hardship (Form CRM16).
If a defendant qualifies for legal aid in the magistrates’ court, they will not be required to
contribute to their defence costs. To put this another way, in the magistrates’ court, legal aid is
either free or not available. Whereas in the Crown Court, legal aid may also be available but
subject to the defendant paying a contribution towards their legal aid costs.

5 ao A The scope of a representation order

lf a defendant satisfies both the interests of justice test and the means test, the magistrates’
court will grant a criminal defence representation order and the order will be sent to their
solicitor.
The representation order granted to a defendant for a summary-only matter, or an either-
way matter which is dealt with by the magistrates’ court, will cover all the work done by
the solicitor in connection with those proceedings in the magistrates’ court, and may be
extended to cover an appeal to the Crown Court against conviction and/or sentence. If, for
an either-way matter, the magistrates decline jurisdiction or the defendant elects trial in the
Crown Court (see Chapter 6), the representation order will extend automatically to cover the
proceedings in the Crown Court. A representation order granted in respect of an offence that
is triable only on indictment will cover proceedings in both the magistrates’ court and the
Crown Court.
For either-way offences, where a defendant has failed the magistrates’ court means test and
the case is subsequently committed to the Crown Court, funding will not start until the day
 First Hearings Before the Magistrates’ Court

after the sending hearing and will only cover work done in the Crown Court, and only if the
defendant passes the means eligibility test in the Crown Court.
A defendant whose application for legal aid is refused under the interests of justice test may
appeal against this decision either by adding further details to their original Form CRM14 and
resubmitting this, or by requesting an appeal. There is no right of appeal against the refusal
of legal aid as a result of a failure to satisfy the means test (although the defendant may ask
that their application be reviewed on the grounds of hardship - see above).
At the conclusion of the case, the defence solicitor will then claim costs incurred under the
representation order from the LAA.

o Example
Darren has been arrested on suspicion of theft from his employer, it being alleged that
he stole a significant amount whilst in a position of a high degree of trust. At the police
station he receives advice from Stella, the duty solicitor. Darren denies the allegation.
During interview, it becomes apparent the prosecution will seek to rely on a disputed item
of hearsay evidence. Following interview, Darren is RUI. He is also subsequently dismissed
from his employment. After a number of weeks, Darren is eventually prosecuted for the
offence. Darren has been unable to find employment and by the time his case gets to
court he is in receipt of universal credit. Darren maintains his innocence; he intends to
plead not guilty and he instructs Stella to represent him.
Darren’s entitlement to publicly funded advice and representation:
¢ At the police station Darren is entitled to free legal advice from Stella (even though at
that point he was still in paid employment).
¢ At court, he is likely to be eligible for a representation order. Stella will complete an
online application form (CRM14) setting out why it is in the interests of justice that
Darren is granted legal aid. Based on the limited information we have so far, the
factors will be:
° ‘It is likely that | will lose my liberty if any matter in the proceedings is decided
against me.’
° ‘It is likely that | will suffer serious damage to my reputation.’
° ‘A substantial question of law may be involved (whether arising from an act,
judicial authority or other source).’
¢ As Darren is in receipt of universal credit, he will automatically satisfy the means test.

5.4 Procedural overview — what will happen at the first hearing

What happens at the first hearing is determined by a number of things, including:
(a) the classification of the offence (see above);
(b) the plea the defendant enters in respect of summary or either-way offences;
(c) the level of detail provided by the CPS of the prosecution case; and
(d) whether public/private funding has been secured.
Given the aims of CJSSS (see above), the magistrates will be keen to progress the case at
the first hearing. This means that the CPS should make sufficient disclosure at the first hearing
to enable the defendant to enter a plea; and the defence should be prepared and ready
to do so. This will depend on the defendant's solicitor having had the opportunity to discuss
Criminal Practice

the details of the prosecution case with the defendant, and to advise on the strength of the
prosecution case and the plea the defendant should enter (see Chapter 6).
There will be rare occasions when the defendant is not in a position to enter a plea, for
example, there may be times when funding issues have not been finalised and financial
details remain outstanding, or where the prosecution has not been able to disclose any of
their evidence and so the case needs to be adjourned.
If the case is adjourned, the magistrates will consider whether the defendant should be
granted bail or remanded in custody prior to the next hearing (see Chapter 7).

5.4.1 Summary offences

The defendant will usually be required to enter a plea. If the defendant pleads guilty, a
representative from the CPS will then tell the magistrates the facts of the case and if relevant,
hand in the defendant's record of previous convictions. If the defendant is legally represented,
their solicitor will then give a plea in mitigation on the defendant's behalf. The magistrates will
then either sentence the defendant straight away or adjourn the case if they want to obtain
any reports (such as a pre-sentence report from the Probation Service) before sentencing the
defendant.
The magistrates may also need to adjourn the case if the defendant pleads guilty but disputes
the specific factual allegations made by the CPS. In such a situation, a separate hearing
(called a ‘Newton hearing’ - see Chapter 11) will be necessary to determine the factual basis
upon which the defendant will be sentenced. The sentencing procedure in the magistrates’
court is described in more detail in Chapter 11.
If the defendant is pleading not guilty, the court will then fix a date for the defendant's trial to
take place and will issue case management directions with which both the prosecution and
defence must comply before trial. Details of the directions the court will make are given in
Chapter 8.
Whether the defendant is pleading guilty or not guilty, if the case is adjourned, the
magistrates will need to determine whether the defendant should be released on bail or
remanded in custody prior to the next hearing (see Chapter 7).

5.4.2 Either-way offences

If the offence is an either-way matter and the defendant enters a guilty plea, the magistrates
will then need to determine whether they should sentence the defendant, or whether the
defendant should be committed to the Crown Court for sentence because the magistrates’
sentencing powers are insufficient. The case may then need to be adjourned either for the
magistrates to obtain a pre-sentence report from the Probation Service before sentencing the
defendant, or, if the magistrates have decided to commit the defendant to the Crown Court to
be sentenced, for the sentencing hearing at the Crown Court to take place.
If the defendant enters a not guilty plea, before going any further, the magistrates must
determine whether the defendant is to be tried in the magistrates’ court or in the Crown Court.
This is known as the ‘plea before venue and allocation procedure’ (see Chapter 6).
If the case is to be adjourned, the magistrates will need to determine whether the defendant
should be released on bail or remanded in custody prior to the next hearing (see Chapter 7).

5.4.3 Offences triable only on indictment

An adult defendant charged with an offence triable only on indictment will be sent straight to
the Crown Court for either trial or sentence following a preliminary hearing in the magistrates’
court, pursuant to s 51(1) of the CDA 1998.

86
 First Hearings Before the Magistrates’ Court

For such offences, the defendant's case will therefore always have to be adjourned, so the
magistrates will need to determine whether the defendant should be released on bail or
remanded in custody prior to the next hearing which will take place in the Crown Court.

5.5 The role of the defence solicitor at the first hearing

The solicitor’s role at this stage involves taking the following steps:

(a) obtaining funding from the LAA to pay for the work they will do on their client's behalf
(unless the client is paying for their legal costs privately);
(b) obtaining details of the prosecution case from the CPS (for summary and either-way
offences);
(c) taking a statement from the client;
(d) advising the client on the strength of the prosecution evidence and the plea the client
should enter (for summary and either-way offences); and
(e) in the case of an either-way offence where the client is indicating a not guilty plea,
informing the client that their case may be dealt with either by the magistrates’ court or
by the Crown Court, and advising the client about the advantages and disadvantages of
each court; and

(f) making an application for bail, where necessary (see Chapter 7).
Part (a) has already been considered in this chapter. Parts (b) to (e) will be considered in
more detail in Chapter 6.

Summary
In this chapter you have considered what happens when a defendant first appears in the
magistrates’ court. Notably:
How the classification of offence impacts on this procedure. There are three main
classifications. Namely, offences which are only triable on indictment, those that are
triable either-way and those triable only summarily.
The public funding which may be available for a defendant and the relevant criteria for
eligibility to receive such funding. |n the police station, all suspects, regardless of their
means, are eligible for free, independent legal advice. At court, only those defendants
who do not have sufficient means to pay for legal assistance will be eligible for publicly
funded legal representation when it is in the interests ofjustice to do so. This interests
of justice test focuses on a combination of criteria relating to both the case and the
defendant.
What will happen at the first hearing? This will depend on the classification of the
offence and the defendant's plea. Offences which are only triable on indictment will be
immediately sent to the Crown Court. For summary-only offences, the defendant will be
expected to enter a plea and the case will then either be adjourned for a trial to take
place, or where a guilty plea is entered, the defendant will be sentenced for the offence.
For either-way offences, the court will first conduct a plea before venue hearing at which
the defendant will indicate their plea. As with a summary-only offence, if the defendant
indicates a guilty plea, they will then be sentenced. If, however, the offence is too serious
for the magistrates’ court’s sentencing powers, the defendant will be committed to the

87
Criminal Practice

Crown Court for sentence. If the defendant indicates a not guilty plea, allocation will then
be considered (see Chapter 6).
* The defence solicitor’s role at this hearing. The solicitor will obtain publicly funded
representation for their client if this is available and for either-way and summary-only
offences, they will obtain initial details of the prosecution case before then advising their
client on plea. For either-way offences they will also advise clients who are indicating a
not guilty plea which trial venue will be the best for them if they are given a choice. If the
case is not concluded at the first hearing, they may also need to make a bail application
on their client’s behalf.

Sample questions

Question 1
A man is due to appear in the magistrates’ court charged with an offence of assault
occasioning actual bodily harm. It is alleged that he headbutted the victim causing the
victim a fractured nose following a neighbour dispute. The man intends to plead guilty.
The man is currently the subject of a suspended sentence of imprisonment for an offence
of theft. The man is currently unemployed and in receipt of income-based job seekers
allowance. The man is widowed and the sole carer for his three young children.
Will the man be entitled to receive publicly funded legal representation at court?
A Yes, because it will be in the interests of his children that he is represented as he is
their sole carer and he automatically satisfies the means test.
B_ Yes, because it will be in the interests of justice as it is likely that he will lose his liberty
and he automatically satisfies the means test.
C Yes, because he will lose his liberty if he is convicted, subject to him satisfying the
means test by completing a means form.
D No, because it will not be in the interests of the victim that he is represented as he is
pleading guilty, so the man will not need to cross-examine the victim.
E No, because he will not necessarily lose his liberty if he is convicted, although he does
automatically satisfy the means test.

Answer
Option B is the correct answer. The man is ‘likely to lose his liberty because of the
seriousness of the offence itself and also because he is subject to a suspended sentence of
imprisonment which is likely to be activated when he pleads guilty to the present offence.
The man automatically satisfies the means test as he is in receipt of income-based job
seekers allowance (JSA). Option A is not correct because although ‘It is in someone else’s
interests that | am represented’ is capable of being a reason to grant legal aid under the
interests of justice test, this should not be used to argue that legal representation is in the
general interests of the defendant's family. Option C is not correct, because although it is
(highly) likely the man will lose his liberty, it is not certain that he will and moreover, he will
not need to complete a means form as he automatically satisfies the means test as he is
in receipt of JSA. Option D is not the best answer, because although it is correct to say that
it will not be in the interests of the victim that he is represented as he is pleading guilty, so
the man will not need to cross-examine the victim, the interests of justice test is still satisfied
(see option B). Option E is not the best answer, because although he will not necessarily
lose his liberty if he is convicted, it is still ‘ikel/ that he will.

88
 First Hearings Before the Magistrates’ Court

Question 2
A woman is to appear in the magistrates’ court charged with an offence of criminal
damage by arson. It is alleged that she set fire to her ex-partner’s garden shed following
a breakdown of their relationship. £2,000 worth of damage was caused. The woman will
plead guilty to this offence.
Which of the following best describes what will happen when she appears in court?
A The woman will plead guilty and the magistrates will then sentence her since the value
of the property damaged is under £2,500.
B The woman will be expected to enter her plea and the magistrates will then have to
decide on allocation as this is an either-way offence.
C The woman will plead guilty and the court will then adjourn the case for the
preparation of a pre-sentence report.
D The woman will not be asked to indicate her plea as arson is an offence that can only
be tried on indictment so her case will be immediately sent to the Crown Court.
E The woman will be expected to indicate her plea and she will either be sentenced by
the magistrates’ court or committed to the Crown Court for sentence.

Answer
Option E is the best answer. Criminal damage of property under £2,500 is treated as a
summary-only offence, unless the damage was caused by fire (Magistrates’ Court Act
1980, s 22(1)), in which case it is an either-way offence. For these reasons, options A and
D are wrong. Option B is wrong because although it is an either-way offence, an allocation
hearing will only take place where a defendant indicates a not guilty plea (see Chapter 6).
Option C is not the best answer, because although the court may adjourn the case for a
pre-sentence report, it will not definitely do this and it may even commit the woman to the
Crown Court if in light of all the other circumstances the magistrates’ court decides that its
sentencing powers are inadequate.

Question 3
A man has been charged with robbery. It is alleged that he stole a jacket valued at £75
from his victim and assaulted him at the same time, in order to steal the jacket. The victim
suffered no physical injuries as a result of the robbery. The man intends to plead not guilty
to this allegation.
Where will the man’s trial take place?
A The trial may take place in either the magistrates’ court or the Crown Court depending
on whether or not the magistrates accept jurisdiction to deal with the case.
B_ The trial is likely to take place in the magistrates’ court as the item stolen is valued at
under £200 and because the man suffered no physical injury.
C_ The trial will take place in the Crown Court as this is an offence that is only triable on
indictment.
D_ The trial may take place in either the magistrates’ court or the Crown Court depending
on whether or not the man consents to summary trial or elects trial on indictment.
E_ The trial must take place in the magistrates’ court as the item stolen is valued at under
£200 and because the victim suffered no physical injury.

89
Criminal Practice

Answer
Option C is the correct answer. Robbery is an offence that can only be tried on indictment
regardless of the value of the goods that were stolen or whether or not the victim suffered
any physical harm. Options B and E are therefore wrong. Option A is wrong because the
magistrates will not be required to decide whether or not they accept jurisdiction to deal with
the case and Option D is wrong because the man will not get a choice on where his trial will
take place.

90
 Plea Before Venue and
Allocation of Business Between
the Magistrates’ Court and
Crown Court
6.1 Introduction 92

6.2 Prosecution obligation to provide IDPC 92

6.3 Advising a client on plea and trial venue 93
Procedure on defendant indicating plea (for either-way offences) ua
Procedure ss 19-20 and s 22A Magistrates’ Courts Act 1980 98
6.6 Sending without allocation s 50A Crime and Disorder Act 1998 102

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation to
Functioning Legal Knowledge concerned with the following procedures and processes:
* advising the client on trial venue;
* procedure on defendant entering plea;
* procedure ss 19-20 and s 22A Magistrates’ Courts Act 1980;
¢ sending without allocation s 50A Crime and Disorder Act 1998.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
* The obligations on the CPS to provide to the defendant's solicitor the details of
the case against the defendant.
¢ The matters to be taken into account when the defendant's solicitor advises their
client on the plea to be entered.
¢ The matters to be taken into account by the defendant's solicitor when advising
their client whether, if given the choice, to elect trial in the Crown Court or consent
to summary trial.
¢ The procedure which is followed at the plea before venue and allocation hearing.
¢ How either-way offences can be sent to the Crown Court without an allocation
hearing.

91
Criminal Practice

6.1 Introduction
This chapter continues on from Chapter 5 - what happens at a defendant's first court
appearance in the magistrates’ court. The focus of this chapter though is on either-way
offences. It describes the obligation on the CPS to provide initial details of the prosecution
case (IDPC) and advising the client as to their plea and, if given the choice, trial venue. It will
then examine the procedure that takes place to determine whether an either-way offence will
ultimately be dealt with by the magistrates’ court or by the Crown Court. This is sometimes
referred to collectively as the mode of trial procedure.

6.2 Prosecution obligation to provide IDPC |

If the solicitor has represented their client at the police station, they may have some
knowledge as to what the prosecution case against the client is and what evidence the
CPS has to support this case. They are unlikely, however, to have seen copies of the witness
statements which the police have obtained. It is vital for the defendant's solicitor to see all the
prosecution evidence as soon as possible after the defendant has been charged, so that they
may advise the defendant as to.the strength of the case against them and take instructions on
what the prosecution witnesses are saying.
When the CPS disclose this evidence will vary depending on whether the offence the
defendant has been charged with is a summary offence, an either-way offence or an offence
triable only on indictment.

6.2.1 Summary and either-way offences (CrimPR, Part 8)

A defendant is entitled to receive IDPC (CrimPR, r 8.2). In practice, this will be provided in a
digital format. The defence solicitor will contact the CPS in advance of the first hearing with a
Unique Reference Number which will be on the charge sheet. The CPS will email the solicitor
the IDPC via its Criminal Justice Secure Mail account.
For clients seen in court for the first time, the solicitor will phone a centralised CPS number on
the day, and the CPS will then email the papers through to the solicitor there and then.
Part 8 of the CrimPR has been amended to include a provision that where the CPS wishes
to introduce information contained in a document that the defence is entitled to and that
document/information has not been made available to the defence, the court must not
allow the prosecutor to introduce that information unless the court first allows the defendant
sufficient time to consider it (CrimPR, r 8.4).
IDPC includes the following:

(a) where the defendant was in police custody for the offence charged immediately before
the first hearing in the magistrates’ court:
(i) a@ summary of the circumstances of the offence; and
(ii) the defendant's criminal record, if any; or

(b) in all other cases:

(i) a summary of the circumstances of the offence;
(ii) any account given by the defendant in interview, whether contained in that summary
or in another document;
(iii) any written witness statement or exhibit that the prosecutor has available and
considers material to plea, or to the allocation of the case for trial or to sentence;
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

(iv) the defendant's criminal record, if any; and

(v) if available, a victim impact statement.
The Criminal Practice Direction 3A.12 expands the list of material which is expected to be
served for cases where the defendant has been released on-bail after being charged and
where the prosecutor does not anticipate a guilty plea at the first hearing.
It states that in such cases (regardless of whether they are to be heard in the magistrates’
court or the Crown Court), unless there is good reason not to do so, the prosecution should
make available the following material in advance of the first hearing in the magistrates’ court:
(a) a summary of the circumstances of the offence and any account given by the defendant in
interview;
(b) statements and exhibits that the prosecution has identified as being of importance for the
purpose of plea or initial case management, including any relevant CCTV that would be
relied upon at trial and any Streamlined Forensic Report;
(c) an indication of any medical or other expert evidence that the prosecution is likely to
adduce in relation to a victim or the defendant;
(d) any information as to special measures, bad character or hearsay, where applicable (see
Chapter 9).

6.2.2 Offences triable only on indictment

The magistrates must send offences triable only on indictment straight to the Crown Court.
There is no obligation on the CPS to provide IDPC at or before this first hearing. When
sending the case to the Crown Court, the magistrates will give standard directions as to when
the CPS must serve their evidence, upon which they intend to rely at trial, on the defence (see
Chapter 8).

6.3 Advising a client on plea and trial venue

6.3.1 Advising on plea
After the solicitor has obtained details of the prosecution case, the defendant's solicitor will
then need to take further instructions from their client. The following matters will have to be
discussed:
(a) The client’s response to the prosecution case. Each prosecution witness statement needs
to be discussed with the client and an accurate note taken of any points of dispute. This
note should then be added to the client's statement. The solicitor should also listen to
the record of the audibly recorded interview to check that the transcript which has been
provided is accurate. If the client made any admissions when interviewed, the solicitor
needs to take instructions from the client - are the admissions correct, or did the client
make admissions because of the manner in which the interview was conducted or just to
get out of the police station as quickly as possible? Does the client come across well on
the audio recording (in which case, should the solicitor ask for the interview to be played
out at trial rather than the transcript being read out)? Are there grounds on which an
application may be made to the court to exclude the interview record from being used in
evidence at trial? (See Chapter 9.)
(b) The strength of the prosecution case. Whilst it is the client’s decision as to the plea they
will enter, if the prosecution case is overwhelming, the solicitor should inform the client of
this and remind the client that they will be given credit for entering an early guilty plea
when they are subsequently sentenced (see Chapter 11).

93
Criminal Practice

(c) Whether it is necessary to obtain any further evidence in support of the defendant's case.
For example, in light of the prosecution evidence which has been disclosed, the client
may recall the identity of other witnesses who could give evidence on their behalf.
(d) Where the client has been charged with an either-way offence and is pleading not guilty,
if given the choice, whether they should elect to be tried in the magistrates’ court, or
before a judge and jury in the Crown Court (see below).
The ultimate decision the client will need to take once the CPS has disclosed details of its
case is what plea to enter. This is the client’s decision, not the solicitor’s. As mentioned in
(b) above, as part of the duty to act in the best interests of the client, the solicitor should give
the client their view of the strength of the evidence against them. It is also appropriate for the
solicitor to advise the client that, when it comes to sentencing, the client will receive a reduced
sentence for entering an early guilty plea.

6.3.2 Advising on trial venue

If the magistrates consider that an either-way case is suitable for summary trial, the defendant
will then have a choice as to whether they want the trial to take place in the magistrates’ court
or the Crown Court. The defendant's solicitor must advise them about the factors in favour of
each venue. ;

6.3.2.1 Factors in favour of the Crown Court

Greater chance of acquittal
Statistically, more defendants are acquitted following a jury trial in the Crown Court than are
acquitted following a trial before a bench of magistrates or a district judge in the magistrates’
court. Juries are perceived to be more sympathetic to defendants than ‘case-hardened’
magistrates. In particular, if the prosecution case includes evidence from police officers who
often give evidence before the same magistrates’ court, it is felt that a defendant will get a
fairer hearing in the Crown Court where the jurors are hearing from each of the witnesses for
the first time. Magistrates may be predisposed to favour the evidence of police officers from
whom they may have heard evidence in previous cases, whereas jurors are perhaps more
likely to question the testimony of police officers whose evidence is disputed by the defendant.
Similarly, if the defendant has several previous convictions before the same magistrates’
court, the magistrates may be aware of such convictions and may be prejudiced against the
defendant.

Better procedure for challenging admissibility of prosecution evidence

The procedure for deciding the admissibility of disputed prosecution evidence is better for
the defendant in the Crown Court than in the magistrates’ court. In the Crown Court, when a
dispute over the admissibility of a piece of prosecution evidence (such as a confession) arises,
the jury will be asked to leave the court room and the judge will conduct a mini-trial to decide
whether or not the evidence should be admitted. This mini hearing is known as a voir dire (or
a ‘trial within a trial’). Only if the judge decides that the evidence is admissible will the jury
ever hear about it. If the judge rules the evidence to be inadmissible, the evidence will not be
placed before the jury.
Were such a situation to arise in the magistrates’ court because the magistrates are
responsible for determining both matters of law and matters of fact, the magistrates
themselves would need to determine whether the evidence was admissible. If the magistrates
decided that a piece of prosecution evidence was inadmissible, when considering their
verdict, the magistrates would then need to set to one side their knowledge of the existence of
that piece of evidence. There is a risk that such knowledge would remain in the back of their
minds and affect their decision as to the defendant's guilt or innocence.

94
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

(Although the Crown Court remains the better venue for determining the admissibility of
disputed items of prosecution evidence, most magistrates’ courts do now attempt to determine
issues of admissibility of evidence at pre-trial hearings rather than at the hearing itself. Such
hearings will take place before a different bench of magistrates from the bench who hear the
trial, so there is no risk that the defendant will be prejudiced at trial by the magistrates being
aware of any item of prosecution evidence which has been found to be inadmissible.)

More time to prepare the case for trial

lf the case against the defendant is complex, as the case will take longer to get to trial in the
Crown Court, there will be more time to prepare the defence case. This is also relevant if there
are a large number of potential witnesses for the defence who need to be interviewed.

6.3.2.2 Factors in favour of the magistrates’ court

Limited sentencing powers
The biggest advantage in electing summary trial is the limited sentencing powers magistrates
have. The maximum sentence which the magistrates may impose is six months’ imprisonment
(rising to 12 months when the defendant is convicted of two or more either-way offences). The
sentencing powers available to a Crown Court judge are much greater.
However, even if the defendant is tried before the magistrates’ court, the magistrates retain
the power to commit the defendant to the Crown Court for sentence if, during or after the
trial, facts emerge that make the offence more serious than it appeared at the allocation
hearing and so render the magistrates’ sentencing powers inadequate (if, for example, the
defendant is convicted at trial and the magistrates then find that they have numerous previous
convictions for the same type of offence).

Speed and stress

A trial in the magistrates’ court takes place much sooner than a trial in the Crown Court. This
may be significant for a defendant who needs their case to be concluded relatively quickly,
such as a defendant who has been offered employment in another part of the country or
overseas. This will also be a very important consideration for a defendant who has been
denied bail and is remanded in custody prior to trial.
Cases in the magistrates’ court are also less stressful for defendants. The procedure in
the magistrates’ court is less formal than and not as intimidating as the Crown Court (for
example, the judge and the advocates in the Crown Court wear wigs and gowns, whereas
the magistrates and the advocates in the magistrates’ court do not). This may be significant
for a defendant who has never previously been charged with an offence, and who is likely
to be intimidated by the greater formality of the Crown Court. This is, however, unlikely to
be a significant consideration for a defendant with numerous previous convictions who is no
stranger to the criminal courts.

Prosecution costs
lf a defendant is convicted in either the magistrates’ court or the Crown Court, they are likely
to be ordered to make a contribution towards the costs incurred by the CPS in bringing the
case against them. Such costs are likely to be higher in the Crown Court because of the
greater amount of work that goes into preparing a case for trial in the Crown Court (such as
the need to instruct counsel).

Defence costs
lf granted legal aid in the magistrates’ court, a defendant is not required to contribute towards
his defence costs.

95
Criminal Practice

In the Crown Court, all legal aid applications are subject to a financial eligibility test. If a
defendant is eligible for legal aid (ie has a household disposable income under £37,500), a
means test will consider their income and capital assets, and they may be liable for income
contributions towards costs either during the proceedings or at the end of the case.
lf the defendant funds their case privately, proceedings before the magistrates’ court will be
significantly cheaper than in the Crown Court.

No obligation to serve defence statement

A defendant pleading not guilty in the Crown Court is effectively obliged to serve on both the
Crown Court and the prosecution a defence statement under ss 5, 6 and 6A of the Criminal
Procedure and Investigations Act 1996 (see Chapter 8). The giving of a defence statement will
provide the prosecution with much more information about the defence case.
In the magistrates’ court there is no obligation on the defendant to provide a defence
statement either to the court or to the CPS. The giving of such a statement in the magistrates’
court is entirely optional, and in practice is very rarely done.

6.3.3 Professional conduct

Occasionally a client will tell their solicitor that they are guilty of the offence but nevertheless
intend to enter a not guilty plea at court. This will raise issues of professional conduct for the
solicitor who, whilst under a duty to act in their client's best interests, is under an overriding
duty not to mislead the court (SRA Code of Conduct, para 1.4). In such circumstances the client
has two options - to plead guilty, or to plead not guilty. To comply with their duty to act in the
client’s best interests, the solicitor will need to advise the client of the benefits were the client
to enter a guilty plea, and of the limitations on the solicitor’s ability to continue representing
the client were they to enter a plea of not guilty.

6.3.3.1 Benefits of pleading guilty

The solicitor should advise the client that, were they to plead guilty, the client will receive a
reduction in their sentence from the court for entering an early guilty plea (see Chapter 11).

6:35.52 Limitations if the client pleads not guilty

If the client insists on maintaining a not guilty plea, they must be advised that the solicitor may
still represent them at trial but that the solicitor is limited in what they can do on the client's
behalf because of their overriding duty not to mislead the court. At trial, the solicitor would be
able to cross-examine prosecution witnesses and put the prosecution to proof of their case,
since this would not involve misleading the court (although, in cross-examining the prosecution
witnesses, the solicitor would need to be careful not to assert any positive defence that they
know to be false). Similarly, the solicitor would be able to make a submission of no case to
answer at the end of the prosecution case and to ask the magistrates to dismiss the case, as
again this would not involve misleading the court. Such a submission could be made if the
prosecution failed to discharge their evidential burden to show that the defendant had a case
to answer (see Chapter 9).
The defendant's solicitor would, however, be unable to continue acting for the defendant if the
submission of no case to answer was unsuccessful and the defendant then insisted on entering
the witness box to give evidence which the solicitor knew to be false. In this situation, the
defendant's solicitor could not be a party to misleading the court and would need to withdraw
from the case. The solicitor would nevertheless still owe a duty of confidentiality to their
client and so could not indicate to the court the reason for their withdrawal from the case.
A common euphemism that defence solicitors use in such situations is to tell the court that they
are withdrawing from the case ‘for professional reasons’.

96
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

© Example
Joe is charged with theft from a store. The evidence against him consists only of
identification evidence from a member of the store’s security staff. Joe admits his guilt
to his solicitor but enters a not guilty plea, believing that the case may be discharged if
the evidence given by the identification witness at court is unconvincing. Joe’s solicitor
is entitled to cross-examine this witness at trial to cast doubt on the evidence he gives.
For example, the witness may have caught only a fleeting glimpse of Joe from a long
distance away and may admit under cross-examination that he cannot be certain of the
identification he has made. If the evidence given by this witness is unconvincing, Joe’s
solicitor will then be able to make a submission of no case to answer at the conclusion
of the prosecution case and ask the magistrates to dismiss the case. If, however, the
magistrates decline to dismiss the case and Joe then insisted on giving evidence in his
own defence, his solicitor would need to withdraw from the case so as not to be a party to
the court being misled. The solicitor would tell the court that they could not continue to act
in the case for ‘professional reasons’ so as not to breach their duty of confidentiality to Joe.

6.4 Procedure on defendant indicating plea (for either-way

offences)
The procedure that will take place for an either-way offence when the defendant appears
before the magistrates’ court is as follows:
(a) The charge will be read out to the defendant by the court's legal adviser, who will also
check that the defendant's solicitor has received IDPC.
(b) The legal adviser will then tell the defendant that they may indicate to the court how they
would plead if the matter were to proceed to trial (the defendant is under no obligation
to indicate their plea). The legal adviser will also tell the defendant that if they indicate
a guilty plea, they will then be treated as having pleaded guilty before the magistrates,
who may either sentence them or commit them to the Crown Court to be sentenced if they
consider their own sentencing powers to be inadequate.
(c) The legal adviser will then ask the defendant to indicate their plea.

6.4.1 Indicating a guilty plea

lf the defendant indicates a guilty plea, they are treated as having been tried summarily and
convicted. The CPS representative will then outline the facts of the case to the magistrates and
tell them about any previous convictions the defendant may have. The defendant's solicitor will
then give a plea in mitigation on the defendant's behalf.
At this point the magistrates will need to decide if their sentencing powers are sufficient to
deal with the case, or if the defendant should be sentenced by a Crown Court judge who
has greater sentencing powers. The maximum sentence a magistrates’ court may pass is six
months’ imprisonment for a defendant who is convicted of one either-way offence, rising to a
maximum of 12 months where a defendant is convicted of two or more either-way offences.
The magistrates will determine whether their sentencing powers are sufficient by assessing
the overall seriousness of the offence, looking at the guideline sentence in the Magistrates’
Court Sentencing Guidelines and considering whether there are any aggravating or mitigating
factors present which make the offence either more or less serious.
lf the magistrates decide that their sentencing powers are sufficient, they will then either
sentence the defendant straight away, or adjourn the case for a pre-sentence report before

97
Criminal Practice

sentencing the defendant (the magistrates will also need to adjourn the case if they consider
that a ‘Newton hearing’ is necessary - see Chapter 11). If the case is adjourned for sentence,
the defendant will be released on bail or remanded in custody prior to the sentencing
hearing.
If the magistrates decide that their sentencing powers are insufficient, they will commit the
defendant to Crown Court for sentence pursuant to s 3 of the Powers of Criminal Courts
(Sentencing) Act 2000. This section allows the magistrates to commit the defendant to Crown
Court for sentence if they consider that the offence (or, if there is more than one offence, the
combination of the offences) is so serious that the Crown Court should have the power to deal
with the defendant as if they had been convicted at a Crown Court trial.
If the defendant is committed to the Crown Court for sentence, they will be remanded either in
custody, or on bail. In most cases where a defendant pleads guilty at the plea before venue
hearing and is committed to the Crown Court for sentence, the magistrates will not alter the
position as regards bail or custody. Thus, when a defendant who has-been on bail enters
a guilty plea, the magistrates are likely to grant them bail, even if they anticipate that the
defendant will receive a custodial sentence at the Crown Court. If a defendant who has been
in custody enters a guilty plea at the plea before venue hearing, they are likely to remain
in custody prior to the sentencing hearing at the Crown Court (R v Rafferty [1999] 1 Cr App
R 235).

6.5 Procedure ss 19-20 and s 22A Magistrates’ Courts Act 1980

If the defendant indicates a not guilty plea to an either-way offence in the following
circumstances, the court shall send the defendant to the Crown Court for trial (CDA 1998, s
50A(3)(b)):
(a) the defendant is sent to the Crown Court for trial for a related offence;
(b) the defendant is charged jointly with another adult defendant who is sent to the Crown
Court for trial for a related offence;
(c) the defendant is charged jointly, or charged with a related either-way offence, with a
youth defendant who is sent to the Crown Court for trial.
In all other cases where a not guilty plea is indicated (or where the defendant refuses to enter
a plea, as they are entitled to do), the court must determine whether the offence appears
more suitable for summary trial or trial on indictment, ie make a decision as to allocation
(Magistrates’ Courts Act 1980, s 19(1)).

6.5.1 Allocation

A flowchart summarising the plea before venue, allocation and sending procedure is set
out below.
The procedure, which is set out in the amended ss 19 and 20 of the Magistrates’ Courts Act
1980, is as follows:

(a) The prosecution will inform the court of facts and the defendant's previous convictions (if
any) (s 19(2)(a)).
(b) The magistrates shall consider:
(i) any representations made by the prosecution or defence, as to whether summary trial
or trial on indictment would be more suitable (s 19(2)(b)); and
(ii) whether the sentence which they would have power to impose for the offence would
be adequate (s 19(3)(a)); and

98
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

(iii) the Allocation Guideline issued by the Sentencing Council. The Allocation Guideline
states that, in general, either-way offences should be tried summarily unless it is
likely that the court's sentencing powers will be insufficient. In addition, it states
that the court should assess the likely sentence in the light of the facts alleged by
the prosecution case, taking into account all aspects of the case, including those
advanced by the defence. The magistrates will do this by considering the Magistrates’
Court Sentencing Guidelines (MCSG) for the relevant offences.
In considering the adequacy of its sentencing powers when dealing with two or more
offences, the court should consider its potential sentencing powers in the light of the
maximum aggregate sentence the magistrates could impose for all the offences taken
together, if the charges could be joined in the same indictment or arise out of the same or
connected circumstances (s 19(4)).
(d) lf the court decides that the offence appears more suitable for trial on indictment, the
defendant is sent forthwith to the Crown Court (Magistrates’ Courts Act 1980, s 21).
(e) lf the court decides that the case is more suitable for summary trial, it must explain to the
defendant that:
(i) the case appears suitable for summary trial;
(ii) they can consent to be tried summarily or choose to be tried on indictment; and
(iii) if they consent to be tried summarily and are convicted, they may be committed to the
Crown Court for sentence (Magistrates’ Courts Act 1980, ss 20(1) and (2)).

(f) At this stage, the defendant may request an indication of sentence, ie an indication of
whether a custodial or non-custodial sentence would be more likely if they were to be
tried summarily and plead guilty. It should be no more specific than that (Magistrates’
Courts Act 1980, ss 20(3)-(7) and 20A; CrimPR, Part 9). Under s 20A(1) of the Magistrates’
Court Act 1980, where the case is dealt with in accordance with s 20(7), no court (whether
a magistrates’ court or not) may impose a custodial sentence for the offence unless such
a sentence was indicated in the indication of sentence referred to in s 20. Further, s 20A(3)
states that, subject to subsection (1), an indication of sentence shall not be binding on any
court (whether a magistrates’ court or not), and no sentence may be challenged or be the
subject of appeal in any court on the ground that it is not consistent with an indication of
sentence.
The court may, but need not, give an indication of sentence. It would appear that the
court cannot give an indication of sentence unless the defendant requests one. If the court
gives an indication of sentence, the court should ask the defendant whether they want to
reconsider the earlier indication of plea that was given.
(h) lf the defendant indicates that they want to plead guilty, they are treated as if they had
been tried summarily and pleaded guilty. In these circumstances, an indication of a non-
custodial sentence will generally prevent a court from imposing a custodial sentence for
the offence.
(i) lf the defendant does not change their plea to guilty, the indication of sentence shall not
be binding on any court, and in these circumstances no sentence may be challenged or
be the subject of appeal in any court because it is not consistent with an indication of
sentence. Equally, an indication of a custodial sentence does not prevent the court from
imposing a non-custodial sentence.
(j) Where the court does not give an indication of sentence, whether requested to do so
or not, or the defendant does not indicate that they want to reconsider the indication of
plea or does not indicate that they would plead guilty, the court must ask the defendant
whether they consent to summary trial or wish to be tried on indictment (Magistrates’
Courts Act 1980, s 20(8) and (9)).
Criminal Practice

(k) If the defendant consents to summary trial, the court shall proceed to summary trial
(Magistrates’ Courts Act 1980, s 20(9)(a)).
(I) Under s 25 of the Magistrates’ Court Act 1980, the prosecution (not the defence) are
allowed to make an application, before summary trial begins and before any other
application or issue in relation to the summary trial is dealt with, for an either-way offence
allocated for summary trial to be sent to the Crown Court for trial. The court may grant
the application only if it is satisfied that the sentence which a magistrates’ court would
have power to impose for the offence would be inadequate. Where there is a successful
application by the prosecution for the offence to be tried on indictment, the case will be
sent forthwith to the Crown Court for trial.
(m) If the defendant does not consent to summary trial, they must be sent forthwith to the
Crown Court for trial (Magistrates’ Courts Act 1980, s 20(9)(b)).

© Example
Caitlin has been charged with an offence of fraud by false representation and granted
unconditional bail by the police. It is alleged that she tried to claim a refund on items
from a shop that she claimed she had purchased when in fact she had not. The relevant
items are valued at £1,500. Caitlin has a previous conviction from two years ago for
benefit fraud. Caitlin intends to plead not guilty and is represented by her solicitor, Tom.
Before her first appearance in the magistrates’ court, Caitlin is granted legal aid and Tom
obtains IDPC from the CPS. Tom obtains Caitlin’s instructions on the prosecution evidence
in advance of her first court appearance. Based on Caitlin’s instructions, Tom advises her
to plead not guilty and to elect trial in the Crown Court, if she is given the choice.
When Caitlin appears in court, the legal adviser first checks with Tom whether he has
received IDPC from the prosecution and Tom confirms he has and that he has also taken
his client’s instructions on this and the case is ready to proceed to plea before venue. The
legal adviser then reads out the charge and asks Caitlin to indicate her plea, explaining
that if she indicates a guilty plea, she will then be treated as having pleaded guilty and
the magistrates may then either sentence her or commit her to the Crown Court to be
sentenced if they consider their own sentencing powers to be inadequate.
Caitlin indicates a not guilty plea. The prosecutor then informs the court about the facts of
the case and also indicates which trial venue she believes to be most suitable. Tom is then
invited to make representations as to which court he believes to be most suitable. In light
of these submissions the magistrates will then decide whether or not to accept jurisdiction
based on whether their sentencing powers would be sufficient to sentence Caitlin if she
were convicted. In deciding this, the court will have regard to the Allocation Guideline
issued by the Sentencing Council and the MCSGs for Fraud by False Representation. (Note
the MCSGs recommend a starting point sentence for this type of fraud as a medium level
community sentence with a sentence range from a fine up to 26 weeks in custody.)
The magistrates therefore decide the case is suitable to be tried in the magistrates’ court.
Caitlin is told this and also told that she can therefore consent to summary trial or elect
trial on indictment in the Crown Court. She is also warned that if she consents to be tried
summarily and is convicted, she may be committed to the Crown Court for sentence.
Caitlin tells the court that she wants to be tried in the Crown Court. The case is then sent
to the Crown Court and Caitlin is granted bail (which is not opposed by the prosecution)
to attend her plea and trial preparation hearing in the Crown Court on a given date.
Note: where the court is dealing with two or more defendants charged with the same
offence, if one of the defendants elects trial in the Crown Court, all of the defendants
will be sent to the Crown Court for their joint trial regardless of the other defendant(s)’s
decision on venue (CrimPR, r 9.2(6)(a)).

100
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

Figure 6.1 (Flowchart - Plea before venue, allocation and sending procedure)

Court legal adviser reads out charge, informs defendant

of the plea before venue procedure, warns of the possibility of
committal for sentence and asks defendant to indicate their plea

Not guilty/ Guilty plea Are the magistrates’ courts

No plea indicated indicated sentencing powers adequate?

Magistrates decide on |No

allocation
(prosecution can
inform court of D’s Commit to the
previous convictions) Crown Court
Suitable for for sentence
summary trial
Trial on indictment
more suitable

Guilty plea (but

Defendant requests an in theory can
indication of sentence and as commit to the
a result may reconsider plea Crown Court for
sentence)
Not guilty plea maintained

Does D consent to summary trial?

Case sent forthwith Trial in magistrates’ Sentence in

to Crown Court court magistrates’ court

Commit to the Crown Court

for sentence (will be rare)

6.5.2 Different pleas at the plea before venue hearing

Occasionally a defendant who is charged with more than one either-way offence will indicate
different pleas at the plea before venue hearing. The defendant may indicate a plea of guilty
to one offence, but a plea of not guilty to the other. In such circumstances, the magistrates
will proceed with the allocation hearing in respect of the offence to which the defendant has
indicated a not guilty plea. ;
If, at the allocation hearing, the magistrates accept jurisdiction (and the defendant does not
elect trial at the Crown Court), the magistrates will either sentence the defendant immediately
for the offence to which they have pleaded guilty, or adjourn sentence until the end of the trial
of the offence to which they have entered a not guilty plea.
lf, at the allocation hearing, the magistrates decline jurisdiction (or the defendant elects trial
at the Crown Court), the magistrates will send the offence to which the defendant has entered

101
Criminal Practice

a not guilty plea to the Crown Court for trial. In this situation, the magistrates will then have a
choice as to what to do with the offence to which the defendant has pleaded guilty. They may
either sentence the defendant themselves or commit the defendant to the Crown Court for
sentence.

6.6 Sending without allocation - s 50A Crime and Disorder Act 1998
In certain circumstances, either-way offences will be sent straight to the Crown Court in
accordance with s 50A of the CDA 1998. These circumstances are as follows:

(a) Where notice, in serious or complex fraud cases, has been given by the DPP under s 51B
of the 1998 Act. Notice is given to the court that the evidence is sufficient to put a person
on trial for the offence, and the evidence reveals a case of fraud of such seriousness or
complexity that the management of the case should without delaybe taken over by the
Crown Court.
Where a notice, in certain cases involving children, has been served under s 51C of
the CDA 1998. Notice is given to the court that the evidence is sufficient to put a person
on trial for the offence, a child will be called as a witness and that for the purpose of
avoiding any prejudice to the welfare of the child, the case should be taken over and
proceed without delay by the Crown Court. The offences to which this procedure applies
include assault or threat of injury to a person, child cruelty, certain sexual offences,
kidnapping, false imprisonment and child abduction.
Where there is an either-way offence related to an offence triable only on indictment,
Or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which
the same defendant is being sent to the Crown Court. Where a defendant is sent to the
Crown Court for trial for an offence triable only on indictment, or for an offence in respect
of which notice has been given under ss 51B or 51C of the CDA 1998, the court must at
the same time send the defendant for trial for any either-way offence which appears
to the court to be related (s 50A(3)(a)). However, where the defendant appears on the
related either-way charge on a subsequent occasion, the court may send them for trial.
Where there is an either-way offence related to an offence triable only on indictment,
or one covered by a notice under s 51B or s 51C of the CDA 1998, in respect of which
another defendant is being sent to the Crown Court (s 50A(3)(a)).

Summary
In this chapter you have considered what will happen where a defendant, who is charged
with an either-way offence, makes their first appearance in the magistrates’ court. Notably:
Prosecution obligation to provide IDPC. This will be sent to the defendant's solicitor
digitally and based on this information the solicitor will take their client’s instructions and
then advise them on plea and venue.
Aavising a defendant on trial venue. Where a client has decided to plead not guilty, the
solicitor will explain the advantages of each venue to their client and which of these they
believe to the best venue for them. Ultimately, the client will need to decide where they
want to be tried (if given the choice).
Procedure on defendant indicating plea. This will depend on the plea indicated by the
defendant and whether the magistrates’ court believes it has sufficient powers of sentence
to deal with the defendant if they indicate a guilty plea or are convicted following a trial.

102
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

¢ Procedure ss 19-20 and s 22A Magistrates’ Courts Act 1980. Where the defendant
indicates a not guilty plea, this part of the hearing focuses on the allocation decision,
where the magistrates’ court first decides if they have sufficient sentencing powers to
deal with the case. If the court believes that its powers are inadequate, they will send the
defendant to the Crown Court. If they believe they have sufficient powers, the defendant
will then be given an unfettered choice as to trial venue (unless there is a co-accused who
elects trial on indictment).
¢ Sending without allocation - s 50A Crime and Disorder Act 1998. This is possible in a
limited number of circumstances, including serious/complex fraud cases; some cases
involving children and an either-way offence linked to an offence triable only on
indictment.

Sample questions

Question 1
A defendant has been jointly charged with an offence of affray. At his first court
appearance in the magistrates’ court his solicitor advises him on plea and trial venue
before his case is called on. The defendant intends to indicate a not guilty plea and
decides to consent to summary trial if he is given the choice.
Which of the following best describes whether the defendant's trial will take place in
the magistrates’ court?
A If both defendants consent to summary trial, the trial must take place in the
magistrates’ court.
B_ If the defendant consents to summary trial, the trial is likely to take place in the
magistrates’ court regardless of the other defendant's decision.
C_ If the magistrates decide the offence to be more suitable for summary trial and both
defendants consent to summary, the trial will take place in the magistrates’ court.
D_ If the defendant consents to summary trial, the trial is likely to take place in the
magistrates’ court even if the other defendant elects trial on indictment.
E If the magistrates decide the offence to be more suitable for trial on indictment and
the other defendant also consents to summary trial, the trial will take place in the
magistrates’ court.

Answer
Option C is the best answer. CrimPR, r 9.2(6)(a) provides that where the court is dealing
with two or more defendants charged with the same offence, if one of the defendants
elects trial in the Crown Court, a// of the defendants will be sent to the Crown Court for their
joint trial regardless of the other defendant(s)’s decision on venue. The trial will therefore
only take place in the magistrates’ court if the magistrates decide the offence to be more
suitable for summary trial and both defendants consent to summary trial. Option A is not
the best answer because.it fails to deal first with the magistrates accepting jurisdiction.
Options B and D are wrong because both defendants have to consent to summary trial.
Option E is wrong because if the magistrates decide the offence to be more suitable for
trial on indictment, the case must be sent to the Crown Court for trial and the defendants
will not get a choice.

103
Criminal Practice

Question 2
A man has been charged with an offence of rape and sexual assault in relation to the
same complainant. Both are alleged to have occurred within a few days of each other. The
man intends to plead not guilty to both charges and wants to know which court or courts
will deal with these cases.
Which of the following best describes the advice the man should be given?
A Both cases are likely to be tried in the Crown Court as rape is triable only on indictment.
B The rape charge will be dealt with in the Crown Court and the sexual assault charge
may be dealt with in the Crown Court if the magistrates decide their powers of
punishment are inadequate to deal with it.
C_ The rape charge will be dealt with in the Crown Court and the sexual assault charge
will only be dealt with in the Crown Court if the man elects trial-on-indictment.
D Both cases will be tried in the Crown Court as both charges relate to indictable
offences.
E Both cases will be tried in the Crown Court as the sexual assault charge is related to
the rape charge. ;

Answer
Option E is the best answer. The either-way offence (sexual assault) relates to an offence
triable only on indictment (rape) because they are alleged to have taken place over
a similar time period and both relate to the same complainant (CDA 1998, s 50A(3)
(a)). Consequently, the sexual assault charge will be sent to the Crown Court without an
allocation hearing by virtue of s 50A CDA 1998. So, option A is wrong because both cases
will be tried in the Crown Court, as opposed to being likely to be tried there. Options B and
C are wrong because there will be no allocation hearing. Option D is not the best answer
because although both offences are indictable offences, the reason they will be both dealt
with in the Crown Court is because the either-way offence is related to the offence that can
only be tried on indictment.

Question 3
A woman appears in the magistrates’ court charged with an offence of assault occasioning
actual bodily harm and an offence of theft. At the plea before venue hearing she indicates
a not guilty plea to the assault matter and a guilty plea in relation to the theft matter.
The magistrates accept jurisdiction to deal with the assault, but the woman elects trial on
indictment.
Which court will sentence the woman for the offence of theft?
A_ The magistrates’ court will sentence the woman for the offence of theft as they have
already accepted jurisdiction to deal with the assault matter.
B_ The magistrates’ court will have a choice to either sentence the woman for the offence
of theft or to commit her to the Crown Court to be sentenced there.
C The woman will be able to choose which court she is sentenced by.
D The Crown Court will sentence the woman after her trial for the assault matter has
been concluded.
E The Crown Court will sentence the woman before her trial for the assault matter
takes place.

104
 Plea Before Venue and Allocation of Business Between the Magistrates’ Court and Crown Court

Answer
Option B is the best answer. In this situation, the magistrates have a choice as to what to do
with the offence to which the defendant has pleaded guilty. They may either sentence the
defendant themselves or commit the defendant to the Crown Court for sentence. This will often
depend on whether the two offences are linked or not. If they are not, the magistrates’ court
may be more likely to sentence the offender, whereas if they are linked, the magistrates may
be more likely to send them both up to the Crown Court to be dealt with. Option A is therefore
wrong as accepting jurisdiction to deal with the assault matter will not necessarily have any
bearing on their decision to sentence for the theft. Option C is wrong, because a defendant
will never be able to choose which court sentences her for an either-way offence. This decision
will always be for the magistrates’ court to take. Options D and E are wrong because although
the theft offence could be committed to the Crown Court for sentence, this will not necessarily
be the case.

105
 es - sat Paol# A

/ ed

Rela othesos soar ad

* | 20 ree

ni
ue ee an et ai y

ly fi tri - 1G Sth Come? ‘ve oi

( ie R ciel Deyae aa
he n stu ny) i yea Ff
eer ‘Savi ad Pate nat) verti oe
~ 1! Qs ut «ithe pats
OCe Vel: Seely nihie gee
mL) « MyU oneal

a
j 7

j rye ia =

ie. (AR 8
mate a

* iy

» ey ‘skSity

ena? -

Se " 7? =] t
: ‘ 79 ie

nae 48 HPA rae

. pe ea hye r :
: Y At tear eS

j i al non te
tf
ee deh
A “i ier ied
7} a‘

| en
: aid “ae
ae
= spins ek
: 7
«ee ,
a
Won
i) ye HM Ree
a 7 ®
 Bail

se Introduction 108
7.2. Remands and custody time limits 108
7.3. The right to bail 110
7.4 Conditional bail 115,

75 Procedure for applying for bail 118

7.6 Further applications for bail 120
7.7 Appeals against decisions on bail 120
7.8 Absconding and breaches of bail 121

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
¢ the right to bail and exceptions;
* conditional bail;
* procedure for applying for bail;
¢ further applications for bail;
* appeals against decisions on bail;
* absconding and breaches of bail.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
* Remand periods and custody time limits which apply in the magistrates’ court.
¢ The presumption in favour of bail which applies to most types of defendant and
the exceptions to the right to bail.
¢ The difference between the grounds on which bail may be refused by the court
and the factors to be taken into account in deciding whether those grounds are
satisfied and the conditions which may be attached to a grant of bail.

107
Criminal Practice

¢ Making an application for bail and when further applications for bail may be
made to the magistrates’ court if the initial application is unsuccessful.
¢ Appealing to the Crown Court against a bail decision by the magistrates’ court.
* The consequences for a defendant who fails to answer their bail, or who
breaches any conditions attached to their bail.

7.1 Introduction
Many criminal cases are unlikely to be completed on the first occasion on which the
defendant appears before the magistrates’ court. This will only usually happen in the case of
a straightforward summary or either-way offence where the defendant pleads guilty and the
magistrates sentence them immediately (see 6.4 above). In any other type of case there will
need to be one or more adjournments before-the case is concluded.

7.2 Remands and custody time limits

When a case is adjourned by the court, the defendant will be remanded. So, a ‘remand’ is an
adjournment where the court will want to ensure that the defendant attends the next hearing.
A defendant may be remanded in one of three ways:
(a) a remand in custody;
(b) a remand on bail with conditions attached to that bail; or
(c) a remand on unconditional bail.

7.2.1 Remands before conviction

Peel Remands in custody
The basic rule
The basic rule is that a defendant may not be remanded in custody for more than eight clear
days at a time. However, if the defendant's case is still in the magistrates’ court, where there
are successive remands in custody, the defendant needs to be brought before the court on
every fourth remand, provided they have consented to this and have legal representation. In
addition, the court may remand a defendant in custody for up to 28 days if:
(a) it has previously remanded them in custody for the same offence; and
(b) they are before the court; and
(c) it can set a date to remand them to on which it expects the next stage of the proceedings
to take place.

© Example
Aiden is charged with theft. He is refused bail by the police and appears before
a Saturday morning remand court in custody on 3 April. Aiden’s solicitor makes an
application for bail which is refused. Aiden is remanded in custody by the magistrates
for six days and so appears before the court again on Friday, 9 April. At the hearing
on 9 April the prosecution provides initial details of the prosecution case to the defence

108
 Bail

and Aiden indicates a not guilty plea at the plea before venue hearing. The magistrates
accept jurisdiction and Aiden consents to summary trial. Aiden’s solicitor makes another
bail application and the magistrates refuse bail again and remand Aiden in custody for
28 days until 7 May when a case management hearing will take place. The magistrates
are able to do this because Aiden is before the court, he has previously been remanded
in custody and the next stage of proceedings (the case management hearing) can take
place at the next hearing. (In practice, the hearing on 9 April will usually be conducted
by live video link with the prison or remand centre where Aiden is being held, rather than
Aiden being brought to court.)

Custody time limits (CrimPR, r 14.18 and r 14.19)

Time limits exist to ensure that defendants who are remanded in custody have their cases
brought promptly to trial (Prosecution of Offences (Custody Time Limits) Regulations 1987 (SI
1987/299)). The overall maximum period of remand in custody (normally referred to as the
custody time limit) in the magistrates’ court is 70 days before trial for an either-way offence
and 56 days before trial for a summary-only offence. However, if the case involves an either-
way offence and the allocation hearing takes place within 56 days, the custody time limit for
the either-way offence is reduced to 56 days.
The prosecution may apply to the court to extend the custody time limit, although for an
application to be successful the prosecution will need to show on the balance of probabilities
that there is good and sufficient cause to do this and that it has acted with due diligence
and expedition (Prosecution of Offences Act 1985, s 22). The application may be made
orally or in writing, although a written notice of intention must be served on the court and
the defendant not less than two days before the hearing in the magistrates’ court. Unless the
prosecution makes a successful application to extend the custody time limit, once the time limit
has expired, the defendant must be released on bail until his trial. If the magistrates grant a
prosecution application to extend the custody time limit, the defendant has a right of appeal
to the Crown Court. Similarly, the prosecution may appeal to the Crown Court against the
magistrates’ refusal to extend the custody time limit.

Where will the defendant be kept whilst in custody?

Defendants who are remanded in custody will normally be kept at a prison or remand centre.
However, s 128(7) of the Magistrates’ Courts Act 1980 allows a magistrates’ court to remand a
defendant to police custody for up to three days if this is necessary for the purposes of making
enquiries in relation to offences other than the offence for which the defendant has been
charged. The CPS is likely to apply for such a remand when a defendant has been arrested
and charged for one offence, but the police suspect their involvement in other matters about
which they wish to interview them. A defendant made subject to such a remand must be
brought back before the magistrates as soon as the need to make enquiries has ceased.
Whilst they are at the police station, the defendant is entitled to the same rights as if they had
been arrested and detained prior to charge (for example, the right to free legal advice; see
1.3.1 above).

pe
i he Remands on bail
A defendant who is on bail may be remanded prior to conviction for any period of time,
subject to the defendant's consent.

7.2.1.3 Remands after case committed or sent to Crown Court

A defendant who is committed to the Crown Court for sentence, or whose case is sent to the
Crown Court for trial, may be remanded in custody or on bail until the case comes before the
Crown Court.

109
Criminal Practice

tips ds Remands after conviction

Following conviction, a defendant may be remanded in custody before sentence (usually for
the preparation of pre-sentence reports; see Chapter 11) for successive periods of not more
than three weeks. If the defendant is remanded on bail, this may be for successive periods of
not more than four weeks.

7.3 The right to bail

The substantive law concerning the grant or refusal of bail is contained predominantly in the
Bail Act 1976. The procedural rules which are relevant to the issue of bail are found in Part 14
of the CrimPR.
Under s 4 of the Bail Act 1976, there is a presumption that bail will be granted to the following
types of defendants (unless one or more exceptions apply):
(a) all defendants prior to conviction;
(b) defendants who have been convicted if their case. has been adjourned for the court to
obtain reports before sentencing (see Chapter 11); and
(c) defendants who are appearing before the court for breach of a community sentence.
The presumption in favour of bail does not apply to defendants:
(a) who have been committed to the Crown Court for sentence (see Chapter 6); or
(b) who are appealing against conviction or sentence (see Chapter 12).
The only other limitation on the presumption that bail will be granted is in respect of
defendants charged with the most serious types of offence. Under s 25 of the CJPOA 1994, if
the defendant is charged with one of a number of specified offences or has previously been
convicted of any of these specified offences, a court may grant bail to that defendant only if
exceptional circumstances exist. The specified offences are:

(a) murder
(b) attempted murder
(c) manslaughter
(d) rape
(e) attempted rape
(f) a number of other serious sexual offences.
Where a defendant is charged with murder and makes an application for bail, s 115 of
the Coroners and Justice Act 2009 (which has amended the power in s 25 of the Criminal
Justice and Public Order Act 1994) states that only a Crown Court judge may grant bail.
The magistrates’ court must transfer the defendant to the Crown Court (in custody). A Crown
Court judge must then, within 48 hours, make a decision as to whether to grant bail. Section
114(2) of the Coroners and Justice Act 2009 provides that bail may not be granted, in
these circumstances, unless the court is of the opinion that there is no significant risk of the
defendant committing, whilst on bail, an offence likely to cause physical or mental injury to
another.

7.3.1 Exceptions to the right to bail

7.3.1.1 ‘No real prospect of custody’ restriction
The exceptions to the presumption in favour of bail in relation to imprisonable offences are set
out in paras 2 to 7 of Part 1 of Sch 1 to the Bail Act 1976 (see 7.3.1.2).

110
 Bail

However, there is a restriction on the exceptions applying in relation to bail in proceedings where:
(a) the defendant has attained the age of 18;
(b) the defendant has not been convicted of an offence in those proceedings; and
(c) it appears to the court that there is no real prospect that the defendant will be sentenced
to a custodial sentence in the proceedings.
In such circumstances, a magistrates’ court will not have power to remand a defendant in
custody before his case is dealt with.

Ps Bg Offences triable only on indictment and either-way imprisonable offences

Paragraphs 2 to 7 of Part 1 of Sch 1 to the Bail Act 1976 provide the relevant law, including:
2.(1) |The defendant need not be granted bail if the court is satisfied that there are
substantial grounds for believing that the defendant, if released on bail (whether
subject to conditions or not) would:
(a) fail to surrender to custody, or
(b) commit an offence while on bail, or
(c) interfere with witnesses or otherwise obstruct the course of justice, whether in
relation to himself or any other person.
3. The defendant need not be granted bail if the court is satisfied that the defendant should
be kept in custody for their own protection or, if they are a child or young person, for their
own welfare.
5. The defendant need not be granted bail where the court is satisfied that it has not
been practicable to obtain sufficient information for the purpose of taking the decisions
required by this Part of this Schedule for want of time since the institution of the
proceedings against them.
6. The defendant need not be granted bail if, having previously been released on bail in,
or in connection with, the proceedings, the defendant has been arrested in pursuance of
section 7.
6ZA. \|f the defendant is charged with murder, the defendant may not be granted bail unless
the court is of the opinion that there is no significant risk of the defendant committing,
while on bail, an offence that would, or would be likely to, cause physical or mental
injury to any person other than the defendant.
The most common grounds upon which the CPS normally objects to bail being granted to a
defendant are those set out in para 2(1) above, namely, that there are substantial grounds for
believing that the defendant will, if released on bail:
(a) fail to surrender to custody;
(b) commit an offence whilst on bail; or
(c) interfere with a witness in the case (or otherwise obstruct the course of justice).
Note therefore that this is a high threshold. It will not be satisfied if the court only believes the
defendant may do any of these three things.
In deciding whether any of these’grounds is satisfied, the court must take into account the
following factors (Bail Act 1976, Sch 1, Pt 1, para 9):
(a) the nature and seriousness of the offence (and the probable sentence the defendant will
receive for it);
(b) the character, antecedents, associations and community ties of the defendant;
(c) the defendant's record in respect of previous grants of bail in criminal proceedings; and
(d) the strength of the evidence against the defendant.

111
Criminal Practice

The nature and seriousness of the offence and the probable method of dealing with the
defendant for it (and the strength of the evidence against the defendant)
These two factors are often linked. They are most likely to be relevant to a prosecution
argument that there are substantial grounds for believing that the defendant would fail to
surrender to custody if they were to be granted bail. If the defendant has been charged with
a serious offence that is likely to result in a prison sentence if they are convicted and the
evidence against the defendant is strong, the CPS may argue that the defendant will fail to
surrender to custody (usually referred to as absconding) to avoid such a fate.

o Example
Ben pleads not guilty to a charge of wounding with intent. The prosecution allege that
Ben attacked his victim with a hammer in an unprovoked assault, causing the victim
to suffer head injuries from which he will never fully recover. They also claim there is
compelling CCTV evidence showing that Ben attacked the victim_in this way. This is
a serious offence and, if convicted, Ben will receive a lengthy prison sentence. The
prosecution will argue that Ben should be denied bail as there are substantial grounds
for believing that, if granted bail, Ben will fail to surrender to custody. The factors they
will rely on to support this is that if Ben is convicted, the court will deal with the matter by
way of a lengthy custodial sentence, and Ben will abscond to avoid being sent to prison.
Moreover, the CCTV evidence against Ben is very strong and so he will almost certainly
be convicted.

The defendant's character, antecedents, associations and community ties

Character and antecedents

The reference to a defendant's character and antecedents is a reference to the defendant's

previous convictions. A defendant's criminal record may be raised by the CPS when bail is
being considered, to argue that there are substantial grounds for believing that the defendant
will commit further offences if they are released on bail. This is likely to be relevant if the
defendant has a history of committing the same (or similar) types of offence as that with which
they have been charged. It will also be an argument raised by the prosecution if the reason
for the defendant's previous offending is ongoing (such as a serial shoplifter who steals to
fund a drug addiction), or if the defendant has previously committed offences whilst on bail.

o Examples
Claire pleads not guilty to a charge of shoplifting. Claire has 10 previous convictions
for the same type of offence within the last three years. Claire’s previous offences were
committed to obtain money to support her heroin addiction (which is ongoing). The CPS
will argue that Claire should be denied bail as there are substantial grounds for believing
that, if granted bail, Claire will commit further offences. The factor it will rely on to support
this is that Claire’s character and antecedents indicate that she commits this type of
offence on a regular basis to support her ongoing drug addiction.
Damien pleads not guilty to a charge of theft. Damien’s list of previous convictions
reveals that he has twice been convicted of other property-related offences which were
committed whilst he was on bail for other matters. The CPS will argue that Damien
should be denied bail as there are substantial grounds for believing that, if released on
bail, Damien will commit further offences. The factor it will rely on to support this is that
Damien’s previous convictions show a history of offending whilst on bail.
Ethan pleads not guilty to a charge of assault occasioning actual bodily harm. Six
months previously, Ethan was convicted of unlawful wounding and received a sentence
of 12 months’ imprisonment, suspended for two years. The evidence against Ethan in

112
 Bail

respect of the current charge is strong, consisting of good quality identification evidence
and a confession Ethan is alleged to have made when first arrested. The CPS will argue
that Ethan should be denied bail as there are substantial grounds for believing that, if
released on bail, Ethan would fail to surrender to custody. The factor it will rely on to
support this is that Ethan’s antecedents show he is subjectto a suspended sentence of
imprisonment which is likely to be activated if Ethan is convicted of the current offence.
Ethan is also likely to be convicted because of the strength of the evidence against him.

Associations

The reference to the defendant's associations may be relevant to a prosecution argument that,
if released on bail, there are substantial grounds for believing that the defendant will commit
further offences.
For example, if a defendant is known to associate with other criminals, or is alleged to be a
member of a criminal gang, the CPS may use this to suggest there are ‘substantial grounds’ to
believe that they may commit further offences if released on bail.
The CPS may also suggest that a defendant's associations are relevant if a witness is known
to the defendant and there is a fear that the defendant may attempt to interfere with the
witness. This often arises in the case of domestic assaults when the victim is a relative of the
defendant and there is a fear that the defendant may put pressure on the victim to ‘change
their story’.

o Examples
Fariq pleads not guilty to a charge of armed robbery of a bank. The CPS alleges that
Fariq is a member of a criminal gang responsible for several similar armed robberies.
None of the other members of the gang have as yet been identified or arrested by the
police, and none of the proceeds from the bank robberies have been recovered. The CPS
will argue that Fariq should be denied bail as there are substantial grounds for believing
that, if released on bail, Fariq would commit further offences. The factor it will rely on is
that Fariq’s associations include membership of a gang responsible for a series of armed
robberies, the other members of which are still at large.
Gavin pleads not guilty to a charge of sexual assault. The CPS alleges that Gavin sexually
assaulted his 11-year-old daughter (who lives at the same address as Gavin). In her
statement to the police, Gavin's daughter has said that Gavin has threatened to ‘shut her
up’ unless she changes her story. The CPS will argue that Gavin should be denied bail on
the basis that there are substantial grounds for believing that, if granted bail, Gavin will
attempt to interfere with a witness. The factor it will rely on to support this is that Gavin
is closely associated with his alleged victim. Gavin and his victim share the same home,
and the victim has already indicated that he has attempted to persuade her to change
her story.

Community ties
The strength or otherwise of a defendant’s community ties will be relevant to an argument that
there are substantial grounds for believing that the defendant will fail to surrender to custody
if released on bail. If, for example, the defendant is unemployed, has no relatives in the local
area, has lived in the area only for a short time or is of no fixed abode, the CPS may argue
that there is nothing to keep them in the area and nothing to prevent them from absconding.

© Example
Harry pleads not guilty to a charge of possession of Class A drugs. Harry is unemployed
and lives alone in bedsit accommodation. Harry has no family or known friends in the
local area, and most of his relatives are known to live some 200 miles away. Harry moved

113
Criminal Practice

to the area only some three months ago. The CPS will argue that Harry should be denied
bail as there are substantial grounds for believing that, if granted bail, Harry will fail to
surrender to custody. The factor it will rely on to support this is Harry’s lack of community
ties, because Harry appears to have nothing to tie him to the local area.

The defendant's record in relation to previous grants of bail

If a defendant has previous conviction(s) for the offence of absconding (ie failing to answer
their bail - see 7.8 below), the CPS is likely to raise this to suggest that there are substantial
grounds for believing that the defendant will fail to surrender if they are granted bail in the
current proceedings.

© Example
Ivan pleads not guilty to a charge of affray. lvan has three previous convictions for failing
to answer bail in relation to other public order offences with which he was charged.
The CPS will argue that lvan should be denied bail as there are substantial grounds for
believing that, if granted bail, Ivan will fail to surrender to custody. The factor it will rely
upon to support this is that lvan’s record in relation to previous grants of bail shows that
he has a history of failing to answer his bail.

1,3.10 Summary-only imprisonable offences

Note that similar, but not identical, grounds and factors for refusing bail apply to these type of
summary offences.
Section 52 of and Sch 12 to the Criminal Justice and Immigration Act (CJIA) 2008 have
amended the law on bail in respect of summary-only imprisonable offences.
Bail for these offences may be refused only on one or more of the following grounds:
(a) failure to surrender (if the defendant has previously failed to surrender);
(b) commission of further offences (if the instant offence was committed on bail);
(c) fear of commission of offences likely to cause another person to suffer or fear physical or.
mental injury;
(d) defendant's own protection (or welfare if a youth);
(e) defendant serving custody;
(f) fear of failure to surrender, commission of offences, interference with witnesses or
obstruction of justice (if the defendant has been arrested for breach of bail in respect of
the instant offence); and
(g) lack of sufficient information.

7.3.1.4 Non-imprisonable offences

It is extremely rare for a defendant charged with a non-imprisonable offence not to be
granted bail, as there are only very limited circumstances in which the CPS would ever oppose
the grant of bail to such a defendant.
Under Sch 1, Pt Il to the Bail Act 1976, the court may refuse bail to a defendant charged with
a non-imprisonable offence only if:
(a) the defendant was granted bail in previous criminal proceedings but failed to answer this
bail and the court believes that, if granted bail in the current proceedings, the defendant
would again fail to surrender to custody;
(b) the defendant needs to be kept in custody for his own protection or, in the case of a
defendant under 18 years of age, for his own welfare;

114
 Bail

(c) the defendant is currently serving a custodial sentence in respect of a separate

offence; or
(d) the defendant was granted bail at an earlier hearing in the same proceedings, but has
been arrested either for failing to answer his bail or for breaking any conditions of his
bail, and the court is satisfied that there are substantial grounds for believing that, if
released on bail, the defendant would fail to surrender to custody, commit an offence or
interfere with witnesses or otherwise obstruct the course of justice.

7.4 Conditional bail

When a defence advocate is making an application for bail on behalf of their client, they
will normally invite the magistrates to consider granting conditional bail to their client if the
magistrates are not minded to grant bail on an unconditional basis.
A court has the power to grant bail to a defendant subject to the defendant complying with
one or more conditions that the court attaches to that bail. Section 3(6) of the Bail Act 1976
requires that such conditions must be necessary to:
(a) prevent the defendant from absconding;
(b) prevent the defendant committing a further offence whilst on bail;
(c) prevent the defendant interfering with witnesses or obstructing the course of justice;
(d) ensure that the defendant makes himself available for the purpose of obtaining medical
or other reports;
(e) ensure that the defendant keeps an appointment with his solicitor; or
(f) ensure the defendant's own protection or, in the case of a defendant aged under 18, for
his own welfare or in his own interests.
The most common conditions that the court may impose are set out in the table below.

Condition Bail ground aimed Key points

at overcoming

Sureties Absconding A surety is a person who enters into what is termed a

‘recognisance’ of money and is under an obligation
to use every reasonable effort to ensure that the
defendant attends court.
If the defendant fails to answer their bail at the next
hearing, the court must declare the immediate and
automatic forfeiture of the recognisance. The court
will order the surety to appear before the court to
explain why they should not pay over the sum. The
court will then determine whether some or all of the
surety should be paid.
A court is unlikely to accept as a surety a person who
has a criminal record, who lives a long distance from
the defendant or who has no financial means. As
a matter of professional conduct, a solicitor should
never stand surety for a defendant.

(continued)

115
Criminal Practice

(continued)

Condition Bail ground aimed Key points

at overcoming :

Security Absconding The defendant will be required to deposit a sum of

money (or goods) with the court. If the defendant
fails to attend court to answer their bail, they will
forfeit the security they have given.

Reporting to a police | Absconding and The court orders the defendant to report to their
station committing offences | local police station on a regular basis (on specified
on bail day(s) and time) so the police may ensure that the
defendant remains in the local area.

Residence Absconding and The court requires the defendant to reside at a

committing offences | specified address. The police will often check that
on bail such a condition is being complied with by visiting
the address late at night or early in the morning.

Curfew Committing The court requires a defendant to remain at their

offences on bail place of residence between certain specified hours
(for example, between 8 pm and 7 am). The police
may visit the residence during these hours to check
that the defendant is there.
To support conditions of residence and curfew, the
court may order that the defendant be electronically
monitored (commonly referred to as ‘tagging’).

Non-communication Committing This condition not only covers direct face-to-face

with prosecution offences on bail contact with the witnesses, but also indirect contact
witnesses and interfering with such as through a third party or contacting the
a witness witnesses by telephone or in writing or through any
other means such as social media.

Restriction on Committing This prevents the defendant from entering a

entering specified offences on bail geographical area or town, for example where a
areas and interfering with prosecution witness resides, or where the defendant
a witness habitually commits offences in the same place or
type of place, such as theft from a shopping centre
or committing assaults in a city centre.

Attending Requires a defendant to keep in regular touch with

appointments with his solicitor to ensure that the case is not delayed
his solicitor or the because the defendant has failed to provide their
Probation Service solicitor with prompt instructions.

Surrender of Absconding Requires a defendant to surrender their passport.

passport Only likely to be appropriate in serious cases where
the defendant is known to have substantial financial
assets or criminal contacts outside the UK.

116
 Bail

Figure 7.1 Will the defendant be granted bail?

ne
Presumption in favour of bail for all defendants pre-conviction
(Bail Act 1976, s 4)

ul
Are there substantial grounds for believing that, if released on
bail, defendant will:

e fail to surrender to custody?

¢ commit an offence whilst on bail?
@ interfere with witnesses/obstruct course of justice?
[or do any of the other exceptions to the right to bail apply?]

ee Apply factors to decide if ground(s) exist:

nature and seriousness of offence, and probable sentence;
character and antecedents of defendant;
defendant's associations and community ties;
defendant's bail history;
strength of the evidence

substantial grounds exist substantial grounds do not exist

i F Court will grant unconditional bail

can these grounds be removed by imposing
se to the defendant
conditions? Eg:
e surety
¢ security
@ report to police station
e residence
© curfew
@ non-communication with prosecution witnesses
¢ not to enter specified area
® surrender passport

Court will refuse bail and

Court will grant
defendant will be
conditional bail
remanded in custody

117
Criminal Practice

7.5 Procedure for applying for bail

If the CPS objects to bail being granted, the following procedure will take place at court:
(a) The CPS representative must, as soon as practicable, provide the defendant's solicitor,
and the court, with all of the information in its possession which is material to what the
court must decide (CrimPR, r 14.5(2)).
(b) The CPS representative will state its objection to bail and apply to the magistrates for
the defendant to be remanded in custody. If relevant, they will hand the magistrates a
list of the defendant's previous convictions and then outline the grounds on which the
prosecution objects to bail being granted. The CPS representative will support these
grounds by citing the relevant details of the case and applying the factors referred to at
7.3.1.2 above.
(c) The defendant's solicitor will then make an application for bail on their client's behalf.
They should take each of the prosecution grounds for objecting to bail in turn and
respond to these, applying, where appropriate, the same factors. The defendant's solicitor
may suggest appropriate conditions, which the magistrates may impose if they are not
prepared to grant unconditional bail.
(d) The magistrates may hear evidence from other persons in support of the defendant's
application for bail, such as @ prospective employer if the defendant has recently
been offered employment, or a person who is prepared to provide the defendant with
accommodation if the defendant is currently of no fixed abode.
(e) The magistrates will then decide whether to remand the defendant in custody or on bail.
If the magistrates grant bail to the defendant, they will specify any conditions on that bail
which they consider necessary. If bail is granted subject to a surety, the court will hear
evidence on oath from the surety to ensure that they are suitable to act in that capacity.
A record of the magistrates’ decision will be made and a copy of this given to the defendant.
If the magistrates refuse bail or grant bail subject to conditions, reasons for the refusal or
reasons for the conditions must also be recorded and a copy given to the defendant (this is
known as a ‘certificate of full argument’). If the CPS opposed bail but bail is granted by the
magistrates, a record must be made of the reasons for granting bail and a copy given to the
CPS upon request.
A flowchart showing the procedure at a contested bail application is set out below.

118
 Bail

Figure 7.2 Contested bail application procedure

SS ER

Prosecution tell defence there is an

objection to bail and provide them
with all of the information in their
possession which is material to
what the court must decide

Prosecution apply to magistrates for

remand in custody

Prosecution outline the objections to

bail (grounds on which bail is opposed
and factors in support of these grounds)
and give details of the defendant's
previous convictions

Defence respond to arguments made by

prosecution, taking each ground on
which prosecution object to bail and
using factors to show why the ground is
not satisfied (and suggesting conditions
to attach to bail if appropriate)

Defence calls witnesses in support of

bail application (such as potential surety)

Magistrates make their decision

Defendant granted bail (with or Prosecution refused bail and

without conditions) remanded in custody

Prosecution appeal against grant of

Defence appeal against refusal of
bail to Crown Court judge in»
bail to Crown Court judge in
chambers
chambers
(if the offence is imprisonable)

119
Criminal Practice

7.6 Further applications for bail

If bail is refused, the magistrates are under a duty to consider the question of bail at any
subsequent hearing if the defendant is still in custody and the presumption in favour of bail
(see 7.3 above) still applies. However, this does not mean that the defendant's solicitor is
permitted to make a full bail application at each subsequent hearing.
At the first hearing after the hearing at which the court refused to grant bail, the defendant's
solicitor is permitted to make a full application for bail using any argument as to fact or law,
even if they used the same arguments in their first unsuccessful application. At any subsequent
hearing, the court need not hear arguments as to fact or law which it has heard previously
(Bail Act 1976, Sch 1, Pt IIA).
Thus, a defendant who is refused bail is entitled to have their advocate make one further
full bail application in the magistrates’ court, but if this is refused, the advocate may make a
further bail application only if they are able to raise a new legal or factual argument as to
why bail should be granted.

© Example
Johan makes his first appearance before the magistrates on 14 May. His advocate makes
a full application for bail, but this is refused, and Johan is remanded in custody for seven
days. When Johan appears before the court again on 21 May, his advocate may make
a further full application for bail using any argument as to fact or law, whether or not this
argument was used in the bail application made on 14 May. If the magistrates refuse bail
on 21 May, Johan’s advocate can make a further application for bail only if she can raise
a new argument that she has not used previously. For example, a potential surety might
have become available, or Johan might have been offered employment.
Note: such further applications will only be possible in the magistrates’ court if the defendant's
case is still in that court. If the defendant has been sent or transferred to the Crown Court, any
further bail applications will have to be made in that court.

7.7 Appeals against decisions on bail

7.7.1 Appeals by the defendant (CrimPR, r 14.8)
A defendant who is refused bail by the magistrates’ court may appeal against this decision
to the Crown Court provided the magistrates have issued the ‘certificate of full argument’
referred to in 7.5 above. Although a defendant may make an appeal to the Crown Court
after the magistrates have made an initial refusal of bail, for tactical reasons most defence
solicitors will usually delay making an appeal to the Crown Court until they have made two
full applications for bail before the magistrates’ court. Delaying an appeal until after the
second full application before the magistrates maximises the number of potentially successful
applications for bail which the defendant will be able to make.
To appeal, the defendant's solicitor must complete a notice of application (on the prescribed
form), which needs to be sent to the Crown Court and magistrates’ court and served on the
CPS at least 24 hours before the hearing. The notice of application will contain details of
the defendant's previous applications for bail, details of the stage the case has reached
before the magistrates, the nature and grounds of the defendant's appeal and details of any
proposed sureties.
The appeal will be heard before a Crown Court judge in chambers and will normally take
place within a matter of days of the notice of application being sent to the Crown Court.
The judge will need to have the following documents before them when considering the
application:

120
 Bail

(a) the notice of application;

(b) the ‘certificate of full argument’; and
(c) a record of the defendant's previous convictions (if applicable).
At the hearing in chambers, the judge will hear representations from the CPS and the
defendant's advocate. The judge may refuse the defendant's application or grant bail to the
defendant, with or without conditions. If the judge grants bail, a copy of the judge’s order will
need to be sent to the prison or remand centre where the defendant is being held so that the
defendant may be released from custody.

re Appeals by the prosecution (CrimPR, r 14.9)

If the magistrates grant bail to a defendant who has been charged with an imprisonable
offence, s 1 of the Bail (Amendment) Act 1993 gives the CPS the right to appeal against this
decision to a Crown Court judge in chambers. The CPS must have initially objected to the
grant of bail before the magistrates’ court, and oral notice of the appeal must be given by the
CPS representative at the conclusion of the hearing in the magistrates’ court at which bail was
granted before the defendant is released from custody. This oral notice must be confirmed in
writing and served on the court and defendant within two hours of conclusion of the hearing in
the magistrates’ court.
The appeal must be heard at the Crown Court within 48 hours of the magistrates’ decision to
grant bail. The defendant will be remanded in custody by the magistrates until the appeal is
heard. The Code for Crown Prosecutors provides that this power should be used ‘judiciously
and responsibly’, and so the power to appeal is not to be used merely because the Crown
Prosecutor disagrees with the decision: ‘it should only be used in cases of grave concern’.

7.8 Absconding and breaches of bail

7.8.1 Failing to surrender (absconding)
7.8.1.1 What steps will the court take if the defendant fails to surrender?
A defendant who is granted bail (either by the police after they have been charged, or by
the court following a hearing) is under a duty to surrender to the court at the time and place
appointed for the next hearing. If the defendant fails to attend court to answer their bail at
the appointed time and date, the magistrates will issue a warrant for their arrest (Bail Act
1976, s 7(1)). The warrant will either be backed with bail (which means that the police, having
arrested the defendant, will then release them again pending their next court appearance),
or, as is much more common, not backed with bail. If the warrant is not backed with bail,
the police must arrest the defendant and then keep them in police custody until they can be
brought before the court. The defendant will be brought before the magistrates’ court at the
next hearing.
Note: if the defendant is arrested after the court has finished sitting on a Friday, then a
specially arranged remand court will be convened on the Saturday morning. No such courts
will sit on a Sunday, so a defendant arrested later on a Saturday will be kept in custody until
the following Monday morning.

7.8.1.2 What will happen when the defendant appears before the court?
A defendant who has been charged by the police and bailed to appear before the
magistrates’ court will be in breach of police bail if they fail to attend court at the appointed
date and time. When that defendant is arrested and brought before the court, whether they
are charged with failing to surrender to custody under ss 6(1) or (2) of the Bail Act 1976 (see
below) is a matter for the CPS.

121
Criminal Practice

lf, however, the defendant has already made an appearance before the court and been
granted bail by the court, the decision to commence proceedings against them for failing to
surrender will be made by the court rather than the CPS because the defendant will be in
breach of court bail.

7.8.1.3 Offences with which the defendant may be charged

The Bail Act 1976 creates two offences with which a defendant who fails to surrender to
custody at the appointed time and date may be charged:

(a) If the defendant fails without reasonable cause to surrender to custody, they will be guilty
of the offence of absconding, contrary to s 6(1).

© In R v Scott [2007] All ER (D) 191 (Oct) the Court of Appeal held that a judge had correctly
put a charge of failing to surrender to a defendant who arrived at court half an hour late
for a hearing.

(b) If the defendant did have a reasonable cause for failing to surrender, they will still be
guilty of an offence under s 6(2) unless they surrendered to custody as soon as it was
reasonably practicable for them to do so.

© Example
Kevin is unable to answer his bail because he is injured in a road traffic accident and has
to go to hospital. Kevin will still be guilty of an offence under s 6(2) unless he answers his
bail as soon as reasonably practicable after he has been discharged from hospital.

7.8.1.4 Consequences of failing to surrender

If the defendant does not have a reasonable excuse for absconding, the court may either
sentence him immediately or adjourn sentence until the conclusion of the substantive
proceedings. The Sentencing Council has published a definitive guideline on failure to surrender
to bail. This suggests that sentence should be imposed ‘as soon as practicable’ but, depending
on the facts of the case, this could be immediately or at the end of the substantive case.
Even if the magistrates decide not to impose a separate penalty for the absconding offence,
they may decide to refuse the defendant bail in the substantive proceedings, or grant bail but
with a much more stringent package of conditions.
The court may be persuaded to make a further grant of bail to the defendant if their failure
to surrender was the result of a genuine misunderstanding, or if the defendant voluntarily
surrendered to custody. The defendant is unlikely to be granted bail again, however, if they
wilfully failed to surrender and had to be arrested by the police.

7.8.2 Breaching bail

A defendant who breaches any bail conditions other than a condition to attend the next court
hearing (for example, a defendant who fails to comply with a curfew, a condition of residence
or a condition not to contact a prosecution witness) does not commit a criminal offence by
breaching such conditions. However, a defendant who breaches their bail conditions is likely
to have their bail reviewed by the magistrates, who may decide that the failure to comply with
the conditions requires a remand in custody.
Section 7(3) of the Bail Act 1976 empowers a police officer to arrest a person who has been
bailed to attend court (either by the police following charge, or by the court at a previous
hearing) if the officer reasonably believes that the person:
(a) is not likely to surrender to bail; or
(b) has broken, or is likely to break, their bail conditions.

122
 (yuNOD UMOLD 34} 0} HiNOD se esysidew
10} ainpado0ld €°2T
QU} WO1}) BUA }UAS 10 /pue UO!DIAUOD ysuiese Suljeadde
saouaquas jeipoysn) T’L°TT
eajd a10jaq Wodas 3Ua}UaS-31d
JOY
JONUDW OU} O}U! POS1 Sq UDD UO!JOSEs MOU D 'G*| | UOHOSS
TT saydeyD
wo} uoljesedaid jel} WN Sd}eIISIZEW! SS
SANSOIISIP BDUaJ2q Z'H7'8
Hdld 941 p°€"8
yNno? UMOD ay} Ul SBULZeAaY AleUIWUI|a1d €°€'8
jleq
Suiupesig 7°38"
991}Deid JEUIWIID
‘SOLOOAN MO|Sq SU} SASSI Of SOP
AJDJQI| QU} Of BUIOD aSD9IJ ‘PE}OPdN UBEq SADY SUO!JOSsS SSeu]
 Bail

A defendant who is arrested will be detained in police custody and must then be brought
before the magistrates’ court within 24 hours. The magistrates’ court will then decide whether
to remand the defendant in custody, or whether to grant bail with or without conditions
pending the next substantive hearing in the case.
The magistrates will adopt a two-stage approach:

(a) The court will first determine if there has been a breach of the bail conditions previously
imposed. In practice the defendant will often admit the breach because there will usually
be compelling evidence available to prove this. However, if the defendant does not
admit to breaching their bail conditions, the magistrates are likely to hear oral evidence
from both the police officer who arrested the defendant and the defendant to determine
whether a breach has occurred.
If the magistrates determine that there has been a breach of bail conditions, they will
decide whether the defendant should be remanded in custody or on bail pending the
next hearing (unless the case can be disposed of at that hearing). So, a defendant who
has breached their bail conditions without good reason is likely to be remanded in
custody, although the magistrates may be persuaded to make a further grant of bail but
with more stringent conditions attached to it.

o Example
The police charge Liam with affray following an incident at a city centre pub and release
him on conditional bail pending his first appearance before the magistrates’ court one
week later. The condition is that Liam does not enter a defined area in the city centre.
The following day Liam attends the birthday party of a friend at another pub. This pub
is within the area Liam is prohibited from entering, although Liam genuinely thought that
it was outside this area. Liam is arrested for breaching his bail condition and is brought
before the magistrates’ court within 24 hours. Liam accepts that he breached his bail
condition but explains that he made an honest mistake. Liam makes an application for
bail and this is opposed by the CPS. The magistrates nevertheless decide to grant bail to
Liam, although this is made subject to more onerous conditions. In addition to keeping out
of the city centre, the magistrates impose an additional condition that Liam is not to enter
any public house.

Summary
In this chapter you have considered what the law says about bail along with some important
practice and procedural requirements, notably:
The right to bail and exceptions. The right to bail (or presumption in favour of bail) is
contained in s 4 of the Bail Act 1976 and the exceptions are set out in Part 1 of Sch 1 to
the Bail Act 1976.
Conditional bail. Bail may be granted unconditionally, or with a range of conditions where
the court believes it necessary under s 3(6) of the Bail Act 1976 to prevent the defendant
from doing a number of things, including failing to surrender, committing offences on bail
or interfering with witnesses.
Procedure for applying for bail at a contested bail hearing. The prosecution will start
by outlining their objections to bail, identifying the relevant ground(s) they are relying
on and applying the relevant factors to support that ground(s). The defence will then try
to counter these objections and will usually suggest a package of realistic conditions in
support of their application for bail.

123
Criminal Practice

Further applications for bail. A defendant is entitled to make two full applications for bail
before the magistrates’ court using any argument as to fact or law. If bail is refused, then
the defendant may only make a further bail application if they can raise new legal or
factual arguments as to why bail should be granted.
Appeals against decisions on bail. Both the defence and prosecution can appeal against
bail decisions made in the magistrates’ court. Such appeals are before a Crown Court
judge in chambers.
Absconding and breaches of bail. There are two offences of absconding, namely failing
without reasonable cause to surrender to custody (Bail Act 1976, s 6(1)) and having a
reasonable cause for failing to surrender but then failing to surrender as soon as it was
reasonably practicable to do so (Bail Act 1976, s 6(2)). Breaching a bail condition is not
an offence, but it does provide the police with a power of arrest under s 7 of the Bail Act
1976 and to bring the defendant before the magistrates’ court. The court will then have
to decide whether or not to grant bail or remand the defendant in custody if the case is
further adjourned and not dealt with on that day. -

Sample questions

Question 1
A solicitor is representing a defendant at his first appearance in court. The defendant has
been charged with inflicting grievous bodily harm. It is alleged he punched the victim,
fracturing his jaw. The defendant claims he was acting in self-defence. The defendant
does not know the victim. The defendant has no previous convictions for violence. His last
conviction was 18 months ago when he received a sentence of imprisonment of six months,
suspended for two years, for burglary. The defendant has three previous convictions
for failing to surrender to custody for a range of dishonesty offences. The defendant is
presently of no fixed abode.
Which of the following best explains the ground on which the prosecution is likely to
object to bail being granted to the defendant?
A_ Because there are substantial grounds to believe that the defendant will fail to
surrender to custody.
B Because the defendant may commit an offence whilst on bail given his antecedent
history.
C Because of the nature and seriousness of the offence with which the defendant has
been charged.
D Because there are substantial grounds to believe the defendant will interfere with a key
prosecution witness.
E Because of the defendant's character, antecedents, associations and community ties.

Answer
Option A is the best answer. This is the only ground on these facts for refusal of bail given
that the defendant is presently subject to a suspended sentence of imprisonment which is
likely to be activated if he is convicted. Moreover, he appears to have poor community ties
as we are told he is of no fixed abode and he also has a number of previous convictions
for absconding. All of the other options are either not grounds for refusing bail or do not
apply to these facts. To refuse bail on the ground of committing further offences, there must

124
 Bail

be ‘substantial grounds to believe’ that he will commit offences whilst on bail. The fact
that he ‘may’ is not sufficient and in any event, there is no evidence that he has committed
offences whilst on bail in the past, so option B is not the best answer. Option C is wrong
because it is not a ground for refusal of bail at all; it is a factor for the court to take into
account when considering the grounds, as is option E. Option Dis not the best answer
because there are no substantial grounds to believe that the client will interfere with a
prosecution witness. We are told that the defendant does not know the victim, nor is there
any suggestion that he has made threats to interfere with this witness or has ever done so
in the past (see Bail Act 1976, Sch 1).

Question 2
A solicitor attends the cells in the magistrates’ court to speak to his client who has been
remanded in custody on his first appearance in court. The defendant's case has been sent
to the Crown Court for a plea and trial preparation hearing (PTPH), and the defendant
wants to know whether he can make a further bail application in the magistrates’ court.
Can the defendant make a further bail application in the magistrates’ court?
A Yes, because he is entitled to make a further bail application relying on the same facts
and arguments as before.
B_ Yes, because he is entitled to make a further bail application but only if he can refer to
‘new argument’.
C_ Yes, because he is entitled to make two full bail applications before the
magistrates’ court.
D_ No, because his case has now been sent to the Crown Court and so his best option is
to appeal against the bail decision to the Crown Court.
E No, because his case has now been transferred to the Crown Court and so he can now
only apply for bail at the PTPH.

Answer
Option D is the best answer. At the first hearing after the hearing at which the magistrates
refused to grant bail, the defendant's solicitor is allowed to make a full application for bail
using any argument as to fact or law, even if they used the same arguments in the first
unsuccessful bail application. However, options A and C would not be available because
we are told that the defendant's case has now been sent to the Crown Court and so the
magistrates’ court will no longer have jurisdiction to hear a further bail application. Option
B is wrong because the requirement for new argument only applies after two full bail
applications have been made (Bail Act 1976, Sch 1, Pt IIA). Although option E is technically
correct, it will be much quicker to make a bail appeal before a judge in chambers in the
Crown Court rather than waiting some time for the PTPH in the Crown Court.

Question 3
A man has been charged with an offence of burglary and bailed to attend the magistrates’
court in two weeks’ time. The police attach a bail condition which requires the man to
report to his local police station on a daily basis between the hours of 5 pm and 7 pm. The
man obtains employment which requires him to work away from home and he forgets to
report to his local police station between the allotted times on two consecutive days.

125
Criminal Practice

What will happen to the man as a result of breaching his bail condition?
A The man is likely to be arrested for breaching his bail condition, but he has a
reasonable excuse for breaching it if he can provide evidence of his present
employment status.
B The man is likely to be arrested for breaching his bail condition and bailed to attend
the magistrates’ court to answer for this breach.
C_ The man is likely to be arrested for breaching his bail condition and will be detained in
police custody and must then be brought before the magistrates’ court within 24 hours
although he does not commit an offence by breaching this condition.
D The man will be given a formal warning for breaching his bail condition and any further
breach will result in his arrest and production before the magistrates’ court to answer
the breach.
E The man will be arrested for breaching his bail condition and will be detained in police
custody and must then be brought before the magistrates’ court within 24 hours. He
also commits an offence by breaching this condition.

Answer
Option C is the best answer. Although breaching a bail condition (whether imposed by
the police or the court) does not amount to a criminal offence, it will almost certainly result
in his arrest and he will then be detained in police custody and must be brought before
the magistrates’ court within 24 hours. The magistrates’ court will then decide whether to
remand the man in custody, or whether to grant bail with or without conditions pending his
next substantive hearing.
Option A is wrong because this would not amount to a reasonable excuse. Option B
is wrong because the man would be unlikely to be bailed as a result of breaching this
condition. The police will usually let the magistrates’ court decide what to do in such
circumstances. Option D is wrong because breach of bail is not something that would
trigger the issuing of a formal warning. Option E is wrong because breaching this type of a
bail condition does not amount to a criminal offence.

126
 Case Management and
Pre-trial Hearings
8.1 Introduction ; 128
8.2 Magistrates’ court case management directions 128
8.3 Plea and trial preparation hearing 130
8.4 Disclosure - prosecution, defence and unused material 134
8.5 Magistrates’ court trial preparation form 15?
8.6 Disclosure flowchart (magistrates’ court and Crown Court) 146

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
* magistrates’ court case management directions;
¢ plea and trial preparation hearing (PTPH);
¢ disclosure - prosecution, defence and unused material.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to understand and apply the following
law, practice and procedure on:
¢ What happens at a case management hearing in the magistrates’ court.
* The procedure by which an offence triable only on indictment or an either-way
offence gets to trial in the Crown Court.
¢ What happens ata preliminary hearing and the plea and trial preparation
hearing (PTPH) in the Crown Court.
¢ The disclosure obligations imposed on the CPS in respect of any unused material
in its possession.
¢ The circumstances in which a defence statement may or must be given.

127
Criminal Practice

8.1 Introduction
Prior to the Criminal Procedure Rules (CrimPR) coming into effect, there were no standard,
uniform case management directions that the magistrates’ court or Crown Court would give
in order to ensure that the CPS and the defendant's solicitor were properly prepared for trial.
The CrimPR have introduced this system, with a formal set of case management directions
with which the parties must comply. These directions include an obligation on the prosecution
to disclose their unused material to the defence who in turn may be required to provide the
prosecution with a defence statement.

8.2 Magistrates’ court case management directions

After a defendant has entered a not guilty plea to a summary offence, or has pleaded not
guilty to an either-way offence and has consented to a trial in the magistrates’ court (see
Chapter 6), the magistrates will fix the date when the defendant's trial is to take place. The
magistrates will also give a series of directions that the CPS and the defendant's solicitor
must comply with prior to the trial. This part of the chapter will look at the steps which the
defendant's solicitor needs to take in order to prepare their client's case for trial. These steps
include obtaining evidence from witnesses other than the defendant and obtaining details of
any ‘unused’ material the CPS has which may undermine the case for the prosecution or assist
the defence case.

8.2.1 Case management hearing

The court will give case management directions usually at the same hearing at which the
defendant enters their plea of not guilty (and, for an either-way offence, after the plea before
ee ocace hearing), or sometimes at a suPsrauely dase The ing at w

Wa if necessary. 1se fo
g V vt expe rm used to record
thee directions coiled the agistrates’ Cou =>parai nm. The blank form used
to record the directions is sed inp at 8. 5 balan. You will see that Parts 1 to 4 of the
form require the prosecution and the defence to provide very detailed information about
how they will prepare for and conduct the trial. This is to ensure the trial is effective on the
date that has been fixed for trial. Part 5 of the form contains all the decisions and directions
made by the court.

8.2.2 Additional trial preparation

S22.4 Securing the attendance of a witness at trial
Witnesses who are prepared to give a written statement are often reluctant to attend court to
give oral evidence at trial, and a prudent solicitor will secure their attendance by obtaining
a witness summons from the magistrates’ court. The procedural rules which apply (in the
magistrates’ court and Crown Court) when an application for a witness summons is necessary
are contained in Part 17 of the CrimPR.
The court will issue a witness summons if it is satisfied that the witness can give material
evidence in the proceedings and it is in the interests of justice for a summons to be issued
(Magistrates’ Courts Act 1980, s 97). The defendant's solicitor will usually ask a potential
defence witness to confirm in writing that they will attend court. If a negative response is
received, or if, as is much more likely, no response is received, the solicitor should then write

128
 Case Management and Pre-trial Hearings

to the court requesting that it issue a witness summons. The court will issue a witness summons
requiring the witness to attend the trial.

O2,a.2 Defence witness obligations

Under s 6C of the Criminal Procedure and Investigations Act (CPIA) 1996, a defendant
must serve on the CPS a notice setting out the names, addresses and dates of birth of any
witnesses they intend to call to give evidence. This rule was introduced to enable the CPS to
check whether any defence witnesses have previous convictions, although there is nothing
to stop the CPS, via the police, interviewing these witnesses (since there is no property in a
witness). Should the police wish to interview a defence witness, a code of practice exists which
governs the conduct of the interview (CPIA 1996, s 21A).
This obligation is relevant to both the magistrates’ court and the Crown Court, and thus exists
in addition to the obligation to serve a defence statement (see 8.4 below). The obligation, in
effect, exists in relation to all cases where a defendant pleads not guilty in the magistrates’
court or any case sent to the Crown Court for trial.
By virtue of the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits)
Regulations 2011 (SI 2011/209), the time limit to comply with s 6C of the CPIA 1996 is 28 days
from the date on which the prosecutor complies, or purports to comply, with s 3 of the CPIA 1996.
Failure to comply with these provisions could result in the inference provisions of s 11 of the
CPIA 1996 being applicable (see 8.4 below).
Unlike civil proceedings, there is no requirement for a defendant in a criminal case to serve
on the CPS copies of the statements taken from the witnesses whom they intend to call to
give evidence at trial. The only exception to this is reports from any expert witnesses whom
the defendant wishes to call to give evidence at trial. These must be served on the CPS (see
below).

8.2.2.3 Expert witnesses

Expert evidence may be required at trial in respect of any technical matter which is outside
the competence of the court. Evidence may, for example, be required from a forensic scientist
or a medical expert. Expert evidence should be obtained as soon as possible, although if the
defendant's case is funded by way of a representation order, the defendant's solicitor should
obtain prior authority from the LAA to instruct the expert.

Disclosure obligations
lf the defendant's solicitor wishes to call an expert to give evidence at trial, they must serve
a copy of the expert's report on the CPS in advance of trial. An expert witness is unlikely
to require a witness summons, although the defendant's solicitor must check the expert's
availability to attend trial so that the trial can be fixed on a date when the expert is available
to attend court.

8.2.2.4 Do all witnesses need to attend the trial?

Some witnesses may give evidence that is not in dispute. For example, in an assault case
the CPS may obtain a statement from a doctor who treated the victim for their injuries. If the
defendant accepts that they caused these injuries but claims that they were acting in self-
defence, there is little point in the CPS having to call the doctor to give evidence if the nature
of the injuries is accepted and the doctor's evidence will go unchallenged by the defendant.
Section 9 of the CJA 1967 provides that a written statement from a witness will be admissible
at trial (as opposed to the witness having to come to court to give evidence) provided that:
(a) it is signed and dated;
(b) it contains the following declaration:

129
Criminal Practice

This statement (consisting of [1] page signed by me) is true to the best of my knowledge
and belief and | make it knowing that if it is tendered in evidence | shall be liable to
prosecution if | have wilfully stated in it anything which | know to be false or do not
believe to be true.
(c) a copy has been served before the hearing on the other parties in the case; and
(d) none of the other parties has objected within seven days.
The statement may only contain matters which would have been admissible if the witness had
given oral evidence at court.
‘Section 9 witness statements should be used only for evidence which is not in dispute (although
the CPS routinely serves the statements of all prosecution witnesses in the form of as 9
statement). If the party receiving a statement which is served in this form wishes to challenge the
admissibility of anything said in the statement, or to cross-examine the maker of the statement,
it should object in writing within seven days. Although the CPS is the more likely party to rely on
the s 9 procedure, note that either party in criminal proceedings is entitled to use it.

8.2.2.5 Documentary evidence

Documentary evidence which may be used at trial will often take the form of plans or
photographs of the place where the alleged crime occurred. Any plans or photographs
should be verified by a witness statement from the person who prepared the plan or took the
photographs.

8.2.2.6 Obtaining unused material from the CPS

When the police investigate an alleged offence, they will compile a large amount of
documentary evidence (for example, witness statements, business records, CCTV footage,
forensic evidence, analysis of mobile phone data etc). In the case of summary-only or either-
way offences, any evidence obtained which will subsequently be relied upon as part of the
prosecution case at trial will be supplied to the defendant's solicitor as part of the initial
details of the prosecution case (IDPC).
The remaining material the CPS has in its possession but which it does not propose to rely
upon at trial is referred to as ‘unused material’. A common example of unused material is a
statement taken from a witness whom the police initially think may help the prosecution case,
but who in fact does not say anything that assists the case against the defendant. We will
look in more detail at the obligations placed on the CPS in relation to such unused material at
8.4 below.

8.3 Plea and trial preparation hearing

We will start this part of the chapter by considering which type of cases will go to the Crown
Court and be the subject of a plea and trial preparation hearing (PTPH).

8.3.1 Offences triable only on indictment

In Chapter 6 we saw that where an adult appears before a magistrates’ court charged with
an offence triable only on indictment, the court must send them to the Crown Court for trial
pursuant to s 51(1) of the CDA 1998:
(i) the either-way or summary offence appears to the court to be related to the offence
triable only on indictment; and
(ii) in the case of a summary-only offence, it is punishable with imprisonment, or involves
obligatory or discretionary disqualification from driving (CDA 1998, s 51(11)).

130
 Case Management and Pre-trial Hearings

© Example
Juan is charged with robbery and assault occasioning actual bodily harm. The CPS
alleges that Juan attacked his victim to steal the victim’s mobile phone and, in the
process, struck the victim in the face, causing the victim to sustain a fractured nose.
Robbery is an offence triable only on indictment and so must be sent to the Crown Court
for trial. Assault occasioning actual bodily harm is an either-way offence. It fulfils the
‘requisite conditions’ because it is related to the offence triable only on indictment.
If Juan had been charged with common assault (a summary-only offence) instead of
assault occasioning actual bodily harm, the ‘requisite conditions’ would still be satisfied.
The common assault charge is related to the offence triable only on indictment, and
common assault is punishable by imprisonment.

8.3.1.1 The sending hearing in the magistrates’ court

An adult defendant charged with an offence triable only on indictment will be sent straight
to the Crown Court for trial following a hearing in the magistrates’ court, pursuant to s 51 of
the CDA 1998. The purpose of the hearing is to determine whether an offence triable only on
indictment is charged and whether there are related offences which should also be sent to the
Crown Court.
When the magistrates have determined that the defendant is charged with an offence triable
only on indictment, they will set a date for the PTPH at the Crown Court - or a date for a
preliminary hearing in the Crown Court if such a hearing is necessary (see below) - and will
remand the defendant either on bail or in custody to appear at the Crown Court. Unless a
preliminary hearing is to take place at the Crown Court, the magistrates will also give a set
of standard case management directions for the CPS and the defendant's solicitor with which
they must comply prior to the PTPH taking place. The magistrates will give the defendant a
notice specifying the offence(s) for which they have been sent for trial and the Crown Court at
which they are to be tried. A copy of the notice will also be sent to the relevant Crown Court
(CDA 1998, s 51D).

8.3.2 Either-way offences

8.3.2.1 Cases to which the allocation procedure applies
A defendant charged with an either-way offence who pleads not guilty at plea before venue
will be tried in the Crown Court if either the magistrates decline jurisdiction, or the defendant
elects Crown Court trial at the allocation hearing (see Chapter 6). In such a case the
defendant is sent to the Crown Court forthwith, as for offences triable only on indictment (CDA
1998, s 51(1)).

8.3.2.2 Linked summary offences

Just as with offence triable only on indictment, a defendant who is sent for trial in respect of
an either-way offence may also be charged with another offence that is summary-only.
lf the summary-only offence is common assault, taking a conveyance without consent, driving
whilst disqualified or criminal damage, the defendant may be tried for these offences at the
Crown Court if the offence is founded on the same facts as the either-way offence, or is part of
a series of offences of the same or a similar character (CJA 1988, s 40(1)).

o Example
Brett is charged with theft of goods from a motor vehicle and taking a conveyance without
consent. The CPS alleges that Brett took a vehicle without the owner’s consent and stole a
wallet from the vehicle whilst it was in his possession. Brett is sent to the Crown Court for
trial on the theft charge after he enters a not guilty plea at the plea before venue hearing

131
Criminal Practice

and elects Crown Court trial. The summary-only offence of taking a conveyance without
consent can also be tried in the Crown Court as it is founded on the same facts as the
either-way offence.
In addition to the above, if the magistrates send a defendant for trial for one or more
either-way offences, they may also send the defendant for trial in relation to any summary-
only offence with which they are also charged if the summary-only offence:

(a) is punishable with imprisonment or disqualification from driving; and

(b) appears to the court to be related to the either-way offence (CDA 1998, s 51).
If the defendant, on conviction for the either-way offence, pleads guilty to the summary-only
offence, the Crown Court can sentence for the summary offence, although its sentencing
powers are limited to those of the magistrates. If the defendant is acquitted of the either-way
offence or pleads not guilty to the summary-only offence, this offence must be remitted back
to the magistrates’ court for trial.

© Example
Natalie is sent for trial to the Crown Court on a charge of assault occasioning actual
bodily harm. She also faces a charge for the summary-only public order offence of using
threatening behaviour. Both charges arise out of the same incident. If Natalie is convicted
of the assault charge at the Crown Court, she can also be sentenced for the public order
offence if she pleads guilty to it. If Natalie is acquitted of the assault charge or pleads not
guilty to the public order offence, however, the Crown Court must remit the public order
offence back to the magistrates’ court for trial.

8.3.3 Preliminary hearings in the Crown Court

The CrimPR contain standard case management directions that the magistrates’ court will
issue when a case is sent for trial to the Crown Court. In some limited circumstances, however,
when an offence triable only on indictment is sent for trial, a preliminary hearing may take
place at the Crown Court. If such a preliminary hearing is needed, any directions necessary
will be given by the judge at this hearing.
A preliminary hearing will take place for an offence triable only on indictment if:
(a) there are case management issues which the Crown Court needs to resolve;
(b) the trial is likely to exceed four weeks;
(c) it is desirable to set an early trial date;
(d) ) the defendant is under 18 years of age; or
(e) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary
hearing.
A preliminary hearing must take place within 14 days of the date on which the magistrates
send the case to the Crown Court.

8.3.4 The PTPH

For those cases sent to the Crown Court where a preliminary hearing is not required, the
first hearing in the Crown Court will be the PTPH. The purpose of the PTPH is to enable the
defendant to enter their plea and, if the defendant is pleading not guilty, to enable the judge
to give further case management directions for the CPS and the defendant's solicitor to
comply with prior to trial.
Where a case has been sent for trial and no preliminary hearing is held, the PTPH should take
place 28 days after sending.

132
 Case Management and Pre-trial Hearings

8.3.4.1 The arraignment

At the start of the PTPH the defendant will be arraigned. This means that the count(s) on
the indictment will be put to the defendant who will either plead guilty or not guilty (see
Chapter 10). If the defendant pleads guilty to some counts but not guilty to others, the jury at
the defendant's trial will not be told about the counts to which a guilty plea has already been
entered (so they are not in any way prejudiced against the defendant).
It will sometimes be the case that a defendant charged with several counts will agree with
the CPS to plead guilty to certain counts if the CPS does not proceed with other counts. If this
happens, at the arraignment, the CPS will offer no evidence in respect of these other counts
and the judge will order that a verdict of not guilty be entered. The CPS will also offer no
evidence at the arraignment if, since the case was sent for trial, further evidence has become
available which leads it to conclude that there is no longer a reasonable prospect of securing
a conviction. In this case, the judge will again order that a not guilty verdict be entered, and
the defendant will be formally discharged.
As an alternative to offering no evidence, the CPS may ask that a count ‘lie on the court file’.
This may happen when there are several counts on the indictment and the CPS evidence
in respect of each count is strong. If the defendant is prepared to plead guilty to the more
serious counts, the CPS may agree to lesser counts being left on the file. In such a case a not
guilty verdict will not be entered and (in theory) with the leave of the court the CPS may be
allowed to re-open the case at a later date.

8.3.4.2 Guilty pleas

If the defendant pleads guilty at the PTPH, the judge will either sentence immediately or, if
necessary, adjourn sentence for the preparation of pre-sentence reports, such as medical
reports or reports from the Probation Service. The judge may also need to adjourn the case
if the defendant pleads guilty but disputes the specific factual allegations made by the
prosecution witnesses. In such a situation a separate hearing (called a ‘Newton hearing’ -
see Chapter 11) will be necessary to determine the factual basis on which the defendant
will be sentenced. If the case is adjourned, the defendant will either be released on bail or
remanded in custody pending either the sentencing hearing or the Newton hearing.

8.3.4.3 Indication of sentence

Following the judgment of the Court of Appeal in R v Goodyear [2005] EWCA Crim 888, a
judge is now permitted at the PTPH to give a defendant an advance indication of the likely
sentence they would receive if they were to enter a guilty plea at that stage. The defendant
must specifically ask for such an indication. If the judge gives an indication and the defendant
then enters a guilty plea, the indication given by the judge will be binding. In practice,
‘Goodyear’ indications are quite common.

8.3.4.4 Not guilty pleas

lf the defendant pleads not guilty at the PTPH, the judge will then consider if any further
directions are necessary to prepare the case for trial (over and above those given by the
magistrates’ court when the case was sent to the Crown Court). To determine whether further
directions may be necessary, the judge will require the prosecution and defence advocates
present at the PTPH to be in a position to supply the following information:
(a) a summary of the issues in the case;
(b) details of the number of witnesses who will be giving oral evidence at trial and the
estimated length of the trial;
(c) whether the transcript(s) of the defendant's police station interview(s) require(s) editing;
(d) whether a defence statement has been served and, if so, whether there is any issue as to
the adequacy of the statement;

133
Criminal Practice

(e) whether the prosecution will be serving any additional evidence;

(f) whether there is any dispute as to the adequacy of disclosure of unused material by the
prosecution;
(g) whether any expert evidence is to be called and, if so, whether any additional directions
are needed in respect of this; )
(h) whether any further directions are necessary concerning hearsay or bad character
evidence;
whether special measures are required for any witnesses;
any facts which can be formally admitted;
(k) any points of law or issues concerning the admissibility of evidence which are likely to
arise at trial;
(I) dates of availability to attend trial of the witnesses and the advocates.

8.3.4.5 Listing the case for trial

At the PTPH, the judge will give any further case management directions that are necessary
in the light of the above information disclosed by the parties, and then either fix a date for
the defendant's trial or place the case in the ‘warned list’. The warned list is a list of cases
awaiting trial that have not been given a fixed date for the trial to start. If a case is placed in
the warned list, the Crown Court will contact the defendant's solicitor to let them know that the
case has been listed for trial shortly before the date when the trial is due to start.
At the conclusion of the PTPH, the defendant will either be released on bail, or remanded in
custody pending his trial.

8.3.4.6 Change of plea

A defendant who initially enters a not guilty plea may, at the discretion of the judge, change
this to a guilty plea at any time before the jury return their verdict. This is likely to happen if a
defendant admitted their guilt but pleaded not guilty in the hope that a successful submission
of no case to answer could be made at the end of the prosecution case but before the
defendant needed to give evidence. If the submission is unsuccessful, the defendant will
change his plea to guilty. A defendant may also change their plea to guilty during the trial if
the judge makes a ruling on a point of law or the admissibility of a piece of evidence which
deprives the defendant of a defence on which they wanted to rely.

8.4 Disclosure -— prosecution, defence and unused material

The disclosure obligations with which both the CPS and the defendant must comply in a case
before the magistrates’ court or the Crown Court are contained in the CPIA 1996.
To supplement these statutory provisions there is also a ‘Judicial Protocol on the Disclosure of
Unused Material in Criminal Cases and Attorney-General’s Guidelines on Disclosure’ along
with a ‘National Disclosure Improvement Plan’ produced jointly by the police and the CPS.
These set out the principles to be applied to disclosure and the expectations of the court, its
role in disclosure, particularly in relation to case management, and the consequences if there
is a failure by the prosecution or defence to comply with their disclosure obligations. This
chapter will just be focussing on the key provisions contained in the CPIA 1996.

8.4.1
Just as in the magistrates’ court, the CPS is required to serve on the defendant all the
evidence on which it wishes to rely at trial to prove the defendant's guilt.

134
 Case Management and Pre-trial Hearings

In addition to this evidence, the prosecution will also have a quantity of ‘unused material’,
such as statements from witnesses whom the CPS does not latand ue call to GWve.9evidence at

be disclosed if it ‘might eorreet be coneiterdd capable of undermining the case for the
prosecution ... or of assisting the case for the accused’. Examples of the types of material that
require disclosure include:
(a) records of the first description of a suspect given to the police by a potential eyewitness if
that description differs from that of the defendant;
(b) any information provided by the defendant which indicates an innocent explanation for
the offence;
(c) material casting doubt on the reliability of a witness (eg previous convictions);
(d) material casting doubt on the reliability of a confession; and
(e) any statements from witnesses which appear to support the defendant's account.

o Example
Tony is charged with assaulting Guy. Tony denies the offence and claims that Guy threw
the first punch, and that he was acting only in self-defence. The CPS serves on Tony’s
solicitor several statements from eyewitnesses who state that Tony threw the first punch.
The CPS also has a statement from another witness who says that Guy threw the first
punch. The CPS does not intend to rely on evidence from this witness at trial, but it is
under an obligation to serve a copy of the statement on Tony’s solicitor. The statement
undermines the prosecution case that Tony threw the first punch and assists Tony’s case
that he was acting in self-defence after being attacked.
The case management directions referred to above give time limits as to when the
prosecution must make initial disclosure of any unused material in their possession which
satisfies the test in s 3 of the CPIA 1996. The CPS usually sends to the defendant's solicitor
a schedule of all the non-sensitive unused material in its possession, together with copies
of any items on the schedule which satisfy the test in s 3.
The duty of disclosure on the CPS is ongoing, and so the CPS must apply this test to any
further material it receives after making initial disclosure (CPIA 1996, s 7A). The CPS must
also consider the need to make further disclosure in the light of any information received
from the defence about the nature of the defence case (see below).
If the defendant's solicitor considers that the disclosure made by the CPS is incomplete,
they will request disclosure of any ‘missing’ items when drafting the defence statement
(see below).
Should the CPS refuse to supply to the defendant's solicitor items which the solicitor
has requested, the solicitor may apply to the court to request the specific disclosure of
such items under s 8(2) of the CPIA 1996. Such an application may be made only if the
defendant has provided a defence statement.

8.4.1.1 Can the prosecution withhold disclosure ofunused material?

In addition to having non-sensitive items of unused material, the CPS may also have ‘sensitive’
items which it does not wish to disclose. Examples include:
(a) material relating to matters of national security orintelligence;
(b) material relating to the identity informants
ofpolice or undercover
police officers;

135
Criminal Practice

(c) material s and methods relied upon by the police (eg covert

(d) material relating to a child witness (such as material generated by a local authority social.
services department).
lf such material satisfies the test for disclosure to the defence i
above), the dic ir
is the decision of the court as to whether disclosure can be avoided on the picurae of public
interest immunity (R v Ward [1993] 1 WLR 619). The CPS must therefore make an application
to the court for a finding that it is not obliged to disclose the relevant material. The relevant
procedural rules which must be followed when a public interest immunity application is made
to the court are set out in Part 15 of the CrimPR and this type of an application will often be
made ex parte (ie without notice to the defence).
It is usual, when drafting a defence statement (see below), to ask the CPS if a schedule
of sensitive materials has been prepared and, if so, whether the CPS has made any
application to the court for an order that it is not obliged to disclose the existence of such
material.

8.4.2 Defence disclosure

Once the CPS has made its initial disclosure of unused material, the onus switches to the
defendant's solicitor. In the magistrates’ court, if the defendant enters a not guilty plea, and
decides to serve a defence statement (sometimes referred to as a ‘Defence Case Statement’
or DCS), they should do so within 14 days of the CPS making initial disclosure of any unused
material it has. The defence statement will be served on the CPS and a copy of the statement
sent to the court. In the Crown Court, the time period is extended to 28 days from service of
unused material by the prosecution (Criminal Procedure and Investigations Act 1996 (Defence
Disclosure Time Limits) Regulations 2011 (SI 2011/209)). If the case is particularly complex and
14/28 days will be insufficient, the defendant may apply to the court for a longer period within
which to serve the defence statement. In a case involving two or more co-accused, s 5A of the
CPIA 1996 allows the court to make an order that a copy of the defence statement made by
each defendant is to be served on the other defendants in the case. The requirements for the
contents of a dsterce statement are set out below.

For a case in the magistrates’ court, the defendant's solicitor should consider serving
a defence statement on the CPS only if they think that the CPS will, in the light of the
information disclosed in the statement, be in a position to disclose additional unused
material that may assist the defence case. Such a situation is likely to arise only if the
defence statement contains additional details about the defence of which the CPS was
previously unaware.
In reality, it is extremely rare for a defence statement to be served on the prosecution in the
magistrates’ court. The possible advantage of gaining additional disclosure from the CPS is
heavily outweighed by the disadvantage of giving away too many details of the defence case
to the CPS prior to the trial when there is no obligation to do so.

8.4.2.1 Contents of the defence statement

The contents of the defence statement are prescribed by s 6A of the CPIA 1996, as amended
by s 60 of the CJIA 2008. The defence statement must be a written statement which:

136
 Case Management and Pre-trial Hearings

(a) sets out the nature of the defence, including any particular defences on which the
defendant intends to rely (for example, alibi or self-defence);
(b) indicates the matters of fact on which the defendant takes issue with the prosecution and
why they take such issue;
(c) sets out particulars of the matters of fact on which the defendant intends to rely for the
purposes of their defence;
(d) indicates any points of law (including any point as to the admissibility of evidence) that
the defendant wishes to take at trial, and any legal authority on which the defendant
intends to rely for this purpose; and
(e) in the case of an alibi defence, provides the name, address and date of birth of any alibi
witness, or as many of these details as are known to the defendant.
The defence are also under a continuing duty to update the defence statement if the details to
be given under any of the above points should change before trial (if, for example, a witness
comes forward who is able to support an alibi given by the defendant and whose existence
was unknown at the time the initial defence statement was prepared) (CPIA 1996, s 6B(3)).

8.4.2.2 Obtaining the defendant's approval of the defence statement

6E of the CPIA 1996 provides that defence statements will be deemed to be given
with the authori? of the defendant unless osala isae A defendant’ s solicitor should
therefore fel ts and approves a copy of the defe:
rved. As the Raters Stofernent will ayes be | 's
the od practice will be for the defendant's solicitor to sign the eater noereht
which is served, and for the defendant to sign a copy of the statement which will be kept on
the solicitor’s file.

8.4.2.3 When may the court draw an adverse inference?

Defence statements are effectively obligatory for defendants pleading not guilty in the Crown
Court because, if there are any ‘faults’ in disclosure given by the defence, the court may draw
an adverse inference from this when determining the defendant's guilt (CPIA 1996, s 11).
These faults include:
(a) failing to provide a defence statement at all;
(b) late service of the defence statement;
(c) serving a defence statement that is incomplete;
(d) serving a defence statement which is not consistent with the defence put forward at
trial; and
(e) failing to update a defence statement.
If any of these faults occurs the court or, with leave, any other party (such as the prosecution
or any co-accused) may make such comments as appear appropriate, and the court or jury
may draw such inferences as appear proper when deciding whether the defendant is guilty.

© Example 1
Amanda is charged with theft. Her case is sent for trial to the Crown Court. She enters
a not guilty plea at the PTPH. Amanda fails to serve a defence statement on the CPS.
At her trial Amanda raises the defence of alibi and claims that the prosecution witness
who identified her as the person who committed the theft is mistaken. As Amanda failed
to serve a defence statement setting out this defence, the trial judge or, with leave, the
prosecution, may comment on this and the jury may draw such inferences as appear
proper (which is likely to be an adverse inference).

137
Criminal Practice

o Example 2
Javed is charged with unlawful wounding. His case is sent for trial to the Crown Court.
At the PTPH he enters a not guilty plea. In his defence statement, Javed claims that
he was not present at the time of the alleged incident and raises the defence of alibi.
At his trial, Javed accepts that he was present at the time of the incident and instead
raises the defence of self-defence. As there is a disparity between what was said in his
defence statement and the defence he is now raising at trial, the judge or, with leave,
the prosecution, may comment on this and the jury may draw such inferences as appear
proper (which is likely to be an adverse inference).

8.4.3 Further disclosure obligations on the prosecution

The only ‘reward’ for a defendant who provides a defence statement is that the CPS must
review its initial disclosure of unused material and determine if there is any further unused
material in its possession which, in light of the matters contained in the-defence statement,
might now be deemed capable of undermining the case for the prosecution or of assisting the
case for the defendant (CPIA 1996, s 7A).

o Example
Sergio is jointly charged with Philip with the production of cannabis at premises owned
by Philip. Sergio’s defence is that he knows nothing about the production of cannabis
at the premises and was employed by Philip at the premises solely to clean and
valet cars. The CPS is not aware that this is the basis of Sergio’s defence because he
refused to answer any questions when interviewed at the police station. As part of their
investigations, the police recover from the premises a number of documents, including
receipts for various items of car-cleaning equipment. The CPS does not intend to use
these receipts in evidence and is not under an initial duty to disclose such documents
to Sergio’s solicitor, because the documents neither undermine the prosecution case nor
assist the case for the defence (because there has been no indication as to what the
defence case is).
Sergio’s solicitor subsequently serves a defence statement on the CPS stating that
Sergio knew nothing about the premises being used for the production of cannabis and
confirming that Sergio was employed at the premises solely to valet cars. The CPS is
under a continuing duty of disclosure and so, in the light of the defence statement, it must
now disclose the receipts to Sergio’s solicitor, as the receipts assist Sergio’s defence that
he had an innocent explanation for being at the premises.

8.4.3.1 Can the defence challenge the prosecution failure to provide unused material?
Section 8(2) of the CPIA 1996 enables a defendant who has provided a defence statement
to make application to the court if the CPS has failed to comply with its continuing duty of
disclosure in light of the matters contained in the defence statement. The defendant may ask
the court for an order that the CPS disclose material provided the defendant has reasonable
cause to believe that there is prosecution material which should have been, but has not been,
disclosed. The defendant will only be allowed to make such an application if they have set
out in detail in their defence statement the material which they consider the CPS has in its
possession which it has not subsequently disclosed. The procedure to be followed when such
an application is made is contained in Part 15 of the CrimPR.
A flowchart summarising the disclosure obligations imposed on both the CPS and the
defendant in both the Crown Court and the magistrates’ court is provided at 8.6 below.

138
 Case Management and Pre-trial Hearings

8.5 Magistrates’ court trial preparation form

Figure 8.1 a-g Magistrates’ court trial preparation form

ae Magistrates’ Court +Preparation for effective trial

Criminal Procedure Rules Parts 1 & 3
w This form: a If the defendant pleads not guilty, and the court requires:
e collects information about the case that the court will need e the prosecutor must complete Parts 1, 2 and 4
to arrange for an effective trial: CrimPR rules 3.2 and 3.3 e the defendant must complete Parts 1, 3 and 4
e records the court's directions: CrimPR rule 3.5. e the court will record directions in Parts 4 and 5.
See the separate notes for guidance on the use of this form.
w After the court gives directions for trial, if: There is extra space on page 4, or attach extra sheets if required.
e information about the case changes, or The electronic version of this form will expand.*
e you think another direction is needed
A list of standard trial preparation time limits is at page 7.
you must tell the court at once: CrimPR 1.2(1) & 3.9.

Part 1: to be completed by the prosecutor and the defendant (or defendant’s representative)

Defendant Date of birth:

Age: ears

Offence(s) | |

1 Prosecution contact details

Prosecuting
authority

2 Defendant’s contact details

Defendant
Mobile

3 Defendant’s representative (ifapplicable)

Solicitor

Ref

Representation is: legal aid granted C]

Defendant's representative to complete legal aid applied for (J
privately funded Cc

*Forms for use with the Rules are at: http//www justice gov uk/courts/procedure-rules/criminal/formspage.

(continued)

139
Criminal Practice

Figure 8.1 (continued)

Part 2: to be completed by the prosecutor

Case management information

Are there any pending enquiries or lines of investigation? CL] Yes [.]No
If yes, give brief details:

4.2 Does the prosecutor intend to serve more evidence? (] Yes [-] No
If yes, give brief details:

4.3 Does the prosecutor intend to serve a diagram, sketch map or photos? [] Yes [] No
If yes, give brief details:

4.4 The prosecution will rely on: defendant's admissions in interview

Tick/delete as appropriate defendant's failure to mention facts in interview
[a summary] [a record] of the defendant's interview
[expert] [hearsay] [bad character] evidence
[CCTV] [electronically recorded] evidence OOOOO
45 What equipment (tape / DVD player, etc.) will the prosecutor need in the trial courtroom?
The prosecutor must make sure that the tape /DVD can be played in the courtroom.
46 Does the prosecutor presently expect the case to involve a complex, novel or unusual point of [] Yes [_] No
law and /or fact? This information will help the court officer to list the case effectively.
If so what?

Applications for directions

Does the prosecutor want the court to vary a standard trial preparation time limit? [] Yes [.]No
If yes, give details:

5.2 Does the prosecutor want the court to arrange a discussion of ground rules for questioning? ] Yes []No
If an intermediary is appointed, the court must discuss ground rules with the intermediary and
advocates. A discussion may be helpful in other cases.
5.3 Does the prosecutor want the court to make any other direction? [1 Yes [No
If yes, give details:

Part 3: to be completed by the defendant (or defendant’s representative)

Advice on plea and absence

Does the defendant understand that:
(a) he or she will receive credit for a guilty plea? J Yes [-] No
A guilty plea may affect the sentence and any order for costs
(b) the trial can go ahead even if he or she does not attend? 1 Yes [J No
CrimPR tule 37.11
Partial or different guilty plea
lf more than one offence is alleged, does the defendant want to plead guilty to any of them? ClYes CINo LINA
If yes, which offence(s)?
ihe Does the defendant want to plead guilty, but not on the facts alleged? [-] Yes [[] No
If yes, the court must be given a written note of the facts on which the defendant wants to
plead guilty.

Page 2

140
 Case Management and Pre-trial Hearings

Figure 8.1 (continued)

73 Does the defendant want to plead guilty, but to a different offence? CJ Yes [No
If yes, what offence?

8 Case management information

8.1 Initial details of the prosecution case should have been served: CrimPR rule 10.2. The following statements are to help the
court find out what is in dispute and give appropriate directions for trial. Tick as appropriate.
The defendant [carried out] [took part in] the conduct alleged C]Yes LJNo [JNA

The defendant was present at the scene of the offence alleged L]Yes LJNo LINA

The defendant was correctly identified []Yes [JNo [JNA

The defendant was arrested lawfully []Yes LJNo [JNA

[Nature of injury] [extent of loss or damage] L]Yes LJNo [INA
If not agreed, explain what is in dispute:

[Fingerprint] [DNA] evidence []Yes CJNo [INA

If not agreed, explain what is in dispute:

[Medical] [identification of drug] [other scientific] evidence ClYes (JNo [INA

If not agreed, explain what is in dispute:

The [alcohol] [drug] testing procedure was carried out correctly Clyes CINo [INIA
If not agreed, explain what is in dispute:

Exhibits and samples were collected and delivered as stated (i.e. continuity) [lYes (JNo CINA
If not agreed, explain what is in dispute:

Defendant's interview [summary] [record] is accurate []Yes [JNo [JNA

If not agreed, explain what is in dispute:

The defendant was [disqualified from driving] [subject to the alleged court order] at the time of Clyes (No [INA
the offence alleged
The list of the defendant's previous convictions is accurate []Yes [JNo LINA
If not agreed, explain what is in dispute:

8.2 What are the DISPUTED issues of fact or law for trial, in addition to any identified in CrimPR rules 3.2(2)(a), 3.3(a)
paragraph 8.1? Give details. This question is to help the court find out what is in dispute
and give appropriate directions for trial.

Page 3

(continued)

141
Criminal Practice

Figure 8.1 (continued)

8.3 Will the defendant give a defence statement? Giving a defence statement is voluntary, but if L] Yes [] No
one is given it must include the information collected in paragraphs 8.1 and 8.2 and must i
include particulars of facts relied on by the defence.
8.4 Will the defendant need any tape or DVD player, etc. in the trial courtroom?
The defendant must make sure that any tape / DVD can be played in the courtroom.
8.5 Does the defendant presently expect the case to involve a complex, novel or unusual point of [J Yes [-] No
law and/or fact? This information will help the court officer to list the case effectively.
If so what?

9 Admissions
Can any facts which are not in dispute be recorded in a written admission? L] Yes [] No
Undisputed facts might include any statement accepted in paragraph 8.1.
If yes, a written admission [is set out here] [is attached] [will be served later].
Facts which are admitted are evidence: CrimPR rule 37.6 & Criminal Justice Act 1967, s.10.
If no, explain why:

10 Applications for directions

10.1 Does the defendant want the court to vary a standard trial preparation time limit? [] Yes [_] No
If yes, give details:

10.2 Does the defendant want the court to arrange a ground rules discussion? [1] Yes ] No
If an intermediary is appointed, the court must discuss ground rules with the intermediary and
advocates. A discussion may be helpful in other cases.
10.3 Does the defendant want the court to make any other direction? [] Yes [[] No
If yes, give details:

Parts 2 & 3 continued: additional information

Use this space to record any additional information, or to continue an answer started above:

Page 4

142
 Case Management and Pre-trial Hearings

Figure 8.1 (continued)

aU} Suu}
ynod 9q Jad noo 9q Jad
0} JO 0} 40 SSOU}IM
ay} BoUEpIAZ
(;y,)pasinbes ay) (y,)pauinbau
soUepIA

“SS@UJIM UORNOSSOId e BUILEXe-SSOL0 0} pemole eq jou AeW JUPUBJep aly ‘SeSeD BOS Ul “SSAUIIM aU} JO} Papseu alu a4y aseazoUl AewW AaY) “Ajlliqesip e}epowWWOIDe 0} SAuNSeAW JAYJO JO LOHEUIWEXA Ul syealg ‘AEIPAUUEyU!
10-4 pea 104 peed

Oo} o| /O|

‘QQU@PIAS SE MAIAAJUI PEpsode! OApIA ‘e}eAUd UI 40 YUL] BAl| Aq eouUapIAa ‘SuaEJS epnjou! AeW sainseewU Jeyjo JO JelNeds,,
| |
samed souepueye eee
pesodoid
samed
ajajdwod d Se
souRpuaye
pasodoid wa
$1 HOLL
YL.
o oO oO C]
LNOd ay} pue (aAleyUasaides SsjUepUaJap a4} JO) JUePUAJap BU} ‘10}NDaSOId ay} Aq pajajdwiod aq 0} :p Wed

yjog CJ 669yjog fa
SSOU}IM
ad o} Bae
Bees
aja/dwiod
0}
69 UI (L)Z'L U!
}| BoUaPIAS }| BUApIAS
SAYEW SeyewW
(L)Z'L aN
aSedBAB
ajajdwoo a}a/dW09
YqWUD eSedaAI6
dy} 0}
Of du} 0}
juosied
SSauyiM ,uosied
YqWUD
0} U! 0} U! SSAuIM
ANss|
jJuepuajag aNssi
J0}NIESOld
:a9U0
Sjuepuaseq
saweu Bu}
payndsip au}
payndsip
:a9U0 JO} Je JO)
AWessedau JNOD AWessad9u
yeu, yeu,
Je
YNOD ay}

ay}
| {Ja}
SaJNSeal JsnwW sainseaw
jJa}
sn aw
Aloads
NOA xx
Ajloads
ipepesu ipepeeu abeg
G
JayjO JayjO
NOA ‘sabueyd
JO ‘os JO ‘Os
‘sabueyo jeI0edS JI |eI0edS4

UOEUUOJU!

UOEUOJU!
a}9/AWI0D
J] abenbue| ajajdwoa
J] aBenbue|
gpapaau epapeau
‘yog|eIp SY} ‘ygjelp
0} 0}
Ajioads
Jayaiduayuy
JO}]NIOSOld J] juepUajaqAjloads
sayaiduayuy
SIY] pue “S8SSAUJIM pue
{| ‘os ‘os
“SASSOUJIM| |
4! 48pun CL
ooHesHee ||
4! JePpun
4LL gL
| BOUaJap
¥LL 8h

UOINIGSOJd
SSOUYM pa}oedxySSU}IM

JO JO
OWEN) OWEN

LL (t t ; : (g (9 ra
Oj
SE
JO
“SSOUIIM
}S1y
Pa}Dadxe
JOY
}SI]
aAib
JI,
Oy
JUEPUAJEP
SI
BOUBJAp
OU}
LUIY
‘BoUapIAS
Ajey!]

(continued)

143
Criminal Practice

Figure 8.1 (continued)

Defendant’s name:

Part 5: record of court’s decisions and directions for effective trial

13 Directions for trial The court must actively manage the case by giving any direction appropriate to the needs of that case as
early as possible: CrimPR rule 3.2(3). Complete or delete the following as appropriate
13.1 The prosecutor must serve any further evidence by: (date)
13.2 The prosecutor must comply with the initial duty of disclosure by: (date)

13.3 A party who wants to use a tape / DVD player, etc. must check before the trial that it can be played in the courtroom.

13.4 The court expects only the witnesses listed as attending in Part 4 to give evidence in person and the evidence of other
witnesses to be read.
13.5 [Witness summons / warrant] [other steps to secure attendance] for witness(es): insert name(s}. . CrimPR Part 28;
rule 3.8(4)

13.6 Interpretation in the language(s) specified in Part 4 is required for: To be arranged by:
(defendant) Court staff CrimPR rule 3.8(6)
(witness) Prosecutor [_] Defendant [_]
AST Special or other measures are directed for: As specified in:
(defendant) Part 4(_] paragraph 13.11 [_]
(witness) Part4(_] paragraph 13.11 [_]
(witness) Part 4 (_] paragraph 13.11 (_]
13.8 The court will discuss ground rules for questioning on: (date)
If an intermediary is appointed forawitness or for the defendant, the court must discuss the ground rules for questioning with the
intermediary and the advocates before the witness or defendant gives evidence. Sufficient time must be allowed for this.
13.9 The defendant in person may not cross-examine witness(es): insert name(s) CrimPR Part 31
and the court directs cross-examination for that purpose by: name representative
13.10 Standard trial preparation time limits apply [except] [with these variations]:

13.11 Other directions:

14 Arrangements for trial

Date:
Time:
ee ee
Court: Gunn
Penance
er
Estimated trial length.
Include time for the
court's deliberations and
decision. A detailed trial timetable must be considered and attached if necessary: CrimPR rules 3.8 & 3.10
After the court gives directions for trial, if information about the case changes, or you think another direction is needed, you must tell
the court at once: CrimPR rules 1.2(1) & 3.9.

SIQMARUTES 3? 6 sn aa cts heared hE ee eee [on the direction of] [court]

SIQIOG!: sks coaceconatcanss nwsneticaceeeptens acd a cbuctetinettaseshce eae ie ener tr eee eee te ee for prosecution
SIGHGG! ccdhccaszsussnascaeackocts devs eantibeaeesetacencse coven cob erauciyrear seal. Vere yteh tae ay [defendant] [defendant's solicitor]
DANG S:.:arsststiarnsssereinee
acme eee cee

Page 6

144
 Case Management and Pre-trial Hearings

Figure 8.1 (continued)

Standard trial preparation time limits

The court can vary any of these time limits. Time limits marked * are not prescribed by rules or other legislation.
The total time needed to comply with all these time limits is 6 weeks (9 weeks if paragraph m applies).
Written admissions (Criminal Procedure Rules, r.37.6; Criminal Justice Act 1967, s.10)
The parties must serve any written admissions of agreed facts within 14 days.*

Defence statement (Criminal Procedure Rules, r.22.4; Criminal Procedure and Investigations Act 1996, s.6)
Any defence statement must be served within 14 days of the prosecutor complying with the initial duty of disclosure.
Defence witnesses (Criminal Procedure and Investigations Act 1996, s.6C)
Defence witness names, etc. must be notified within 14 days of the prosecutor complying with the initial duty of disclosure.
Application for disclosure (Criminal Procedure Rules, rr.22.2 & 22.5; Criminal Procedure and Investigations Act 1996, s.8)
The defendant must serve any application for an order for prosecution disclosure as soon as reasonably practicable after the
prosecutor complies with the initial duty of disclosure.* Under s.8 of the Criminal Procedure and Investigations Act 1996, no such
application may be made unless a defence statement has been served.
The prosecutor must serve any representations in response within 14 days after that.
Witness statements (Criminal Procedure Rules, r.27.4; Criminal Justice Act 1967, s.9)
The defendant must serve any defence witness statement to be read at trial at least 14 days before the trial.*
Any objection to a witness statement being read at trial must be made within 7 days of service of the statement. This does not
apply to the statements listed in Part 4.
Measures to assist a witness or defendant to give evidence (Criminal Procedure Rules, rr.29.3, 29.13, 29.17, 29.22, 29.26)
Any [further] application for special or other measures must be served within 28 days.
Any representations in response must be served within 14 days after that.
Cross-examination where defendant not represented (Criminal Procedure Rules, rr.31.1, 31.4)
The defendant must serve notice of any representative appointed to cross-examine within 7 days.
The prosecutor must serve any application to prohibit cross-examination by the defendant in person as soon as reasonably
practicable.
Any representations in response must be served within 14 days after that.
Expert evidence (Criminal Procedure Rules, rr.33.4, 33.6)
If either party relies on expert evidence, the directions below apply.
(i) The expert's report must be served within 28 days.”
(ii) | A party who wants that expert to attend the trial must give notice within 7 days after (i).*
(iii) |A party who relies on expert evidence in response must serve it within 14 days after (ii).*
(iv) |There must be a meeting of experts under rule 33.6 within 14 days after (ili).*
(v) The parties must notify the court immediately after (iv) ifthe length of the trial is affected by the outcome of the meeting.*
Hearsay evidence (Criminal Procedure Rules, rr.34.2, 34.3)
The prosecutor must serve any notice to introduce hearsay evidence within 28 days.
The defendant must serve any notice to introduce hearsay evidence as soon as reasonably practicable.
Any application to determine an objection to hearsay evidence must be served within 14 days of service of the notice or evidence.
Bad character evidence (Criminal Procedure Rules, rr.35.2, 35.3, 35.4)
The prosecutor must serve any notice to introduce evidence of the defendant's bad character within 28 days.
Any application to determine an objection to that notice must be served within 14 days after that.
Any application to introduce evidence of a non-defendant’s bad character must be served within 14 days of prosecution disclosure.
Tea
so Any notice of objection to that evidence must be served within 14 days after that.
Previous sexual behaviour evidence (Criminal Procedure Rules, rr.36.2, 36.3, 36.4. 36.5)
The defendant must serve any application for permission to introduce evidence of a complainant's previous sexual behaviour within
28 days of prosecution disclosure.
The prosecutor must serve any representations in response within 14 days after that.
Point of law, including abuse of process etc. (Criminal Procedure Rules, rr.3.3, 3.9)
Any skeleton argument must be served at least 14 days before the trial.”
2 Any skeleton argument in reply must be served within 7 days after that.*
Trial readiness (Criminal Procedure Rules, rr.3.3, 3.9)
The parties must certify readiness for trial at least 14 days before the trial,* confirming which witnesses will give evidence in person
and the trial time estimate.

November 2014

Page 7

145
Criminal Practice

8.6 Disclosure flowchart (magistrates’ court and Crown Court)

Figure 8.2 Disclosure flowchart (magistrates’ court and Crown Court)

Either way offence Indictable-only offence

M
Case sent to Crown Court —
CPS serves initial A
magistrates give case management
details of prosecution G
directions for disclosure of all
case at first hearing |
evidence to be relied upon at trial
S
T
R
D pleads not guilty - trial in A
Crown Court trial — CPS must
magistrates’ court - CPS to T
serve all evidence it will rely on
serve any further evidence E
prior to sending hearing
it intends to rely on s!

e@eoveeeeeeeeoereeeeee

Sending hearing s 51 hearing

on
On
@)
i
@2

CPS to serve unused material CPS serves disclosure of all

within 14 days of sending evidence to be relied upon at
hearing (CPIA 1996, s 3) trial and unused material

eeceeceeeeeeoeeeeeeeoee

Defence to serve defence statement within 28 days of CPS serving unused

material
Note: Cc
In Crown Court (if trial): R
e defence statement usually served (CPIA 1996, ss 5, 5A and 6) O
¢ ddverse inference may be drawn if:
— defence statement not provided W
— incomplete, or different from defence raised at trial (CPIA 1996, s 11) N

Cc
O
U
R
T
Prosecution must review disclosure of unused material in light of the
contents of any defence statement/also have a continuing obligation to
review throughout duration of the case

146
 Case Management and Pre-trial Hearings

Summary
In this chapter you have considered what the law, practice and procedure says about the case
management directions that the magistrates’ court and Crown Court give in order to ensure
that the CPS and the defendant's solicitor are properly prepared for trial. This includes an
obligation on the prosecution to disclose their unused materia! to the defence who may in turn
be required to serve a defence statement on the prosecution and the court. Notably:
*¢ The magistrates’ court case management directions. The court will give case management
directions usually at the same hearing at which the defendant enters their plea of not
guilty. These are standard directions, which can be varied if necessary. They require the
parties to provide very detailed information about how they will prepare for and conduct
the trial.
¢ The Plea and Trial Preparation Hearing (PTPH). For those cases sent to the Crown Court
where a preliminary hearing is not required, the first hearing will be the PTPH. The PTPH
enables the defendant to enter their plea and, if the defendant is pleading not guilty,
to enable the judge to give further case management directions for the CPS and the
defendant's solicitor to comply with prior to trial.
e Disclosure - prosecution, defence and unused material. As well as providing the defence
with all the evidence they intend to rely on at trial, the CPS also has a continuing
obligation to disclose any of its unused material in its possession that ‘might reasonably
be considered capable of undermining the case for the prosecution ... or of assisting the
case for the accused’. This duty of disclosure is subject though to withholding sensitive
information, where the court has granted an application for public interest immunity. The
defence disclosure obligations are much more limited, but there is an obligation in the
Crown Court for the defence to provide a defence statement. Failure to provide such a
statement may lead to the drawing of adverse inferences.

Sample questions

Question 1
A solicitor is representing a defendant at his first appearance in the magistrates’ court.
The defendant has been charged with offences of rape (an offence that can only be tried
on indictment) and sexual assault (an either-way offence). It is alleged that he sexually
assaulted the victim before he then raped her the following week. The defendant intends to
plead not guilty to both allegations.
Will both offences be sent to the Crown Court for trial?
A Yes, because the defendant is pleading not guilty to both allegations.
B_ No, because the sexual assault allegation can only be tried in the magistrates’ court.
C No, because the defendant may elect trial for both allegations in the magistrates’ court
or the Crown Court.
D Yes, because the sexual assault allegation is related to the rape allegation which must
be sent to the Crown Court for trial.
E Yes, because the sexual assault allegation is punishable with imprisonment and is
related to the rape allegation which must be sent to the Crown Court for trial.

147
Criminal Practice

Answer
Option D is the best answer. This is because rape is an offence triable only on indictment and
sexual assault is an either-way offence. Where an adult appears before a magistrates’ court
charged with an offence triable only on indictment, the court must send the defendant to the
Crown Court for trial pursuant to s 51(1) of the CDA 1998 for that offence; and for any either-
way offence (or summary offence) with which they are charged which fulfils the ‘requisite
conditions’. Here the ‘requisite conditions’ are that the either-way offence appears to the court
to be related to the offence triable only on indictment. Given that both allegations relate to
the same victim and they are alleged to have taken place within a week of each other, they
will be regarded as related to each other. Although sexual assault is also an imprisonable
offence, option E is not the best answer because this is only a requirement for a summary-only
offence. Option A is not the best answer, because the defendant will not be asked to indicate
his plea to either of these matters in this case (he would have been asked to indicate his plea
to the allegation of sexual assault if he had not also been charged with rape, an offence
that can only be tried on indictment). Option B is not correct-as.sexual assault is an either-
way offence. Option C is not correct because rape is not an either-way offence and so he will
never be given the choice to elect where his trial takes place.

Question 2
A defendant has been charged with an offence of burglary that took place at office
premises in the city centre. As part of the investigation the police have a witness statement
from a neighbour of the defendant claiming she saw the defendant in his back garden
at the time the burglary took place. However, she tells the police that she is not prepared
to give evidence about this as she does not like her neighbour. The prosecution does not
believe the neighbour is telling the truth and does not intend to call her as a witness at the
defendant's trial in the magistrates’ court.
Which of the following best describes whether the prosecution will be required to
disclose the existence of the neighbour's witness statement to the defence?
A The prosecution will be required to disclose this material as part of the initial details of
the prosecution case.
B_ The prosecution will not be required to disclose this witness statement because the trial
is taking place in the magistrates’ court and not the Crown Court.
C_ The prosecution will be required to disclose this witness statement because it provides
the defendant with an alibi defence.
D_ The prosecution will not be required to disclose this witness statement because it is
sensitive material and subject to public interest immunity as the neighbour does not
want to testify at trial.
E The prosecution will be required to disclose this witness statement because it might
reasonably be considered capable of undermining the case for the prosecution.

Answer

Option E is the best answer. Section 3 CPIA 1996 provides that such unused material must
be disclosed to the defence if it ‘might reasonably be considered capable of undermining
the case for the prosecution’. Arguably this witness statement might also reasonably be
considered capable of assisting the case for the accused, but we are not told what defence
the defendant is raising and, in any event, this is not one of the options available. Option
A is not correct because this witness statement will not be provided as IDPC, as we are told
the prosecution will not be calling this witness to give evidence. The obligation to disclose
unused prosecution material applies to trials in the magistrates’ court and Crown Court, so

148
 Case Management and Pre-trial Hearings

option B is not correct. Option C is not the best answer, because although this may support
the defendant's defence of alibi, we do not know whether the defendant is raising such a
defence and in any event, this does not set out the test for disclosure in s 3. Option D is not
correct because a witness’s unwillingness to testify does not make it sensitive material that
may be eligible for a public interest immunity application.

Question 3
A man is facing trial in the Crown Court for an offence of wounding. The prosecution has
provided disclosure of their non-sensitive, unused material which might reasonably be
considered capable of undermining their case or of assisting the case for the defendant.
What obligation, if any, is now on the defendant to make disclosure of his defence to
the prosecution?
A The defendant is required to serve a defence statement. This obligation will be
enforced by the court by drawing an adverse inference against the defendant if the
statement is not provided.
B_ The defendant may serve a defence statement but cannot be obliged to do so. Failure
to provide the statement means the prosecution will not be required to review their
initial disclosure and determine if there is any further relevant unused material in its
possession.
C_ The defendant is not required to serve a defence statement on the prosecution as this
would violate the defendant's right to a fair trial and his presumption of innocence.
D_ The prosecution cannot insist on the defendant providing a defence statement, but
the court is likely to make an award of costs against the defendant for failing to
provide one.
E The defendant is not required to serve a defence statement but there are good tactical
reasons for serving one. This includes placing an obligation on the prosecution to then
provide disclosure of their sensitive, unused material.

Answer
Option A is the best answer. Section 5 of the CPIA 1996 sets out the obligation on the
defence to provide a defence statement. This is referred to as ‘compulsory disclosure’ where
a defendant is facing trial in the Crown Court (as opposed to the magistrates’ court where
there is no such obligation). This obligation is enforced in the Crown Court by the court
being able to draw an adverse inference against the defendant if a defence statement is
not provided.
Option B is wrong, although this would be correct if the man’s trial were taking place in
the magistrates’ court. Option C is wrong because the obligation to provide a defence
statement does not violate his right to a fair trial, nor his presumption of innocence. Option
D is correct to the extent that the prosecution cannot insist on the defendant providing a
defence statement, but the court would not make an award of costs against the defendant
for failing to do so. Option E is wrong because the defendant is required to serve this
statement. Moreover, this would not trigger an obligation on the prosecution to then
provide disclosure of their sensitive, unused material. Such material will never be disclosed
if the prosecution makes a successful public immunity interest application to withhold its
disclosure.

149
 ng
ia ah, es a
: h ce
ae Rs
was
WLOUU): KeeMbahy Med Bt oe a) ott e) inane
piah Critters Sons Tore were iclilo 19 Nan
‘ , A ay, for) fact b "i u ae ate

oa A BO) Viele oo Wy en}! HUY, | 198

Ny ‘i | ee yy hluade. ale 4 Stee hs Roh

Ove erp hes owt deeyeet oft

fi ne

Mateo M ate cit vihet yard fm Lonatareot

‘pes i" yh Haus ie infiantnse ent Sales: Ae
6) orig. ily ae tN ap iieinantanes Pobitecig’ aoebralty,
‘ \
Tu “
j ge bryan apt ude ti ve r
PLN Vie
a ;

a i “4 aa nw Oy iin z ele =
oe
Je ee | addi FZ PAN
iAcoaitih
a
eschew iis di gy

lh q | oe he ha iasdlhi Rad h
“ 7 Fe }
Nias Lhe oe hyati 4
ar: ve oA :§i ve? a tsi Myuid, apne j
mt
. e ae
wn
bes Lan CE neaibe on esside site
a7
- ‘ eT iene ee viedati’ u's Iva 4
Lj fv 9 eae A oT eee i
niihing otis al novORNUS etAT (rte a
ok) 24% Rae NO TED ataAy il
r : ; Pil ae elogp: te
pitisy ’ ie + i apes

Jinan? oyoe ninah nti amma gaia

oy Oivow AA daa

; ‘. A. tft Jar,’ res oc ttn ¢ te

eewtiuks arf ny hort (HONEY P36 area F
~ do Shins ted Io GM si A ee bivew /woae
an of bentupe 1 Lon wit opurond gediny
&8 Ae
Nupwe ny Gd ib CCH) ropieke nA AUR
Lieb ct copertfanndeieajorn Mal ine venteanny Banana op +3 a
ot tide eked Seiacn mgr oa ae
Pus
fl 5 was
;
vee . : "
: rl
oes Mlk

; g oe ony’ 4 atthe
'
patermhse
is )
0 } ,
ry Jue To weadigr @ . ‘
‘ Hirw » hd igh Sng eur) had
io -
feed gree nat pools
a)
copemiang: .
Mi
e E itt
oe
i?
: pire) ;

ft A * ha

eal
 Principles and Procedures to
Admit and Exclude Evidence
9.1 Introduction 152

= 92 Burden and standard of proof 153

9.3 Visual identification evidence and Turnbull guidance 154
9.4 Inferences from silence ss - 34, 35, 36, 37, 38
Criminal Justice and Public Order Act 1994 158

9.5 Hearsay evidence 169

9.6 Confession evidence 177

9.7), Character evidence 185

9.8 Exclusion of evidence 197

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
¢ burden and standard of proof;
¢ visual identification evidence and Turnbull guidance;
e inferences from silence ss 34, 35, 36, 37, 38 Criminal Justice and Public Order
Act 1994;
¢ hearsay evidence:
° definition
© grounds for admitting hearsay evidence
* confession evidence:
° definition
° admissibility
° challenging admissibility ss 76 and 78 PACE 1984
* character evidence:
© definition of bad character
° the 7 gateways s 101(1) Criminal Justice Act 2003
° procedure for admitting defendant’s bad character
° court's powers to exclude defendant's bad character
¢ exclusion of evidence:
© scope and application of s 78 PACE and the right to a fair trial.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

151
Criminal Practice

Learning outcomes
By the end of this chapter you will be able to understand and apply the following
law, practice and procedure on:
* The burdens and standards of proof that operate in a criminal case.
¢ What is meant by disputed visual identification evidence and when the
admissibility of such evidence may be excluded.
¢ What the Turnbull guidelines are and when they will be relevant and how they
are applied in court.
e When an ‘adverse inference’ may be drawn against a defendant who exercises
their right to remain silent.
¢ The meaning of hearsay evidence and when it may be admitted at trial.
¢ What is meant by confession evidence and the rules on admissibilityofsuch
evidence.
* The meaning of evidence of bad character and the rules and procedure on the
admissibility of such evidence.
¢ The admissibility of improperly obtained evidence and the right of the accused to
a fair trial.

9.1 Introduction
The law of evidence has a number of purposes, including the laying down of rules,
establishing principles and determining the exercise of discretions in relation to what is
admissible for the purposes of establishing facts in issue at trial. It also regulates the ways in
which such matters can be put before the court and determines how a judge may, or must,
comment on the evidence. It also establishes who should prove disputed issues of fact and
the standard of proof such a party must meet in order to prove these.
There are two basic requirements which need to be satisfied if the jury or the magistrates are
to take a piece of evidence into account in deciding what the facts in issue are:
(a) evidence must be relevant to the facts in issue in the case; and
(b) evidence must be admissible. This means that the rules which comprise the law of
evidence must allow such evidence to be used in a criminal trial.
Evidence that is both relevant and admissible may be either direct evidence of a defendant's
guilt, or circumstantial evidence from which a defendant's guilt may be inferred.

He) Example
John is charged with the wounding of Liam. The CPS alleges that John stabbed Liam with
a knife whilst Liam was drinking in a busy pub. The CPS has an eyewitness who identifies
John as the assailant. The CPS also has a letter sent by John to Liam shortly before
the stabbing, in which John threatened to ‘get even’ with Liam following an argument
between them over some money. The evidence from the eyewitness will be direct
evidence of John’s guilt. The letter will be circumstantial evidence, since it is evidence that
John had a motive for killing Liam.

152
 Principles and Procedures to Admit and Exclude Evidence

9.2 Burden and standard of proof

9.2.1 The legal burden
In all criminal cases, the prosecution will bear the legal burden (sometimes also referred to
as the persuasive burden) of proving the defendant's guilt. The standard of proof that the
prosecution needs to satisfy in order to do this is to prove beyond a reasonable doubt that
the defendant is guilty of the offence with which they have been charged. In other words, the
magistrates or jury should convict the defendant only if they are sure of guilt (Woolmington v
DPP [1935] AC 462).
Occasionally the legal burden of proof will also fall upon the defendant. An example of this is
the defendant who pleads not guilty and raises the defence of insanity or duress. A defendant
pleading either defence is required to prove those facts. In cases where the defendant bears
the legal burden of proof, the standard of proof that is required is proof on the balance of
probabilities. This is the lower standard of proof that also applies in civil trials and simply
means ‘more probable than not’.
A defendant who raises a specific defence (for example, a defendant who claims they have
an alibi, or were acting in self-defence), does not have the burden of proving that defence -
they only have what is called an evidential burden to raise it. The burden of disproving this
then rests with the prosecution (as part of the requirement that the prosecution prove the
defendant's guilt beyond a reasonable doubt) to satisfy the magistrates or the jury that the
defence is not true (see below).

9.2.2 The evidential burden

9.2.2.1 The burden on the prosecution
At trial, the prosecution will present their case first. At the conclusion of its case, the
prosecution must have presented sufficient evidence to the court to justify a finding of guilt
and to show that the defendant has a case to answer (this is before the defendant has
adduced any evidence). If the prosecution fails to do this, the defendant's solicitor (or counsel)
will be entitled to make a submission of no case to answer, and to ask the court to dismiss the
case. In such circumstances it is said that the prosecution has not discharged their evidential
burden (see the relevant test to apply in R v Galbraith [1981] 2 All ER 1060 which we will look
at in more detail in Chapter 10).

9.2.2.2 The burden on the defence

The defendant is not obliged to place any evidence before the court to show that they are
innocent. However, a defendant who is raising a specific defence (for example, alibi or
reasonable self-defence) must place some evidence of that defence before the court if they
want the magistrates or jury to consider that defence when deciding the verdict. This is the
evidential burden that the defendant bears. It is relatively simple for the defendant to satisfy
such a burden. All the defendant needs to do is to enter the witness box and give details of
this defence. The onus will then fall on the CPS, as part of its legal burden, to prove beyond a
reasonable doubt that the defence which has been raised is not true.

) Example
Arlo is on trial for burglary and raises the defence of alibi, claiming that at the time of
the burglary he was at home with his girlfriend. When presenting its case at court, the
CPS must first satisfy its evidential burden by presenting sufficient evidence to the court to
show that Arlo has a case to answer. Should the CPS fail to do this, Arlo’s advocate will
make a submission of no case to answer and ask the judge to dismiss the case. If the
CPS satisfies its evidential burden, Arlo then bears the evidential burden of placing some

153
Criminal Practice

evidence of his alibi defence before the court. Arlo will satisfy this burden by entering the
witness box and giving details of his alibi. In order to secure a conviction and to satisfy its
legal burden, the CPS will then need to prove beyond a reasonable doubt both that Arlo’s
alibi is untrue, and that Arlo did commit the burglary.

9.3 Visual identification evidence and Turnbull guidance

An important form of evidence relied upon by the prosecution in a criminal trial is visual
identification evidence from a witness who claims to have seen the defendant committing the
crime. Evidence from eyewitnesses is, however, notoriously unreliable, and the defendant will
often dispute the visual identification which the eyewitness claims to have made. In this part
of the chapter we will look at the factors the court will take into account in deciding whether
disputed, visual identification evidence is admissible and, if it is, how the quality of that
evidence should be assessed. '

9.5.1 Challenging the admissibility of disputed visual identification evidence

Section 78 of PACE 1984 provides the court with a discretion to exclude evidence upon which
the prosecution seek to rely if ‘the admission of such evidence would have such an adverse
effect on the fairness of proceedings that the court ought not to admit it’. Section 78 is
examined more fully at the end of this chapter. In summary, however, it is commonly raised
by the defendant's solicitor when the methods employed by the police to obtain evidence
constitute a significant and substantial breach either of PACE 1984, or of the Codes of
Practice.
In the context of disputed visual identification evidence, such a situation may occur if the
police breach the rules for holding an identification procedure contained in Code D of the
Codes of Practice, that we looked at earlier in Chapter 2. For example:
(a) at a video identification procedure, the police may breach the requirement that the other
images shown to the witness must resemble the suspect in age, general appearance and
position in life (Code D, Annex A, para 2);
(b) at an identification parade, the police may breach the requirement that the witnesses
attending the parade are segregated both from each other and from the suspect before
and after the parade (Code D, Annex B, para 14);
(c) a breach of the Codes of Practice will occur if, whilst the defendant was detained at the
police station, the police failed to hold an identification procedure when such a procedure
should have been held pursuant to para 3.12 of Code D.
If the defendant's solicitor considers that disputed visual identification evidence upon which
the prosecution seek to rely has been obtained following such a significant and substantial
breach of Code D, they should initially challenge the admissibility of this evidence, and ask
the court to exercise its discretion to exclude the evidence under s 78 of PACE 1984. Only if
the court declines to exercise its discretion under s 78 should the solicitor then consider how,
in cross-examination, to undermine the quality of the evidence of the original sighting of the
defendant which the witness claims to have made, and what representations to make to the
court in respect of the Turnbull guidelines (see below).

© Example
Guy is charged with robbery. Marie, the victim of the robbery, gives a statement to the
police describing the person who robbed her. She comments that she got only a brief
glimpse of this person’s face, and there are several dissimilarities between the description
she gives and the actual appearance of Guy. Marie is nevertheless able to pick Guy out

154
 Principles and Procedures to Admit and Exclude Evidence

at an identification parade carried out at the police station. The identification parade
was carried out in breach of Code D because four of the other participants in the parade
dic not resemble Guy and the officers investigating the robbery were present during the
parade. Guy denies taking part in the robbery and claims that Marie is mistaken (which
makes Marie’s evidence disputed visual identification evidence).
At trial, Guy’s advocate will make an application to the court under s 78 PACE 1984, for
the identification evidence given by Marie to be excluded on the basis of the breaches of
Code D which occurred when the identification parade took place. Only if this application
is unsuccessful will Guy’s advocate then need to consider how in cross-examination to
undermine the quality of Marie’s original sighting of the robber, and what representations
should be made to the court in respect of the Turnbull guidelines.

9.3.2 The Turnbull guidelines

Special guidelines apply when a witness who gives evidence for the CPS visually identifies
the defendant as the person who committed the crime, and the defendant disputes that
identification. The guidelines were laid down in the case of R v Turnbull [1977] QB 224.
A witness will identify the defendant as the person who committed the offence if:
(a) the witness picks out the defendant informally; or
(b) the witness identifies the defendant at a formal identification procedure at the police
station; or
(c) the witness claims to recognise the defendant as someone previously known to them.
Such a witness is known as a ‘Turnbull witness’. In all three cases, the Turnbull guidelines will
apply only if the defendant disputes the visual identification made by the witness.
e , a-*

© Example oynyrP frNS

Joe is on trial for an offenceof affray following a public order incident outside a club.
A witness called by the CPS tells the court that he saw a man involved in the affray and
later identified Joe as that man at a video identification procedure held at the police
station.

(a) If Joe denies being at the scene of the affray, the Turnbull guidelines will apply.
(b) If Joe admits to being at the scene of the affray but denies that he was involved in the
affray, and suggests that it was somebody else who was also present at the time who
was involved in the affray, the Turnbull guidelines are likely to apply (see R v Thornton
below).
(c) If Joe admits taking part in the incident but claims that he was only acting in self-defence,
the Turnbull guidelines will not apply. In this case Joe will not be disputing the visual
identification evidence given by the witness.

© In R v Thornton (1995) 1 Cr App R 578, there was a public order incident where it was
alleged that the accused was one of the aggressors. Although he admitted to being
present at the scene, he denied that he had been involved in the fighting and claimed
that the witnesses who alleged this were mistaken. The Court of Appeal held that the
Turnbull guidelines applied in this case since, on the facts, there were a number of people
present who were. of a similar description to the accused. However, contrast this decision
with the next case.
In R v McEvoy [1997] Crim LR 887 there had been a similar public order situation, the
only difference being that there was no one else present who could have resembled
the accused in height, clothing and hair colour. For this reason, the Court of Appeal
concluded that this was not a case where the Turnbull guidelines applied.

155
Criminal Practice

If a witness only gives a description to the court of the person who committed the crime, but
there is no direct evidence that it was the defendant (other than the fact that the defendant's
physical appearance matches the description given), the Turnbull guidelines will not apply.

© Example
Iqbal is on trial for burglary. A witness who saw the burglary tells the court that it was
committed by a man who was ‘approximately 6ft tall, with brown, spiky hair and a
moustache’. Iqbal matches this description, but the witness failed to pick Iqbai out at a
video identification at the police station.
The Turnbull guidelines will not apply in this case, because there is no direct visual
identification evidence from the witness identifying Iqbal as the person responsible for the
burglary, simply evidence of description.

Do. The application of the Turnbull guidelines

Assessing the quality of the identification evidence
In the Crown Court, the trial judge is responsible for assessing the quality of the identification
evidence given by a witness called by the CPS. The judge must look at the circumstances of
the original sighting of the defendant by the witness and determine how strong this evidence
is. The original sighting is the sighting of the person who committed the offence made by the
eyewitness at the time the offence was committed.
In assessing the quality of this evidence, the trial judge will take into account a number of
factors, including the following:
(a) The length of the observation - did the witness see this person for a lengthy period of
time, or did they just get a fleeting glimpse?
(b) Distance - was the witness close to this person, or were they some distance away?
(c) Lighting - did the observation happen in daylight or at night? If at night, was there any
street lighting? If the observation occurred inside a building, was the building well-lit or
was it dark?
(d) Conditions - if the sighting was outside, what were the weather conditions at the time?
Was it a clear day, or was it raining or foggy? How many other people were present at
the time and did they obstruct the witness’s view? Did anything else obstruct the view?
If the sighting was in a building such as a pub, did any part of the building (such as a
pillar) obstruct the view?
(e) How much of the suspect's face did the witness actually see - did the witness see all of
the suspect's face, or merely part of it? Can the witness give a clear description of the
suspect's face, or is the description vague and lacking detail?
(f) Whether the person identified was someone who was already known to the witness (a
recognition case), or someone the witness had never seen before.
(g) How closely does the original description given by the witness to the police match the
actual physical appearance of the defendant? Are there any discrepancies in height,
build, hair colour/length or age?

Identification is good quality

If the judge considers the quality of the original sighting made by the eyewitness to be good,
when the judge sums up the case to the jury before they retire to consider their verdict, the
judge will point out to them the dangers of relying on identification evidence, and the special
need for caution when such evidence is relied on. The judge will tell the jury that it is very easy
for an honest witness to be mistaken as to identity, and will direct the jury to examine closely
the circumstances of the original sighting and take into account the factors listed above when

156
 Principles and Procedures to Admit and Exclude Evidence

considering the quality of the identification evidence. This is usually referred to as a ‘Turnbull
warning’.

o Example
Nigel is charged with assault occasioning actual bodily harm. The CPS seeks to rely
on evidence from an eyewitness to the assault who later picked out Nigel at a video
identification procedure at the police station. When giving evidence at court, the witness
states that he saw the assault take place over a period of 40 seconds. He also says that
he had an unobstructed view of the assault from only 5 metres away, and that the assault
occurred in daylight when the weather conditions were bright and clear. The judge
considers that the quality of the initial sighting by the eyewitness is good. When summing
up the case at the end of the trial the judge will give a ‘Turnbull warning’ to the jury, by
warning the jury about relying on identification evidence and will direct them to take
into account the factors listed above when considering the quality of the identification
evidence.

Identification poor but supported

lf the judge considers the quality of the initial sighting by the eyewitness to be poor, but this
identification evidence is supported by other evidence, a ‘Turnbull warning’ similar to that
described above should be given to the jury. The judge will again point out the dangers
of relying on identification evidence and the special need for caution when the jury are
considering such evidence. The judge will also draw to the specific attention of the jury the
weaknesses in the identification evidence which has been given.
Supporting evidence means some other evidence which suggests that the identification
made by the witness is reliable. The judge will normally warn the jury about the dangers
of convicting on the basis of the identification evidence alone and tell the jury to look for
other supporting evidence. The jury will be directed to what other evidence may amount to
supporting evidence. Examples of supporting evidence include:
(a) a confession made by the defendant;
(b) other evidence placing the defendant at the scene of the offence (such as fingerprints or
DNA evidence);
(c) in a theft case, stolen property being found in the defendant's possession;
d) adverse inferences being g drawn from the defendant's silence when questioned at the
police station (see later in this chapter).

o Example
Jake is charged with unlawful wounding. The CPS has two items of evidence:
(i) Jake’s fingerprints, found on a knife which it is alleged he used as a weapon; and
(ii) evidence from an eyewitness to the wounding who picked Jake out in a video
identification procedure at the police station.
When giving evidence at Jake’s trial, the eyewitness concedes that the incident occurred
at night in an alley where there was no lighting. The eyewitness also says that he only
observed the incident briefly and saw only part of the attacker's face.
At the end of the prosecution case, the judge assesses the identification evidence given
by the eyewitness as being of poor quality. However, this evidence is supported by Jake’s
fingerprints on the knife. When summing up the case, the judge will give a ‘Turnbull
warning’ to the jury, by warning the jury about the dangers of relying on identification
evidence and the special need for caution when such evidence is being considered.
The judge will also point out all the weaknesses in the identification evidence that has

157
Criminal Practice

been given. The judge will tell the jury about the dangers of convicting on the basis of
the identification alone and to look for other supporting evidence. Finally, the judge will
explain to the jury what other evidence is capable of amounting to supporting evidence
(ie the fingerprints on the knife).

Identification poor and unsupported

If the judge considers the identification evidence to be of poor quality, and it is not
supported by any other prosecution evidence, the judge should stop the trial at the end of
the prosecution case and direct the jury to acquit the defendant. This will normally follow a
submission of no case to answer being made by the defendant's advocate.

© Example
Rebecca is charged with theft. The only evidence called by the CPS is from an eyewitness
who picked Rebecca out at a video identification procedure at the police station. When
cross-examined at court, the witness concedes that she got-only a fleeting glimpse of the
person who committed the theft, and that this was from a long distance away at a time
when it was raining heavily and a lot of other people were present to obstruct her view.
At the end of the prosecution case, Rebecca’s counsel will make a submission of no case
to answer. If the judge assesses the identification evidence which has been given to be
of poor quality and unsupported, the judge will stop the trial and direct the jury to acquit
Rebecca.

9.5.3 The Turnbull guidelines in the magistrates’ court

In the magistrates’ court, the magistrates decide matters of both fact and law, and it will
therefore be necessary for the defendant's solicitor to address the magistrates on the Turnbull
guidelines during the course of the trial.
If the defendant's solicitor considers that the quality of the identification evidence given by an
eyewitness is poor, and the CPS has no other supporting evidence, the solicitor should make a
submission of no case to answer at the end of the prosecution case (see Chapter 10).
If the identification evidence given by the eyewitness is either good or poor, but supported by
other evidence called by the CPS, the defendant's solicitor is unlikely to make a submission
of no case to answer. They will instead address the Turnbull guidelines in their closing speech
to the magistrates, and will point out that, however strong it might appear, identification
evidence from an eyewitness is notoriously unreliable and the magistrates should exercise
caution when considering such evidence. The defendant's solicitor will also point out any
weaknesses in the identification evidence that has been given.

9.4 Inferences from silence —- ss 34, 35, 36, 37, 38 Criminal Justice
and Public Order Act 1994
9.4.1 The ‘right to silence’
Anyone who is arrested on suspicion of having committed a criminal offence has a right to
remain silent when interviewed at the police station. However, under the provisions of the
Criminal Justice and Public Order Act (CJPOA) 1994, when a defendant's case comes to trial,
the court may be allowed to draw what are termed ‘adverse inferences’ from this earlier
silence when being questioned under caution about the offence. We will consider when a
court is allowed to draw such inferences, and the potential evidential consequences which
may arise at trial when a solicitor advises a client not to answer questions when interviewed
at the police station.

158
 Principles and Procedures to Admit and Exclude Evidence

9.4.1.1 What is an adverse inference?

The provisions of the CJPOA actually refer to ‘proper inferences’ being drawn, but the reality
is that these are likely to be adverse inferences. The term ‘adverse inference’ means a court
is likely to draw a negative conclusion from the defendant's silence when interviewed at the
police s station. In other words, the court may hold a defendant's silence against them. The
usual inference that the jury or magistrates will draw is one of recent fabrication, namely that
the defendant remained silent when interviewed by the police because they had no adequate
explanation for their conduct, and that they fabricated the facts which make up their defence
at trial after being charged by the police. Alternatively, the court may draw an inference that,
even though the defendant did not fabricate this defence after leaving the police station, the
defendant did not put the defence forward when interviewed by the police because they did
not believe it would stand up to further investigation by the police.
A defendant will not be convicted of an offence if the only evidence against them is an
adverse inference under ss 34, 36 or 37 of the CJPOA 1994, becauseaSelendant’s silence

the prosecution may ask the court to draw an adverse inference from a defendant’ sscllence
when interviewed by the police, the prosecution must first have adduced other evidence of the
defendant's guilt. Such evidence must establish that the defendant has a case to answer and
must call for an explanation from the defendant.
Note however that a court is not allowed to draw an adverse inference from a defendant's
silence if that silence occurred at a time when the defendant had not been allowed the
opportunity to consult a solicitor to obtain independent legal advice (s 58 of the Youth Justice
and Criminal Evidence Act 1999). In such circumstances, the defendant is said to have an
absolute right to remain silent and the caution given before interview should reflect this.
Adverse inferences may therefore only be drawn when a defendant has been given the
opportunity to take independent legal advice, even if they decline that opportunity.

9.4.2 Inferences under s 34 CJPOA 1994

Section 34 allows the court or jury to draw an adverse inference from a defendant's silence
when the defendant was being questioned or charged at the police station. Section 34
provides:

(1) Where in any proceedings against a person for an offence, evidence is given that the
accused:
(a) at any time before he was charged with the offence, on being questioned under
caution by a constable trying to discover whether or by whom the offence had
been committed, failed to mention any fact relied on in his defence in those
proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted
for it, failed to mention any such fact ...
being a fact, which in the circumstances existing at the time the accused could
reasonably have been expected to mention ... the court or jury ... may draw such
inferences from the failure as appear proper.

© Example
Ethan is arrested on suspicion of theft. Ethan refuses to answer questions put to him by
the police when interviewed at the police station under caution. Ethan is subsequently
charged with the theft. At his trial, Ethan raises the defence of alibi, claiming that he was
at a friend’s house at the time the alleged theft took place. Section 34 allows the court to
draw an adverse inference from Ethan’s failure to mention his alibi defence when being
questioned by the police.

159
Criminal Practice

So, the inferences that may be drawn against a defendant need not necessarily arise out
of ‘no comment’ interviews. The terms of s 34 may be satisfied even where a defendant
has answered every question put to them, if at trial they raise some other fact in their
defence that they did not mention, but could reasonably have been expected to mention,
when interviewed. i

9.4.2.1 Pre-conditions for the drawing of an adverse inference

There has been a lot of case law on the operation of s 34.
In R v Argent [1997] 2 Cr App R 27, the Court of Appeal said that certain conditions had to
be satisfied before adverse inferences could be drawn from a defendant's silence in police
interview under s 34(1)(a):
(a) the interview had to be an interview under caution;
(b) the defendant had to fail to mention any fact later relied on in his defence at trial;
(c) the failure to mention this fact had to occur before the defendant was charged;
(d) the questioning of the defendant at the interview in which the defendant failed to mention
the fact had to be directed to trying to discover whether or by whom the alleged offence
had been committed; and
(e) the fact which the defendant failed to mention had to be a fact which, in the
circumstances existing at the time, the defendant could reasonably have been expected
to mention when questioned.
In Condron v UK (2001) 31 EHRR 1, the European Court of Human Rights held that a jury
should be directed that an adverse inference from a defendant's silence could be drawn only
if the court was satisfied that the real reason for the defendant's silence was that they had
no answer to the questions that were being put to them, or no answer that would stand up to
scrutiny.
In R v Betts and Hall [2001] 2 Cr App R 257, the Court of Appeal stated that if a defendant
remained silent during their initial interview at the police station and then answered questions
during a subsequent interview, inferences from their failure to answer questions in the first
interview might still be drawn at trial.
Note that it is unlikely, in practice, for a court to draw an adverse inference under s 34(1)
(b). If a defendant places their factual defence on record when interviewed by the police, a
court will not then draw an adverse inference if the defendant says nothing when they are
subsequently charged. If, conversely, the defendant remains silent in interview and then raises
a defence at trial, the court is very likely to draw an adverse inference under s 34(1)(a).

9.4.2.2 Use of a prepared written statement

A solicitor advising a client at a police station will often advise a client that rather than
answering questions in interview, the client should instead hand to the police a written
statement, which the solicitor will prepare on the client's behalf. The advantage of this is that it
allows the client’s version of events to be set out in a clear and logical way. This is particularly
useful for a client whom the solicitor feels may not come across well in interview (for example,
a client who is distressed, emotional or tired).
In R v Knight [2003] EWCA Crim 1977, the Court of Appeal held that the purpose of s 34 was
to encourage defendants to make an early disclosure of their defence to the police, not to
allow the police to scrutinise and test that defence in interview (although of course the police
would be able to investigate the facts of the defence outside the interview by, for example,
speaking to witnesses who the defendant said would support their case). Therefore, as long
as a written statement which is handed to the police contains all the facts which a defendant

160
 Principles and Procedures to Admit and Exclude Evidence

later relies on in their defence at court, the court will not be able to draw an adverse
inference under s 34 if, having handed in the statement, the defendant then refuses to answer
questions from the police based on the contents of that written statement.
In the rare situations when a defence solicitor prepares a written statement for their client but
does not hand this in to the police, whilst this will prevent the court at trial from drawing the
inference of recent fabrication, it will not prevent the court from drawing an inference that the
defendant was not sufficiently confident about their defence to expose this to investigation by
the police following the interview.

W425 When may a solicitor advise a suspect to remain silent?

The appellate courts have said on a number of occasions it may be appropriate for a
solicitor to advise their client to remain silent when interviewed by the police in the following
circumstances:
(a) Level of disclosure given by the police - although the police are not under a general
duty to disclose to the suspect's solicitor all the details of the evidence which they have
obtained against the suspect, the courts have held that if the absence of meaningful
disclosure means that a solicitor is unable properly to advise their client, this may amount
to a good reason for advising the client to remain silent (R v Argent [1997] 2 Cr App R 27;
R v Roble [1997] Crim LR 449).
(b) Nature of the case - if the material the police have is particularly complex, or relates
to events which occurred a long time ago, the solicitor may advise their client to remain
silent when it would not be sensible to give an immediate response to the police (R v
Roble (see above); R v Howell [2003] Crim LR 405).
(c) Personal circumstances of the suspect - if the solicitor considers the suspect to be
suffering from some form of ill health, the suspect is mentally disordered or vulnerable, is
excessively tired or is otherwise confused, shocked or intoxicated, the solicitor would be
justified in advising the suspect to remain silent (R v Howell, above).

9.4.2.4 Silence on legal advice

Can a defendant avoid an adverse inference by claiming their refusal to answer questions
was based on legal advice?
A defendant who at trial claims that the only reason for their silence when interviewed by the
police was as a result of legal advice they received from their solicitor will not automatically
prevent the court from drawing an adverse inference if they subsequently raise in their
defence a fact which they failed to mention at the police station. The European Court of
Human Rights has accepted that this does not breach a defendant's right to a fair trial under
Article 6 of the ECHR, although the Court has pointed out that legal advice is a fundamental
part of the right to a fair trial and, as such, the fact that a defendant was advised by his
solicitor to not answer questions in the police station must be given appropriate weight at trial
(Condron v UK [2000] see above).
In R v Beckles [2004] EWCA Crim 2766, the Court of Appeal held that where a defendant
explained his reason for silence as being their reliance on legal advice, the ultimate question
for the court or jury under s 34 was whether the facts relied on at trial were facts which
the defendant could reasonably have been expected to mention in police interview. If they
were not, then no adverse inference could be drawn. If the court or jury considered that the
defendant genuinely relied on the advice they had received from their solicitor, that would
not necessarily be the end of the matter because it still might not have been reasonable
for them to rely on the advice, or the advice might not have been the true explanation for
this silence.

161
Criminal Practice

Following the Beckles and Howell cases, the jury will now be directed by the trial judge that
adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that
the defendant genuinely and reasonably relied on the legal advice to remain silent.

9.4.2.5 Legal privilege

Conversations between a suspect and their solicitor at the police station are protected by
legal privilege. In an interview, the police are not allowed to ask a suspect what advice
they received from their solicitor (or, if the police were to ask, the solicitor would instruct the
suspect not to answer). At trial, however, a defendant may give evidence which has the effect
of waiving such privilege and allowing the prosecution to cross-examine them about the
reasons for the legal advice they were given.
If at trial, in order to prevent an adverse inference being drawn by the court, a defendant
gives evidence that they remained silent in interview only following advice from their solicitor,
this will not in itself waive privilege (R v Beckles above). However, if an adverse inference is
to be avoided, the court is likely to want to know the reasons for the solicitor’s advice. Once
a defendant gives this information, legal privilege is said to be waived (R v Bowden [1999]
1 WLR 823). This means that if a defendant, when giving evidence-in-chief, gives the reasons
for the legal advice they received, the defendant (and conceivably their solicitor, should
the solicitor give evidence on the defendant's behalf) may then be cross-examined as to
any other reason for the solicitor’s decision to advise their client to remain silent. Similarly,
the prosecution will be entitled to cross-examine the defendant (and their solicitor) on the
instructions which the defendant gave to their solicitor whilst at the police station which led to
the solicitor advising them to remain silent in interview.

9.4.3 Inferences under s 36 CJPOA 1994

Section 36 allows the court or jury to draw an adverse inference if, when interviewed by the
police, the defendant failed to account for the presence of an object, substance or mark.
Section 36 provides:
(1) Where:
(a) a person is arrested by a constable, and there is:
(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and
(b) that or another constable investigating the case reasonably believes that
the presence of the object, substance or mark may be attributable to
the participation of the person arrested in the commission of an offence
specified by the constable; and
(c) the constable informs the person arrested that he so believes, and requests
him to account for the presence of the object, substance or mark; and
(d) the person fails or refuses to do so,
then ... the court or jury ... may draw such inferences from the failure or
refusal as appear proper.

162
 Principles and Procedures to Admit and Exclude Evidence

© Example 1
Jon is arrested on suspicion of assaulting Fergus. In an interview at the police station, Jon
is asked to account for the fact that when he was arrested there was blood on his shirt
and his knuckles were grazed. Jon does not reply to this question. Section 36 allows a
court to draw an adverse inference from Jon’s failure to account for his bloodstained shirt
and grazed knuckles.

We] Example 2
Rick is arrested on suspicion of the burglary of commercial premises. Entry to the premises
was gained by the use of a crowbar to open a window. In an interview at the police
station, Rick is asked to account for the fact that when he was arrested, he had in his
possession a crowbar. Rick does not reply to this question. Section 36 allows a court to
draw an adverse inference from Rick’s failure to account for his possession of the crowbar.
Although there is a degree of overlap between ss 34 and 36, note that s 34 will apply only if
a defendant raises a fact at trial, which they failed to mention at the police station, whereas
s 36 will operate irrespective of any defence put forward. It may apply even if no defence is
raised at trial, because the inference arises from the defendant's failure to account for the
object, substance or mark at the time of interview. The inference which is likely to arise in such
a case is that the defendant had no explanation for the presence of the object, substance or
mark, or no explanation that would have stood up to police questioning.
Another important difference from s 34 is that inferences may be drawn under s 36 only if
the police officer requesting the explanation for the object, substance or mark has told the
suspect certain specified matters before requesting the explanation (this is referred to as a
‘special caution’). The suspect must be told:
(a) what the offence under investigation is;
(b) what fact the suspect is being asked to account for;
(c) that the officer believes this fact may be due to the suspect taking part in the commission
of the offence in question;
(d) that a court may draw an adverse inference from failure to comply with the request; and
(e) that a record is being made of the interview and that it may be given in evidence if the
suspect is brought to trial (PACE 1984, Code C, para 10.11).

9.4.4 Inferences under s 37 CJPOA 1994

Section 37 allows the court to draw an adverse inference if, when questioned at the police
station, the defendant failed to account for his presence at a particular place at or about the
time the offence was committed.
Section 37 provides:
(1) Where:
(a) a person arrested by a constable was found by him at a place at or about
the time the offence for which he was arrested is alleged to have been
committed; and
(b) that or another constable investigating the offence reasonably believes that
the presence of the person at that place and at that time may be attributed
to his participation in the commission of the offence; and

163
Criminal Practice

(c) the constable informs the person that he so believes, and requests him to
account for that presence; and
(d) the person fails or refuses to do so,
then ... the court or jury ... may draw such inferences from the failure or
refusal as appear proper.

o Example
Lance is arrested on suspicion of the burglary of a jewellery shop. Lance is arrested
by the police whilst standing outside the jewellery shop, only two minutes after the
shop’s burglar alarm went off. When interviewed at the police station, Lance is asked to
account for his presence near the shop at or about the time of the burglary. Lance does
not reply to this question. Section 37 allows the court to draw an adverse inference from
Lance’s failure to account for his presence near the shop at or about the time of the
burglary.
As with s 36, there is some overlap between ss 34 and 37, but whilst s 34 will apply
only if a defendant raises a fact which they failed to mention at the police station,
in their defence at trial, s 37 will operate irrespective of any defence put forward. It
may apply even if no defence is raised at trial, because the inference arises from the
defendant's failure to account for their presence at a particular place at or about the
time of the offence at the time of interview. The inference which is likely to be drawn in
such circumstances is that the defendant has no explanation for their presence at that
particular place at or about the time the offence was committed, or no explanation that
would have stood up to police questioning.

o Example
Sonia is arrested whilst walking late at night along an alley behind a house which has
just been burgled. Sonia is interviewed at the police station and is asked to account for
her presence in the alley at or about the time of the burglary. Sonia refuses to answer this
question.

lf, at her trial, Sonia states that she was walking along the alley because she was taking
a shortcut home, s 34 will apply because Sonia did not mention this fact when interviewed
at the police station. Whether or not at trial Sonia puts forward an explanation for her
presence in the alley, s 37 will apply because Sonia failed to explain the reason for her
presence in the alley when she was interviewed at the police station (assuming she was
given a ‘special caution’).
So as with s 36, inferences may be drawn under s 37 only if a suspect has been given the
‘special caution’.

164
 Principles and Procedures to Admit and Exclude Evidence

Figure 9.1 Flowcharts - Adverse inferences under ss 34, 36 and 37 CJPOA

Adverse inferences under s 34 CJPOA

| Did the defendant fail to mention at the police station a fact

he later relies on in his defence at trial?

Could the defendant reasonably have been expected to No adverse inferences may
mention this fact at the time he was interviewed? be drawn under s 34

Consider if there were any potentially good reasons for

silence:
lack of disclosure by the police;
weak police case;
complexity of case against the suspect;
events occurred a long time ago;
suspect unfit for interview;
age/maturity of suspect.

Court accepts good reason Court does not accept good

for silence reason for silence -
defendant silent only
because he had no adequate
No adverse inferences may explanation for his conduct
be drawn under s 34
|
Adverse inferences may be
drawn under s 34 (subject to
court’s power to exclude the
interview record on the
grounds of unfairness under
PACE 1984, s 78)

(continued)

165
Criminal Practice

Figure 9.1 (continued)

Adverse inferences under s 36 CJPOA

When arrested, was there an object, substance or mark:

¢ on the defendant's person?
¢ in or on the defendant's clothing or footwear?
¢ otherwise in his possession?
e in the place of his arrest?

Did the police ask the defendant to account No adverse inferences may be
for the presence of the object, substance or drawn under s 36
mark when interviewed?

Did the police give the defendant a special No adverse inferences may be
caution? drawn under s 36

Did the defendant fail or refuse to account No adverse inferences may be

for the presence of the object, substance or drawn under s 36
mark?

Adverse inferences may be drawn under s 36 No adverse inferences may be

(subject to court's power drawn under s 36
to exclude the interview record on
the grounds of unfairness under
PACE, s 78)

166
 Principles and Procedures to Admit and Exclude Evidence

Figure 9.1 (continued)

Adverse inferences under s 37 CJPOA

Was the defendant arrested at the scene of the offence at or about the time of the offence?

Did the police ask the defendant to No adverse inferences may be

account for his presence there when drawn under s 37
interviewed?

Did the police give the defendant a No adverse inferences may be

special caution? drawn under s 37

Did the defendant fail or refuse to No adverse inferences may be

account for their presence? drawn under s 37

Yes

Adverse inferences may be drawn under No adverse inferences may be

s 37 (subject to court’s power to exclude drawn under s 37
the interview record on the grounds of
unfairness under PACE, s 78)

167
Criminal Practice

9.4.5 Silence at trial and inferences under s 35 CJPOA

Unless at trial a defendant makes a successful submission of no case to answer at the end
of the prosecution case, the defendant will then have the opportunity to put their case before
the court. A defendant is not obligated to give evidence on their own behalf at trial. Neither
is a defendant obligated to raise any facts in their own defence. The defendant is entitled to
remain silent at trial (Criminal Evidence Act 1898, s 1(1)) and simply argue that the CPS has
failed to prove guilt beyond a reasonable doubt.
Since the defendant will not be raising any facts in his defence at trial which he did not
mention in the police station, no adverse inferences may be drawn under s 34.
However, a defendant who fails to give evidence on his own behalf at trial may be subject to
an adverse inference being drawn by the court or jury under s 35 of the CJPOA 1994.
Section 35(2) provides that:
the court shall, at the conclusion of the evidence for the prosecution;-satisfy itself ...
that the accused is aware that the stage has been reached at which evidence can
be given for the defence and that he can, if he wishes, give evidence and that, if
he chooses not to give evidence, or having been sworn, without good cause refuses
to answer any question, it will be permissible for the court or jury to draw such
inferences as appear proper from his failure to give evidence or his refusal, without
good cause, to answer any question.

The effect of s 35 is that, if the prosecution has raised issues which call for an explanation
from the defendant, should the defendant then fail to give evidence, the court will be entitled
to infer from that failure that the defendant has either no explanation, or no explanation that
will stand up to cross-examination.

o Example
Marcus is charged with common assault. Marcus pleads not guilty on the basis that he
was acting in self-defence. At the end of the prosecution case, Marcus declines to enter
the witness box to give evidence on his own behalf. The court is entitled to infer from
this that Marcus has no defence to the charge, or no defence that will stand up to cross-
examination (in other words, an inference that Marcus is guilty of the offence).
In the combined appeal of R v Cowan; R v Gayle; R v Ricciardy [1995] 4 All ER 939, the
Court of Appeal stated that the court had to take into account the following matters when
considering the application of s 35:
(a) the burden of proof remains on the prosecution throughout;
(b) the defendant is entitled to remain silent;
(c) before drawing an adverse inference from the defendant's silence, the court had to be
satisfied that there was a case to answer on the prosecution evidence;
(d) an adverse inference from the defendant's failure to give evidence cannot on its own
prove guilt; and
(e) no adverse inference could be drawn unless the only sensible explanation for the
defendant's silence was that he had no answer to the case against him, or none that
could have stood up to cross-examination.
As with ss 34, 36 and 37, a defendant will not be convicted of an offence if the only evidence
against him is an adverse inference from his failure to give evidence in his defence at trial
(CJPOA 1994, s 38(3)).
Unlike ss 34, 36 and 37, there is also a limited statutory exception to the drawing of adverse
inferences which can be found at s 35(1)(b). This provides the court with a discretion to direct
that an adverse inference is not drawn where
it appears to the court that the physical or mental condition of the accused makes it
undesirable for him to give evidence.

168
 Principles and Procedures to Admit and Exclude Evidence

Case law suggests that this exception will be applied strictly.

© In Rv Friend [1997] Crim LR 817, the accused, a boy aged 14 years at the time of-the trial,
was convicted of murder. It was said that he had an IQ of a 9-year-old. He didn’t give
evidence at his trial and the trial judge invited the jury to draw an adverse inference. On
appeal, it was argued by the defence that the exception should have applied, and no
adverse inference should have been drawn from his refusal to testify. In dismissing the
appeal, the Court of Appeal held that although the trial judge had a discretion under s
35(1)(b) to direct that no adverse inference be drawn, this was not one of those where the
exception applied. The Court of Appeal indicated the type of circumstances that the
statutory exception was aimed at. For example, if giving evidence was likely to trigger an
epileptic seizure, or if the accused was schizophrenic and testifying was likely to cause a
florid state.
However, Friend’s second appeal R v Friend (No2) [2004] EWCA 2661 saw the Court
of Appeal entertain the possibility of widening the availability of this exception. It
did so when it quashed the original conviction in light of new expert evidence which
concluded that Friend suffered from Attention Deficit Hyperactivity Disorder (ADHD) and,
consequently, he was unlikely to have been able to effectively participate in the trial and
might have given inconsistent and conflicting evidence.

9.5 Hearsay evidence

We will start by looking at the statutory definition of hearsay evidence provided by the Criminal
Justice Act (CJA) 2003, and the various forms of hearsay evidence that are made admissible in
criminal proceedings by virtue of the Act before touching on the procedural requirements that
must be complied with should any party seek to adduce hearsay evidence at trial.

9.5.1 Definition
A ‘hearsay statement’ is defined in s 114(1) of the CJA 2003 as ‘a statement, not made in oral
evidence, that is relied on as evidence of a matter in it’.

© Example
George is charged with handling a stolen bike. At George’s trial, the CPS calls Adam
to give evidence. Adam tells the court: ‘George showed me a bike. He told me he had
just been given it by a mate of his who had nicked it from somewhere else.’ This will
be hearsay evidence because the CPS will rely on the out-of-court statement made by
George to Adam to show that he was in possession of a bike which he knew to be stolen.
The statement by George is being relied on as evidence of a matter stated in it.
A ‘statement’ is defined in s 115(2) as ‘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’.
The purpose, or one of the purposes, of the person making the statement must appear
to the court to have been to cause another person to believe that the matter, or to cause
another person to act (or a machine to operate) on the basis that the matter, is as stated
(CIA 2003, s 115(3)).

© Example
R v Knight [2007] All ER (D) 381 (Nov) - the defendant was convicted of various sexual
offences committed against a 14-year-old girl. At trial, the girl’s aunt was allowed to
give evidence of entries she had read in the girl’s diaries that detailed the girl’s sexual
contacts with the defendant. The defendant submitted that such evidence was hearsay

169
Criminal Practice

and should not have been admitted. In refusing the appeal, the Court of Appeal held that
such evidence was not hearsay, because the girl had not intended other people to read
the entries in the diary and it therefore fell outside the scope of s 115.

Corin Examples of hearsay evidence in criminal proceedings

Examples of hearsay evidence that commonly arise in criminal proceedings are:
(a) a witness repeating at trial what they had been told by another person;
(b) a statement from a witness being read out at trial instead of the witness attending court
to give oral evidence;
(c) a police officer repeating at trial a confession made to them by the defendant;
(d) a business document being introduced in evidence at.trial.

Fu Ned, Firsthand and multiple hearsay

Hearsay evidence may be either ‘first-hand’ hearsay, or ‘multiple’ hearsay.

o Example 1
Jason is on trial for theft. The arresting officer (PC Kalpar) gives evidence that when he
arrested Jason, Jason made the following confession: ‘Okay, fair enough, it was me. | only
did it for drug money.’
This is first-hand hearsay evidence, because PC Kalpar is repeating a statement that
he heard Jason make. Details of the contents of Jason’s statement did not pass through
anyone else before getting to PC Kalpar.

© Example 2
Maryam is a bank clerk. She receives a cash deposit of £5,000 from a customer and
places this in the bank’s safe. She tells Brian, the senior cashier, who in turn tells Emir, the
manager. Emir makes a record of the deposit in a ledger. An armed robbery subsequently
takes place and the £5,000 is stolen. At the robber’s trial, the CPS seeks to use the entry
in the ledger to show how much money was in the safe. The entry in the ledger will be
multiple hearsay. The details of the amount of money placed in the safe have passed
from Maryam to Brian, then from Brian to Emir and then from Emir into the ledger itselt.
The circumstances in which a statement containing multiple hearsay is admissible in
evidence are more limited than when a statement contains only first-hand hearsay (see
below).

9.5.2 Grounds for admitting hearsay evidence

Hearsay evidence will be admissible if it falls within one of four categories. Section 114 of the
CJA 2003 states:
(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.

Pukled Hearsay admissible under a statutory provision - s 114(1)(a)

There are a number of statutory provisions contained in the CJA, including:
(a) cases where a witness is unavailable - CJA 2003, s 116;
(b) business and other documents - CJA 2003, s 117;

170
 Principles and Procedures to Admit and Exclude Evidence

(C) previous inconsistent statements of a witness - CJA 2003, s 119;

(d) previous consistent statements by a witness - CJA 2003, s 120;
(e) statements from a witness which are not in dispute - CJA 1967, s 9; and
(f) formal admissions - CJA 1967, s 10.
We will just focus on the first two groups.

Cases where a witness is unavailable to attend court

Section 116 of the CJA 2003 provides:

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is
admissible as evidence of any matter stated if:
(a) oral evidence given in the proceedings by the person who made the statement would
be admissible as evidence of that matter [ie the statement must be ‘first-hand hearsay’],
(b) the person who made the statement (the relevant person) is identified to the court's
satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
The conditions referred to in s 116(2)(a)-(e) are that:
(a) the relevant person is dead;
(b) the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) the relevant person is outside the United Kingdom and it is not reasonably practicable to
secure his attendance;
(d) the relevant person cannot be found, although such steps as it is reasonably practicable
to take to find him have been taken;
(e) through fear the relevant person does not give oral evidence in the proceedings, either at
all or in connection with the subject matter of the statement, and the court gives leave for
the statement to be given in evidence.

© Example 1
Zoé witnesses an assault and gives a signed statement to the police describing what she
saw. Before the case comes to trial, Zoé is killed in a road traffic accident. Zoé’s written
statement will be admissible in evidence because she satisfies the condition in s 116(2)(a)
and oral evidence given by her of what she saw when the assault occurred would have
been admissible at trial.

© Example 2
Amie witnesses an armed robbery at the bank where she works and provides a witness
statement describing what happened and identifying the robbers. Before the case comes
to trial, Amie is involved in a serious road traffic accident and is placed on a life support
machine. Amie’s witness statement will be admissible in evidence because she satisfies the
condition in s 116(2(b) and oral evidence given by her of what she saw when the robbery
occurred and her identification of the robbers would have been admissible at trial.

© Example 3
Ben, a serving soldier, witnesses a theft and gives a signed statement to the police
describing what he saw. Before the case comes to trial, Ben is posted abroad. Ben’s
written statement will be admissible in evidence because he satisfies the condition in s
116(2)(c) (assuming it is not reasonably practicable to secure his attendance at trial) and
oral evidence given by him of what he saw when the theft occurred would have been
admissible at trial.

171
Criminal Practice

© Example 4
Tariq lives in a shelter for the homeless. He witnesses a road traffic accident in which
a young child is seriously injured. Tariq gives a witness statement to the police, and the
driver involved in the accident is subsequently charged with dangerous driving. Before
the trial takes place, Tariq leaves the shelter. Despite making extensive enquiries, the
police are unable to locate Tariq’s current whereabouts. Tariq‘s written statement will be
admissible in evidence because the condition in s 116(2)(d) appears to be satisfied and
oral evidence given by Tariq of what he saw when the accident occurred would have
been admissible at trial.

o Example 5
Ava witnesses a murder. She gives a signed statement to the police describing what
she saw. Before the case comes to trial, Ava receives several anonymous letters telling
her that if she gives evidence at court, her baby son will be killed. Ava refuses to attend
court to give oral evidence of what she saw. Ava’s written statement may be admissible
in evidence. She appears to satisfy the condition in s 116(2)(e) and oral evidence given
by her of what she saw when the murder occurred would have been admissible at
trial. However, the trial judge will still need to give leave for her written statement to be
admitted in evidence, having regard to the matters listed in s 116(4).
Section 116(4) requires the court to give leave only if it considers that the statement ought to
be admitted in the interests of justice having regard to the contents, to any risk of unfairness
(in particular how difficult it would be to challenge the statement) and the fact that (in
appropriate cases) a special measures direction could be made.
Remember, s 116 applies only to ‘first-hand’ hearsay. In other words, a statement can be
admissible under this section only if the person who made that statement would have been
allowed to give oral evidence at trial of the matters contained in the statement. In the
examples given above, the statement of each witness who was unable to come to court
to give oral evidence would constitute ‘first-hand’ hearsay because their evidence had not
passed through any other hands and was direct evidence of what they either saw or did.
Below is an example of ‘second-hand’ or multiple hearsay. Such evidence is not admissible
under s 116.

© Example
Fozia witnesses an assault. She tells Jenny what she saw when the assault occurred. Jenny
then gives a signed statement to the police repeating what she had been told by Fozia.
Before the case comes to trial, Jenny is killed in a road traffic accident. Jenny’s statement
will not be admissible under s 116. Although Jenny satisfies the condition in s 116(2)(a)
above, she would not have been allowed to give oral evidence at court as to the contents
of her statement because her statement merely repeated what she had been told by
Fozia and was itself hearsay. Any evidence given by Jenny would be multiple hearsay and
therefore not admissible.

Business and other documents

Section 117 of the CJA 2003 provides:
(1) In criminal proceedings a statement contained in a document is admissible as
evidence of any matter stated if:
(a) oral evidence given in the proceedings would be evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection
(4) requires them to be.

172
 Principles and Procedures to Admit and Exclude Evidence

The requirements of s 117(2) are that:

(a) the document (or the part of it containing the statement) must have been created or
received by a person in the course of a trade, business, profession or other occupation, or
as the holder of a paid or unpaid office;
(b) the person who supplied the information contained in the statement (the relevant person)
had, or may reasonably be supposed to have had, personal knowledge of the matters
dealt with; and
(c) each person (if any) through whom the information was supplied from the relevant person
to the person mentioned in paragraph (a) received the information in the course of a trade,
business, profession or other occupation, or as the holder of a paid or unpaid office.
The practical effect of s 117 is to make both ‘first-hand’ and ‘multiple’ hearsay in certain
documents admissible in evidence.

Business records

Section 117 will commonly be used to ensure the admissibility in evidence of business records.

© Example 1
Omar is charged with armed robbery. The CPS alleges that Omar bought the shotgun
used in the robbery from a local gun shop two weeks prior to the robbery taking place.
The CPS seeks to adduce in evidence a handwritten receipt given to Omar at the time the
shotgun was purchased. The receipt was prepared by Neville, the owner of the gun shop.
The receipt will be first-hand hearsay evidence and will be admissible under s 117. The
receipt is a statement in a document and was prepared by Neville in the course of his
business from information about which he had first-hand knowledge, namely Omar's
purchase of the shotgun.

o Example 2
Paul deposits £500 in a safe at the bank where he works. He tells Youssef, a clerk at the
bank, who records the deposit in a ledger.
The ledger is multiple hearsay, but it will be admissible under s 117. The entry in the
ledger is a statement in a document and was created by Youssef in the course of
business. The person who supplied the information contained in the ledger (Paul) had
personal knowledge of the making of the deposit.

© Example 3
Ahmed deposits £1,000 in a safe at the betting shop where he works. He tells Shona, one
of his colleagues. Shona passes this information on to Gavin, the owner of the shop, who
records the deposit in a ledger.
The entry in the ledger is multiple hearsay, but it will be admissible under s 117. The entry
in the ledger is a statement in a document which was created by Gavin in the course of
business. The person who supplied the information contained in the ledger (Ahmed) had
personal knowledge of the making of the deposit, and the person through whom the
information was passed (Shona) received the information in the course of business.
The three above examples illustrate the usual operation of this exception. However, a further
layer of requirements applies where a business document has been prepared for the purpose
of criminal proceedings.

Statements prepared for use in criminal proceedings

If the statement was prepared for ‘the purposes of pending or contemplated criminal
proceedings, or for a criminal investigation’ (s 117(4)), the requirements of s 117(5) must be
satisfied. The requirements of s 117(5) will be satisfied if:

173
Criminal Practice

(a) any of the five conditions mentioned in s 116(2) is satisfied (see above); or
(b) the relevant person cannot reasonably be expected to have any recollection of the
matters dealt with in the statement (having regard to the length of time since he supplied
the information and all other circumstances).

& Example
A burglary occurs at a shop. Charlie, the owner of the shop, prepares a list of all the
items taken in the burglary in order to claim on his business insurance policy and to
also provide the police with a list of the items stolen. Two years later, the police arrest
Niall and charge him with the burglary. At Niall’s trial, the CPS seeks to use the list to
prove what was taken in the burglary. Charlie is able to attend trial to give evidence but,
given the time which has elapsed since the time of the burglary, he is unable to recall
all the items contained on the list. The list of stolen items compiled by Charlie is first-
hand hearsay and should be admissible in evidence under s 117. The list is a statement
in a document. Charlie created the list in the course of his business and the person who
supplied the information contained in the list (Charlie) had personal knowledge of the
matters dealt with in the list. As the list was compiled for use in contemplated criminal
proceedings, one of the requirements in s 117(5) must be satisfied. These requirements
are satisfied because, although Charlie can attend court to give oral evidence, due to the
time which has elapsed since the list was compiled, he cannot reasonably be expected to
have any recollection of the matters dealt with in the statement.

F522 Hearsay admissible under a preserved common law exception - s 114(1)(b)

Section 118(1) of the CJA 2003 preserves several common law exceptions to the rule excluding
hearsay evidence. The most important exceptions preserved by s 118(1) are:
(a) evidence of a confession or mixed statement made by the defendant; and
(b) evidence admitted as part of the res gestae.

Confession evidence
Prior to the enactment of the CJA 2003, evidence that the defendant had made a confession
was admissible at common law as an exception to the rule excluding hearsay evidence. This
rule was subsequently codified by s 76(1) of PACE 1984, which provides:
(1) In any proceedings a confession made by an accused person may be given
in evidence against him insofar as it is relevant to any matter in issue in the
proceedings and is not excluded by the court in pursuance of this section.
Section 118(1) preserves the common law rule that a confession made by a defendant will be
admissible in evidence against the defendant, even if the confession is hearsay evidence. This
is such an important exception in practice, we will look at it in more detail later in this chapter.

Evidence admitted as part of the res gestae

Section 118(1) of the CJA 2003 also preserves the common law rule admitting evidence that
forms part of the res gestae.
The common law principle of evidence being admitted as part of the res gestae provides
that a statement made contemporaneously with an event will be admissible as an exception
to the hearsay rule because the spontaneity of the statement meant that any possibility of
concoction can be disregarded.

1 R v Andrews [1987] AC 281 - the House of Lords held that hearsay evidence of a
statement made by a fatally stabbed man soon after he was attacked naming his two
attackers was properly admitted as evidence of the truth of the facts he had asserted
under the res gestae principle. Lord Ackner set out the following criteria (known as the
Ackner criteria‘) for the admission of such evidence:

174
 Principles and Procedures to Admit and Exclude Evidence

(1) The primary question which the judge had to ask himself in such a case was: Can the
possibility of concoction or distortion be disregard?
(2) To answer that question the judge first had to consider the circumstances in which
the particular statement was made in order to satisfy himself that the event was so
unusual or dramatic as to dominate the thoughts of the victim so that his utterance
was an instinctive reaction to that event thus giving no real opportunity for reasoned
reflection.
(3) In order for the statement to be sufficiently spontaneous it had to be so closely
associated with the event which had excited the statement that it could fairly be said
that the mind of the declarant was still controlled by the event.
(4) Quite apart from the time factor there might be special features in a case which
related to the possibility of distortion.
(5) As to the possibility of error in the facts narrated in such a statement: If only the
ordinary fallibility of human recollection was relied upon that went to the weight to be
attached and not to the admissibility of the statement and was therefore a matter for
the jury.

© Example
Jordan is charged with murder. The CPS alleges that Jordan shot his victim with a rifle.
Jordan’s defence is that the rifle went off by accident as he was examining it. The CPS
want to call evidence from a witness who did not see the shooting but did hear the victim
scream, ‘Don’t shoot me Jordan!’ immediately before hearing the gun fire. This would be
hearsay evidence, but is likely to be admissible as part of the res gestae, to help prove
the shooting was not an accident.

9.5.2.5 Hearsay admissible by agreement - s 114(1)(c)

lf all the parties in the case agree, any form of hearsay evidence may be admissible in
evidence.

9.5.2.4 Hearsay admissible in the interests of justice - s 114(1)(d)

This is a ‘catch-all’ provision, allowing the court to admit hearsay evidence that would not
otherwise be admissible if it is in the interests of justice to do so. This provision gives the
courts a very wide discretion to admit hearsay evidence which is cogent and reliable.
In deciding whether to admit hearsay evidence under s 114(1)(d), the court must have regard
to the factors in s 114(2):

(a) how much probative value the statement has (assuming it to be true) in relation to a
matter in issue in the proceedings, or how valuable it is for the understanding of other
evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in
para (a);
(c) how important the matter or evidence mentioned in para (aq) is in the context of the case
as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(9) whether oral evidence of the matter stated can be given and, if not, why not;

(h) the amount of difficulty involved in challenging the statement; and

(i) the extent to which that difficulty would be likely to prejudice the party facing it.

175
Criminal Practice

In assessing these factors, the court will need to have regard to the defendant's right to a fair
trial enshrined in Article 6 of the ECHR (see below).
The Court of Appeal considered the application of s 114(1)(d) and s 114(2) in R v Taylor [2006]
EWCA Crim 260. The court held that to reach a proper conclusion on whether the evidence
should be admitted under s 114(1)(d), the trial judge was required to exercise his judgment
in the light of the factors in s 114(2), give consideration to them and to any other factors he
considered relevant and then to assess their significance and the weight that in his judgment
they carried. There is no need, however, for the judge to reach a specific conclusion in relation
to all the factors.

© Example 1
Maher v DPP [2006] EWHC 1271 (Admin) - the defendant was convicted of various road
tratfic offences after crashing her vehicle into another car (owned by X) and then leaving
the scene without leaving her contact details. The evidence against the defendant came
from a witness who claimed to have seen the accident and left a note attached to X's
car giving the registration number of the defendant's car. X’s partner saw the note and
telephoned the police, who made a record of the registration number on their incident
log. The note was subsequently lost. The issue for the Divisional Court was whether the
entry in the police log could be admitted as hearsay evidence. The Divisional Court said
the entry in the log was admissible under s 114(1)(d). There was nothing to suggest that it
was not in the interests of justice to admit the log, and the evidence was substantial and
reliable.

o Example 2
R v Z [2009] Crim LR 519 - the appellant appealed against his conviction for a number of
sexual offences that were of an historic nature. The relevant prosecution evidence came
from a witness who claimed that she had also been raped by the appellant at around the
same time as the present case. The witness though refused to give evidence on the basis
that she did not want to have to relive that period in her life and that she wanted to put
the whole incident behind her. In other words her refusal to testify did not come within any
of the recognised exceptions contained in s 116. The Court held that although the interests
of justice test under s 114(1)(d) may allow evidence to be adduced which fell outside
s 116, such evidence would only usually apply to hearsay evidence which formed part
of the incident itself. The witness’s apparent untested reluctance to testify did not merit
admission under this provision. To do so would wrongly circumvent the provisions of s 116.
To admit such evidence would have been extremely prejudicial to the appellant and very
difficult for him to properly challenge.

9.5.5 Procedure for admitting hearsay

The procedural rules to be followed should a party seek to rely on hearsay evidence at trial
(or to challenge the admissibility of hearsay evidence on which another party seeks to rely)
are contained in Part 20 of the CrimPR. These rules do not, however, apply in all cases when a
party wishes to use hearsay evidence at trial. The rules in Part 20 only apply to cases where:
(a) it is in the interests of justice for the hearsay evidence to be admissible (s 114(1)(d));
(b) the witness is unavailable to attend court (s 116);
(c) the evidence is multiple hearsay (s 121); or
(d) either the prosecution or the defence rely on s 117 for the admission of a written witness
statement prepared for use in criminal proceedings (CrimPR, r 20.2).
For hearsay evidence which is admissible on any other grounds, the procedural rules contained
in Part 20 do not apply. If, for example, the defendant made a confession at the time of their
arrest, the rules in Part 20 will not apply should the CPS seek to rely on the arresting officer

176
 Principles and Procedures to Admit and Exclude Evidence

repeating details of that confession when the officer gives evidence at the defendant's trial.
Similarly, the rules in Part 20 will not apply if the hearsay evidence is admissible under any of
the preserved common law exceptions to the rule excluding hearsay evidence. The significance
of this is that if the hearsay evidence to be adduced at trial does not fall within one or more of
the four sections noted at (a) to (d) above, the party seeking to rely on that evidence will not
need to serve on the other party notice of its intention to rely on such evidence.
A party wishing to adduce hearsay evidence to which Part 20 applies, or to oppose another
party's application to introduce such evidence, must give notice of its intention to do this both
to the court and to the other parties in the case (CrimPR, r 20.2). Notice must be given using
a set of prescribed forms. As part of the standard directions that will be given in both the
magistrates’ court and the Crown Court (see Chapter 6), the court will impose time limits for
the CPS and the defendant to give notice of their intention to adduce hearsay evidence at
trial. The relevant time limits are set out in CrimPR, r 20.2(3) (for the CPS) and CrimPR, r 20.2(4)
(for the defendant).
However, r 20.5 of the CrimPR allows the court to dispense with the requirement to give notice
of hearsay evidence, to allow notice to be given orally rather than in writing, and to shorten or
extend the time limits for giving notice.

7.5.5.4 Determining the admissibility of hearsay evidence

When either the CPS or the defendant has made an application to adduce hearsay evidence
at trial, and this application is opposed by the other party, the court will usually determine
the admissibility of such evidence at a pre-trial hearing. In the magistrates’ court, this is likely
to be at the case management hearing/pre-trial review, or at a specific pre-trial hearing to
resolve disputes about the admissibility of evidence, In the Crown Court, this is likely to be at
the PTPH, or at a specific pre-trial hearing (see Chapter 6).

9.6 Confession evidence

We will now consider what constitutes a confession and when such evidence is admissible in
evidence at trial. We will also look at the circumstances in which confession evidence may be
excluded and the procedure to be followed when the defendant challenges the admissibility
of confession evidence upon which the CPS seeks to rely.

9.6.1 Definition
A confession is ‘any statement wholly or partly adverse to the person who made it, whether
made to a person in authority or not and whether made in words or otherwise’ (PACE 1984, s
82(1)).
Anything said by a defendant that constitutes an admission of any element of the offence
with which they are subsequently charged, or that is in any way detrimental to their case, will
satisfy the definition of a confession in s 82(1).

© Example 1
Jade is arrested on suspicion of theft from a supermarket. When interviewed at the police
station, Jade tells the polices ‘Yeah, it was me who nicked the stuff. | wanted to sell it to
get money for drugs.’ Jade’s comments satisfy the definition of a confession in s 82(1)
because she has admitted to carrying out the theft and it is therefore ‘wholly adverse’
to her.

© Example 2
PC Nowak is called to a pub where an assault has taken place. On arriving at the pub,
PC Nowak obtains a description of the person alleged to have committed the assault.

177
Criminal Practice

Shortly after leaving the pub, PC Nowak sees Michael in the street. Michael matches the
description of the person who committed the assault. PC Nowak asks Michael if he has
been at the pub that evening. Michael replies: ‘Yeah, but | only hit him in self-defence.’
Although Michael has not admitted to committing the assault, his comments still satisfy the
definition of a confession in s 82(1) above. This is because, in the event that Michael is
later charged with the assault, the comments he made will be ‘partly adverse’ to his case.
Michael admits to having been at the pub, and also admits to hitting the victim, so this is
at least ‘partly adverse’ to his case.

96:2 Admissibility
As we saw earlier, a confession made by a defendant prior to trial will be admissible in
evidence at trial by virtue of s 76(1) of PACE 1984:
In any proceedings a confession made by an accused person may be given in
evidence against him insofar as it is relevant to any matter in issue in the proceedings
and is not excluded by the court in pursuance of this section:
This means that a confession will be admissible at trial to prove the truth of its contents (ie to
prove the defendant's guilt) and is therefore also an exception to the hearsay rule.

o Example 1
Juan is charged with theft. He admits the theft in an audibly recorded interview at the
police station. A transcript of the interview is subsequently read out at Juan’s trial. The
transcript is hearsay evidence, but it will be admissible in evidence by virtue of s 76(1) to
prove his guilt.

© Example 2
Ayesha is arrested on suspicion of theft. As she is being arrested, Ayesha tells the
arresting officer: ‘Okay | did it. You know | only steal because | have no money.’
At Ayesha’s trial, the arresting officer repeats the comment made by Ayesha at the time of
her arrest. This will be hearsay evidence, but it will be admissible in evidence by virtue of
s 76(1) to prove Ayesha’s guilt.

© Example 3
Steve is charged with theft. He denied the theft when interviewed at the police station,
but later admits to his friend Tianna that he committed the theft. Tianna has provided the
CPS with a statement in which she repeats the confession which Steve has made. If Tianna
repeats this at court when giving oral evidence, this will be hearsay evidence, but it will
be admissible in evidence by virtue of s 76(1) to prove Steve’s guilt.

ye Mixed statements
A confession may sometimes also include a statement which is favourable to the defendant.
These are referred to as ‘mixed statements’. The whole statement will be admissible under s
76(1) as an exception to the rule excluding hearsay evidence.

© Example
Connor is charged with rape. When interviewed at the police station, he says: ‘I did have
sex with her, but only because she consented.’ This is a mixed statement, because Connor
makes a confession (admitting to having sexual intercourse with the complainant) but he
also makes a statement favourable to his defence (saying that it was consensual). The
entire statement will be admissible under s 76(1).

178
 Principles and Procedures to Admit and Exclude Evidence

9.6.2.2 Confessions and a co-accused

Is a confession made by a defendant admissible in evidence against a co-defendant?
Any evidence given by a co-defendant at trial which implicates a defendant (including a
confession made by the co-defendant) will be admissible in evidence against the defendant.
Also, if the co-defendant has pleaded guilty at an earlier hearing and is giving evidence for
the prosecution at the trial of the defendant, any evidence given implicating the defendant in
the commission of the offence will be admissible in evidence against the defendant.

o Example
Trisha and Matthew are jointly charged with theft. Tricia is to plead guilty and Matthew
will plead not guilty. Tricia enters her guilty plea on her first appearance before the court.
She then gives a statement to the CPS stating that she and Matthew committed the theft
together. As Tricia is no longer being tried with Matthew (because she has pleaded
guilty), she will be able to give evidence as a prosecution witness at Matthew’s trial. If
when giving evidence, Tricia states that she and Martyn committed the theft together, this
confession will be admissible in evidence against Matthew.
The longstanding position at common law has been that a pre-trial confession made by one
defendant which also implicates another defendant is admissible only against the defendant
who makes the confession. This is also supported by s 76(1) which provides that ‘In any
proceedings a confession made by an accused person may be given in evidence against him’
and is silent about its admissibility against anyone else.

9.6.3 Challenging admissibility by s 76 PACE 1984

A defendant who is alleged to have made a confession may challenge the admissibility of this
confession at trial by arguing either:
(a) that they did not make the confession at all, and that the person to whom the confession
was made was either mistaken as to what they heard or has fabricated evidence of the
confession; or
(b) that they did make the confession, but it should still not be admitted in evidence.
lf the defendant accepts that they made a confession, they will usually challenge the
admissibility of the confession under s 76(2) of PACE 1984. This provides that:
lf, in any proceedings where the prosecution proposes to give in evidence a
confession made by an accused person, it is represented to the court that the
confession was or may have been obtained:
(a) by oppression of the person who made it; or
(6) in consequence of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession which might be made by
him in consequence thereof, the court shall not allow the confession to be given
in evidence against him except in so far as the prosecution proves to the court
beyond reasonable doubt that the confession (notwithstanding that it may be
true) was not obtained as aforesaid.
This means that if a defendant argues that a confession was obtained in the manner or
circumstances detailed under paras (a) or (b) above, the court must not allow that confession
to be used as evidence by the prosecution, unless the prosecution prove beyond a reasonable
doubt that the confession was not so obtained. Even if the court thinks that the confession
is true, the court must still rule that the prosecution cannot use the confession in evidence
unless the prosecution can prove that the confession was not obtained by oppression or in
circumstances which render it unreliable.

179
Criminal Practice

© Example
Jeff is charged with murder. When interviewed at the police station he confessed to
having committed the murder. At his trial, Jeff argues that the confession was obtained
by oppression and should be ruled inadmissible by the trial judge. The CPS must prove
beyond a reasonable doubt that the confession was not obtained by oppression, even if
the judge believes the confession to be true. If the prosecution fails to do this, the judge
must not allow evidence of the confession to be placed before the jury.

Oppression
Section 76(8) of PACE 1984 states that ‘oppression’ includes ‘torture, inhuman or degrading
treatment, and the use or threat of violence (whether or not amounting to torture)’. In Rv
Fulling [1987] 2 WLR 923, the Court of Appeal said that ‘oppression’ consisted of ‘the exercise
of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of
subjects, inferiors, etc; the imposition of unreasonable or unjust burdens’:
A good example of oppression can be seen in the case of R v Paris (1993) 97 Cr App R
1999 - in an audibly recorded interview at the police station, the defendant was bullied and
hectored into making a confession. The Court of Appeal said that, other than actual physical
violence, it would find it hard to, think of a more hostile and intimidating approach adopted by
interviewing officers.

Unreliability
This tends to be the more common basis upon which the defence will challenge admissibility.
For the court to exclude a confession under s 76(2)(b), something must be said or done which,
in the circumstances that existed at the time, would render unreliable any confession which
the defendant made. In other words, something must have been said or done (usually by the
police) which might have caused the defendant to make a confession for reasons other than
the fact that they had actually committed the offence and wanted to admit guilt. Although
s 76(2)(b) does not require deliberate misconduct on the part of the police, the thing which is
said or done will usually involve a breach of Code C of the Codes of Practice to PACE 1984.
Examples of the types of breach of Code C which may lead to a confession being excluded
on the grounds of unreliability include:
(a) denying a suspect refreshments or appropriate periods of rest between interviews, so that
the suspect is either not in a fit state to answer questions properly, or makes admissions
in interview simply to get out of the police station as soon as possible or to obtain rest or
refreshments (this may be particularly relevant if the suspect is suffering from some form
of illness or ailment, even if the police are not aware of this condition);
(b) offering a suspect an inducement to confess, for example, telling a suspect that if they
confess they will receive a lesser sentence, suggesting to the suspect that they will be
able to leave the police station much more quickly if they admit their guilt, or telling the
suspect that they will only be granted police bail if they make a confession;
(c) misrepresenting the strength of the prosecution case, for example by telling a suspect
that the prosecution case is much stronger than it actually is and that there is no point in
denying guilt;
(d) questioning a suspect in an inappropriate way, for example by repeatedly asking a
suspect the same question, or badgering a suspect until they give the answer the officer
wants to hear;
(e) questioning a suspect who the police should have known was not in a fit state to be
interviewed either because the suspect had consumed drink or drugs, or because the
suspect was suffering from some form of medical condition or ailment. The answers given
by such a suspect in interview may be unreliable;

180
 Principles and Procedures to Admit and Exclude Evidence

(f) threatening a suspect, for example by telling them that they will be kept at the police
station until they make a confession, so that the suspect thinks they have no option other
than to confess if they want to get out of the police station.

© A common example of an argument used to exclude a confession on the unreliability ground

under s 76(2)(b) is for a defendant to argue that their confession is unreliable because they
were denied access to legal advice at the police station in breach of Code C and s 58 of
PACE 1984. A breach of s 58 and Code C will not, however, in itself automatically lead to the
exclusion of the confession. In order for the confession to be excluded, there must be a
causal link between the breach and the unreliability of the confession that was subsequently
made. The court will need to consider whether if the defendant had been allowed access to
legal advice, they would not have made a confession. Therefore, if denial of access to legal
advice is relied upon as an argument to exclude a confession under s 76(2)(b), a defendant
will find it hard to establish a causal link if they are an experienced criminal who is fully
aware of their rights when detained at the police station.

© Example 1
InRv-Trussler [1998] Crim-LR 446, the defendant was a drug addict who was kept in
custody for 18 hours. He was interviewed several times without being given any rest and
was denied.access to legal advice. His confession was excluded under s 76(2)(b).

o Example 2
In Rv.Alladice.(1998).87.Cr App. R380, the defendant was denied access to legal advice
and confessed to a robbery. When giving evidence at trial, the defendant stated that he
knew his rights and that he understood the police caution. The defendant's application to
exclude his confession was rejected by the trial judge. Although denying access to legal
advice was a serious breach of Code C, there was nothing to suggest that this might have
rendered any confession he had made unreliable, because he was fully aware of what his
rights were.

9.6.3.1 Can a co-defendant rely on a confession made by another defendant?

Section 76A(1) of PACE 1984 allows a defendant to adduce evidence that a co-defendant has
made a confession where both defendants plead not guilty and are tried jointly. Clearly a
defendant would only want to do this if the co-defendant’s confession doesn’t also implicate
that defendant.
Under s 76A(2), however, if the co-defendant who made the confession represents to the court
that his confession was obtained as a result of oppression, or in circumstances rendering it
unreliable (see above), the court must exclude the evidence of the confession (even if the
court believes the confession to be true), unless the court is satisfied that the confession was
not obtained in such a way. The court need only be satisfied on the balance of probabilities
that the confession was not obtained either by oppression or in circumstances rendering it
unreliable in order for the confession to be admissible when a co-defendant wants to rely on it
as opposed to the prosecution.

© Example
Bilal and Patrick are jointly charged with common assault. Both are pleading not guilty.
When Patrick was interviewed by the police, he confessed to having committed the crime.
Under s 76A(1), Bilal is entitled to raise Patrick’s confession in evidence at trial to show
that it was Patrick rather than he who committed the assault. However, Patrick argues
at trial that the confession he made when interviewed was obtained only as a result of
threats made by the police to keep him in custody indefinitely until he confessed, and
so is unreliable. If Bilal attempts to adduce evidence of Patrick’s confession and Patrick

181
Criminal Practice

challenges the admissibility of this, the court must exclude the evidence of Patrick's
confession under s 76A(2) (even if the court believes the confession to be true) unless
the court is satisfied by Bilal on the balance of probabilities that the confession was not
obtained in circumstances making it unreliable.

9.6.4 Challenging admissibility s 78 PACE 1984

Section 76 of PACE 1984 deals exclusively with the court’s power to exclude evidence of a
confession made by the defendant. Under s 78, the court has a more general discretion to
exclude prosecution evidence. This includes evidence of a confession made by a defendant.
Section 78 provides the court with the discretion to exclude confession evidence on which the
CPS seeks to rely if the court considers that the admission of the confession would have such
an adverse effect on the fairness of proceedings that it ought not to be admitted. Section 78
may be relied on either when the defendant admits making a confession but claims that the
confession is untrue, or when the defendant denies making the confession
at all.

9.6.4.1 Confessions the defendant accepts having made

When a defendant alleges that the police breached the provisions of PACE 1984 and/or the
Codes of Practice in obtaining a confession, the court is only likely to exercise its discretion
under s 78 to exclude such evidence if these breaches are both significant and substantial
(R v.Keenan [1990] 2 QB 54).
Many of the cases in which the court has exercised this discretion under s 78 are concerned
with suspects who have been denied access to legal advice. In Rv Walsh (1989).91.Cr.App R
161, the Court of Appeal said that in most cases where a defendant had been denied access
to legal advice in breach of s 58 of PACE 1984 or the provisions of Code C, this would lead to
the court exercising its discretion to exclude any confession that the defendant subsequently
made, since allowing the CPS to rely on such evidence would have an adverse effect on the
fairness of the proceedings.
There is therefore a degree of overlap between the court's discretion to exclude a confession
(which the defendant admits to having made) under s 78, and the duty of the court to exclude
a confession under the ‘unreliability’ ground in s 76(2)(b).

9.6.4.2 Confessions the defendant denies having made

A defendant may sometimes be alleged to have made a confession ‘outside’ the police station
when first approached by the police. If the defendant subsequently denies having made such a
confession, its admissibility may be challenged under s 78 (and not under s 76(2)(b)).
For example, a confession allegedly made by the defendant when questioned by the police
in an interview ‘outside’ the police station is likely to be excluded under s 78 if the police
breached the provisions of Code C of PACE 1984 by:
(a) failing to make an accurate record of the defendant's comments (Code C, para 11.7(a)),
as the police would not then be able to substantiate that such comments were in fact
made by the defendant;
(b) failing to give the defendant an opportunity to view the record of his comments and to .
sign this record as being accurate, or to dispute the accuracy of the record (Code C, para
11.11), as the defendant would then be deprived of the opportunity to challenge the
accuracy of the police record; or
(c) failing to put this admission or confession to the defendant at the start of his subsequent
interview at the police station (Code C, para 11.4), as the whole point of putting the
confession to the defendant at the start of the audibly recorded interview is to ensure that
the defendant has the opportunity to confirm or deny ‘on the record’ what he is alleged to
have said.

182
 Principles and Procedures to Admit and Exclude Evidence

© Example

Rv Canale [1990] 2. All ER 187 = the police alleged that the defendant had made
certain admissions to them. The defendant denied making these admissions. The
interviewing officer to whom these admissions had allegedly been made failed to make
a contemporaneous note of the interviews as required by Code C, and the defendant
was therefore denied the opportunity to comment on the accuracy of the record of these
interviews. The evidence was excluded by the court under s 78 because its admission
would have had such an adverse effect on the fairness of the proceedings.

9.6.5 Procedure for challenging the admissibility of confession evidence

9:6.9,1 Crown Court
In the Crown Court, the admissibility of disputed confession evidence will be determined
by the trial judge in the absence of the jury at a voir dire (a trial within a trial). If
the confession was made by the defendant in an interview at the police station, the
interviewing officer will give evidence as to how the confession was obtained and the
defendant will then give their version of events. The audio recording of the interview is
also likely to be played. !f the confession was made ‘outside’ the police station, the officer
to whom the confession was allegedly made will give evidence, as will the defendant.
Prosecuting and defence counsel will then make submissions to the judge on whether or
not the confession should be excluded in the light of the evidence given. The judge will
then make their ruling.
lf the judge rules the confession to be inadmissible, the jury will hear nothing about the
confession. If the judge rules the confession to be admissible, the interviewing officer will
then give evidence of the confession when giving evidence to the jury. The defendant will still
be able to attack the credibility of the confession (either when giving evidence, or when the
police officer is being questioned) in an attempt to persuade the jury to attach little or no
weight to it.

9.6.5.2 Magistrates’ court

In the magistrates’ court, a ruling as to the admissibility of the disputed confession will
normally be sought when the interviewing officer gives evidence. If the defendant seeks to
exclude evidence of the confession under s 76(2) of PACE 1984, the magistrates must also hold
a voir dire. \f the defendant raises submissions under s 76(2) and s 78, both arguments should
be dealt with at the same voir dire. lf the defendant seeks to rely only ons 78, there is no
obligation to hold a voir dire. In such cases, a challenge to the admissibility of the confession
may be left either to the close of the prosecution case (if the defendant's solicitor wishes to
make a submission of no case to answer), or to the end of the trial when the defendant's
solicitor makes their closing speech.

9.6.6 Evidence obtained as a result of an inadmissible confession

The fact that the court excludes evidence of a confession made by a defendant will not affect
the admissibility in evidence of any facts discovered as a result of the confession (s 76(4) PACE
1984) although the CPS will not be able to tell the court that such facts were discovered as a
result of a confession made by the defendant.

© Example
Max is charged with murder. As a result of a confession made by him, the police are
able to recover the murder weapon with Max’s fingerprints on it. The trial judge rules
that the confession is inadmissible under s 76(2)(b). The CPS will still be able to adduce
evidence as to the finding of the weapon with Max’s fingerprints on it even though it will
not be able to raise in evidence that this item was discovered as a result of a confession
made by Max. This evidence will still be an important piece of circumstantial evidence
against Max.

183
Criminal Practice

Figure 9.2 Confession evidence flowchart

Do comments made by the defendant amount to a confession (PACE s 82(1): ‘any statement wholly
or partly adverse to the person who made it’)?

Confession admissible at trial (as an Comments not admissible at trial unless they
exception to the rule excluding hearsay fall within one of the other exceptions to the
evidence) to prove the defendant's guilt rule excluding hearsay evidence
(PACE, s 76(1)) (CJA 2003, s 114(1))

Defendant makes an application to exclude Confession admissible at trial (but defendant

the confession: may still argue that confession is untrue)
e PACE, s 76(2)(a)-oppression;
and/or
¢ PACE, s 76(2)(b)-unreliability; and/or
e PACE, s 78-unfairness

!
| Application successful Application unsuccessful

|
Confession inadmissible at trial
Confession admissible at trial, but credibility
of confession may still be challenged in
cross-examination of prosecution witnesses
or when defendant gives evidence

184
 Principles and Procedures to Admit and Exclude Evidence

9.7 Character evidence

Defendants in a criminal case will often have previous convictions. We will now examine the
circumstances in which such previous convictions may be admitted in evidence at trial. As with
hearsay evidence, the admissibility of bad character evidence is governed by the Criminal
Justice Act 2003.

+Ayi | Definition of bad character

‘Bad character’ is defined in s 98 as being ‘evidence of, or a disposition towards, misconduct’,

other than evidence connected with the offence for which the defendant has been charged.
‘Misconduct’ is defined in s 112 as ‘the commission of an offence or other reprehensible
behaviour’. Note therefore that misconduct covers more than just the existence of previous
convictions.
If the alleged misconduct by the defendant is connected to the offence with which he has
been charged, this will not fall within the definition of bad character in s 98, and will therefore
be admissible in evidence without needing to consider whether it satisfies the test for
admissibility of bad character evidence set out in the CJA 2003.

© Example
Sean is charged with the murder of Frank, his father. The CPS alleges that Sean fabricated
a will in Frank’s name, leaving all Frank’s assets to Sean, and that Sean then murdered
Frank so that he could take these assets. The allegation that Sean fabricated Frank’s will
is an allegation of misconduct on the part of Sean. It will not fall within s 98 of the CJA
2003, however, because it is connected to the subsequent murder of Frank. Evidence of
the fabrication of the will is therefore admissible without needing to consider whether it
satisfies the test for admissibility of bad character evidence set out in the CJA 2003.

9.7.2 The 7 gateways s 101(1) Criminal Justice Act 2003

Evidence of a defendant's bad character may be raised at trial through one or more of the
7 ‘gateways’ which are set out in s 101(1) of the CJA 2003. Section 101 provides that:
(1) In criminal proceedings evidence of a defendant's bad character is admissible if,
but only if:
(a) all parties to the proceedings agree to the evidence being admissible,
(b) the evidence is adduced by the defendant himself or is given in answer to a
question asked by him in cross-examination and intended to elicit it,
(c) it is important explanatory evidence,
(d) it is relevant to an important matter in issue between the defendant and the
prosecution,
(e) it has substantial probative value in relation to an important matter in issue
between the defendant and a co-defendant,
(f) it is evidence to correct a false impression given by the defendant, or
(g) the defendant has made an attack on another person’s character.
As with the drawing of adverse inferences, a defendant's bad character cannot of itself prove
guilt. The prosecution must adduce other evidence to substantiate their case before the jury or
magistrates are allowed to take bad character into account.

9.7.2.1 Gatewayy (a)

(a)+ all parties to the proceedings agree to the evidence being admissible
If the-CPS and the-defendant are in agreement that the evidence is admissible, it may be
admitted under this gateway.

185
Criminal Practice

Velbon (Gateway (by L the evidence is adduced by the defendant himself or is given in answer to a
question asked by him in cross-examination and intended to elicit it
This gateway allows a defendant to introduce evidence of their own bad character.
A defendant may do this if, for example they only have very minor previous convictions and do
not want the jury or magistrates to think that, because they are not adducing evidence of their
own good character, they may have extensive previous convictions. Another example of when
a defendant may do this is if they pleaded guilty on previous occasions but are pleading not
guilty to the current matter. The defendant may use such convictions to say to the jury that
they accept their guilt when they have committed an offence, but on this occasion they are
pleading not guilty because they genuinely have not committed the offence charged.
In R v Paton [2007] EWCA Crim 1572, the defendant was charged with kidnapping,
false imprisonment and firearms offences after he was alleged to have blindfolded and
interrogated the manageress of a garden centre about the security systems at the centre, and
then locked her in the boot of her car. Various items found in the defendant's car suggested
that the defendant had been the kidnapper. The defendant raised evidence of his own bad
character by claiming that these items had come from a burglary he had committed on an
earlier occasion, and that he was not guilty of the more serious offences charged.

OoFi2.0 | Gateway (c)\- it is important explanatory evidence

|

Only the prosecution may adduce evidence of the defendant's bad character under gateway
(c). The gateway is, however, likely to be used only in limited circumstances. Evidence is
important explanatory evidence if:
(a) without it, the magistrates or jury would find it impossible or difficult properly to
understand the case; and
(b) the value of the evidence for understanding the case as a whole is substantial (CJA 2003,
s 102) (‘substantial’ in this context is likely to mean more than merely trivial or marginal).

© Example
In R v Campbell [2005] EWCA Crim 248, the defendant was convicted of the kidnapping and
murder of his 15-year-old niece. The prosecution alleged that the defendant was infatuated
with his niece and that his infatuation was partly sexual. The Court of Appeal held that the
trial judge had correctly allowed the prosecution to adduce bad character evidence that the
defendant had downloaded material from teenage sex sites, because such evidence was
necessary to explain the defendant's motive for committing the offence.
Case law does make it clear that where the evidence is clearly understandable without
evidence of bad character, it should not be admitted (see for example R v Davis (2008)
172 JP 358 and R v Broome [2012] EWCA Crim 2879).
lf the prosecution can establish that the test for admitting evidence of the defendant's bad
character through this gateway is satisfied, the court has no power under the CJA 2003 to
prevent the admission of this evidence. The court does, however, retain the discretionary
power to exclude such evidence under s 78 of PACE 1984 (see later).

9.7.2.4 (Gateway (a)l- it is relevant to an important matter in issue between the defendant and the
prosecution
In practice this is by far the most important gateway relied on by the prosecution. Important
matters in issue between the defendant and prosecution include:
(a) the question whether the defendant has a propensity to commit offences of the kind with
which he is charged (except where his having such propensity makes it no more likely that
he is guilty of the offence); and

186
 Principles and Procedures to Admit and Exclude Evidence

(b) the question whether the defendant has a propensity to be untruthful (except where it is
not suggested that the defendant's case is untruthful in any respect) (CJA 2003, s 103(1)).
Only the prosecution may adduce evidence of a defendant’s bad character under
gateway (d).

Propensity to commit an offence of the kind charged

The CPS may place before the court evidence that a defendant has previous convictions in
order to suggest that the defendant has a propensity to commit offences of the kind with
which they are currently charged. To place such evidence before the court, the CPS must first
satisfy the court that establishing such propensity makes it more likely that the defendant
committed the offence.
Section 103(2) of the CJA 2003 states that:
A defendant's propensity to commit offences of the kind with which he is charged
may (without prejudice to any other way of doing so) be established by evidence that
he has been convicted of:
(a) an offence of the same description as the one with which he is charged, or
(b) an offence of the same category as the one with which he is charged.
This subsection does not apply in the case of a particular defendant if the court is satisfied
that, as a result of the time which has passed since the conviction (or for any other reason), it
would be unjust for it to be applied (CJA 2003, s 103(3)).

o Example
Josh is on trial for common assault. Josh has a previous conviction for common assault.
This conviction occurred 15 years ago. Josh’s solicitor will argue that this previous
conviction should not be admitted in evidence at Josh’s trial to show that Josh has a
propensity to commit this type of offence. Given the amount of time that has elapsed
since Josh's previous conviction, he will argue under s 103(3) that it would be unjust for
this conviction to be used in the present case.

Offences of the same description

Two offences will be of the same description as each other if the statement of the offence in
a written charge or an indictment would, in each case, be in the same terms (CJA 2003,
s 103(4)(a)).

© Example
Peter is charged with assault occasioning actual bodily harm. He pleads not guilty on the
basis that he was acting in reasonable self-defence. He has two previous convictions for
the same offence. These will be offences of the same description because they would be
described in the same way in a written charge or an indictment. The CPS may therefore
attempt to raise these convictions at trial to show that Peter has a propensity to commit
offences of this type.

Offences of the same category

Two offences will be of the same category as each other if they belong to the same category
of offences prescribed by the Secretary of State (CJA 2003, s 103(4)(b)). The Secretary of State
has so far prescribed two categories of offences which are in the same category:
(a) the sexual offences category, which specifies a number of sexual offences committed
against children under 16 years of age; and

187
Criminal Practice

(b) the theft category, which includes the following offences:

(i) theft
(ii) robbery
(iii) burglary
(iv) aggravated burglary
(v) taking a motor vehicle or conveyance without authority
(vi) aggravated vehicle taking
(vii) handling stolen goods
(viii) going equipped for stealing
(ix) making off without payment
(x) any attempt to commit any of the above substantive offences.
(xi) aiding, abetting, counselling, procuring or inciting the commission of any of the
above offences.

ie) Example
Esme pleads not guilty to a charge of theft. She has two previous convictions for offences
of burglary and one previous conviction for handling stolen goods. These will be offences
of the same category because they fall within the ‘theft category’ prescribed by the
Secretary of State. The CPS may therefore seek to raise these convictions in evidence to
show that Esme has a propensity to commit offences of this type.

May other offences be used to demonstrate such propensity?

Even if an earlier offence is not of the same description or in the same category as the
offence charged, evidence of the defendant's conviction for the earlier offence may still be
admissible under this gateway if there are significant factual similarities between the offences,
since this would fall within the definition of having a propensity to commit offences of the kind
with which the defendant is charged.

o Example
In R-v.Brimas{[2006}EWCA Crim 408, the Court of Appeal held that previous convictions
for assault and robbery which both involved the use of a knife were admissible in the
defendant's trial for murder where the defendant was alleged to have stabbed his victim.
The convictions demonstrated that the defendant had a propensity to commit violent
offences using a knife.

Guidelines
In Rw Ha , Gilmore & Pickstone [2005] Crim LR 787, the Court of Appeal set out
guidelines for judges or magistrates to consider when the CPS seeks to adduce evidence of a
defendant's previous convictions in order to demonstrate his propensity to commit offences of
the kind with which he is charged. The court stated as follows:
(a) Three questions need to be considered should the CPS seek to adduce evidence
of the defendant's bad character under this part of gateway (d):
(i) Does the defendant's history of offending show a propensity to commit
offences?
(ii) If so, does that propensity make it more likely that the defendant committed
the current offence?

188
 Principles and Procedures to Admit and Exclude Evidence

(iii) If so, is it just to rely on convictions of the same description or category,

having in mind the overriding principie that proceedings must be fair?
Only if the answer to each of these questions is in the affirmative should the
convictions be allowed in evidence.
(6) Offences which can be relied upon by the CPS to show this propensity may go
beyond offences of the same description or of the same category.
(c) The fewer the number of previous convictions the defendant has, the less likely
it is that propensity will be established. If the defendant has only one previous
conviction of the same description or category, this is unlikely to show propensity
unless there are distinguishing circumstances or a tendency towards unusual
behaviour. The Court gave examples of unusual behaviour as including fire
starting and the sexual abuse of children.

© Example
In Rv Bennabou [2012] EWCA Crim 3088 the Court of Appeal held that a single conviction
for rape ought not to have been adduced as bad character evidence in relation to
counts of sexual assault and assault by penetration. The appellant argued that the rape
conviction was a single offence committed some eight years before the first of the two
offences being tried, and that the circumstances of the earlier offence were markedly
different. It was further submitted that even if the previous conviction would otherwise
be admissible, it should be excluded in the judge’s discretion because its admission
would have such an adverse effect on the fairness of the proceedings that it ought not
to be admitted (CJA 2003, s 101(3)). The Court of Appeal held that the rape conviction,
though technically admissible, should not have been admitted in evidence. It bore some
limited similarities in relation to the current offences, but there were also dissimilarities.
Accordingly, the probative value of the earlier rape in establishing a relevant propensity
was limited. On the other hand, the admission of the evidence must have had a highly
prejudicial effect on the fairness of the trial. The court went on to say that it was not
suggesting, by saying that the rape conviction was technically admissible, that an offence
of rape will always amount to unusual behaviour of the kind referred to in the case of
Hanson. Sometimes it may, but it would be wrong to approach any case on the basis that
a rape would necessarily attract that description.

Propensity to be untruthful
The CPS. may also place before the court evidence of a defendant's previous convictions to
show that the defendant has a propensity to be untruthful and therefore that evidence given
by the defendant at trial may lack credibility. The CPS will be allowed to do this only if it is
suggested that the defendant's case is in any way untruthful (s 103(1)(b)).
inson, Gilmore & Pickstone, the Court of
Appeal held that a defendant's previous
BaHvietons will not be admissible to show that the defendant has a propensity to be untruthful
unless:
(a) the manner in which the previous offence was committed demonstrates that the defendant
has such a propensity (because they had made false representations); or
(b) the defendant pleaded not guilty to the earlier offence but was convicted following a trial
at which the defendant testified and was not believed.

Manner in which previous offence was committed

The court drew a distinction between a propensity to be dishonest and a propensity to

be untruthful. Only if a defendant's previous convictions demonstrated a propensity to

189
Criminal Practice

be untruthful will they become admissible under this gateway. The court stressed that the
only types of offence that would demonstrate such a propensity were offences where the
defendant had actively sought to deceive or mislead another person by the making of false
representations. This includes previous convictions for perjury and offences involving an active
deception of another (such as fraud by false representation), but not other offences where
dishonesty forms part of the mental element of the offence but where the defendant has
not actually been untruthful and has not actively deceived anyone. For example, a previous
conviction for theft is unlikely to demonstrate a propensity to be untruthful because, unless
the defendant had actually sought to mislead or had lied to another person as part of the
commission of the theft, although the defendant had acted dishonestly, they had not been
untruthful.

© Example
Duleep is charged with common assault. The CPS alleges that he punched his victim in
the face for no reason. Duleep denies the charge, claiming that-he was initially attacked
by his victim and that he was acting only in self-defence. Duleep’s alleged victim refutes
this. Duleep has previous convictions for perjury and fraud by false representation. These
are offences which the CPS may attempt to raise in evidence to demonstrate that Duleep
has a propensity to be untruthful and therefore show that the victim’s evidence at trial is
more likely to be truthful than Duleep’s.

Convictions following a not guilty plea

Offences of any description may also fall within this part of gateway (d) if the defendant
pleaded not guilty, testified but was convicted following a trial at which the court disbelieved
their version of events, since this will demonstrate that the defendant has been found by a
court to have been untruthful on a previous occasion.

o Example
Kate is charged with common assault. She is pleading not guilty and will raise the
defence of alibi at trial. Kate has several previous convictions for various offences.
On each occasion she pleaded not guilty and raised the defence of alibi but was
convicted following a trial in which her alibi was disbelieved. The CPS may attempt
to raise these previous convictions in evidence to show that Kate has a propensity to
be untruthful.

Excluding evidence admitted under gateway (d)

Under s 101(3) of the CJA 2003, the court must not admit this evidence if on an application by
the defendant to exclude it, it appears to the court that the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that the court ought not to
admit it.
This is a very similar test that the court applies when deciding whether to exclude unfairly
obtained evidence under s 78 of PACE 1984, save that under s 78 the court has a discretion to
exclude the evidence if the test is satisfied, whereas under s 101(3) the court must exclude the
evidence if the test is satisfied. The courts are most likely to use their powers under s 101(3) in
three situations:

(a) when the nature of a defendant's previous convictions is such that the jury are likely to
convict a defendant on the basis of these convictions alone, rather than examining the
other evidence placed before them, or where the evidence of the previous convictions is
more prejudicial than probative (see R v Bennabou above);

190
 Principles and Procedures to Admit and Exclude Evidence

(6) when the CPS seeks to adduce previous convictions to support a case which is otherwise
weak (R v Hanson, Gilmore & Pickstone [2005] Crim LR 787);
(c) when the defendant's previous convictions are ‘spent’. The Rehabilitation of Offenders Act
1974 provides that after a prescribed period of time, certain convictions are spent. This
means that, for most purposes (such as completing an application form for a job), the
convicted person is to be treated as never having been convicted of the spent offence.
The rehabilitation period varies with the sentence, as follows:
Although the Act specifically does not prevent ‘spent’ convictions from being admissible
in evidence in subsequent criminal proceedings, it is likely that the court will consider
exercising its power under s 101(3) in such cases. In particular, s 101(4) provides that when
an application to exclude evidence is made under s 101(3), the court must have regard to the
length of time between the matters to which that evidence relates and the matters which form
the subject of the offence charged.

absolute discharge None

conditional discharge None

fine 1 year

community order 1 year

custodial sentence up to 6 months 2 years

custodial sentence between 6 and 30 months 4 years

custodial sentence between 30 months and 4 years 7 years

custodial sentence over 4 years never spent

Summary of gateway (d)

The prosecution will seek to adduce evidence of a defendant's previous convictions under
gateway (d) to demonstrate that:
(a) the defendant has a propensity to commit offences of the kind charged; or
(b) the defendant has a propensity to be untruthful.
Previous convictions showing a propensity to commit offences of the kind charged will be
convictions for offences of the same description or category, or convictions for offences where
there is a significant factual similarity between the previous conviction and the current offence.
Previous convictions showing a propensity to be untruthful will be convictions for specific
offences where a lie has been told (eg fraud by false representation or perjury), or offences
where the defendant pleaded not guilty but was convicted following a trial. Offences of
dishonesty (such as theft) will not generally show a propensity to be untruthful.

191
Criminal Practice

The defendant's solicitor may seek to challenge the admissibility of previous convictions which
the prosecution seeks to admit under gateway (d) in two ways:
(a) Arguing that the previous convictions do not actually demonstrate the relevant propensity
and so do not satisfy gateway (d). For example:
(i) How many convictions does the defendant have? One conviction is unlikely to show a
propensity.
(ii) If the previous convictions are being adduced to show a propensity to commit
offences of the same kind:
- do the factual circumstances of the previous convictions differ from the facts of the
current offence;
- would it be unjust to rely on them given the time which has elapsed since they
occurred
(s 103(3)); or
- does the propensity make it no more likely that the defendant is guilty of the
offence?
(iii) If the previous convictions are being adduced to show a propensity to be untruthful, is
it not suggested that the defendant's case is in any way untruthful?
(b) If the previous convictions do show the relevant propensity, can the court be persuaded
to exercise its power under s 101(3) to exclude the convictions? Arguments that may be
raised include:
(i) Would the convictions be more prejudicial than probative? Is there a danger that the
defendant would be convicted on the basis of their previous convictions alone, due
either to the extent or to the nature of such convictions?
(ii) Are the convictions being used to support a prosecution case that is
otherwise weak?
(iii) Are the previous convictions spent?

9.7.2.5 (Gateway (e)}- it has substantial

probative value in relation to an important matter in issue
between the defendant and a co-defendant
This gateway may be used by one defendant to admit evidence of another defendant's bad
character. It cannot be used by the CPS.
A co-defendant is likely to want to admit evidence of a defendant's bad character to
demonstrate that the other defendant has a propensity to be untruthful (and thus to
STIRS TRETSATO ottheSECS GREG ek Ge show that the other
defendant has a propensity to commit the kind of offence with which they have both been
charged (thereby suggesting that it is the other defendant, rather than the co-defendant, who
committed the offence).

Propensity to commit offences of the same kind

A co-defendant may therefore want to introduce in evidence the fact that a defendant has
previous convictions for offences of the kind with which they have both been charged, in order
to show that the defendant has a propensity to commit such offences and is therefore the
more likely of the two to have committed the current offence.
A co-defendant who seeks to introduce evidence of a defendant's previous convictions for this
purpose will need to demonstrate that such convictions are relevant to an important matter in
issue between himself and the defendant, and that the relevance of such convictions is more
than merely marginal or trivial.

192
 Principles and Procedures to Admit and Exclude Evidence

© Example

Rv. Edwards and Others [2005] EWCA Crim 3244 = two defendants (M and S) were
(Jointly charged\with wounding with intent to cause GBH. Both defendants entered not
guilty pleas, on the basis that they were not involved in the attack on the victim. Neither
defendant sought to blame the other for the attack. M had previous convictions for
offences of wounding, assault and affray. S made an application under gateway (e) to
adduce evidence of these convictions on the basis that they demonstrated a propensity to
act in a violent manner. The trial judge granted this application, and M was subsequently
convicted. The Court of Appeal upheld the conviction. The court’s reasoning was that each
defendant's defence was that he was not involved in the violence, and if one defendant
has previous convictions for offences of violence, this has a substantial probative value to
the issue between them, namely, which of them was in fact responsible for the offence.

Propensity to be untruthful
Section 104(1) of the CJA 2003 states:
>) (1) Evidence which is relevant to the question whether the defendant has a
propensity to be untruthful is admissible on that basis under section 101(1)(e) only
Jithe nature or conduct of his defence is such as to undermine the co-defendant's
defence.
This part of the gateway is most relevant where the defendants enter into what is called a ‘cut-
throat’ defence. This occurs when there are two (or more) defendants jointly charged with an
offence, and each defendant pleads not guilty and blames the other(s) as having committed
the offence. In such a situation, it will be an advantage for a co-defendant to be able to
adduce evidence of his fellow defendant's previous convictions, in order to undermine the
credibility of that defendant’s evidence and to suggest that their version of events is the more
credible.
The most relevant previous convictions of a defendant which a co-defendant will seek to
adduce in evidence in order to demonstrate that the defendant has a propensity to be
untruthful will be convictions for specific offences which involve the making of a false statement
or representation (for example, perjury or fraud by false representation), or convictions for
any offence where the defendant was convicted at trial after entering a not guilty plea and
testifying but not being believed by the court.

o Example
Murad and Arthur are jointly charged with the burglary of a warehouse. Each pleads
not guilty, alleging that the other was solely responsible for carrying out the burglary.
Murad has several previous convictions for offences of obtaining property by deception.
As Murad’s defence (that Arthur carried out the burglary) will clearly undermine Arthur's
defence, at trial, Arthur will adduce evidence of Murad’s previous convictions to show that
Murad has a propensity to be untruthful, and so undermine the credibility of the evidence
that Murad gives.
If the co-defendant can establish that the test for admitting evidence of the defendant’s
bad character through this gateway is satisfied, the court has no power under the CJA
2003 to prevent the admission of this evidence.

9.7.2.6 ateway (f)+ it is evidence to correct a false impression given by the defendant
Only the prosecution may adduce evidence of a defendant's bad character under gateway (f).
A defendant will give a false impression ‘if he is responsible for the making of an express or
implied assertion which is apt to give the court or jury a false or misleading impression about
the defendant’.

193
Criminal Practice

A defendant will be treated as being responsible for making such an assertion if the assertion is:
(a) made by the defendant in the proceedings (for example, when giving evidence in the
witness box, or in a defence statement served on the CPS);
(b) made by the defendant when being questioned under caution by the police before
charge, or on being charged;
(c) made by a witness called by the defendant;
(d) made by any witness in cross-examination in response to a question asked by the
defendant that is intended to elicit it; or
(e) made by any person out of court, and the defendant adduces evidence of it in the
proceedings (CJA 2003, s 105(2)).

© Example
Phillip is on trial for common assault. Phillip has several previous convictions for offences
involving violence. When the allegation of assault was put to Phillip in interview at the
police station, Phillip said: ‘| would never do such a thing. I’m a good Christian and | go
to church every Sunday.’ The CPS will be allowed to correct the false impression given by
Phillip in the police interview by adducing evidence of his previous convictions.
If the prosecution can establish that the test for admitting evidence of the defendant's bad
character through this gateway is satisfied, the court has no power under the CJA 2003 to
prevent the admission of this evidence. The court does, however, retain the discretionary
power to exclude such evidence under s 78 of PACE 1984 (see below).

OILS Gateway (g) - the defendant has made an attack on another person's character
What constitutes an attack on another person's character?
Under this gateway, a defendant's bad character will become admissible if the defendant
makes an attack on any person’s character. The attack does not necessarily need to be on the
character of a witness for the prosecution who is attending court to give evidence (although
commonly it will be). It may be an attack on the character of a person who is dead, or a
person whom the CPS does not intend to call to give evidence. Furthermore, the attack on
the character of the other person does not necessarily need to take place at trial. The attack
may be made when the defendant is being questioned at the police station, or in a defence
statement which is served on the CPS.
Only the prosecution may adduce evidence of a defendant's previous convictions under
gateway (g).
Evidence attacking another person’s character is evidence to the effect that the other
person has:
(a) committed an offence (whether a different offence from the one with which the defendant
is charged or the same one); or
(b) behaved, or is disposed to behave, in a reprehensible way (CJA 2003, s 106(2)).
Although the courts are likely to find that a defendant who makes an emphatic denial of
guilt has not attacked the character of another, it is likely that the courts will give a very wide
interpretation to this gateway.

1 In R v Ball [2005] EWCA Crim 2826, the defendant was charged with rape and raised the
defence of consent. When interviewed at the police station, the defendant denied the
complainant's version of what had taken place, but then went further and made a
disparaging remark about the complainant's sexual promiscuity, referring to her as a
‘slag’. This imputation was held to be sufficient to enable the CPS to raise at trial evidence
of the defendant's previous convictions. The Court of Appeal did say, however, that the
defendant's claim that the complainant had fabricated the allegation of rape would not
have been sufficient in itself to invoke s 101(1)(g).
194
 Principles and Procedures to Admit and Exclude Evidence

© Example

R v Williams [2007] EWCA Crim 1951 - the defendant was charged with various sexual
offences. During cross-examination of the police officers in the case, it was alleged by the
defence that the officers had conspired to ‘set the defendant up’. The trial judge ruled that
this amounted to an attack on the character of the officers under gateway (g), and the
prosecution was allowed to adduce evidence of the defendant's previous conviction for
indecent assault. The Court of Appeal upheld the judge's ruling - whilst the defendant
would not have opened up gateway (g) merely by suggesting that the account of the
officers was untrue, to go further and allege a conspiracy was to make a clear attack on
the character of the officers.

Excluding evidence admitted under gateway (g)

As with gateway (d), the court must exclude evidence that would otherwise be admitted under
this gateway if, on an application by the defendant, the admission of the evidence would have
such an adverse effect on the fairness of the proceedings that the court ought not to admit it
(CJA 2003, s 101(3)) (see gateway (d) above).

© Example
Eddie is charged with assault occasioning actual bodily harm following a fight in a pub
when he is alleged to have pushed a fellow customer (John) to the ground, causing a
gash to John’s cheek. Eddie pleads not guilty and elects trial at the Crown Court. In his
interview at the police station, Eddie said to the police: ‘John’s had it in for me ever since
| moved in. He’s a troublemaker and a bully.’
This is an attack on John’s character which would then allow the prosecution to adduce
evidence of Eddie’s previous convictions at his trial. Eddie has previous convictions for a
number of sexual offences, including sexual assault and gross indecency with children.
Although these convictions would be admissible under gateway (gq), the trial judge may
exercise their power under s 101(3) to prevent the prosecution adducing evidence of
these convictions at trial. It is likely that the prejudicial effect of the jury finding out about
such convictions would outweigh the probative value of such convictions in determining
Eddie's guilt.

9.7.3 Court's powers to exclude defendant's bad character

The court has no power under the provisions of the CJA 2003 to exclude bad character
evidence admitted under any gateway other than (d) and (g). Bad character evidence under
gateways (a), (b), (c), (e) and (f) is automatically admissible if the requirements for each of
these gateways are satisfied.
The court does, however, retain a discretionary power under s 78 of PACE 1984 to exclude
evidence on which the prosecution propose to rely if the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that it ought not to be
admitted. In R v Highton & Others [2005] EWCA Crim 1985, the Court of Appeal held that
judges should apply the provisions of s 78 when making rulings as to the use of evidence
of bad character, and exclude evidence where it would be appropriate to do so under s 78
(so in reality this will apply to bad character evidence which the prosecution seek to adduce
under gateways (c) and (f)).

Stopping contaminated case

Section 107 of the CJA 2003 allows a judge in the Crown Court either to direct the jury to
acquit the defendant, or to order a retrial in circumstances where evidence of the defendant's
bad character is ‘contaminated’. Contamination may occur if witnesses have colluded in order
to fabricate evidence of the defendant's bad character. Section 107 does not apply to trials in
the magistrates’ court.

195
 ((¢)¢QL S) Uospai Jayjo Aud Jo Bw}
jo ebpsspd 0} anp }! WWpD o} ysAfun aq PiNOM }} PaljsDs J! BDUEpPIAa Epnjoxa
\sNW YNOD-pabiny> pul}.Jo Seduayo ywWWOD o} Ayisuedoud -(p)(L)LOL S « (82 $ P86L AOVWd Jepun sseusiojun
((S)LOL $) }! HWP oO} Jou yyBAO YNod ay} JOU} sHulpeadoid ay} jo ssous!Dy JO spunoi6 ay} Uo aouAapIAS ApNjdxe 0} NOD ey}
AU} UO aja @SJ@APD UD YONS BADY PjNOM J! J! BDUEPIAS YWPD JOU JsNW NCD « JO uoHaIDSIp JOLBUeBH Oj JDe[qns-(J)puD (2) sAoMea}DH)
\ jnq ‘paysijqnyse AnMa}nB j1 ajqissimpy paysijqoyse si Aoma}n6 4! ajqissimpp Ajjos|jOWO}NYy
(P(L)LOL UoRDeg ()(L)LOL uonDe@s (@)(L)LOL uonses (2)(L)LOL uonses (q)(L)LOL uonses (O)(L)LOL uoNDes
(6)(L)LOL uonses
(Ajuo uoljnoasosd) wy
uoljnsasoid (Ajuo yuDPUajap-Od) Aq uoljpoulwioxe-ssos>
(Ajuo uolynDesoid) pup juppuajep (Ajuo uolndesoid) | | JUDPUsJep-OD PUD jUDPUajep (Aju uol}nDesold) 0} Ajdau ul uanib
uosiad Jayjound jo ~ uaamjeq enssi juDpUajap Ou} UBOMJOQ ANSSI Ul 10};}DW eouaping SI BDUaPIAS dy} JO
Ja}NINYS ay} pex,D}yo ul JayoW juDpOduI Aq uani6 uoissaiduui juDYOdu! UD O} UOT!}OJaI Ul Aioyounjdxe Jja@SWIy BdUapIAe oy}
spy juDpuajeq UD 0} JUDAZIOY @S]|D} D D909 O} ANNA aAIOgoJd jo}UD}sqns juppodw| seonppd juppusjeq 9ei16p sand jv
4) Se ee
4 we
(L)LOL $ ‘s00z Wo Aq payoeis shomaynB / ay) Jo euo yHnosy) a/qissiupp eouepiAy
on | |SDD UOI}|NDESOJd By} O} JUDAAIAJ J! B|qISSIWPD aq ||IM eoUapIAE Os ajqndI|ddp jou ¢00Z VLD - SPA
Bad character evidence flowchart

. {uoOBISeAU! ay} JO BsinoD ey} BulNp anolADYyaqsiwW 10 pebspy> edUajo Sy} YM P|}BUUOD BIUEPIAS aU} S|
@SDD JUDPUSJSp-09 JO UOINIESOIJA 4} O} JUDADJA J! B/QISSIWIPD aq |IM edUap!As Os 9]qo>!|ddb jou ¢Q0ZVLD - ON

ones
“us
| EPNPUOISIW BIN}I]SUOD BDUaPIAS ay} Seog
UDY IMO) S2uUapPIAS 19}90D1DY9 pog
Criminal Practice

Figure 9.3

196
 Principles and Procedures to Admit and Exclude Evidence

9.7.4 Procedure for admitting evidence of bad character

If the CPS wishes to adduce evidence of the defendant's bad character, notice of this intention
must be given both to the court and to the other parties in the case (CrimPR, r 21.4(1) and (2)).
A prescribed form must be used, with a written record of the previous convictions the party
giving the notice or making the application is seeking to adduce being attached to the form.
As part of the standard directions that will be given in both the magistrates’ court and the Crown
Court, the court will impose time limits for the parties to serve any notice or make any application
to adduce bad character evidence at trial. The relevant time limits are set out in CrimPR, r 21.4.
If a defendant opposes the introduction of evidence of their bad character at trial, the
defendant must apply to the court for such evidence to be excluded. The application must
be sent both to the court and to the other parties in the case. The time limit for making this
application is set out in CrimPR, r 21.4.

9.8 Exclusion of evidence

We have already identified how the court has a discretion to exclude improperly or unfairly
obtained prosecution evidence. Section 78(1) provides:
In any proceedings a court may refuse to allow evidence on which the prosecution
proposes to rely to be given if it appears to the court that, having regard to all of the
circumstances, including the circumstances in which the evidence was obtained, the
admission of the evidence would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it.
Case law on s 78 suggests that this section has been interpreted broadly in line with the earlier
common law position. The power in s 78 is discretionary, and the court is only likely to exercise
its discretion to exclude prosecution evidence under s 78 if there is something unreliable about
the evidence which the police have obtained, which in turn means that it would be unfair to
allow the CPS to rely on such evidence. If the evidence is relevant to the charge faced by the
defendant, and there is nothing in the way in which it has been obtained which casts doubt
on its reliability, the evidence is unlikely to be excluded under s 78, even if the police have
breached the provisions of PACE 1984 and/or the Codes of Practice when obtaining it.
The courts have said repeatedly that applications by defendants to exclude prosecution
evidence under s 78 on the ground that the police have breached PACE 1984 or the Codes
of Practice in the obtaining of such evidence, should only be granted if the breaches are
‘significant-and substantial (R v Keenan [1990] 2 QB 54).
Common examples of prosecution evidence which a defendant may seek to persuade a court
to exclude under s 78 are:
(a) evidence obtained following an illegal search
(b) identification evidence
(c) confession evidence
(d) evidence obtained from the use of covert listening and surveillance devices and
(e) evidence obtained in ‘undercover’ police operations.

9.8.1 Scope and application of s 78 PACE and the right to a fair trial
Article 6 of the ECHR provides that anyone charged with a criminal offence is entitled to a
‘fair’ hearing. The appellate courts have held, on several occasions, that the discretion given
to a trial judge to exclude evidence under s 78 where the admission of that evidence would
otherwise lead to unfairness, ensures that a defendant will receive a fair trial. Similarly, in
cases such as Khan v United Kingdom [2000] Crim LR 684, the European Court of Human

197
Criminal Practice

Rights has stated repeatedly that the key question to be answered when determining whether
the defendant's rights under Article 6 have been breached is whether the proceedings as a
whole were fair. The width of the discretion given to the trial judge by s 78 should ensure that
proceedings are conducted in a manner which is fair to the defendant.

Figure 9.4 Operation of s 78 flowchart

Is the evidence relevant to the charge the defendant faces?

No- evidence will not be

admissible at trial

Has the evidence been improperly obtained -

has there been a ‘significant and substantial’
breach of: ,
e PACE?
¢ Codes of practice?

No - evidence will be admissible

at trial

Does the manner in which the evidence

was obtained cast doubt on the reliability
of that evidence?

No - court unlikely to exclude

evidence under s 78

Court has discretion to exclude evidence

under s 78

Court exercises its discretion under Court does not exercise its discretion
s 78 to exclude the evidence under s 78 to exclude the evidence

Evidence not admissible at trial Evidence admissible at trial (but

defendant may still challenge credibility of
such evidence when giving evidence or
cross-examining witnesses)

198
 Principles and Procedures to Admit and Exclude Evidence

9.8.2 Evidence obtained by entrapment and abuse of process

In R v Sang [1980] AC 402 the House of Lords emphasised that there is no defence known
as ‘entrapment’. Although it is possible to challenge the admissibility of such evidence under
s 78, the preferred approach is to invite the court to exercise its common law power to stop
the case on the basis that it would represent an abuse of process to allow such a prosecution
to continue.

© In the combined appeal of R v Loosely; AG’s Reference No 3 of 2000 /2001] UKHL 53, the
defendant in the second case had been supplied by undercover officers with cheap
cigarettes who in return asked him to supply them with heroin. The defendant did so, but
only after considerable persuasion and some apparent difficulty. He then put the
undercover officers in touch with his own supplier. The evidence was excluded by the trial
judge on the basis that this amounted to an abuse of process by the police. The House of
Lords agreed. They found that the police had incited the accused to commit the offence
and that the trial judge had been right to stay the proceedings as an abuse of process. In
one of the leading judgments, Lord Nicholls stated that every court has an inherent
(common law) power and duty to prevent an abuse of process. Entrapment was an
instance where such misuse of power could occur and that it was not acceptable for the
state to lure individuals into committing unlawful acts and then prosecute them for doing
so. In such circumstances, the court’s focus should be on the conduct and behaviour of the
police. Lord Nicholls went on to set out guidelines for trial judges when deciding whether
or not to stay proceedings for an abuse of process:
(1) The nature of the investigation - the more intrusive the investigation, the harder the
courts should scrutinise it.
(2) The nature of the offence. Certain offences can only be committed in a covert way
such as drug trafficking and therefore police can only crack them in a covert way.
(3) The nature of the police involvement. For example, how they behaved, how persistent
they were in trying to persuade the defendant to take part in the offence, for example
did they behave like a ‘normal customer’ might and no more.
4) The defendant's criminal record - usually this would not be relevant unless there was
evidence of recent similar involvement.
(5) The level and extent of supervision of the undercover officers.

Summary
In this chapter you have considered what the law, practice and procedure say about the
principles and procedures to admit and exclude evidence. Notably:
The operation of the burden and standard of proof. Firstly, how the evidential burden
operates differently on the prosecution to its operation on the defence. Secondly, how
the persuasive burden (legal burden) usually remains with the prosecution throughout
the trial and what the standard of proof is in relation to this burden, but how it may also
occasionally shift onto the defendant in relation to some specific defences.
Visual identification evidence and Turnbull guidance. What is meant by disputed visual
identification evidence and how the defence may first challenge its admissibility where it
has been obtained in breach of Code D and if this fails (or is not possible to argue) how
the Turnbull guidelines apply to such evidence.

199
Criminal Practice

* The drawing of inferences from silence ss 34, 35, 36, 37, 38 Criminal Justice and Public
Order Act 1994, Although the defendant is said to have a right to silence at both the
police station and at court, when and in what circumstances a court may draw (adverse)
inferences from the defendant's exercise of this right.
¢ The admissibility of hearsay evidence. What is meant by hearsay and the four general
exceptions contained in the CJA 2003 as to when such evidence will be admissible.
* The admissibility of confession evidence. Being able to identify when something said
or done by a suspect amounts to a confession and how prima facie such evidence
is admissible as an exception to the hearsay rule. Then very importantly, how the
defence may challenge the admission of such evidence under either s 76(2) and/or s 78
PACE 1984.
¢ The admissibility of the defendant’s bad character. Firstly, the meaning of bad character
and then how such evidence may be admitted under one of 7 gateways available under
s 101(1) of the CJA 2003 and the extent of the court’s powers to exclude such evidence.
¢ Exclusion of improperly or unlawfully obtained evidence under s 78 PACE and the right
to a fair trial. How s 78 provides the court with a discretion to exclude such prosecution
evidence and the relationship between this discretion and the right to a fair trial under
Article 6 of the ECHR.

Sample questions

Question 1
A boy, aged 14, has been charged with robbery. The boy does not suffer from any
recognised medical condition but his mental age has been assessed as that of a 9-year-old
and he is distressed at the prospect of having to testify at trial.
If the boy does not testify, will it be appropriate for an adverse inference to be drawn
from his silence at trial?
A Yes, because an adverse inference will always be drawn if a defendant refuses to
testify at trial.
B_ Yes, because distress about testifying is not in itself a sufficient reason and will not by
itself prevent the drawing of an adverse inference.
C No, because an adverse inference cannot be drawn against a juvenile with a mental
age of a 9-year-old.
D_ No, because it appears that the mental condition of the boy makes it undesirable for
him to give evidence.
E Yes, because the court will require the boy to testify to put forward his defence if he is
to be acquitted.

Answer
Option B is the best answer because distress about testifying will not be sufficient to
engage s 35(1)(b). This exception provides a statutory exception to the drawing of such an
adverse inference where ‘it appears to the court that the physical or mental condition of the
accused makes it undesirable for him to give evidence’.

200
 Principles and Procedures to Admit and Exclude Evidence

So Option A is wrong because an adverse inference will not always be drawn where an
accused does not testify - option C is wrong because the mental age alone would not be
a sufficient reason (see R v Friend (1997)). Although option D does correctly state the above
statutory exception, on these facts, the boy does not appear to have a medical condition that
would make it undesirable for him to testify (contrast that with R v Friend (No2) (2004) where
evidence then came to light that the defendant also suffered from ADHD, which was found to
be such a medical condition). Option E is wrong because a defendant has a right to remain
silent at trial and cannot be convicted on his silence alone. Moreover, the boy does not
necessarily need to testify in order to be acquitted.

Question 2
A man has been arrested on suspicion of burglary, it being alleged that he stole some
computer equipment from premises he broke into. When interviewed, the man confesses
to the offence and also tells the police where the stolen items can be found. These are
recovered by the police and the man’s fingerprints are found on them. The interview was
however, conducted unlawfully and the defence will argue at trial that the confession ought
to be excluded on the basis that it was obtained in circumstances rendering it unreliable.
Assuming the man’s confession is excluded at trial, which of the following best
describes whether the prosecution will be allowed to adduce evidence of the finding of
the stolen items?
A The finding of the items is still relevant and admissible as the exclusion of the
confession will not affect the admissibility of this evidence.
B_ The finding of these items will still be admissible because the confession was not
excluded as a result of oppression.
C_ Any evidence resulting from an inadmissible confession will not be admitted at trial.
D_ It will always be more prejudicial than probative to allow such evidence to be
admitted.
E The finding of the items will be admissible unless it would have such an adverse effect
on the fairness of the proceedings that the court ought not admit it.

Answer
Option A is the statement that best describes the operation of s 76(4) PACE 1984 about the
admissibility of relevant facts discovered as a result of an inadmissible confession. Not only
is the finding of the stolen items relevant, but more importantly, the man’s fingerprints found
on the stolen items link him to the burglary.
Option B is wrong because s 76(4) operates regardless of whether the confession is
excluded under s 76(2)(a) or (b). Option C is also wrong. Although such evidence coming
from an inadmissible confession may not be admitted, this will by no means always be the
case. Option D is wrong because although evidence will generally be excluded under the
court's common law power (more prejudicial than probative) it will not ‘always’ be the case.
Option E is not the best description because this only sets out the test under s 78 PACE,
which is not the only test to apply when determining the admissibility of evidence.

Question 3
A man has been charged with murder. A key prosecution witness has subsequently died,
and the prosecution want to adduce her witness statement in the absence of the deceased
witness.

201
Criminal Practice

What will the prosecution need to establish for the witness statement to be admitted?
A That she had first-hand knowledge of the matters contained in her witness statement
and all reasonable steps have been taken to secure her attendance.
B That she had first- or second-hand knowledge of the matter contained in her witness
statement and she is identified to the court's satisfaction.
C_ That she has died and so it is not reasonably practicable to secure her attendance and
she is identified to the court’s satisfaction.
D_ That she had first-hand knowledge of the matters contained in her witness statement
and is identified to the court's satisfaction.
E That she has died, and she had first-hand knowledge of the matters contained in her
witness statement and is identified to the court’s satisfaction.

Answer
Option E is the correct answer as it identifies the three key requirements needed to adduce
such hearsay evidence. Namely, that the witness had first-hand knowledge of the matters
contained in her witness statement,
-she is identified to the court’s satisfaction and the relevant
prescribed reason under s 116(2) is satisfied. Here (a), that the relevant person is dead.
Option A is wrong because it only refers to one of these requirements and then goes on to
mention part of another prescribed reason under s 116(2)(d). Option B is wrong because
s 116 only allows first-hand hearsay to be admitted. Option C is wrong because although
it does refer to two of the above requirements, it also refers to part of another prescribed
reason under s 116(2)(c). Option D is not the best answer because it fails to mention the
relevant prescribed reason, namely that the witness is dead.

202
 Trial Procedure in the
Magistrates’ Court and
Crown Court
10.1 © Introduction 204
10.2 Burden and standard of proof 204
10.3. Stages of a criminal trial, including submission of no case to answer 204
10.4 Modes of address and court room etiquette Bad
10.5 Difference between leading and non-leading questions 217
10.6 Competence and compellability 219
fei 10.7 Special measures 222
10.8 Solicitor’s duty to the court 223

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
¢ burden and standard of proof;
¢ stages of a criminal trial, including submission of no case to answer;
¢ modes of address and court room etiquette;
¢ difference between leading and non-leading questions;
* competence and compellability;
* special measures;
¢ — solicitor’s duty to the court.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
* How the burden and standard of proof operates in a criminal trial.
¢ The various stages of a criminal trial, including when and how to make a
submission of no case to answer.

203
Criminal Practice

* The modes of address and court room etiquette to follow when conducting a
criminal trial.
* The difference between leading and non-leading questions and when itis most e
e

appropriate to use each type of question.

¢ The rules relating to competence and compellability of witnesses.
¢ The operation of the special measure provisions in relation to vulnerable
witnesses.
¢ The solicitor’s duty owed to the court.

10.1 Introduction
The process of trials in the magistrates’ court and Crown Court are heavily prescribed. This is
aimed at ensuring a fair trial for the accused which will culminate in the magistrates/district
judge or a jury of peers reaching their verdict. This verdict represents the climax of the trial.
It may then result in the passing of a sentence and possibly an appeal against any resulting
conviction and/or sentence which we shall look at in the following two chapters.

10.2 Burden and standard of proof

We saw in Chapter 9 that subject to a few statutory defences (and the common law defence
of insanity), the burden of proof remains with the prosecution throughout a criminal trial. This
explains why the prosecution must always present their case first and why they must persuade
the court beyond a reasonable doubt of the defendant's guilt. We also saw in Chapter 9 how
the evidential burdens operate on both the prosecution and the defence. These help to explain
some key features of the trial procedure that we shall be looking at later in this chapter. For
example, when and on what basis a submission of no case to answer may be made. It also
explains why the defendant is likely to testify at trial, particularly where the defence bear an
evidential burden to raise some common defences such as alibi or reasonable self-defence,
even if the law of evidence does not require them to prove such defence.

10.3 Stages of a criminal trial, including submission of no case

to answer
10.3.1 Trial in the magistrates’ court (CrimPR, Part 24)
The normal order of events at a trial in the magistrates’ court is as follows:
(a) Opening speech by the solicitor from the CPS.
(b) The prosecution witnesses will then be called in turn to give evidence. Each witness will be
examined in chief by the prosecuting solicitor and then cross-examined by the defendant's
solicitor. The prosecuting solicitor may then choose to re-examine the witness.
(c) (Possible submission of no case to answer by defendant's solicitor.)

204
 Trial Procedure in the Magistrates’ Court and Crown Court

(d) The defence witnesses will then be called in turn to give evidence (with the defendant
being called first). Each witness will be examined in chief by the defendant's solicitor and
will then be cross-examined by the prosecuting solicitor. The defendant's solicitor may
then choose to re-examine the witness.
(e) The prosecuting solicitor may make a closing speech where the defendant is represented,
or the defendant has introduced evidence other than his own (whether represented or not).
(f) Closing speech by the defendant's solicitor.
(g) The magistrates retire to consider their verdict.
(h) The magistrates deliver their verdict.
(i) If the defendant is found guilty, the magistrates will then either sentence the defendant
immediately, or adjourn sentence until later if they wish to obtain pre-sentence reports on
the defendant. If acquitted, the defendant will be formally discharged by the magistrates
and told that they are free to go.

10.3.1.1 Opening speech

A trial in the magistrates’ court will begin with the advocate from the prosecution giving an
opening speech. This does not form part of the evidence on which the magistrates will decide
the case and is more a matter of ‘setting the scene’. The opening speech will normally begin
with the prosecutor telling the magistrates the factual details about the charge which the
defendant faces. They will then explain to the magistrates the relevant substantive law and will
tell them what the prosecution will need to prove in order to secure a conviction. The prosecutor
should remind the magistrates that the prosecution has the burden of proving beyond a
reasonable doubt that the defendant is guilty, and that the defendant is entitled to an acquittal
unless the magistrates are sure of guilt. The prosecutor will then outline what the prosecution
case consists of, telling the court which witnesses they intend to call to give evidence for the
prosecution, and summarise briefly the evidence that is to be given by these witnesses. The
prosecutor may also refer the magistrates to any points of law which they anticipate may arise
during the trial (for example, the Turnbull guidelines if the case consists of disputed identification
evidence or ss 76 or 78 of PACE 1984 if there is disputed confession evidence).

10.3.1.2 Prosecution evidence

After completing their opening speech, the prosecutor will call their first witness to give
evidence. Unless the witness is a child under the age of 14 (see 10.6 later) such evidence
will be sworn evidence which means the witness will either take an oath or affirmation, in
which they promise to tell the truth. It is customary for the first prosecution witness to be the
complainant. For example, in an assault case, the first prosecution witness is likely to be the
person who was injured in the assault. In a theft case, the first prosecution witness is likely to
be the person whose property has been stolen. After this person has given evidence, other
prosecution witnesses (including any expert witnesses) will be called to testify.
Each prosecution witness will initially be asked questions by the prosecutor. The defendant's
solicitor will then have the opportunity to cross-examine the witness. At the end of the cross-
examination, the prosecutor may, if they choose, briefly re-examine the witness.
Any prosecution witness who is not being called to give evidence (for example, witnesses who
have given a statement under s 9 of the CJA 1967 to which the defence have not objected,
or witnesses whose statements are to be read out as hearsay evidence) will have their
statements read out to the court by the prosecutor.
lf the defendant was interviewed at the police station, either a summary or the full transcript
of the interview will be read out to the court, unless the defendant's solicitor objects to this. If
the defence solicitor does object (if, for example, the summary does not include points made
by the defendant in support of their defence), the audio recording of the interview will be
played to the court.

205
Criminal Practice

10.3.1.3. Arguments on points of law

During the presentation of their case, the prosecutor may seek to place evidence before the
court which the defendant's solicitor considers to be inadmissible. A common example of
this is when the prosecution seek to adduce evidence that the defendant made a confession,
and the defendant's solicitor seeks to challenge the admissibility of this confession under
s 76 of PACE 1984 on the basis that the confession was obtained in circumstances rendering
it unreliable. Another example is if the prosecution seek to adduce evidence that the
defendant was visually identified by a witness following an identification procedure, and the
defendant's solicitor seeks to challenge the admissibility of this evidence under s 78 of PACE
1984 on the basis that the identification procedure was not carried out in accordance with
the requirements of Code D. Another example is if the prosecution wants to adduce evidence
of the defendant's bad character and the defence solicitor challenges its admissibility (see
Chapter 9 for the relevant law and legal arguments in relation to all of these examples).
If such a situation arises, the magistrates will normally hold a hearing called a voir dire to
determine the admissibility of the particular piece of evidence in dispute. Such hearings are
also often referred to as ‘a trial within a trial’.
A voir dire will involve witnesses giving evidence on matters relevant to the admissibility of
the evidence (for example, in the case of a disputed confession made in the context of an
interview at the police station, both the police officer who conducted the interview and the
defendant are likely to give evidence). After the witnesses have given evidence, the prosecutor
and the defendant's solicitor will make legal submissions as to the admissibility of the
disputed evidence.
If the magistrates decide that the evidence is inadmissible, the prosecutor will not be allowed
to make any further reference to such evidence during the course of the trial. If the evidence is
ruled to be admissible, it may then be produced by the prosecutor as part of the prosecution
case (although the defendant's solicitor will still be entitled to attempt to undermine the
reliability or cogency of such evidence during the trial).

© Example
Ryan is charged with theft. In an audibly recorded interview at the police station he
confessed to the theft, and the CPS wishes to adduce evidence of this at Ryan’s trial.
Ryan’‘s solicitor challenges the admissibility of the confession, arguing that it was obtained
in circumstances which make it unreliable. The basis of this argument is that Ryan claims
that he confessed only after being told by the interviewing officer that he was going to be
kept at the police station until he made a confession. At the voir dire, the magistrates are
likely to hear evidence from Ryan and the interviewing officer, and they will also read a
transcript of the interview or have the recording of the interview played out. Submissions
will also be made by the prosecutor and Ryan’s solicitor. At the conclusion of the voir dire,
the magistrates decide that the confession is inadmissible. This means that the prosecutor
cannot use the confession as part of their case against Ryan.
The difficulty faced by the defendant's solicitor when conducting a voir dire in the magistrates’
court is that the magistrates decide matters of both law and fact. This means that even if
the magistrates decide that a piece of prosecution evidence is inadmissible, the magistrates —
will still be aware of the existence of that item of evidence. This situation will not arise in a
Crown Court trial where the judge will conduct a voir dire in the absence of the jury, who will
therefore never hear about any prosecution evidence which the judge rules to be inadmissible.
The absence of a satisfactory procedure for dealing with the question of the admissibility of
disputed prosecution evidence in a magistrates’ court trial is one reason why a defendant
may elect trial in the Crown Court when charged with an either-way matter (see Chapter 6).

206
 Trial Procedure in the Magistrates’ Court and Crown Court

As an alternative to holding a separate ‘trial within a trial’, the magistrates may sometimes
hear the disputed evidence as part of the trial itself, and then consider the question of the
admissibility of such evidence either when the defendant's solicitor makes a submission of no
case to answer at the conclusion of the prosecution case (see below), or when the defence
makes their closing submissions at the end of the trial.
To overcome problems at trial with magistrates being aware of the existence of an item of
prosecution evidence, even if they have decided that such evidence is inadmissible, many
magistrates’ courts now hold pre-trial hearings to determine the admissibility of disputed
evidence. Pre-trial hearings will be held before a different bench of magistrates to the bench
which ultimately conducts the trial, thus ensuring that the magistrates who actually decide the
case need never be aware of items of evidence which are inadmissible.

10.3.1.4 Submission of no case to answer

When presenting the prosecution case, the prosecutor bears an evidential burden. This burden
is to present sufficient evidence to the court to justify a finding of guilt (see Chapter 9). If the
prosecutor fails to satisfy this burden, the defendant's solicitor should make a submission of
no case to answer at the conclusion of the prosecution case, asking the magistrates to dismiss
the case. The leading authority on the relevant test to apply is set out in R v Galbraith [1981] 2
All ER 1060.
A submission of no case to answer will be made by the defendant's solicitor if either:
(a) the prosecution has failed to put forward evidence to prove an essential element of the
alleged offence; or
(b) the evidence produced by the prosecution has been so discredited as a result of cross-
examination, or is so manifestly unreliable, that no reasonable tribunal could safely
convict on it.

© Example 1
Harvinder is charged with the theft of a bicycle. In presenting their case, the prosecutor
fails to produce evidence that the bicycle belonged to another person. Proving that the
item stolen belonged to another person is an essential element in the offence of theft.
Harvinder’s solicitor should therefore make a submission of no case to answer and
request that the magistrates dismiss the case.

© Example 2
Lee is charged with assault occasioning actual bodily harm following an incident outside
a nightclub. The victim of the alleged assault claims that he was the subject of an
unprovoked attack by Lee, whom he did not know before the incident. The defence case
is that Lee only used reasonable force to defend himself. The prosecution case is based
solely on evidence from the complainant. In cross-examination by Lee’s solicitor, this
evidence is shown to be unreliable. The complainant accepts that in fact he threw the first
punch and he also admits that he knew Lee before the incident, because his ex-girlfriend
left him to go out with Lee. He also admits that he exaggerated the extent of his injuries.
At the conclusion of the prosecution case, Lee’s solicitor will make a submission of no
case to answer on the basis that the prosecution evidence is so manifestly unreliable that
the court cannot safely convict on it.
In practice it is usually difficult to make a successful submission of no case to answer, because
not much prosecution evidence is actually required to get past this halfway stage.
This can be seen from the following case.

207
Criminal Practice

© In R v Sardar [2016] EWCA Crim 1616 the accused was charged with murdering a US
soldier in Iraq from an improvised explosive device (IED). Sir Brian Leveson applied the
test in Galbraith and in doing so relied on a passage from King CJ’s judgment in
Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1. Namely, where
there is direct evidence capable of proving the charge, then there will always be a case
to answer, no matter how weak or tenuous this appears. If the case depends on
circumstantial evidence, there will only be no case to answer where the evidence is not
capable in law of supporting a conviction. So in a case where the prosecution is solely
relying on circumstantial evidence, if all the prosecution evidence was accepted and all
the inferences favourable to the prosecution were drawn from this evidence, if a
reasonable mind could still not reach a conclusion of guilt beyond a reasonable doubt, or
exclude other hypotheses consistent with innocence, then the prosecution will not have
discharged their evidential burden. In this case, the circumstantial evidence was that the
accused was in the region at the time. He was in possession of information about
terrorism and bomb-making equipment and his fingerprints were found.on other, similar
IEDs which had been deployed in the same narrow geographical area during the same
time period. On this evidence, it was held that he was rightly found to have a case
to answer.

If the magistrates accept a submission of no case to answer, the charge against the
defendant will be dismissed. If the magistrates reject the submission of no case to answer, the
defendant may then present their case and call witnesses. The fact that the prosecution has
satisfied their evidential burden does not mean that the prosecution is entitled to a conviction
at that stage. This is because the court will not yet have heard either from the defendant, or
from any witnesses the defendant wishes to call in support of their defence.

10.3.1.5 The defence case

A defendant is a competent witness for the defence but is not compellable. This means that
a defendant can give evidence on his own behalf, but he is not obliged to do so (Criminal
Evidence Act 1898, s 1(1)). Prior to the trial taking place, the defendant's solicitor should
always discuss with the defendant whether or not they should give evidence in their own
defence. A defendant may be reluctant to give evidence, particularly if they are young
or nervous, or if they fear that their ‘story’ will not stand up to cross-examination by the
prosecutor.
In the normal course of events, it will be necessary for the defendant to give evidence
(assuming there has not been a successful submission of no case to answer). For example,
a defendant who is raising a defence such as self-defence or alibi has the evidential burden
of placing some evidence of this defence before the court. The simplest way to discharge
this burden is for the defendant to give evidence. Similarly, if the prosecution has adduced
evidence of a confession made by the defendant, and the defendant disputes the truth of
this confession, the defendant will need to give evidence to explain why he made a false
confession.
A defendant who answered questions (or provided a prepared written statement) at the
police station will also have the credibility of this evidence enhanced if they go into the
witness box at trial and repeat what they said at the police station. A defendant who does
this will enable their solicitor, when giving their closing speech, to say that the defendant has
put forward a consistent defence since first being arrested and questioned.
In addition to the above, we also saw in Chapter 9 as a result of s 35 of the CJPOA 1994, a
defendant who fails to give evidence on their own behalf at trial is likely to find that the court
will draw an adverse inference from such failure.

208
 Trial Procedure in the Magistrates’ Court and Crown Court

The effect of s 35 is that, if the prosecution has raised issues which call for an explanation
from the defendant, should the defendant then fail to give evidence, the court will be entitled
to infer from that failure that the defendant has either no explanation, or no explanation that
will stand up to cross-examination.

© Example
Lewis is charged with common assault. Lewis pleads not guilty on the basis that he was
acting in self-defence. At the end of the prosecution case, Lewis declines to enter the
witness box to give evidence on his own behalf. The court is entitled to infer from this that
Lewis has no defence to the charge, or no defence that will stand up to cross-examination
(in other words, an inference that Lewis is guilty of the offence).

Figure 10.1 Flowchart - Will the defendant need to testify?

Prosecution present their case

Defence make submission of no Defence do not make submission

case to answer of no case to answer

Submission successful: Submission unsuccessful

Magistrates dismiss case/judge
directs jury to acquit the
Seino Defence present their case

Defendant competent to give evidence on his own behalf but not compellable

Should the defendant give evidence?

Advantages: Disadvantages:
* avoid s 35 adverse inferences ¢ could incriminate himself in
* dispute/put in content evidence witness box
of prosecution witnesses * account may not stand up to
* explain his conduct (eg, why he cross-examination
made a confession to the police)
¢ enhance his credibility if gives
same account as gave in police
station interview

209
Criminal Practice

10.3.1.6 Order of defence witnesses

lf a defendant is to give evidence on their own behalf, they must be called first before any
other witnesses for the defence (unless the court ‘otherwise directs’ (PACE 1984, s 79)). The
rationale behind this rule is that the defendant will be in court throughout the proceedings.
Therefore, if other defence witnesses were to give evidence before the defendant, the
defendant would have the opportunity to hear what they said and how they were cross-
examined. They could then tailor their own testimony to take account of the comments made
by the other defence witnesses. All other witnesses (for either the prosecution or the defence)
are not allowed in court until they have testified.
Defence witnesses will give evidence in the same way as prosecution witnesses. Each defence
witness will be examined in chief by the defendant's solicitor and will then be cross-examined
by the prosecutor. The defendant's solicitor will then have the opportunity to re-examine their
witness.

10;3.127 Closing speeches

It used to be the case that the prosecution was not thought to have a right to make a closing
speech in a magistrates’ court trial. HM Crown Prosecution Service Inspectorate asked the
Criminal Procedure Rules Committee to clarify the position in relation to r 37. As a result,
a new rule was added (r 24.3(g) to'(h)) which now expressly recognises the prosecution's
right to make such a speech. Guidance suggests though that this right should only usually be
exercised in more complex cases where it will be of assistance to the court. Where this right
is exercised, then as with trials in the Crown Court, the defence will always make their closing
speech after the prosecution closing speech.
In fact, the defendant's solicitor has a choice in the magistrates’ court as to whether to
make an opening or a closing speech. In practice, solicitors representing the defendant will
nearly always choose to make a closing speech, given the tactical importance of having
the last word after all the evidence has been presented to the court. Like the prosecution
opening speech, the defence closing speech is not itself evidence. It does, however, allow
the defendant's solicitor to sum up the case from the defence point of view, to point out all
the weaknesses in the prosecution case and to remind the court of all the points in favour
of the defendant.
Although there is no set format for making a closing speech, the following points should be
borne in mind:
(a) The closing speech should be kept short and to the point. Closing speeches that are too
long often have little impact on the magistrates.
(b) The defendant's solicitor must always remind the magistrates that the CPS bears the
burden of proving beyond a reasonable doubt that the defendant is guilty of the offence
with which he is charged. The magistrates should be told that the defendant is entitled
to an acquittal unless they are sure that the defendant is guilty. The defendant does not
need to prove that they are innocent. All they need to do to secure an acquittal is to
demonstrate that the prosecution has failed to prove its case beyond a reasonable doubt.

210
 Trial Procedure in the Magistrates’ Court and Crown Court

(c) The defendant's solicitor should refer back to the opening speech made by the
prosecutor, in which the prosecutor set out what they were going to prove. The
defendant's solicitor should point out each and every area where the prosecution case
has ‘come up short’. The defendant's solicitor should place particular emphasis on the
factual weaknesses or discrepancies in the prosecution case.
(d) The defendant's solicitor may also need to cover evidential issues during the closing
speech. If, for example, the prosecution has relied upon disputed identification evidence,
the defendant's solicitor will need to give a Turnbull warning to the magistrates.
Alternatively, if the prosecution has been allowed to rely on disputed confession evidence,
the defendant's solicitor should seek to undermine the credibility of such evidence. If the
evidence of the defendant's bad character has emerged at trial, the defendant's solicitor
will need to downplay the significance of such evidence.
(e) The closing speech is all about persuasion. In other words, the defendant's solicitor
should ‘show’ the magistrates how to find the defendant not guilty. It is often a sensible
tactic to conclude the closing speech by listing all the weaknesses of the prosecution case
(and the strengths of the defence case), and then invite the magistrates to conclude that
the only possible verdict is one of not guilty.

10.3.1.8 The verdict

The magistrates will normally retire to consider their verdict. Most trials in the magistrates’
court will be before a bench of three magistrates. The magistrates may make their decision
by majority. There does not need to be unanimous agreement on the verdict. When the
magistrates return to court after deciding upon the verdict, the defendant will be asked to
stand and will be told by the chairperson of the bench that they have been found either not
guilty or guilty.
If the defendant is found guilty, the magistrates will move on to consider the sentence to be
imposed. The magistrates will either sentence the defendant immediately or adjourn the case
if they wish to obtain medical or other reports before passing sentence. If the defendant is
sentenced immediately, their solicitor will deliver a plea in mitigation to the magistrates prior
to sentence. If the magistrates adjourn the case before passing sentence, they will need to
consider whether the defendant should be granted bail or remanded in custody prior to the
sentencing hearing. A defendant who has been found guilty following a trial in the magistrates’
court has the right to appeal against the conviction and/or sentence to the Crown Court. The
procedure for doing this is described in Chapter 12.
lf the defendant is acquitted by the magistrates, they will be formally discharged and told that
they are free to go.

211
Criminal Practice

Figure 10.2 Flowchart - Trial procedure in the magistrates’ court

Opening speech by prosecution

Prosecution witnesses give evidence |

-— a
Submission of no case to answer by
defence at close of the prosecution case

=
Defence witnesses give evidence i

Tos.
Closing speech by defence

Magistrates/district judge retire to consider their verdict

Verdict announced

Not guilty

Defendant
discharged
sentence report

Sentence

10.3.2 Trial in the Crown Court

We have seen in the magistrates’ court the magistrates decide matters of both fact and law. ~
In a Crown Court trial, these functions are split between the judge and the jury. The jury (made
up of 12 members of the public) will decide any matters of fact which are in dispute and will
ultimately decide upon the defendant's guilt or innocence. The judge will resolve any disputes
that arise over points of law during the course of a trial, and will direct the jury as to the
relevant law which they must apply to the facts of the case when they retire to consider their
verdict. Although the judge will also sum up for the jury the evidence which they have heard
before the jury retire to consider their verdict, the jury are solely responsible for deciding what
the true facts of the case are. The judge will also be responsible for sentencing the defendant
in the event of a finding of guilt by the jury.

212
 Trial Procedure in the Magistrates’ Court and Crown Court

The advocates appearing on behalf of the prosecution and defence will either be solicitors
who have obtained their higher rights of audience qualification or barristers.

10.3.2.1 Change of plea from guilty to not guilty

Rule 25.5 of the CrimPR sets out the procedure to be followed if a defendant who has
pleaded guilty wants to change his plea to not guilty. The defendant must apply, in writing, as
soon as practicable after becoming aware of the grounds for making such an application to
change a plea of guilty (eg if the defendant had misunderstood the prosecution case). A very
similar procedure applies to changing plea in the magistrates’ court (r 24.10).

10.3.2.2 Order of events

The procedure at a trial in the Crown Court is very similar to that in the magistrates’ court, but
with some important differences, many of which are due to the split functions between the trial
judge and the jury referred to above. The order of events is as follows:
(a) The jury will be sworn in (commonly referred to as being ‘empanelled’). The jury will
comprise a randomly selected panel of 12 members of the public between the ages of 18
and 75, whose names are on the electoral roll for the local area and who have resided in
the UK for at least five years. Certain persons are ineligible for jury service (for example,
anyone suffering from a mental disorder), and certain classes of people are disqualified
from being jurors (for example, anyone currently on bail in criminal proceedings and
many who have previous convictions for which they have served a custodial sentence
(Juries Act 1974, s 1)).
Note that the defendant will usually have already been arraigned and entered their
not guilty plea(s) at the PTPH (see Chapter 8). If for some reason this has not yet taken
place, the arraignment will usually occur before the jury is empanelled so that the jury is
not prejudiced by hearing the defendant plead not guilty to some of the offences on the
indictment and guilty to others. The court clerk will then inform the jury what counts on the
indictment to which the defendant has pleaded not guilty but will not say anything about
the guilty pleas.
(b) The prosecutor will then give an opening speech to the jury, explaining what the case is
about and what evidence the prosecution intends to call. The opening speech will usually
contain the following elements:
(i) the legal elements of the offence(s) on the indictment;
(ii) an outline of the evidence the prosecutor intends to call; and
(iii) an explanation of the operation of the burden and standard of proof in a criminal
case
The prosecutor may also highlight to the jury any points of law that they anticipate may
arise during the case and possible defences open to the defendant.
(c) Each prosecution witness will then be called in turn to give evidence in just the same
way as in the magistrates’ court, starting with the complainant. Each witness will be
examined in chief by the prosecutor, cross-examined by the defence advocate and then (if
necessary) re-examined by the prosecutor. The prosecutor will read out the statements of
any witness whose evidence has been accepted by the defendant under the s 9 CJA 1967
procedure without the witness who gave the statement being required to attend court in
person. The prosecutor will also read out the statement of any witness whose evidence is
to be admitted as hearsay evidence.
(d) If any disputes as to points of law or arguments as to the admissibility of evidence arise,
a hearing known as a ‘voir dire’ (or a ‘trial within a trial’) will take place in the absence
of the jury. Such hearings normally arise in the context of disputes as to the admissibility
of a piece of evidence upon which the prosecution seek to rely (for example, a disputed

213
Criminal Practice

confession). It is normal practice for the defence to notify the prosecutor prior to the trial
of any items of prosecution evidence of which they will seek to challenge the admissibility
at trial. Often the issue is dealt with at a hearing prior to the trial date and the judge may
rule on the admissibility then; at times it is dealt with on the day of trial prior to the jury
being ‘empanelled’. Where it is not resolved before the start of the trial, the prosecutor,
having advance notice of the issue, will not mention these items of evidence during their
opening speech.
When the relevant point is reached during the presentation of the prosecution case, the
judge will ask the jury to retire and will then conduct the voir dire. The judge will hear
evidence from witnesses, and then legal submissions from both parties’ advocates about
the item of evidence in dispute. The judge will then make their ruling. If the judge rules
that a particular piece of evidence is inadmissible, the jury will never hear about that
piece of evidence. If the judge rules that the evidence is admissible, the party wishing to
rely on that evidence (usually the prosecution) may then raise it during the trial. It will still
be open to the other party (usually the defence) to attempt to undermine the reliability or
cogency of that evidence either when cross-examining the witness giving the evidence, or
when examining-in-chief their own witnesses.
At the conclusion of the prosecution case, defence counsel may make a submission that
there is no case for the defendant to answer. This submission will be made to the judge in
the absence of the jury. The test which the judge will apply in deciding whether there is a
case to answer is the same ‘Galbraith test’, which we looked at for summary trials.
If the submission of no case to answer is successful, the jury will be asked to return, and
the judge will instruct them to return a verdict of not guilty. If the submission of no case
to answer is unsuccessful, the judge may allow the defendant to change their plea from
not guilty to guilty at this stage. A defendant may wish to do this if, for example, they
have admitted their guilt to their solicitor but put the prosecution to proof of their case.
A defendant may also wish to change their plea to guilty at the end of the prosecution
case if the trial judge has made a ruling on a point of law, or on the admissibility of
a piece of evidence, which deprives the defendant of a defence upon which they had
hoped to rely.
lf the submission of no case to answer is unsuccessful (and the defendant does not seek
to change his plea), or no submission is made, the defence advocate will then present the
defendant's case. If the defence intend calling a witness or witnesses in addition to the
defendant, defence counsel is entitled to make an opening speech to the jury. They are
not entitled to do this if only the defendant is to give evidence. If there is more than one
defendant, each defendant will present their case in turn. The order in which this is done
will follow the order in which the defendants’ names appear on the indictment.
Witnesses for the defence will then be called to give evidence. The defendant will be
called first (assuming they are to give evidence). Should the defendant fail to give
evidence, the judge will direct the jury that they may draw an adverse inference from
such silence under s 35 of the CJPOA 1994 (see Chapter 9). Each defence witness will be
examined in chief by the defence advocate, cross-examined by the prosecutor and then (if
necessary) re-examined by the defence advocate.
At the conclusion of the defence case, both prosecuting and defence advocates will
deliver a closing speech to the jury. The prosecutor will give their closing speech first,
followed by the defence.
Before the jury retire to consider their verdict, the judge will then give their ‘summing up’
to the jury. The summing up has two parts, namely directions on the law and a summary
of the evidence.

214
 Trial Procedure in the Magistrates’ Court and Crown Court

When the judge directs the jury on the law, they will cover three areas:
(i) the burden and standard of proof;
(ii) the legal requirements of the offence; and
(iii) any other issues of law and evidence that have arisen during the trial (for example, a
Turnbull warning in the case of disputed identification evidence, or a direction as to the
drawing of adverse inferences under ss 34 to 37 of the CJPOA 1994).
A very common ground of appeal raised by defendants following conviction at a trial in the
Crown Court is that the judge has misdirected the jury on a point of law or evidence.
When the judge gives the jury a summary of the evidence, they will provide the following:
(i) a succinct summary of the issues of fact that the jury has to decide;
(ii) an accurate and concise summary of the evidence and arguments raised by both
prosecution and defence; and
(iii) a correct statement of the inferences the jury is entitled to draw from their conclusions
about the facts.
At the end of the summing up, the judge will tell the jury to appoint a foreman and will
instruct them to retire to consider their verdict and to reach a unanimous conclusion.
(k) The jury will then retire to consider their verdict. The deliberations of the jury are private
and must remain completely secret. The jurors are permitted to consider only the evidence
they have heard at trial when deciding their verdict and are not permitted to discuss
the case with anyone other than their fellow jurors. The jury must decide their verdict
unanimously, although a majority verdict of 11:1 or 10:2 will be accepted if, after at least
2 hours and 10 minutes, unanimity is not possible (Juries Act 1974, s 17). If the case was
lengthy or in any way complex, the judge is likely to wait much longer than this minimum
period before telling the jury that they are prepared to accept a majority verdict.
lf any jurors have been discharged during the trial then the majority verdict requirements
reflect this, so where there were only 11 jurors, the majority must be 10:1. If there were
only 10 jurors, it must be 9:1 and where there are only nine jurors then only a unanimous
verdict is acceptable.
(1) If the jury cannot reach a majority verdict within a reasonable time, the judge will
discharge the jury. The prosecution is then likely to request a retrial before a new jury.
(m) If the jury finds the defendant not guilty, the defendant will be discharged by the judge
and told that they are free to go. If the defendant’s case was not funded by way of a
representation order, the judge will usually order that their legal costs be paid from
central funds (ie by the state).
(n) If the jury finds the defendant guilty, the judge will then proceed to sentence the
defendant. The judge will either sentence the defendant immediately, or, if necessary,
adjourn sentence so that pre-sentence reports can be obtained (see Chapter 11). If the
judge adjourns sentence, they will remand the defendant either on bail or in custody.
Although there is a presumption in favour of bail for a defendant who has been convicted
but not yet sentenced, if the sentencing hearing has been adjourned so that pre-sentence
reports may be prepared, a defendant who has been convicted of a serious offence
is very unlikely to be granted bail before sentence. The judge is likely to refuse the
defendant bail on the grounds either that the defendant will fail to surrender to custody,
or that it would be impractical to prepare the report unless the defendant is in custody.
The procedure for sentencing a defendant is described in Chapter 11.
A flowchart summarising the above is set out below.

215
Criminal Practice

Figure 10.3 Flowchart - Trial procedure in the Crown Court

Opening speech by prosecution

Prosecution witnesses give evidence and

agreed s 9 statements read out by prosecutor

Submission of no case to answer by defence —

at close of the prosecution case —

_ Opening speech by defence

Defence witnesses give evidence

Closing speech by prosecution

Closing speech by defence

Summing up by judge

Jury retire to consider their verdict

Vv

Not guilty

Defendant
Adjourn for pre- Sentence discharged
sentence report

Sentence

216
 Trial Procedure in the Magistrates’ Court and Crown Court

10.4 Modes of address and court room etiquette

A trial in the magistrates’ court will normally be conducted before a bench of three
magistrates. Traditionally magistrates were addressed collectively as ‘Your Worships’, although
it is now more common for remarks to be addressed to the chairperson of the bench of
magistrates, using ‘Sir’ or ‘Madam’ as appropriate. If the trial takes place before a district
judge, ‘Sir’ or ‘Madam’ should be used. If the trial takes place in the Crown Court, the normal
form of address to the judge is ‘Your Honour’.
When referring to an opposing advocate it is courteous to refer to them as ‘my friend’ or, if the
other advocate is a barrister, ‘my learned friend’.
On entering or leaving court, it is customary to bow to the judge or magistrates (in fact this is
linked to the Royal Coat of Arms which will usually be positioned behind where they sit and
recognises that justice stems from the Crown and that the law courts are part of the Royal
Court). Similarly, all those in court will be required to stand up when the judge or magistrates
enter or leave the court.
Another important feature of being a criminal advocate is that when you address the court
or are examining witnesses, the default position is that you are required to stand up if the
proceedings are taking place in open court, which most criminal proceedings are. However,
there are now a number of occasions when advocate will usually remain seated:
* when representing a juvenile client in the Youth Court;
¢ where a defendant appears via videolink from prison;
¢ where a witness appears via secure link, normally because of special measures
(see 10.7);
¢ where witnesses are located far from court (especially police officers) and need to give
evidence via videolink;
¢ where an advocate has requested to appear over videolink (the court videolink facility is
called CVP or Cloud Video Platform);
¢ when making a bail appeal before a judge in chambers in the Crown Court (see
Chapter 7).
Finally, you should not eat food when in court and any electronic devices such as mobile
phones or tablets must be turned off (or placed on silent mode). You would be committing an
offence and also be in contempt of court if you were to take pictures, video or audio record
court proceedings.

10.5 Difference between leading and non-leading questions

At 10.3 above we described the procedure that is followed during a trial, including advocates
examining witnesses. We will now consider some advocacy techniques dealing with the use of
leading and non-leading questions and when they should be used.

10.5.1 Examination-in-chief
The purpose of examination-in-chief is to allow a witness to ‘tell their story’. The advocate
conducting the examination-in-chief should ask questions which enable the witness to repeat
the version of events which that witness has provided earlier in their witness statement.
The difficulty with conducting an examination-in-chief is that the advocate is not allowed to ask
leading questions. Leading questions are questions which are suggestive of the answer.

217
Criminal Practice

te) Example
Ewan is called as a prosecution witness. He is to testify to the fact that at 2 pm on 5 June
he saw Grant steal a tin of baked beans from Sainsbury’s.
The prosecuting solicitor cannot say to Ewan: ‘Did you see Grant steal a tin of haked
beans from Sainsbury’s at 2 pm on 5 June?’ because this is a leading question.
Instead of asking such a leading question, the advocate conducting the examination-in-
chief should use ‘open’ questions to elicit the information from the witness.

o Example
Continuing with the example above, the prosecutor could elicit the information from Ewan
in the following way:
Q Where were you on 5 June at about 2 pm?
A | was in Sainsbury’s.
Q What did you see when you were in Sainsbury’s?
A | saw Grant pick up a tin of baked beans and put them in his jacket pocket.
Q_ What happened next?
A | saw Grant walk out of the shop without paying for the tin of baked beans.
The use of non-leading, open questions enables the witness to place their account before
the court in their own words. Such questions usually start with words such as:
¢ Wiho..7
¢ What...?
¢ When...?
¢ Where...?
e How...?

10.5.2 Cross-examination

Cross-examination of a witness called by the other party has three main purposes:
to enable the party conducting the cross-examination to put their case to the witness;
to undermine the credibility of the evidence which that witness has just given in
examination-in-chief; and
to obtain favourable evidence from the witness that supports your case.
‘Putting your case’ means suggesting to a witness that the version of events which that witness
has just put forward in examination-in-chief is incorrect and suggesting an alternative version
of events. It is always necessary for an advocate to put their client’s version of events to a
witness in cross-examination. For example, in an assault case where the defendant is claiming
they acted only in self-defence, the defendant's solicitor must, when cross-examining the
alleged victim of the assault, put to the victim that they (the victim) attacked the defendant first
and that the defendant was acting only in self-defence. If the defendant's solicitor fails to put
to the witness that the defendant was acting in self-defence, the defendant will then not be
entitled to enter the witness box and say that they were acting in self-defence.
Cross-examination will usually be done by asking a witness ‘closed’ or leading questions. This
is to try and keep better control of what the witness will say and generally can be answered
with a ‘yes‘/‘no’ or provide the witness with the required answer.

218
 Trial Procedure in the Magistrates’ Court and Crown Court

© Example
Q Mr Barnard, you told the court that you spent the evening of 14 December at a club?
Yes.
You had quite a bit to drink, didn’t you Mr Barnard?
| wouldn't say | had that much.
Well according to your witness statement you had seven pints to drink. Is that correct?
Yes.
That's quite a lot isn’t it Mr Barnard?
45
&Sb
6) | suppose so.

10.5.3 Re-examination
At the end of the cross-examination, the party who called the witness may, if they choose,
briefly re-examine their witness. Such re-examination should only be in relation to matters that
have arisen in cross-examination and as with examination-in-chief, only open, non-leading
questions are allowed.
It would be normal to re-examine a witness to clarify any confusion which may have
arisen following cross-examination and/or to try and repair damage caused by such
cross-examination.

10.6 Competence and compellability

10.6.1 The general rule
All persons are competent to give evidence at a criminal trial.
Section 53 Youth Justice and Criminal Evidence Act (YJCEA) 1999 provides a uniform test that
applies to all criminal proceedings:
(1) At every stage in criminal proceedings all persons are (whatever their age)
competent to give evidence.
All competent persons are also compellable. This means that a witness can be compelled to
testify by the court issuing a witness summons. Failure to attend court in such circumstances
amounts to contempt of court. If, having come to court, the witness refuses to answer
questions, this will again be contempt of court which can result in imprisonment either under
the general law of contempt or under a specific statute such as s 97 Magistrates’ Courts
Act 1980.

10.6.2 Exception to the general rule on competence

Section 53 goes on to provide:
(3) A person is not competent to give evidence in criminal proceedings if it appears
to the court that he is not a person who is able to:
(a) understand questions put to him as a witness; and
(b) give answers to them which can be understood.
Issues relating to credibility and reliability are therefore not relevant to this test. Section 53(3)
is solely concerned with understanding.
Two groups of witnesses in particular may fall within this exception.

219
Criminal Practice

10.6.2.1 Children
Sometimes a child might not have the level of understanding that is required by this test. It is
important to note though that a child’s age is not determinative. The appellate courts have on
a number of occasions emphasised that the only issue is whether the witness is able to give
intelligible testimony. So even very young children may be competent if they have sufficient
intelligence.

© In Rv Barker [2010] EWCA Crim 4 a conviction of rape was upheld based in part on the
evidence of the complainant who had been aged three at the time of the incident and
aged four-and-a-half when she gave evidence at trial. The Court of Appeal took the view
that the child had been a ‘compelling as well as competent witness’, but emphasised that
the test for competency required a judgment from the trial judge that is specific to the
particular witness.
For child witnesses, there is a linked question. Should the child give sworn or unsworn
evidence? The answer to this is very straightforward and provided by s 55. Namely, that
‘the witness may not be sworn ... unless he has attained the age of 14’. }
So where a witness is over 14, they will generally give sworn evidence if ‘he has sufficient
appreciation of the solemnity of the occasion and of the particular responsibility to tell the
truth which is involved in taking the oath’ and this will be presumed to be the case unless
there is evidence to show the contrary.

o Example
Noah is aged seven years and is the victim and key prosecution witness in an allegation
of sexual assault by his grandfather. Noah will be a competent witness on behalf of the
prosecution assuming he is intelligent enough to understand questions put to him and
to give answers which can be understood. Because Noah is under 14 years, he will give
unsworn evidence.

10.6.2.2 Those with a defective intellect

Where a potential witness is suffering from a defective intellect, they may be able to give
unsworn evidence in criminal proceedings provided they can satisfy the basic test for
competence (see above). Where there is such an issue with this type of a witness then it is for
the judge to decide whether a person whose capacity is challenged is competent.

10.6.3 Exceptions to the general rule on compellability

We have seen under the general rule that all persons are competent to give evidence at
a criminal trial and all competent persons are also compellable. However, there are some
qualifications to the rule on compellability when dealing with the accused and the spouse of
the accused.

10.6.3.1 The accused

As a witness for the Crown
In general, an accused is not a competent witness for the Crown. The rule is however much
more important where there are several co-accused because the same rule prevents the
Crown from calling one co-accused to testify against another. Section 53(4) YICEA 1999
states ‘A person charged in criminal proceedings is not competent to give evidence in the
proceedings for the prosecution’.
In four situations the prosecution may however be allowed to call a co-accused and these are
recognised by s 53(5):
1. The Attorney-General may file a nolle prosequi (a formal notice abandoning the
prosecution).

220
 Trial Procedure in the Magistrates’ Court and Crown Court

2. An order may be made for separate trials but note that in such a case, a co-accused from
the first trial may be called at the second, but not vice versa.
The accused may be formally acquitted, for example if the prosecution offers no evidence.
The accused may plead guilty and may then give evidence for the Crown against a co-
accused; it is usually considered desirable that the accused should be sentenced first
before giving evidence.

As a witness for a co-accused

A co-accused is competent but not compellable.

In his own defence

A defendant is competent to give evidence in his own defence but never compellable.
Remember though that adverse inferences may be drawn where an accused chooses not to
testify (CJ&PO Act 1994, s 35).

10.6.3.2 The spouse of the accused

Assuming the spouse is not also an accused, the question of their competence is dealt with by
s 80 PACE 1984.

For the Crown

The spouse of an accused is only compellable for the Crown in the limited class of cases
referred to in ss (3). This sets out certain offences which are regarded as ‘specified offences’,
which will then make the spouse compellable. For any other offence, the spouse cannot be
compelled to testify for the Crown, but they may still choose to do so.
The two categories of specified offences that would make a spouse compellable are:
¢ where the offence charged involves an assault on or injury or threat of injury to the
spouse or a person who was under |6; or
¢ where the charge is a sexual offence, or such an attempted offence involving a person
under I6 or aiding and abetting such offences.

o Example
John has been charged with assaulting his daughter Mia, aged 16. This was witnessed
by Belinda, John’s wife and mother of Mia. Since the incident, John and Belinda have
reconciled and Belinda no longer wants to testify against John.
Although Belinda is a competent witness for the prosecution, she cannot be compelled to
testify, because this case does not come within s 80 PACE 1984. Belinda could have been
compelled by the prosecution to testify had Mia been aged under 16 or had Belinda also
been a victim of the assault.
The same rule also applies where same sex couples have taken part in a formal civil
partnership ceremony. They will be treated just the same as if they were spouses.

(i) For the accused

A spouse is compellable.

(ii) For a co-accused

The spouse is only compellable in the same limited class of specified offences that apply to
the prosecution under ss (3) above.

(iii) Where spouses are co-accused then one is never compellable for the other.
Note that s 80(5) provides that if spouses are no longer married at the date of the trial it is as
if they were never married for the purpose of establishing their compellability.

221
Criminal Practice

© Example
Hassan has been charged with an offence of fraud. At the time of the alleged offence
he was married to Brianna and the prosecution would like to call her to testify against
Hassan, as it is believed she can provide crucial evidence to establish his guilt. Brianna is
not prepared to testify against Hassan, even though they have since separated and are
no longer living together.
In these circumstances the prosecution cannot compel Brianna to testify against Hassan
because they are still married. Moreover, the offence is not one of those limited offences
identified in ss (3) where Briana could have been compelled to testify. Had she and
Hassan divorced before the date of the trial then she could have been compelled and if
she was still reluctant to do so, the prosecution would have been able to serve a witness
summons on her.

10.7 Special measures

Sections 16 to 33 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 introduced
a number of ‘special measures’ which are available to assist witnesses (other than the
defendant) who might otherwise have difficulty in giving evidence in criminal proceedings, or
who might be reluctant to do so. The following categories of witness may apply to the court
for the assistance of special measures to help them give evidence in court (ss 16 and 17
YICEA 1999):
(a) children aged under 18;
(b) those suffering from a mental or physical disorder, or having a disability or impairment
that is likely to affect their evidence;
(c) those whose evidence is likely to be affected by their fear or distress at giving evidence in
the proceedings;
(d) complainants in sexual offences;
(e) those who are witnesses in specified gun and knife crimes (YJCEA 1999, Sch 1A).
Witnesses who are alleged to be the victims of sexual offences will automatically be
considered eligible for special measures under (c) above when giving evidence, unless the
witness tells the court that he or she does not want such assistance. In all other cases, it is for
the court to determine whether a witness falls into any of these categories.
We saw in Chapter 9 that under s 116(2)(e) of the CJA 2003, a witness who is fearful about
having to give evidence at trial may, with the leave of the court, have their written statement
read out to the court rather than having to attend court in person to give oral evidence. If
leave is granted, the defendant will be deprived of the opportunity to cross-examine the
witness on their account. Thus, before giving leave, the trial judge should assess whether the
fears of the witness may be allayed by the use of special measures to enable the witness to
give evidence. If special measures are used, the defendant will not then be deprived of the
opportunity to cross-examine the witness.
The types of special measure which may be used are:
(a) screens, to ensure that the witness does not see the defendant;
(b) allowing a witness to give evidence from outside the court by live television link, and
where appropriate, allowing a witness supporter to accompany the witness whilst giving
evidence;
(c) clearing people from the court so evidence can be given in private;
(d) in a Crown Court case, the judge and barristers removing their wigs and gowns;

222
 Trial Procedure in the Magistrates’ Court and Crown Court

(e) allowing a witness to be examined in chief before the trial and a video recording of that
examination-in-chief to be shown at trial;
(f) allowing a witness to be cross-examined (and re-examined) before the trial and a video
recording of this to be shown at trial;
(g) allowing an approved intermediary (such as an interpreter or speech therapist) to help a
witness communicate when giving evidence at the court; and
(h) allowing a witness to use communication aids, such as sign language or a hearing loop.
Where special measures are employed, s 32 of the 1999 Act obligates the trial judge to warn
the jury that the fact that special measures have been used should not in any way prejudice
them against the defendant or give rise to any suggestion that the defendant has behaved in
any way improperly towards the witness.
Although a defendant is not eligible to take advantage of these special measure provisions,
s 33A of the 1999 Act allows a defendant whose ability to participate effectively as a witness
in court is compromised by reason of their mental disorder, impaired intellectual ability or
social functioning, to give evidence by video link.

10.8 Solicitor’s duty to the court

A solicitor representing a defendant at a trial before the magistrates is under a duty to say on
behalf of their client what that client would properly say, were they to have the necessary skills
and knowledge to do this. In other words, it is the duty of the defence solicitor to act in their
client's best interests and to ensure that the prosecution discharges the onus placed upon it to
prove the defendant's guilt. Therefore, even if a client admits their guilt to the solicitor, it would
still be appropriate for the solicitor to put the prosecution to proof of its case if the solicitor
considered that case to be weak.
The defendant's solicitor nevertheless is required to act in a way that upholds the
constitutional principle of the rule of law, and the proper administration of justice (Principle 1
SRA Code of Conduct), and also remains under an overriding duty not to mislead the court
(under Standard 2 of the SRA Code of Conduct). They cannot therefore say anything in their
client's defence which they know to be untrue.
The defendant's solicitor also owes a duty of confidentiality to their client (under Standard
6.3 of the SRA Code of Conduct). This means that if the defendant's solicitor has to cease to
act for their client, the defence solicitor must not tell the court why they are ceasing to act.
A defence solicitor who withdraws from acting in such circumstances will tell the court that they
are no longer able to act for their client for ‘professional reasons’.
The detailed rules of professional conduct with which a solicitor must comply when acting as
an advocate (whether for the prosecution or the defence) are contained in Standard 2 of the
SRA Code of Conduct.

10.8.1 Preparing the defendant to give evidence

Prior to the trial, the defendant's solicitor must tell their client what is likely to happen at
the trial. If the client is to give evidence in their own defence, it is a sensible step to supply
the client with a copy of their witness statement, so that they can read it before the trial
commences. The client will not be able to refer to their witness statement when giving
evidence, but it is useful for them to be able to refresh their memory as to what they first told
their solicitor about the offence.
The defendant's solicitor should be careful, however, not to ‘coach’ their client (or indeed
any other defence witness). Advocates in the magistrates’ court or Crown Court (whether
representing the prosecution or the defence) should not rehearse or coach witnesses in
relation to their evidence, or in the way in which that evidence should be given.

223
Criminal Practice

Summary
In this chapter you have considered a range of matters relating to trials that take place in the
magistrates’ court and the Crown Court. Notably:
¢ The burden and standard of proof. How the burden and standard of proof operates at a
criminal trial in both the magistrates’ court and Crown Court.
e The order of events in a criminal trial. An outline of the sequence of events at a summary
trial in the magistrates’ court and comparing and contrasting this with the relevant
procedure at a trial on indictment in the Crown Court.
¢ Trial court advocacy. Some basic advocacy skills including modes of address and
appropriate court room etiquette.
* Competence and compellability. Some rules relating to competence and compellability
of witnesses, especially in relation to child witnesses, the accused and the spouse of the
accused. aa
¢ Special measures. The operation of the special measure provisions for vulnerable
witnesses including children and victims of sexual offences and offences of violence.
e The solicitor’s duty to the court. The duties owed by a solicitor to their client and their
overriding duty owed to the court.

Sample questions

Question 1
A solicitor is representing a defendant at trial in the magistrates’ court on a charge of
assault occasioning actual bodily harm. When testifying, the complainant states that she
was punched by the defendant following an argument but she did not give any evidence
about the nature of her injuries and the prosecution did not adduce any medical evidence
to establish what injuries she suffered. No other prosecution evidence is adduced to
establish the complainant did suffer actual bodily harm although there is independent
evidence to help prove the defendant did punch the complainant.
Will the defence be likely to succeed in a submission of no case to answer at the end of
the prosecution case?
A Yes, because the evidence produced by the prosecution is so manifestly unreliable, that
no reasonable tribunal could safely convict on it.
B_ No, because the prosecution has produced direct and independent evidence that the
complainant was assaulted.
C_ No, because the complainant has testified to say that she was assaulted by the defendant.
D Yes, because the prosecution has failed to put forward evidence to prove an essential
element of the alleged offence.
E No, because there is circumstantial evidence to help prove that an assault took place.

Answer
Option D is the best answer. According to the test in R v Galbraith, a submission of no
case to answer should succeed where either the prosecution has failed to put forward
evidence to prove an essential element of the alleged offence, or the evidence produced
by the prosecution has been so discredited as a result of cross-examination, or is so

224
 Trial Procedure in the Magistrates’ Court and Crown Court

manifestly unreliable, that no reasonable tribunal could safely convict on it. We are told
that the prosecution has adduced evidence that there was an assault and there is nothing
to suggest that this evidence is manifestly unreliable, so option A is wrong. However, the
prosecution does not appear to have adduced any evidence that the complainant suffered
actual bodily harm as a result of this assault. So, option D is the correct explanation as to
why a submission ought to succeed.
Options B and C are therefore wrong because these explanations would only help prove
one element of the offence and not that the victim suffered actual bodily harm from
the assault. Option E is wrong because although circumstantial evidence is capable of
establishing a case to answer, we are not told about any such evidence in this case.

Question 2
Three defendants have been charged with robbery. One defendant, a woman, admits that
she acted as a look-out and intends to plead guilty to being an accomplice to the robbery
when she appears in the Crown Court. This woman is also prepared to give evidence for
the prosecution implicating her co-accused, who are both men and whom she claims were
responsible for carrying out the robbery.
Which of the following best describes whether the woman will be a competent and
compellable witness for the prosecution assuming that she is sentenced before the date
of the trial of the two men?
A The woman is both competent and compellable because she has pleaded guilty and
so she has been severed from her co-accused.
B The woman is both competent and compellable because all persons are competent to
give evidence and competent persons are also compellable.
C The woman is competent to give evidence for the prosecution, but she cannot be
compelled to do so as she is also a co-accused.
D The woman is not competent to give evidence for the prosecution because she is still
an accomplice even if she has pleaded guilty.
E The woman is not competent to give evidence for the prosecution as she has a purpose
of her own to serve in testifying for the prosecution.

Answer
Option Ais the best answer. Although the general rule is that all persons are competent
and compellable, this rule is subject to some important exceptions. One such exception
is in relation to an accused, who is neither a competent nor compellable witness for the
prosecution - see 53(4) YJ&CE Act 1999. However, this is subject to four exceptions, which
are recognised by s 53(5), including where an accused is severed from their co-accused
by pleading guilty. This means they can give evidence for the Crown against a co-accused
(in such circumstances it is usually considered desirable that the accused is sentenced first
before giving evidence). So, option A is correct and option D is wrong.
Option B is not the best answer because this only states the general rule and does not
adequately explain why the woman has become competent and compellable. Option C
is wrong because once the woman becomes competent, she also becomes compellable.
Option E is wrong as the woman is now competent. If she did have a purpose of her own to
serve in testifying against her co-accused, this would not stop her from being a competent
witness, but it may require the judge to give a warning to the jury to treat her evidence with
some caution (this is known as a corroboration warning but is beyond the SQE1 syllabus).

225
Criminal Practice

Question 3
A solicitor represented a new client in the magistrates’ court at a trial for burglary. The
prosecution case was on the basis that the defendant was someone of good character. The
magistrates convicted the defendant. After the trial, the client instructs her solicitor thut she
wants to appeal against her conviction. The client also confides in her solicitor by telling
him that the police got her name wrong when they charged her. Had she been prosecuted
under her correct name the prosecution would have discovered that she had a number of
previous convictions for dishonesty offences including three similar offences for burglary.
The client is adamant that she does not want the court or the prosecution to learn of her
correct name.
What should the solicitor now do in light of this information?
A The solicitor can continue to act for the client, but he must not make any reference to
the client's name or her good character at the appeal hearing.
B_ The solicitor can continue to act for the client as he has an overriding duty to act in the
client’s best interests.
C The solicitor should withdraw from acting for the client, but he cannot tell the court or
the prosecution why.
D_ The solicitor should withdraw from acting for the client because he has breached his
overriding duty to the court.
E The solicitor should withdraw from acting for the client and must inform the court of the
client’s true name otherwise he will be complicit in misleading the court.

Answer
Option C is the best answer. The solicitor can no longer act for the client because to do so
would be knowingly misleading the court now that the solicitor is aware of the client's true
name. However, the solicitor could not tell the court or the prosecution why, because to do so
would be breaching his duty of confidentiality to the client.
Option A is wrong because the solicitor would have to give the client’s name to lodge an
appeal and would also be misleading the court when appealing under a false name.
Especially so in a case like this where the prosecution would have been likely to make a bad
character application had they known of the client’s correct name. Option B is wrong, because
although it is correct to say that the solicitor has a duty to act in the client’s best interests, this
is not his overriding duty. Option D is wrong, because although his overriding duty is to the
court, the solicitor has not yet breached this as he was unaware of the client’s true name at
the time of the trial. However, the solicitor would now breach it if he continued to act for the
client knowing that the court and prosecution will be misled at the appeal. Option E is wrong,
because if the solicitor tells the court why he is withdrawing, he will be breaching his duty of
confidentiality to the client.

226
 sentencing

11.1. Introduction 228

11.2 Role of sentencing guidelines 228
11.3. Determining seriousness (aggravating and mitigating facts) 230
11.4 How the Sentencing Guidelines work 232
11.5 Concurrent and consecutive sentences 234
11.6 Mitigation 235
11.7. Types of sentence 238
11.8 Newton hearings 244

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
¢ role of sentencing guidelines;
¢ determining seriousness (aggravating and mitigating facts);
* concurrent and consecutive sentences;
* mitigation;
¢ types of sentence;
¢ Newton hearings.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
¢ How an offender will be sentenced based on the sentencing guidelines issued by
the Sentencing Council.
¢ The use of aggravating and mitigating facts to help determine the seriousness of
an offence.
¢ When a sentencing court will use concurrent and consecutive sentences and what
these mean to the overall custodial sentence to be served.
¢ The use of mitigation in sentencing procedure.

227
Criminal Practice

¢ The range of sentences available to a sentencing court including custodial

sentences, suspended sentences and community orders.
¢ What is meant by a Newton hearing and when such a hearing will be used.

Introduction
The law on sentencing was overhauled by the Criminal Justice Act 2003 and then underwent
further reform by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. More
recently it was the subject of a consultation paper and draft Sentencing Bill by the Law
Commission who recommended that the law on sentencing be simplified and rewritten.
The Commission described their Bill as a ‘clean sweep’, replacing all procedural law on
sentencing with a new and simplified Sentencing Code. This Code is part of the Sentencing
Act 2020 and came into force at the start of December 2020. It consolidates the existing
sentencing legislation in England and Wales and does not change the substantive law on
sentencing. So for example, it does not alter the maximum penalties for any offence, nor does
it reduce judicial discretion in sentencing or replace existing sentencing guidelines. But it
does now provide a single reference point for sentencing legislation. The Code has re-written
sentencing procedure with modern language and an overriding aim to bring a clear and
logical structure to this area of practice.
Most defendants plead guilty to the offence with which they are charged (or sometimes to a
lesser offence following negotiation with the prosecution). A smaller number of defendants
will be convicted after a trial in either the magistrates’ court or the Crown Court. The resulting
sentence usually represents the final stage in the criminal process (subject to any appeal -
see Chapter 12).
Part 4, Chapter 1 of the Sentencing Code 2020 states that a court sentencing an offender
aged 18 or over must have regard to the following five purposes of sentencing:
1. the punishment of offenders;
2. the reduction of crime (including its reduction by deterrence);
3. the reform and rehabilitation of offenders;
4. the protection of the public; and
5. the making of reparation by offenders to persons affected by their offence.
The court need not have such regard if the sentence is fixed by law (such as murder, which
must attract a sentence of life imprisonment) or offences subject to a statutory minimum (see
later), or if the defendant is classed as a dangerous offender.
Representing clients at a sentencing hearing is therefore a very important and regular feature
of practising as a criminal defence solicitor.

11.2 Role of sentencing guidelines

Sentencing guidelines now play a key role in ensuring that when a court passes sentence it
does so in a structured and consistent way.

11.2.1 The Sentencing Council of England and Wales

These guidelines are prepared and updated by the Sentencing Council (SC). The Sentencing
Council (SC) is made up of eight judicial members and six non-judicial members.

228
 Sentencing

The SC has the power to prepare sentencing guidelines in relation to any sentencing matter
including guidelines for specific offences. In drawing up the guidelines, the SC must have
regard to current sentencing practice, the need to promote consistency in sentencing, the
impact of sentencing decisions on victims of crime, the need to promote public confidence in
the criminal justice system, the cost of different sentences and their effectiveness in reducing
re-offending and the SC’s monitoring of the application of the guidelines.
Every court has a duty to follow any relevant guidelines unless it is satisfied that it would be
contrary to the interests of justice to do so.
These guidelines can be found on the SC website at: https://sentencingcouncil.org.uk.

ThZ2 The principle of seriousness

One of the key concepts a sentencing court is required to consider when passing sentence
is seriousness. Part 4, Chapter 3 of the Sentencing Code 2020 requires that a court must
consider:
(a) the offender's culpability in committing the offence, and
(b) any harm which the offence
(i) caused,
(ii) was intended to cause, or
(iii) might foreseeably have caused.

11.2.2.1 Culpability
The sentencing guideline, ‘Overarching Principles: Seriousness’, identifies four levels of criminal
culpability for sentencing purposes. In descending order of seriousness, the four levels are
where the offender:
(a) has the intention to cause harm, with the highest culpability being when an offence is
planned. The worse the harm intended, the greater the seriousness;
(b) is reckless as to whether harm is caused. This covers situations when the defendant
appreciates that some harm would be caused but goes ahead, giving no thought to the
consequences even though the extent of the risk would be obvious to most people;
(c) has knowledge of the specific risks entailed by their actions, even though the offender
does not intend to cause the harm that results;
(d) is guilty of negligence.

12a Harm
Harm may be caused either to individuals, or to the community at large. The types of harm
that may be caused include:
(a) physical injury
(b) sexual violation
(c) financial loss
(d) damage to health and
(e) psychological distress.

11.2.2.3 Prevalence
Although courts should pass the same sentence for the same type of offence, in exceptional
circumstances, a court in a particular area may treat an offence more seriously than
elsewhere. This may occur if the particular type of offence is prevalent in the area and the
court has before it evidence that these offences are causing harm to the community at large.

229
Criminal Practice

11.3 Determining seriousness (aggravating and mitigating facts)

11.3.1 Statutory aggravating factors
There are four situations when the sentencing court is obliged to treat an offence as being
more serious than it would otherwise have done:
(a) Previous convictions - the court must treat any previous convictions as an aggravating
factor if, having regard to the nature of the previous conviction and the time that has
elapsed since the conviction, the court considers it reasonable to do so. In practice,
this means that previous convictions are likely to be regarded as aggravating factors if
the offences have been committed recently and/or are for similar types of offence. For
example, if a defendant convicted of a theft from a supermarket has several previous
convictions for the same type of offence, these previous convictions will be seen by the
sentencing court as an aggravating factor.
(b) Offences committed whilst on bail - if the offender was on bail in respect of another
offence at the time of the current offence, the court must treat this as an aggravating
factor.
(c) Racial or religious aggravation - any racial or religious motive for committing the offence
must be treated as an aggravating factor.
(d) Hostility based on sexual orientation or disability - any hostility towards the victim of an
offence based on that victim’s sexual orientation or any physical or mental disability, must
be treated as an aggravating factor.

11.3.2 Other aggravating and mitigating factors

The sentencing guideline on ‘Seriousness’ lists other factors which a sentencing court may
consider to be aggravating or mitigating factors.

dieo | The list of aggravating factors

(a) offences that are planned or premeditated;

(b) offenders operating in groups or gangs;
(c) the deliberate targeting of vulnerable groups (such as the elderly or disabled victims);
(d) offences committed whilst under the influence of drink or drugs;
(e) the use of a weapon;
(f) deliberate and gratuitous violence or damage to property, beyond that required to carry
out the offence;
(g) offences involving the abuse of a position of trust;
(h) offences committed against those working in the public sector or providing a service to
the public;
(i) in property offences, the high value (including sentimental value) of property to the
victim; and
(j) failure to respond to previous sentences.

11.5.2.2 The list of mitigating factors

(a) offences where the defendant has acted on impulse;
(b) when the defendant has experienced a greater degree of provocation than normally
expected;
(c) defendants who are suffering from mental illness or physical disability;
(d) if the defendant is particularly young or old (particularly in the case of young offenders
who are immature and have been led astray by others);

230
 Sentencing

(e) the fact that the defendant played only a minor role in the offending;
(f) defendants who were motivated by genuine fear; and
(g) defendants who have made attempts to make reparation to their victim.

11.3.3 Reduction in sentence for a guilty plea

Part 4, Chapter 3 of the Sentencing Code 2020 provides that when sentencing a defendant
who has entered a guilty plea, the court must ‘take into account’ the stage in the proceedings
at which the defendant gave their indication of a guilty plea and the circumstances in which
the indication was given. The rationale behind a reduction in sentence for defendants who
plead guilty is that a guilty plea avoids the need for a trial and, if made sufficiently early,
saves victims and witnesses from stress and anxiety about having to attend court to give oral
evidence.
The ‘Reduction in Sentence for a Guilty Plea’ Definitive Guideline applies to all defendants
aged 18 or over and to all cases, regardless of the date of the offence(s). It applies in the
magistrates’ courts and the Crown Court. The guidelines make it clear that the level of the
reduction is not dependent upon the strength or otherwise of the prosecution case. Nor should
it be affected by whether or not the defendant feels any remorse for their offending behaviour.
Whilst this may be an important feature at an earlier stage of the sentencing exercise (see
below), it is not relevant to this statutory entitlement to a reduction for a guilty plea.
Under the Guideline, the full one-third discount on sentence will only be available where a
guilty plea is indicated at the ‘first stage of proceedings’. This will generally be:
* ona guilty plea at the first hearing in the magistrates’ court;
* ona guilty plea at the first hearing in the magistrates’ court where the case is then
committed for sentence to the Crown Court;
* on indication of a guilty plea in the magistrates’ court to an offence triable only on
indictment, followed by a guilty plea at the first hearing in the Crown Court.
There are some limited exceptions that may still entitle a defendant to this full reduction if it
would have been unreasonable to expect the defendant to indicate a guilty plea at this first
hearing.
However, where a guilty plea is usually indicated after this first stage of the proceedings, the
‘maximum level of the reduction is one-quarter’. It follows that the one-quarter discount will be
awarded where the guilty plea is only first indicated at the PTPH (and not earlier when the
case was in the magistrates’ court).
The reduction should then be decreased from one quarter to a maximum of one tenth where
a guilty plea is entered on the first day the trial was meant to take place (‘at the door of the
court’). This may be reduced further, even to zero, where the guilty plea is entered during the
course of the trial.

© R v Hodgin (Lee) [2020] EWCA Crim 1388 - the sole ground of appeal was whether H
should have been afforded full credit of one third for indicating in the magistrates’ court,
when his case was sent to the Crown Court, that it was a ‘likely guilty plea’. Was that an
‘indication of a plea of guilty’ entitling him to full credit of one third? In refusing the
appeal it was held: ‘where at the magistrates’ court it is not procedurally possible for a
defendant to enter a guilty plea, there must be an unequivocal indication of the
defendant's intention to plead guilty. An indication only that he is likely to plead guilty is
not enough’.

11.3.4 Totality principle

When an offender is being sentenced, the court will take into account both the offence they
are being sentenced for and any associated offences. An associated offence is an offence for
which the defendant has been convicted in the same proceedings or for which they are to be

231
Criminal Practice

sentenced at the same time, or an offence which the defendant has asked the court to take
into consideration when passing sentence.

ie) Example
Ben is convicted of three separate offences of theft in the same proceedings. When Ben is
being sentenced, the court will not look at each offence separately, but will rather assess
the total extent of Ben’s offending in determining the sentence that Ben will be given. Only
if the totality of Ben’s offending passes the appropriate thresholds (see below) may a
custodial or community sentence be imposed by the court.

11.3.5 Offences taken into consideration

Defendants who are being sentenced for a particular offence may ask the court to take other
offences into consideration (TIC) when considering the sentence to be imposed. In addition
to the offence for which they were charged and convicted a defendant may have committed
several similar types of offence for which they have not yet been prosecuted, but for which
they may subsequently face prosecution. It is likely to be in the defendant's interests that all
matters outstanding (or potentially outstanding) against them should be dealt with at the
same time.
The usual practice is for the police to present the defendant with a list of additional offences
for which they are under investigation and may subsequently be charged. The defendant may
ask the court to take some or all of these other offences into consideration when deciding the
sentence they are to receive for the offence(s) for which they are currently before the court.
The offences to be taken into consideration should be of a similar nature to, or less serious
than, the offence(s) for which the defendant has been convicted.
The manner in which the court deals with offences taken into consideration depends on the
context of such offences. Although in theory these additional offences should increase the
severity of the sentence the defendant receives, in practice they might add nothing, or very
little, to the sentence the court would otherwise have imposed.
The advantage to the defendant of having offences taken into consideration is that this ‘wipes
the slate clean’, because they will not subsequently be prosecuted for such offences. The
advantage to the police is that a large number of TICs improves their clear-up rates without
the need to commence a fresh prosecution against the defendant.

11.4 How the Sentencing Guidelines work

Most offences now have their own definitive sentencing guidelines. These guidelines require
a sentencing court to follow an eight-step approach to arrive at its sentence. The first two and
fourth steps are usually the key steps that determine what sentence the court will impose.

STEP 1 - Determining the offence category

There are three categories identified to reflect differing levels in harm and culpability. So,
an offence falling into Category 1 reflects both greater harm and enhanced culpability. An
offence in Category 2 reflects either greater harm or enhanced culpability. Offences falling
within Category 3 will be those involving lesser harm and a lower level of culpability. The
relevant sentencing guidelines identify an exhaustive list of factors that will help determine
which category will be the most appropriate for the offence in question. Having identified the
relevant category, the court is then required to use the corresponding starting point sentence
which will then be further shaped by the remaining steps. Note that under this format, the
starting point sentence applies to all offenders regardless of how the offender pleaded or
whether or not they have previous convictions.

232
 Sentencing

STEP 2 - Shaping the provisional sentence: starting point and category range
Having identified the relevant category as a starting point sentence, the court will then start to
fine-tune the sentence by reference to a list of aggravating and mitigating factors (see above).
These factors are there to provide the context of the offence and the offender and they are
considered together so that a holistic approach is taken. The sentencer is also required to
consider the relevant statutory thresholds for custody (see later).

STEP 3 - Consider any factors which indicate a reduction in sentence, such as assisting the
prosecution
This step allows the court to reduce the sentence where the offender has provided assistance
to the police, usually in relation to other matters (not very common in practice).

STEP 4 - Reduction in sentence for a guilty plea

A reduction in sentence will be given for a guilty plea. The SC provides guidance on just how
much of a reduction should be awarded depending on when the plea is entered (see 11.3.3).

STEP 5 - Imposing an extended sentence

Part 4, Chapter 2 of the Sentencing Code sets out the circumstances as to when a court will be
required to consider imposing such a sentence, where for example the offender is classified
as a dangerous offender (see 11.7.1.1).

STEP 6 - Totality principle

The court must consider this where an offender is being sentenced for a number of offences to
ensure that the overall sentence is proportionate (see 11.3.4).

STEP 7 - Compensation and other ancillary orders

The court is reminded of their duty to consider whether or not to order the offender to pay
compensation and also make any other appropriate ancillary orders such as confiscation,
destruction and forfeiture orders.

STEP 8 - Giving reasons

Part 4, Chapter 1 of the Sentencing Code 2020 obliges the court to give reasons for the
sentence it is imposing. This includes explaining to the offender the effect of the sentence that
has been passed; the effect of non-compliance with the sentence and to identify the definitive
sentencing guidelines that have been followed at reaching the sentence passed, including
any explanation as to why the court has imposed a lesser sentence than recommended in the
guidelines if that is the case.

Not all these steps will apply to every case, but steps 1, 2, 4 and 8 are the most important in
practice. The following example illustrates how the guidelines would apply in a case where
the defence advocate should be able to persuade the magistrates to impose a sentence
below the starting point sentence suggested in the guidelines.

o Example
Dean has pleaded guilty at his first appearance in the magistrates’ court to an offence of
assault occasioning actual bodily harm. Dean punched his victim once to the face during
a five-a-side football game causing the victim a fractured nose that required surgery. The
prosecution accept that it was not premeditated and was the result of some significant
provocation by the victim. When interviewed by the police, Dean shows genuine remorse
for what happened, and the police enquiries confirm this was an isolated incident. Dean
is aged 24 and has no previous convictions.

233
Criminal Practice

¢ Step 1
Harm - likely to be regarded as greater harm as we are told the fracture required
surgery.
Culpability - likely to be regarded as lower culpability as a greater degree of provocation
and a lack of premeditation without any aggravating features is present.
Category 2 (greater harm and lower culpability)
¢ Step 2
Starting point sentence for Category 2 = 26 weeks custody (with a category range from
low level community order to 51 weeks custody).
¢ No aggravating factors increasing seriousness
¢ Factors reducing seriousness include:
° No previous convictions
° A single blow
° Remorse
° An isolated incident
These will suggest a lesser sentence from the above starting point sentence and Dean’s
advocate will use this to try and persuade the court to impose a community order for this
offence rather than a custodial sentence.
¢ Step 3
Not applicable
¢ Step 4
Dean will be entitled to full credit for his timely guilty plea = a one-third reduction in his
sentence.

¢ Step 5
Not applicable as Dean will not be classified as a dangerous offender.
° Step 6
Not applicable as Dean is only being sentenced for one offence.
¢ Step 7
The court is likely to award compensation to the victim (although the level of provocation
by the victim may reduce the amount of any such award).
¢ Step 8
When passing sentence, the court will give its reasons in open court (these are likely to be
reported in the local press).

11.5 Concurrent and consecutive sentences

These terms are relevant where a court is sentencing an offender to a custodial sentence
for two or more offences. In such circumstances, separate sentences of imprisonment may
be expressed by the sentencing court to be either concurrent or consecutive. A concurrent
sentence means that the custodial terms are deemed to be served at the same time.

234
 Sentencing

A consecutive sentence means that one custodial sentence will start after the other one has
finished.

o Example
Aisha is convicted in the Crown Court of unlawful wounding and theft. She is sentenced to
three years’ imprisonment for the unlawful wounding offence and one year's imprisonment
for the theft. The judge tells Aisha that the sentences are to run concurrently. This means
that Aisha has effectively received a total sentence of three years’ imprisonment because
the sentence for the theft will run at the same time as the first year of the sentence for the
unlawful wounding.
Had the judge expressed the custodial terms to be consecutive, Aisha’s total sentence
would amount to four years. The one-year sentence for the theft would take effect after
Aisha had served the three-year sentence for the unlawful wounding.
Consecutive sentences will not generally be imposed where matters of fact arise out of the
same incident. So, in the above example, if the wounding and theft occurred at the same
time in relation to the same victim, concurrent sentences would be more likely. A concurrent
sentence may also be imposed even if they do not arise out of the same incident if the
sentencing court applies the totality principle mentioned at Step 6 above.

11.6 Mitigation
The penultimate stage in the sentencing process is for the defendant to have an opportunity
to present mitigation before the sentencing court then considers and imposes its sentence.
This entitlement is recognised in the Criminal Procedure Rules (r 25.16(6)) and in practice is
one of the most frequent and important functions of defence advocates. The plea in mitigation
usually just involves a speech by the defence advocate, but it can also include the calling of
character witnesses on behalf of the defendant or introducing character letters to speak of the
defendant's generally good character.

11.6.1 Objective and structure

The objective of the plea in mitigation is to persuade the sentencing court to impose upon the
defendant the most lenient sentence which the court could reasonably be expected to give
for that offence. Although there is no law or procedural rules on this, the structure of a plea in
mitigation may be divided into four parts:
(a) The likely sentence - the defendant's solicitor may begin by identifying the likely sentence.
(b) The offence - the defendant's solicitor could then address the circumstances of the
offence, minimising the impact of any aggravating factors and stressing the importance of
any mitigating factors that are present.
(c) The offender - after dealing with the offence, the defendant's solicitor could then
emphasise any personal mitigation which the defendant may have.
(d) The suggested sentence - the plea in mitigation should conclude with the defendant's
solicitor suggesting to the court the type of sentence which he considers it would be most
appropriate for the court to impose.
Each of these four parts will now be looked at in more detail.

11.6.1.1 The likely sentence

The defendant's advocate must research the likely range of sentences which will be in the
mind of the court to identify what the ‘starting point’ sentence is likely to be (see above). The

235
Criminal Practice

objective of the plea in mitigation is to persuade the magistrates to impose a sentence which
is less severe than the ‘starting point’ sentence.

11:6.1.2 The offence

After identifying the likely sentence, the plea in mitigation could then focus on the offence
itself. This requires the defendant's advocate to:
(a) minimise the impact of any aggravating factors surrounding the offence; and
(b) emphasise the importance of any mitigating factors.
The defendant's solicitor should identify any aggravating factors which would normally
lead the court to impose a sentence in excess of the ‘starting point’ sentence, and
attempt (if possible) to disassociate the defendant's case from those factors. Similarly, the
defendant's solicitor should emphasise to the court the presence of any mitigating factors.

11.6.1 The offender

After dealing with the facts of the offence, the plea in mitigation should move on to consider
any personal mitigation the defendant may have. Factors which may be relevant include:
¢ The age of the defendant
This may be relevant where the defendant is young, especially where they are immature
and impressionable. The courts are also generally more likely to give sympathetic
treatment to a defendant of advanced years, particularly if this is their first offence, as the
offending is out of character.
e The health of the defendant
It is unwise to suggest to the court in mitigation that the defendant committed an offence
only because he was under the influence of drink or drugs at the time. The court is likely to
regard this as an aggravating feature of the offence. If, however, there is evidence that the
defendant is a drug addict or an alcoholic, this may be used to suggest to the court that a
sentence designed to help the defendant overcome this addiction (for example, a generic
community order that incorporates a drug rehabilitation requirement or an alcohol treatment
requirement - see 11.7.3.1) may be more appropriate than a custodial sentence. Similarly,
a defendant who is suffering from a long-term illness or injury is likely to receive some
sympathy from the court, as is a defendant who may have been suffering from some form of
mental illness (such as depression) at the time the offence was committed.
¢ Cooperation with the police/early guilty plea
The court will give the defendant credit for entering an early guilty plea to the offence
(since the sentencing guidelines are based on the appropriate sentence for a defendant
who is convicted following a trial). We have already seen that the amount of credit
the defendant will receive depends upon the stage in the proceedings at which the
defendant entered their guilty plea. Such credit may amount to a maximum reduction of
one third of the sentence (if the defendant has pleaded guilty at the first opportunity)
down to one-tenth of the sentence (for a last minute change of plea at the door of
the court). It would also be appropriate to tell the court if the defendant has positively
assisted the police in their enquiries, for example by naming others involved in the crime
or by revealing the whereabouts of stolen property. The fact that the defendant made a
prompt confession when questioned by the police is also useful mitigation, showing that
the defendant did not waste police time during the investigation process.
¢ Voluntary compensation
A defendant who voluntarily makes good the damage which they caused, or who makes
a voluntary payment of compensation to their victim, is likely to receive credit for this. This
is particularly the case if the defendant is of limited means.

236
 Sentencing

¢ Remorse
Evidence of true remorse is effective mitigation. A mere apology made by the defendant's
solicitor to the court on behalf of his client is unlikely to have much effect, but the court will
take into account any positive steps which the defendant has made to tackle the problems
which led them to commit the offence. For example, the court is likely to give credit to
a defendant who has committed thefts to fund a drug habit, who has voluntarily sought
treatment for their addiction.
-@ Character
lf the defendant has previous convictions, the court may view these as aggravating
factors. The court is likely to view a defendant's previous convictions as being aggravating
factors if the relevant offences either were committed recently or were the same type of
offence as the offence for which the defendant is to be sentenced. If the defendant has
any such convictions, the solicitor should attempt to distinguish such convictions from the
facts of the current offence and ‘explain’ the circumstances of the defendant's previous
offending. For example, a defendant convicted of theft may have several previous
convictions for thefts which were committed in order to fund a drug habit. If the defendant
is no longer taking drugs and the reason for the defendant having committed the current
offence is different from his motive for committing the previous offences, their solicitor
should explain this to the court.
Just as having previous convictions may be seen as an aggravating factor, a defendant
with no previous convictions (and so of previous good character) is entitled to have
this taken into account. This is particularly important when there is a specific reason or
explanation for a defendant of previous good character having committed an offence.

o Example
Fien is 55 years of age and is of previous good character. She works on the check-out
at her local supermarket and has been charged with stealing £500 in cash from her
employers. The reason for Fien having committed the offence is that her husband has
recently left her, taking all her savings and leaving her with insufficient funds to pay the
rent on her house. Fien’s solicitor can ask the court to take Fien’s previous good character
into account and suggest that there is a specific ‘one-off’ explanation for her committing a
criminal offence.

© In R v Seed; R v Stark [2007] EWCA Crim 254, the Court of Appeal held that the absence
of previous convictions was important mitigation that might make a custodial sentence
inappropriate, even if the custody threshold had been crossed (see 11.7.1).
In such circumstances, the defendant's solicitor may call character witnesses to give evidence
as to the defendant's previous good character.

¢ Family circumstances
lf the court has requested a pre-sentence report from the Probation Service, this will look in
depth at the defendant's personal background and family circumstances. The defendant's
solicitor should also refer to the defendant's personal circumstances in the plea in mitigation,
particularly if the defendant has a regular home and job, and has family who will be
supportive in their attempts to.stay out of trouble in the future. Equally, if the defendant has
had a troubled family background, it would also be appropriate to refer to this in mitigation,
particularly if the defendant is still young. For example, a defendant may have come from
a broken home, or have been physically or sexually abused as a child. Similarly, young
defendants will often have become addicted to drugs or involved in prostitution at an early
age. This will be particularly effective mitigation if the defendant's solicitor is able to say that
the client has made a genuine attempt to overcome such a background.

237
Criminal Practice

e Low risk of re-offending

The pre-sentence report from the Probation Service will address the risk of the defendant
committing further offences. If this risk is assessed as being low, the defendant's solicitor
should mention this in the plea in mitigation to support an argument that the defendant's
offending was a one-off aberration for which the defendant has shown remorse and a
willingness to change.

11.6.1.4 The suggested sentence

The plea in mitigation should conclude with the defendant's advocate suggesting to the court
the sentence which they think the court should impose. This should be lower than the likely
sentence and should reflect all the mitigating factors which the defendant's solicitor has
placed before the court. The sentence which the defendant's solicitor suggests to the court
must be realistic, and so should be at the lower end of the range of possible sentences which
will be in the mind of the court. If the sentence which the defendant's solicitor suggests as
being appropriate is the same sentence as is recommended in the pre-sentence report, the
solicitor should emphasise this point (given that the pre-sentence report is requested by the
court to assist it in determining sentence).

11.7 Types of sentence

Sentencing a defendant will not always result in a custodial sentence. Such sentences are
not that common in the magistrates’ court and Youth Court. Sentencing courts have a wide
range of sentences at their disposal. This range of sentences is sometimes described as a
‘sentencing pyramid’. Working from the top downwards, the range of sentences include:
* custody
* suspended sentence
¢ community sentence
¢ fine
¢ discharge (conditional or absolute).
We will just be considering the first three types of sentence.

ey oS Custodial sentences
Most offences which carry a custodial sentence allow the sentencing court a discretion as to
whether a custodial sentence should be imposed, and the length of any such sentence. There
are a limited number of exceptions where an offence carries either a mandatory sentence or
a mandatory minimum term of imprisonment. For example, a defendant convicted of murder
will receive a mandatory sentence of life imprisonment (Murder (Abolition of Death Penalty)
Act 1965, s 1(1)).
Where the court has discretion whether or not to pass a custodial sentence, it must apply the
test set out in Part 10, Chapter 1 of the Sentencing Code 2020:
The court must not pass a custodial sentence unless it is of the opinion that the
offence, or the combination of the offence and one or more offences associated with
it, was so serious that neither a fine alone nor a community sentence can be justified
for the offence.
This test is known as the custody threshold. Only if this threshold is passed may the court
impose a custodial sentence. If the custody threshold has been passed, this does not
necessarily mean that a custodial sentence should automatically be imposed. In R v Seed;

238
 Sentencing

R v Stark (2007), the Court of Appeal said that, where the custody threshold had only just been
passed, a guilty plea or very strong personal mitigation might make it appropriate for a non-
custodial sentence to be imposed.
lf the custody threshold is passed and the court decides to impose a custodial sentence, the
court must then consider the length of the custodial sentence. To determine the length of the
sentence, the court must apply Part 10, Chapter 1 of the Sentencing Code 2020. This provides
that a custodial sentence
must be for the shortest term (not exceeding the permitted maximum) that in the
opinion of the court is commensurate with the seriousness of the offence, or the
combination of the offence and one or more other offences associated with it.
The maximum custodial sentence which a magistrates’ court may impose on a defendant is
six months’ imprisonment, although magistrates may impose consecutive sentences up to a
maximum of 12 months in aggregate when dealing with two or more either-way offences.
Judges in the Crown Court have the power to sentence a defendant to a term of imprisonment
up to the maximum permitted for that offence.
In practice though, very few defendants receive the maximum sentence which the offence
carries. In determining the length of the sentence, the judge will have regard to guidelines
issued by the SC and the guidelines considered by the Court of Appeal. The SC has put these
cases together in a document entitled ‘Guideline Judgments Case Compendium’, which may
be accessed from the SC website (see 11.2.1).

er Dangerous offenders (Part 10, Chapter 6 of the Sentencing Code 2020)

In a limited number of situations, a defendant (both adult and juvenile) may be classified
as a ‘dangerous’ offender. In such a situation, the sentencing court must impose one of the
following forms of custodial sentence:
(a) automatic life imprisonment;
(b) discretionary life imprisonment; or
(c) an extended sentence of imprisonment.
The detail and requirements for the imposition of such sentences go beyond the SRA syllabus.

VIZ Early release

A defendant sentenced to custody will not usually serve all of their sentence behind bars. They
will normally be released automatically halfway through their sentence.
Adult defendants who receive a custodial sentence of up to two years (for an offence
committed after 1st February 2015) will be automatically released at the halfway point and
then be on licence in the community to the end of the sentence. Upon release they must
have a period of post-sentence supervision to ensure that they are supervised for a period of
12 months beginning on the day they leave custody.
Defendants who receive determinate sentences of over two years will also usually be released
automatically after serving half their sentence and the remaining half is served on licence
in the community, unless they are classified as an ‘offender of particular concern’. For such
an offender they will not be entitled to automatic release on licence after serving half the
sentence. Instead they can apply for parole and may then be released at any time from this
halfway point up until the end of their sentence. They will then be released on licence and
subject to similar supervision. Such offenders include those convicted of much more serious
offences such as terrorism and child sex offences.

239
Criminal Practice

thet2 Suspended sentences

Rather than imposing immediate custody, a sentencing court may sometimes order the
sentence to be suspended.

11,Zad51 When will a suspended sentence be imposed? ;

A custodial sentence of at least 14 days but no more than two years (or six months in the case
of the magistrates’ court) may be suspended for between six months and two years (Part 10,
Chapter 5 of the Sentencing Code). The period during which the sentence is suspended is
known as the ‘operational period’.
The court will impose a suspended sentence only if it initially decides that the custody
threshold (see above), but then considers that particular circumstances exist which justify the
suspension of the sentence.

© Example
Berat is convicted of affray before the Crown Court. When sentencing Berat, the judge
decides that the offence is so serious that the only appropriate sentence is custody.
However, when giving the plea of mitigation on behalf of Berat, his advocate tells the
judge that Berat is a single parent looking after a disabled child, and that a custodial
sentence for Berat would mean the child needing to go into a care home. The trial
judge considers that these particular circumstances justify the imposition of a suspended
sentence. The judge therefore imposes a sentence of six months’ imprisonment but
suspends this for 12 months.

V1.7 dee Requirements which the court may impose

When a court imposes a suspended sentence, it is likely to order the defendant to comply
during a specified period (the ‘supervision period’) with one or more requirements falling
within Part 10, Chapter 5 of the Sentencing Code 2020. The supervision period must end no
later than the end of the operational period.
The requirements are the same type of requirements which the court may require a defendant
to comply with when imposing a generic community order (see below for details of what each
requirement entails).

W723 Breach of a suspended sentence

The sentence of imprisonment will not take effect unless either the defendant fails to comply
with any requirements which have been imposed or, during the operational period, the
defendant commits a further offence and the court sentencing the defendant for the ‘new’
offence orders that the original sentence of imprisonment is to take effect.
If a defendant is found either to be in breach of a requirement or to have committed a
further offence during the operational period, if the suspended sentence was imposed by the
magistrates’ court, they may be dealt with for the breach either by the magistrates’ court or
by the Crown Court. If the suspended sentence was imposed by the Crown Court, any breach
may generally be dealt with only by the Crown Court.
A court dealing with a defendant who has breached a suspended sentence must do one of
the following:
(a) order the custodial sentence originally suspended to take effect unaltered;
(b) order the custodial sentence to take effect, but for a shorter period of time, and/or
substitute a lesser custodial period;

240
 Sentencing

(c) amend the original order by imposing more onerous community requirements on the
defendant; or
(d) amend the original order by extending the operational period, or by extending the
supervision period.
The court must make an order under (a) or (b) above unless it considers that it would be
unjust to do so in view of all the circumstances. So for example, the court may decide it would
be unjust to make an order under (a) or (b) if the defendant is coming to the end of the
supervision period (having complied with the requirements imposed) or if, in the case of a
defendant convicted of a further offence, the new offence is a minor matter or is a completely
different type of offence to the offence originally committed. The court will also take into
account the time which has elapsed since the original offence was committed and any
change in the defendant's circumstances.
lf the court does make an order under (a) or (b), the term of imprisonment for the original
offence will be consecutive to the sentence imposed for any new offence.
The court can also impose a fine of up to £2,500 for breach of a suspended sentence order
where it decides not to give immediate effect to the custodial sentence.
Generally, the court will activate a suspended sentence and order it to run consecutively with
any additional sentence imposed for the new offence.

ae) Example
Connor was sentenced five months ago in the Crown Court to a sentence of three
months’ imprisonment for an offence of theft. This sentence was suspended for a period
of 12 months. Connor has now been convicted of a similar offence of theft and appears
before the magistrates’ court.
Connor is now likely to be committed to the Crown Court for sentence as he has re-offended
during the operational period of a Crown Court suspended sentence. The Crown Court is
likely to activate his suspended sentence for the full period of three months and sentence him
to prison for the new offence and order this to run consecutively. So, if Conor was sentenced
to four months’ imprisonment for the new offence, he will serve a total of seven months’
imprisonment (although he will be automatically released after serving half of this sentence).

11.7.3 Generic community orders

Part 9, Chapter 2 of the Sentencing Code 2020 sets out the threshold which must be reached
before a court can impose such an order:
(1) A court must not pass a community sentence on an offender unless it is of the opinion that
the offence, or the combination of the offence and one or more offences associated with
it, was serious enough to warrant such a sentence.
(2) Where a court passes a community sentence which consists of or includes a
community order:
(a) a particular requirement or requirements forming part of the community order must
be such as, in the opinion of the court, is, or taken together are, the most suitable for
the offender, and
(b) the restrictions on liberty imposed by the order must be such as in the opinion of the
court are commensurate with the seriousness of the offence, or the combination of the
offence and one or more offences associated with it.

11.7.3.1 Contents of the generic community order

In making a generic community order, the court may choose from a ‘menu’ of options and
select those which are most appropriate for the defendant.

241
Criminal Practice

The options from which the court may choose are as follows:

(a) Unpaid work requirement - this requires the defendant to perform unpaid work in the
community for between 40 and 300 hours. This work must be completed within a
12-month period and in practice this is the most common requirement attached to a
generic community order.
Activity requirement - this requires the defendant to take part in specified activities which
may be designed to help the defendant overcome a particular problem (such as finding
work), or which may be activities to make reparation to the victim (such as repairing
damage caused).
Programme requirement - this requires the defendant to take part in one or more courses
to address the defendant's offending behaviour, such as courses in anger management,
sex offending or substance misuse.
Prohibited activity requirement - this requires the defendant to refrain from taking part in
specified activities.
Curfew requirement - this requires the defendant to remain at a particular location
(normally the defendant's place of residence) specified by the court between specified
times. In order to check compliance with such a requirement, the defendant will be
electronically monitored, which is known colloquially as ‘tagging’.
Exclusion requirement - this prohibits the defendant from entering a place or places
(such as a city centre, or a particular type of establishment like a shop or a pub) for a
period not exceeding two years. Again, the defendant will be electronically monitored.
Residence requirement - this requires the defendant to live at a particular place as
specified in the court order.
Mental health treatment requirement - this requires the defendant to agree to treatment
from a mental health practitioner for a specified period of time.
Drug rehabilitation requirement - this requires the defendant to agree to treatment to
reduce or eliminate their dependency on drugs, and to submit to providing samples
to determine whether they have drugs in their body. This will be for a period of time
specified by the court.
Alcohol treatment requirement - this requires the defendant to agree, during a period
of time specified by the court, to treatment to reduce or eliminate their dependency on
alcohol.
Supervision requirement - this requires the defendant to attend appointments with
a member of the Probation Service. The purpose of such meetings is to promote the
defendant's rehabilitation, and the meetings will involve confronting the defendant's
offending behaviour, discussing how the defendant might ‘manage’ their life and
generally monitoring the defendant's progress. A supervision requirement may be
imposed for up to three years.
(!) Attendance centre requirement - this requires the defendant to attend an attendance
centre for a total of between 12 and 36 hours. Such an order can only be imposed on
defendants who are under 25 years of age.
Foreign travel prohibition requirement - this enables a court to impose a prohibition on
foreign travel as a requirement. The effect of this requirement is to prohibit travel to a
country or countries outside the British Isles (the United Kingdom, the Channel Islands and
the Isle of Man).

242
 Sentencing

11.7.3.2 Guidance from the Sentencing Council

Given the extremely wide scope of the potential requirements a court may impose as part
of a generic community order, the SC has provided guidelines as to how the court should
approach the making of such an order.
The SC has identified three sentencing ranges (low, medium and high) within the community
sentence band, and a court considering the imposition of such a sentence must also decide
into which band the particular offence(s) with which it is dealing falls.

11.7.3.3 Breach of a community sentence

The first thing that will happen when a defendant, without reasonable excuse, breaches
a community order, is that the defendant will receive a warning from the officer from
the Probation Service who is supervising the defendant's compliance with his generic
community order.
lf, within the following 12 months, the defendant again fails without reasonable excuse to
comply with the requirements of the order, the officer will report this matter to the court which
imposed the order in the first place and the defendant will be required to appear before
that court.
If the court is satisfied that the defendant has, without reasonable excuse, failed to comply
with the requirements of the order, the court must:
(a) amend the order so as to impose requirements on the defendant which are more onerous
(for example, by increasing the amount of unpaid work the defendant is required to
complete); or
(b) revoke the order completely and re-sentence the defendant for the offence, but without
taking into account the usual custody threshold; or
(c) where the defendant has wilfully and persistently failed to comply with the order, the court
may revoke the order and impose a custodial sentence. This can be done even if the
original offence was not punishable by way of a custodial sentence.

© Example
Ahmet is convicted of assault occasioning actual bodily harm by the magistrates’ court.
He receives a generic community order which includes a requirement to complete 250
hours of unpaid work.
Ahmet fails to attend his first unpaid work session. The probation officer supervising
Ahmet’s sentence gives Ahmet a warning. Ahmet then fails to attend his second unpaid
work session and is brought back before the magistrates’ court. The magistrates must,
if they are satisfied that Ahmet had no reasonable excuse for failing to attend the
unpaid work sessions, either amend the generic community order to add more onerous
requirements or revoke the order and re-sentence Ahmet. If the magistrates choose the
latter course, the inevitable sentence will be custodial.

11.7.3.4 Further offences committed during a generic community order

It will often be the case that a defendant who has received a generic community order
sentence is convicted of a further offence during the period when the generic community
order is still in force. In such a situation, the magistrates may either allow the original
generic community order to continue, or, if it is in the interests of justice having regard to the
circumstances that have arisen since the original order was made, they may:
Criminal Practice

(a) revoke the order (this will be done if the magistrates are imposing a custodial sentence
for the ‘new’ offence, since an offender in prison cannot comply with a community
sentence); or
(b) revoke the order and re-sentence the defendant for the original offence as if they have
just been convicted of it. If this is done, the court must have regard to the extent to which
the defendant has complied with the original order.

11.8 Newton hearings

Sometimes a defendant may plead guilty to the charge they face but dispute the specific
factual version of events put forward by the CPS. If the dispute concerning the correct version
of events may have a bearing on the type of sentence the court imposes, the court must
either accept the defendant's version of events, or allow both the CPS and.the defendant to
call evidence so that the court can determine the true factual circumstances of the offence
on which the defendant's sentence will be based. This is referred to as a Newton hearing,
following the case of R v Newton (1983) 77 Cr App R 13.

o Example
Simon pleads guilty to a charge of burglary of a dwelling. The CPS alleges that Simon
broke into the dwelling by smashing a window, ransacked several rooms in the property,
soiled the carpets and took several items of high value. Simon says that he got into
the property through an open window (causing no damage to the window), denies
ransacking the property or soiling the carpets, and says that he removed only a small
transistor radio. The difference between the prosecution and the defence version of events
is significant and is likely to affect the type of sentence the court will impose. The court
must therefore either hold a Newton hearing, or alternatively accept Simon’s account as
being the correct version of events.

Summary
In this chapter you have considered a range of matters relating to sentencing. Notably:
¢ The role of sentencing guidelines. How these help a sentencing court to exercise their
discretion when sentencing an offender to ensure a consistent and structured approach
when sentencing an offender.
* Aggravating and mitigating facts. How the seriousness of an offence is determined with
the use of both aggravating and mitigating factors which help a sentencing court to
shape a starting point sentence.
¢ The use of concurrent and consecutive sentences. When and why sentences are ordered
to run either concurrently or consecutively and what this means to an offender.
* Mitigation and its impact on sentencing procedure. How a defendant's advocate will
structure and use a plea of mitigation to try and persuade the sentencing court to
impose upon the offender the most lenient sentence which the court could reasonably be
expected to give for that offence.
¢ The types of sentence available to a sentencing court. How and on what basis a custodial
sentence may be imposed. When such a sentence may be suspended. The availability

244
 Sentencing

and range of community orders where the custodial threshold has either not been met, or
where there is sufficient mitigation to persuade a court to impose a community sentence
rather than a custodial sentence.
* The role and function of a Newton hearing. \f an offender admits guilt but disputes the
prosecution version of events, the sentencing court will usually conduct a ‘trial on the
facts’ to determine the correct version. This will be required when determining the correct
factual version might have a bearing on the type of sentence the court imposes.

Sample questions

Question 1
A man has been charged with an offence of robbery. When interviewed, he denied
his involvement and later instructed his solicitor that he would plead not guilty. At his
first appearance in the magistrates’ court, the man’s solicitor was given access to the
prosecution evidence, which appeared to be compelling. Despite advice from his solicitor,
the man was not prepared to indicate a guilty plea at this stage. The man’s case was
immediately sent to the Crown Court and a date for the plea and trial preparation hearing
(PTPH) was set. At this hearing, the man changed his mind about the plea and entered a
guilty plea at the PTPH. However, he made it clear he did not show any remorse for his
offending behaviour.
What level of discount will the man be entitled to as a result of his guilty plea?
A Somewhere between zero and one-tenth discount on his sentence since he has shown
no remorse for his offending behaviour.
B A one-tenth discount on his sentence since the evidence against him was
overwhelming.
C A one-quarter discount on his sentence since he only indicated his guilty plea after the
first stage of the proceedings.
D A one-third discount on his sentence since he indicated his guilty plea at his first
appearance in the Crown Court.
E The man will not be entitled to any discount on his sentence since he has shown no
remorse for his offending behaviour and the evidence against him was overwhelming.

Answer
Option C is the correct answer. Under the ‘Reduction in Sentence for a Guilty Plea’ Definitive
Guideline, where a guilty plea is indicated after this first stage of the proceedings, the
maximum level of the reduction is only one quarter, and not the full reduction of one third.
For this reason, option C is correct and option D is wrong because the first stage of the
proceedings was when the man appeared in the magistrates’ court and could reasonably
have been expected to indicate a guilty plea at that stage.
Options A, B and E are all wreng because a reduction in discount to one-tenth or even to
zero should only apply where a guilty plea is entered on the first day a trial is meant to
take place (one-tenth discount) or it may be reduced further, even to zero, where the guilty
plea is entered during the course of the trial. Not showing remorse or the strength of the
prosecution case are not factors that will affect the level of discount.

245
Criminal Practice

Question 2
A man was sentenced six months ago in the magistrates’ court for an offence of assault
occasioning actual bodily harm. He received a suspended sentence order of three months’
custody. The operational period of the suspended sentence is for 12 months. A requirement
to complete 100 hours of unpaid work was attached to the suspended sentence order
and the man has completed the unpaid work. The man has now pleaded guilty in the
magistrates’ court to an offence of affray.

Which of the following best describes the likely sentence the man will now receive?
A The man will receive a custodial sentence for the present offence of affray and the
suspended sentence of three months will be activated to run fully and concurrently with
this sentence.
B The man will receive a custodial sentence for the present offence of affray and the
suspended sentence of three months will be activated but will be reduced to pie into
account the unpaid work the man has completed.
C The man will receive a custodial sentence for the present offence of affray and the
suspended sentence of three months will be activated to run fully and consecutively
with this sentence.
D The man will receive a custodial sentence for the present offence of affray and the
suspended sentence of three months will be further suspended for another period of
12 months.
E The man will receive a community order for the present offence of affray and the
suspended sentence of three months will be further suspended for another period of
12 months.

Answer
All of these options are possible, but option C is the best answer. The general rule where
a suspended sentence order is imposed and a further offence is committed during the
operational period of the order is for a custodial sentence to be imposed for the present
offence (assuming it is imprisonable, which affray is) and the suspended sentence will be
activated to run fully and consecutively with this sentence. However, the sentencing court
does have some discretion to impose other sentences. For example, if the present offence
is not very serious and/or is very different in nature to the earlier offence, or the earlier
sentence is very near the end of its operational period, the court may not activate the original
sentence and further suspend it, or not activate it to run for the full period, or activate it to run
concurrently with the present sentence as opposed to running consecutively with it.

Question 3

A woman is sentenced in the Crown Court for a number of dishonesty offences. For two
unrelated offences of theft, she is sentenced to six months’ imprisonment for each, which
are ordered to run consecutively. For an offence of fraud, which is linked to the second
offence of theft, she is sentenced to four months’ imprisonment and this is ordered to run
concurrently.
When should the woman be released from prison?
A_ After serving four months in custody.
B_ After serving six months in custody.

246
 Sentencing

C_ After serving 10 months in custody.

D After serving 12 months in custody.
E After serving 16 months in custody.

Answer

Option B is the correct answer. The woman has been sentenced to a total period of 12 months
in custody as the two thefts are ordered to run consecutively (whereas the fraud offence will
run concurrently and so does not count toward the overall total). However, a prisoner will
generally be released after serving half their sentence, so here, after serving six months in
custody. Because the woman’s sentence runs to a total of 12 months, she will be released on
licence and will be under the supervision of the Probation Service during the licence period.
This will expire at the end of the 12-month period.

247
 bes sre re
A 74 ' ~*~ Wile dees bP) x“ ‘jee whgelar omer Akg

as af 4 y woe NE a7. ,
ee parelee irda tsje
: : : ; i haan yee

ay pee BY ad pega if Ace dorhiws ad? agwong teeing att ee

; * etoyaith) «Suiioue fers ut of bai stip ar) stil Ow Ieee

Pe MELacs ok as iahredy's Mtoe paibbseethechrnh went

Pa ie1B wth Ah oe ee i afar) SINS dads octal)ip asa

, 2, apt robo oofWon eae

i ene cor we. ee vives,

em Artin ord Stan |lag *
, Aire 1 6 etend
Ce=
2 : Ado NED ee Gi ate
} ereivey he ceniinn iceae
aaron) 4 ole Bre genttMase
« wittiln | Mactn. Te spiny
6 ie her ey nol Oe whi theehCi
‘ Hn @ hye creel sect
ys ee) ay Con wand cently wiih

fi ant Se
«
@ INNA 4
,
Lip 6S 4 A.

he (jay €
Vigeacg, et = wie vance a

» ery 4
*- ‘Y

‘>

"\
° a : 7
. > Fn -
 Appeals Procedure

12.1 Introduction 250

Appeals from the magistrates’ court to the Crown Court 250
Procedure for appeal against conviction and/or sentence 250
Powers of the Crown Court 251
Appeal to the High Court by way of case stated 251
Judicial review 253
Appeals from the Crown Court by a defendant 253

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes:
* appeal from the magistrates’ court to the Crown Court;
* appeal from the magistrates’ court to the High Court by way of case stated;
* judicial review of a magistrates’ court decision;
* appeal from the Crown Court to the Court of Appeal.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas:
¢ How the defendant may appeal against conviction and sentence from the
magistrates’ court to the Crown Court and the Crown Court's powers when
dealing with such appeals.
¢ Defence and prosecution appeals on a point of law from the magistrates’ court
to the High Court or challenging magistrates’ court decisions by way of judicial
review.
¢ Appeals against conviction and sentence by the defendant from the Crown Court
to the Court of Appeal, including the relevant procedure, grounds of appeal and
the Court of Appeal’s powers.
e The limited extent to which the prosecution can appeal to the Court of Appeal.

249
Criminal Practice

12.1 Introduction
This chapter considers the options open to the defendant to appeal against conviction and/
or sentence. It also examines the more limited rights of appeal that may be exercised by
the CPS.
The rules which govern the procedure for the making of an appeal (either by the defendant,
or by the CPS) are contained in Parts 34-43 of the CrimPR.

12.2 Appeals from the magistrates’ court to the Crown Court

A defendant convicted in the magistrates’ court (including the Youth Court) may appeal to the
Crown Court in the following circumstances:
(a) if they pleaded guilty, they may appeal against the sentence they received;
(b) if they pleaded not guilty, they may appeal against any resulting conviction and/or the
sentence they received.
The appeal will usually be heard by a recorder or a circuit judge who will sit with an even
number of magistrates. This will normally be two magistrates, although up to four magistrates
may sit on an appeal.
The prosecution does not have any rights of appeal to the Crown Court against the acquittal
of a defendant, or the sentence imposed on a defendant by the magistrates’ court. They
can however appeal to the High Court on a point of law by way of case stated, as can the
defence (see 12.5).

12.2.1 Appeals against conviction

A defendant convicted following a trial in the magistrates’ court may appeal against conviction
to the Crown Court on the basis that the magistrates made errors of fact and/or law.
An appeal against conviction in the Crown Court is a full rehearing of the case (in effect
another trial). The CPS and the defendant will need to call all those witnesses whose evidence
they seek to rely on. New witnesses may be called, and new or different points of law may be
relied upon.

12.2.2 Appeals against sentence

A defendant may appeal to the Crown Court against a sentence imposed by the magistrates’
court on the basis that the sentence imposed by the magistrates is excessive. The Crown
Court should carry out a full rehearing of the issues and take an independent view of what
the correct sentence should be, rather than simply reviewing the sentence passed by the
magistrates’ court.

12.3 Procedure for appeal against conviction and/or sentence

A defendant wishing to appeal from the magistrates’ court to the Crown Court must file
a notice of appeal with both the magistrates’ court and the CPS within 21 days of the
magistrates passing sentence.
The clerk to the magistrates’ court will send the notice of appeal to the relevant Crown Court,
and the Crown Court will then arrange a date for the hearing of the appeal to take place.
If a defendant files their notice outside the 21 days, a Crown Court judge does have
the discretionary power to extend this time limit.

250
 Appeals Procedure

If the defendant's case before the magistrates’ court was publicly funded by way of a
representation order, a separate representation order will be required to cover the hearing
of the appeal by the Crown Court. Any advice and assistance given to the defendant in
preparing the notice of appeal will be covered by the original representation order.
If the defendant is appealing against a custodial sentence, the magistrates may grant bail
to the defendant pending the appeal to the Crown Court. There is, however, no presumption
in favour of bail, as s 4 of the Bail Act 1976 does not apply to defendants appealing against
conviction or sentence (see Chapter 7). If the magistrates’ court does not grant bail, the
defendant may apply to the Crown Court for bail pending the hearing of the appeal.

o Example
Karim has been convicted of common assault following a trial in the magistrates’ court.
His case is then adjourned for the preparation of a pre-sentence report for three weeks.
At his adjourned hearing Karim is made the subject of a community order. Karim decides
to appeal against his conviction but does not want to appeal against his sentence.
Karim must file his notice of appeal against conviction within 21 days from the date of
sentence (not from the date of his conviction). If Karim files his notice outside the 21 days,
a Crown Court judge may, at their discretion, extend this time limit.

12.4 Powers of the Crown Court

The Crown Court may confirm, reverse or vary the decision. The Crown Court has the power
to impose on the defendant any sentence, as long as it is a sentence which the magistrates’
court had the power to impose. This means that a defendant appealing against a sentence
imposed by the magistrates’ court may have that sentence increased if the Crown Court takes
a more serious view of the case.
Both the CPS and the defendant are then able to appeal to the High Court by way of case
stated against any decision or order made by the Crown Court following an appeal from the
magistrates’ court. The appeal must be based either on a point of law, or on an argument
that the Crown Court has exceeded its jurisdiction (see below).

12.5 Appeal to the High Court by way of case stated

Either the CPS or the defendant may appeal from a decision of the magistrates’ court to the
Queen’s Bench Division of the High Court if:
(a) the decision which has been made by the magistrates is wrong in law; or
(b) the magistrates have acted outside their jurisdiction (Magistrates’ Courts Act 1980, s 111).
Arguments often raised in an appeal by way of case stated are that:
(a) the magistrates misread, misunderstood or misapplied the law;
(b) the magistrates decided to hear a case when they did not have the jurisdiction to hear it;
(c) the magistrates made errors in deciding the admissibility or otherwise of evidence;
(d) the magistrates erred in their decision following a submission of no case to answer.

12.5.1 Procedure
A party wishing to appeal by way of case stated must apply to the magistrates’ court within
21 days of the relevant decision being made by the magistrates’ court. This is normally done

251
Criminal Practice

by writing to the clerk to the magistrates’ court. The application must identify the question of
law on which the aggrieved party seeks the view of the High Court. Following receipt of this
letter, the magistrates must then ‘state a case’ for the opinion of the High Court.
To do this, the clerk to the magistrates (in conjunction with the magistrates or district judge
who heard the case) will prepare a draft ‘statement of case’ that will:
(a) specify the decision in issue;
(b) specify the question(s) of law or jurisdiction on which the opinion of the High Court will
be asked;
(c) include a succinct summary of:
(i) the nature and history of the proceedings
(ii) the court’s relevant findings of fact and
(iii) the relevant contentions of the parties
(d) if a question is whether there was sufficient evidence on which the court reasonably could
reach a finding of fact:
(i) specify that finding and
(ii) include a summary of the evidence on which the court reached that finding.
Once an initial draft of the ‘statement of case’ has been prepared, the clerk will send
this out to the CPS and the defendant's solicitor to enable them to suggest any necessary
amendments. Once a final version of the statement of case has been agreed, the clerk will
send this to the party making the appeal. That party must then lodge this with the High Court
and give notice to the other party that this has been done.

12.5.2 The hearing

The appeal is then heard by the Divisional Court of the Queen’s Bench Division and will
normally be heard by three judges. No evidence is given by witnesses and the hearing will be
confined to legal argument based on the agreed facts set out in the statement of case.
The Divisional Court has the power to reverse, vary or affirm the decision made by the
magistrates’ court. It may also remit the case back to the same magistrates’ court with a
direction to acquit or convict the defendant, or to remit the case to a different bench of
magistrates (if the case needs to be reheard).
Both the CPS and the defendant are able to appeal to the Supreme Court in respect of any
decision or order made by the High Court following an appeal to the High Court by way of
case stated. Any such appeal must be on a point of law only, and the High Court must certify
it to be a point of law of general public importance. Further, either the High Court or the
Supreme Court must grant leave to appeal.

o Example
Elise has been acquitted of criminal damage following a trial in the magistrates’
court. During the course of the trial the defence persuaded the magistrates to exclude
a confession made by Elise to the police on the basis that it had been obtained in
circumstances rendering it unreliable. The CPS appeal by way of case stated against the
magistrates‘ exclusion of this confession, on a point of law.
If the High Court agrees with the CPS then they will either remit the case back to the
magistrates’ court with a direction to convict Elise, or remit the case to a different bench
of magistrates to rehear the case, but on that occasion the confession will be admitted in
evidence.

252
 Appeals Procedure

12.5.3 Advising a client

Although this would be the only avenue of appeal for the CPS, we have already seen that
the defence can appeal straight to the Crown Court against both conviction and/or sentence.
The following case highlights that appealing to the Crown Court would usually be the best
approach to adopt.
© In Brett v DPP [2009] EWHC 440 the use of appeal by way of case stated was
discouraged by Lord Justice Leveson who was at pains to point out that a much speedier
and more effective way to challenge a decision by the defendant that resulted in a
conviction in the magistrates’ court was to simply appeal against the conviction to the
Crown Court. Leveson LJ observed that even if a case stated application succeeded it was
still quite likely that the case would return to the magistrates’ court for a retrial and a
considerable amount of time will have elapsed, and he did not believe that such delay
would ever be in the defendant's best interests.

© Example
Assume that in the above example of Elise, the magistrates refused to exclude the
confession and convicted her of criminal damage. Elise could challenge, by way of case
stated on a point of law, the magistrates’ refusal to exclude her confession. However, even
if this were to succeed, the case would be likely to be remitted back to the magistrates’
court for a retrial and so it may well be much quicker and simpler for Elise just to appeal
against her original conviction to the Crown Court.

12.6 Judicial review

An application for judicial review is not strictly a form of appeal. It does, however, represent
an alternative (but not the usual) method of challenging a decision made by the magistrates’
court. As with an appeal by way of case stated, an application for judicial review may be
made either by the CPS or the defendant if:
(a) the magistrates’ court has made an order that they had no power to make (and so have
acted ‘ultra vires’, or beyond their powers); or
(b) the magistrates’ court has breached the rules of natural justice (either by contravening a
party's right to a fair hearing, or by appearing to be biased).
An applicant for judicial review will seek an order from the Divisional Court either quashing
the decision made in the magistrates’ court or compelling the magistrates’ court to act (or not
act) in a certain way.
As with an appeal by way of case stated, this would not be a usual route for the defence or
even the CPS to take.

12.7 Appeals from the Crown Court by a defendant

A defendant who is convicted’in the Crown Court has the following rights of appeal to the
Criminal Division of the Court of Appeal:
(a) Appeal against conviction (Criminal Appeal Act (CAA) 1968, s 1(1)). The defendant may
appeal against their conviction if either the Court of Appeal grants leave to appeal, or
the trial judge grants a certificate that the case is fit for appeal;

253
Criminal Practice

(b) Appeal against sentence (CAA 1968, s 9). The defendant may appeal against the
sentence they received if either the Court of Appeal grants leave to appeal, or the judge
who passes sentence has granted a certificate that the case is fit for appeal against
sentence.

12.7.1 Appeal against conviction

When will an appeal against conviction be allowed?
lf the Court of Appeal considers a conviction to be ‘unsafe’, it must allow the appeal (CAA
1968, s 2). In all other cases, the Court of Appeal must dismiss the appeal.
This means that a conviction may be upheld even if there was an error or mistake at the
defendant's trial in the Crown Court, if the Court of Appeal considers that, had the mistake not
been made, the correct and only reasonable verdict would have been one of guilty.

© So, for example, in R v Boyle and Ford [2006] EWCA Crim 2101, two.co-defendants were
convicted of murder. There was significant DNA and other forensic evidence against them.
The trial judge misdirected the jury as to the drawing of adverse inferences under s 34 of
the Criminal Justice and Public Order Act 1994. The Court of Appeal held that the
misdirection did not render the conviction unsafe because there was other compelling
evidence against the defendants.
In a very small number of cases, however, the Court of Appeal may allow an appeal and
quash a conviction even if the court is satisfied that the defendant did commit the offence for
which they were convicted. Such a situation is most likely to occur when there has been an
abuse of process committed by the police or the prosecuting authorities, such as the ‘bugging’
of a privileged conversation between the defendant and his solicitor.
Examples of the most common factors raised by defendants to argue that their convictions are
unsafe are:

(a) a failure by the trial judge to direct the jury correctly as to:
(i) the burden and standard of proof;
(ii) the substantive law concerning the offence(s);
(iii) the fact that it is for the jury rather than the judge to determine what the facts of the
case are (although the judge will remind the jury of the prominent features of the
evidence when summing up, it is the jury’s responsibility to judge the evidence and
decide the relevant facts);
(iv) the fact that the jury should try to return a unanimous verdict (and the judge will notify
them when the time has arisen when the judge may be prepared to accept a majority
verdict);
(v) the jury’s power to convict the defendant of any lesser offence which there was
evidence to support;
(b) the trial judge wrongfully admitted or excluded evidence, for example:
(i) the judge wrongfully admitted evidence of a disputed confession or the defendant's
previous convictions;
(ii) the judge wrongfully excluded hearsay evidence which would have assisted the
defendant's case;
(c) the trial judge failed to administer the correct warnings to the jury, for example:
(i) the judge failed to give a ‘Turnbull’ warning in a case of disputed identification, or a
corroboration warning where the defendant alleges that a witness has a purpose of
his own to serve in giving evidence against the defendant;

254
 Appeals Procedure

(ii) the judge failed to give a proper direction to the jury as to the drawing of adverse
inferences from the defendant's silence;
(iii) the judge failed to give a proper direction to the jury as to the relevance of any
previous convictions which may have been adduced in evidence;

(d) inappropriate interventions by the trial judge - if, for example, the judge had constantly
interrupted defence counsel during the cross-examination of a prosecution witness;
a failure by the trial judge when summing up the case to the jury to:
(i) deal with the essential points of the defence case;
(ii) identify any inconsistencies in the prosecution case;
(iii) summarise the evidence on which the jury may properly rely in order to convict the
defendant;
(iv) tell the jury, when special measures have been used to enable a prosecution witness
to give evidence, that they should not allow this to prejudice them against the
defendant, nor assume that the use of special measures means the defendant has
behaved improperly;

(f) fresh evidence - even if a trial has been conducted properly, the defendant may argue
his conviction is unsafe if fresh evidence comes to light which casts doubt upon his
guilt. For example, a new witness may come forward to substantiate an alibi which was
disbelieved by the jury, or expert evidence relied on by the prosecution at trial may be
shown to be flawed. Fresh evidence will not in itself render a conviction unsafe. The issue
for the Court of Appeal is whether the fresh evidence is such that, had it been placed
before the jury, the verdict might have been different.
At the end of the trial, defence counsel will normally prepare a written advice on the merits of
an appeal against conviction which should be in accordance with the instructions contained in
the brief.

bP 1 Procedure for making an appeal against conviction

Only rarely will the defendant ask the trial judge to certify that the case is fit for appeal.
The usual method of commencing an appeal against conviction is for the defendant to seek
permission to appeal from the Court of Appeal direct.
The procedure is as follows:

(a) Within 28 days of the conviction (not sentence), the defendant must serve their appeal
notice, together with the draft grounds of appeal, on the Registrar of Criminal Appeals at
the Court of Appeal. The grounds are a separate document prepared by defence counsel,
setting out the detailed arguments as to why the conviction is unsafe.
(b) On receipt of these documents, the Registrar will obtain a transcript of the evidence that
was given at trial and of the judge’s summing up to the jury. The Registrar will then put
the case papers before a single judge, who will determine whether permission to appeal
ought to be granted. This is a filtering stage, designed to weed out appeals that have no
chance of success. If permission is granted, the single judge will also grant the defendant
public funding for the hearing of the appeal.
In appeals that are completely without merit, the single judge may, when dismissing
the appeal, make a direction as to loss of time under s 29 of the CAA 1968. This means
that any time spent by the defendant in custody awaiting the outcome of the appeal will
not count towards the total time the defendant must serve for their sentence (as would
normally be the case). This provision is designed to deter defendants from pursuing
appeals that are without merit.

255
Criminal Practice

© Example
Lucas has been convicted of an offence of robbery. Lucas was originally remanded in
custody for three months before the date of his conviction. It then took a further month for
the full Court of Appeal to refuse Lucas’s appeal. Let us assume that when his case came
before the single judge, it was assessed to be completely without merit and a direction as
to loss of time under s 29 of the CAA 1968 was made by the single judge.
If Lucas decided to go ahead with his appeal and the Court of Appeal agrees with
the single judge, Lucas will have deducted the time he has served in custody from the
date of his conviction to the date the Court of Appeal refused his appeal. So here,
Lucas will not have the later month he served in custody counting against his eventual
sentence, although time spent in custody before his conviction will still count against
his sentence.
If Lucas had accepted the views of the single judge and decided not to pursue his
appeal, he would not lose any time that he has already served on remand.

(c) The hearing of the appeal will then take place before the full Court of Appeal, which will
comprise a three-judge panel. The court will hear oral arguments from the parties, and
may also hear fresh evidence if that evidence:
(i) appears to be credible;
(ii) would have been admissible at the defendant's trial; and
(iii) there is a reasonable explanation for the failure to adduce this evidence at the
defendant's trial (CAA 1968, s 23).

1 at a 7 Powers of the Court of Appeal at an appeal against conviction

Section 2 of the CAA 1968 permits the Court of Appeal to do any of the following:
(a) quash the conviction and acquit the defendant - if, for example, new evidence has come
to light which the court considers would have led to the defendant's acquittal had such
evidence been available at the defendant's trial;
(b) quash the conviction and order that a retrial take place - if, for example, the conviction
is unsafe because the judge failed to direct the jury properly when summing up
the case;
(c) allow part of the appeal and dismiss other parts of the appeal (if the defendant was
appealing against conviction for more than one offence). In such a case the court
will probably then re-sentence the defendant in respect of the offences for which his
conviction was upheld;
(d) find the defendant guilty of an alternative offence (in which case the court will probably
re-sentence the defendant); or
(e) dismiss the appeal.
The Court must dismiss the appeal unless it considers that the conviction is unsafe. If the
conviction is unsafe, the Court must then decide whether to order a retrial. Section 7 of
the CAA 1968 enables the Court of Appeal to order a retrial where the Court allows an
appeal against conviction and where it appears to the Court that ‘the interests ofjustice
so require’. lf the Court is satisfied that the defendant would have been acquitted at trial
(for example, had new evidence presented at the appeal been available at the original
trial), the Court will not order a retrial. In other cases, the Court will normally order that a
retrial take place unless a retrial would be unfair to the defendant or in some other way
inappropriate.

256
 Appeals Procedure

12.7.2 Appeal against sentence

12.7.2.1 Procedure
A defendant may also appeal to the Court of Appeal against the sentence imposed by
the Crown Court (CAA 1968, s 9). The procedure to be followed when an appeal against
sentence is made to the Court of Appeal is essentially the same as for an appeal against
conviction, with the defendant either requiring a certificate from the sentencing judge that
the case is fit for appeal, or the defendant seeking permission from the Court of Appeal to
proceed. It is rare for the sentencing judge to grant a certificate, and most defendants will
seek the permission of the Court of Appeal to proceed. If the defendant seeks permission
from the Court of Appeal, a notice of application for permission to appeal together with draft
grounds of appeal must be sent to the Registrar of Criminal Appeals at the Court of Appeal
within 28 days of the sentence being passed. The draft grounds of appeal will state why
it is considered that the sentence passed by the Crown Court is either wrong or excessive.
Assuming leave to appeal is granted by the single judge, the appeal will then be considered
by a two- or three-judge panel. The appeal will usually be confined to legal submissions on
what the appropriate sentence (or sentencing range) is in the particular case.

12.7.2.2 When will an appeal be successful?

An appeal against sentence will be successful only if:
(a) the sentence passed by the trial judge is wrong in law (if, for example, the trial judge
were to pass a sentence that they did not have the power to pass);
(b) the sentence passed by the trial judge is wrong in principle (if, for example, the trial judge
passes a custodial sentence when the offence was not serious enough to merit such a
sentence);
(c) the judge adopted the wrong approach when sentencing. Examples of a judge adopting
the wrong approach when sentencing are:
(i) if the judge increased the sentence because the defendant had pleaded not guilty
(since the guidelines issued by the Sentencing Council start from the assumption that
the defendant is convicted following a not guilty plea);
(ii) if the judge failed to give the defendant an appropriate discount for entering a
guilty plea;
(iii) if the judge should have held a Newton hearing before determining the facts of the
offence upon which the sentence was to be based;
(iv) if the judge failed to take into account (or failed to give sufficient credit for) any
relevant offence or offender mitigation put forward by the defendant;
(d) in the case of co-defendants, there is an unjustified disparity in the sentence each
defendant receives, particularly where both defendants appear to have been equally
culpable; or
(e) the sentence passed is manifestly excessive. This is the most common ground of appeal
in practice. A Crown Court judge sentencing a defendant will impose a sentence within
a range of possible sentences which may be appropriate for the offence. The Court of
Appeal will interfere only if the sentencing judge has gone beyond the upper limit of
this range. The Court of Appeal will not reduce a sentence simply because it would have
imposed a lower sentence within the appropriate range.
After the defendant has been sentenced, defence counsel will normally provide a written
advice on the prospects of a successful appeal against sentence in accordance with the
instructions contained in the brief to counsel.

257
Criminal Practice

12.725 Powers of the Court of Appeal

The Court of Appeal may confirm a sentence passed by the Crown Court or quash the
sentence and replace it with an alternative sentence or order as it thinks appropriate. The
Court of Appeal cannot, however, increase the sentence imposed by the judge in the Crown
Court (CAA 1968, s 11(3)).
A loss of time direction may also be made if the defendant makes an appeal against
sentence that is deemed to be without merit (see above).

12.7.3 Prosecution appeals

12:7.571 Termination and evidential rulings (CrimPR, Part 38)
The CPS has no right of appeal in respect of a defendant who has been acquitted by a jury
following a Crown Court trial (subject to the provisions of s 75 CJA 2003 below). Sections
58-63 of the CJA 2003 do, however, give the CPS a right of appeal to the Court of Appeal in
respect of rulings made by a trial judge either before or during the trial which:
(a) either effectively terminate the trial (‘termination rulings’); or
(b) significantly weaken the prosecution case (‘evidential rulings’).
These are not of much importance in.practice though to a newly qualified solicitor.

12.7 Sige Powers of the Attorney-General (CrimPR, Part 41)

The CPS has a right of appeal to the Court of Appeal if the Attorney-General considers that
the Crown Court has passed a sentence which is ‘unduly lenient’. Section 36 of the CJA 1988
allows the Attorney-General to refer such a case to the Court of Appeal, which in turn has the
power to increase the sentence. The Attorney-General may refer a case to the Court of Appeal
only if the offence is an offence triable only on indictment or is a specified either-way offence
and the Court of Appeal has given permission.
If the referral is successful, the Court of Appeal will quash the sentence passed in the Crown
Court and pass the sentence it considers appropriate. Any sentence imposed by the Court of
Appeal must be a sentence that could have been passed in the Crown Court.

© Example
Jakov has been sentenced by a judge in the Crown Court to four years’ imprisonment for
an offence of s 18 GBH which was assessed by the judge as being a Category 1 offence
(see Chapter 11). The sentencing range for such an offence is between 9 to 16 years with
a starting point sentence of 12 years. The offence is an offence that can only be tried on
indictment and the CPS are therefore quite likely to make an Attorney-General’s reference
to challenge this sentence on the basis that it is unduly lenient. If the Court of Appeal
agrees, it is likely to increase the sentence.

12.7.3.3 Applications for a retrial by the CPS

The rule against double jeopardy
Prior to the enactment of the CJA 2003, a defendant could never be tried twice for the same
offence (this was known as the rule against ‘double jeopardy’).

The CJA 2003 provisions

Section 75 of the CJA 2003 lists those offences for which a retrial is possible following the
acquittal of a defendant. The list includes:
(a) murder and attempted murder;
(b) manslaughter;

258
 Appeals Procedure

(c) kidnapping;
(d) a number of sexual offences under the Sexual Offences Acts of 1956 and 2003, including
rape, attempted rape and assault by penetration;
(e) various offences in relation to Class A drugs, such as unlawful importation and
production; and
(f) arson endangering life or property.
The Court of Appeal will only quash an earlier conviction and order a retrial where the CPS
can satisfy a two-fold test:

The evidential test

The evidential test is set out in s 78 of the CJA 2003. This requires that there be ‘new and
compelling’ evidence of the defendant's guilt. ‘New’ evidence means evidence not adduced
when the defendant was acquitted. To be ‘compelling’, this evidence must be reliable,
substantial and highly probative of the case against the defendant.
An example of a case involving the powers of retrial is the case of Gary Dobson who, together
with David Norris, was convicted of the murder of Stephen Lawrence in January 2012. Dobson
had been acquitted in 1996 of the murder charge. In October 2010, the Director of Public
Prosecutions made an application to the Court of Appeal for the acquittal to be set aside.
This application was primarily based on new scientific evidence (at the trial it was established
that this included tiny specks of blood on the defendant's clothes). In May 2011, the Court of
Appedi set aside the acquittal, having found that the new evidence was compelling, and that
a prosecution was in the public interest and the interests of justice.

The interests of justice test

This test is set out in s 79 of the CJA 2003, which provides that the Court of Appeal should
have particular (but not exclusive) regard to the following factors:
(a) whether existing circumstances make a fair trial unlikely;
(b) the length of time since the offence was allegedly committed;
(c) whether it is likely that the new evidence would have been adduced in the earlier
proceedings, but for the failure of the police or the prosecution to act with due diligence
and expedition; and
(d) whether, since the earlier proceedings, the police or prosecutor have failed to act with
due diligence or expedition.

© Example
In R v Dunlop [2006] EWCA Crim 1534, the defendant was acquitted of the murder of his
lover in 1991. After his acquittal, and whilst in prison for other matters, he confessed to
another prison inmate that he had committed the murder. He subsequently wrote letters
to other people in which he admitted to the murder. When the reforms made by the
CJA 2003 came into force, the CPS applied to the Court of Appeal for the defendant’s
acquittal on the murder charge to be quashed and for the defendant to be retried for
this offence. The defendant argued that it would not be in the interests of justice for the
court to quash his acquittal and order a retrial, because his later confession to the murder
was made in the belief that he could not and would not be tried again for this crime.
The Court of Appeal refused to accept these arguments, stating that the evidence of the
confession was both new and compelling, and that it was clearly in the interests of justice
for the acquittal to be quashed and a retrial ordered. At his retrial, the defendant entered
a guilty plea to the murder charge.

259
Criminal Practice

Summary
In this chapter you have considered a range of matters relating to appeals. Notably:
Appealing against conviction and sentence from the magistrates’ court to the Crown
Court. How the defendant does this and the Crown Court’s powers when dealing with
such appeals.
Appeals on a point of law from the magistrates’ court to the High Court. How both
the defence and prosecution can make such an appeal by way of case stated to the
Divisional Court where either party will argue the magistrates’ court has made an error
of law.
Applying for judicial review of a magistrates’ court decision. How the defence and
prosecution can challenge such decisions made in the magistrates’ court on the basis the
court acted ultra vires or breached the rules of natural justice when dealing with the case.
Appealing against conviction and/or sentence by the defendant from the Crown Court to
the Court of Appeal. How and on what basis the defendant makes such appeals to the
Court of Appeal and the powers available to this appellate court when dealing with such
appeals.
The limited extent to which the prosecution can appeal to the Court of Appeal. How the
prosecution can appeal termination and evidential rulings. The extent to which unduly
lenient sentences can be appealed by the Attorney-General and the limited number of
cases that can be retried where there is new and compelling evidence that has come to
light since the original trial.

Sample questions

Question 1
A woman is convicted following a trial in the magistrates’ court of an offence of low-value
theft from a shop. The woman has extensive previous convictions for similar offending and
is sentenced to four months’ imprisonment. The woman is considering appealing to the
Crown Court against this sentence.
Which of the following best describes the Crown Court’s powers in relation to the
woman's appeal against sentence?
A The Crown Court may confirm or vary this sentence, including increasing the sentence
up to a maximum of six months’ imprisonment.
The Crown Court may confirm, reverse or vary this sentence, including increasing the
sentence up to the statutory maximum for theft.
The Crown Court may confirm, reverse or vary this sentence, but they cannot increase
the sentence that has already been imposed.
The Crown Court may confirm, reverse or vary this sentence, including increasing the
sentence as this is an either-way offence.
The Crown Court may confirm, reverse or vary this sentence, including increasing the
sentence up to a maximum of six months’ imprisonment.

260
 Appeals Procedure

Answer

Option E is the best answer. The Crown Court has the power to impose any sentence, as long
as it is a sentence which the magistrates’ court had the power to impose. This means that a
defendant appealing against a sentence imposed by the magistrates’ court may have that
sentence increased if the Crown Court takes a more serious view of the offence, but only up to
the maximum available in the magistrates’ court, which for this offence would be six months’
imprisonment (note the woman is not entitled to any discount of sentence for a guilty plea
since we are told she was convicted following a trial, so the maximum sentence available
would remain at six months).
Option A is not the best answer because the Crown Court can also reverse as well as confirm
or vary the sentence, although in this case, reversing such a sentence would be unlikely.
Option B is wrong because the sentence cannot be increased above the six months maximum
the magistrates could impose. Option C is wrong because the Crown Court can also increase
the sentence (unlike the Court of Appeal when hearing an appeal against sentence from the
Crown Court). Option D is wrong because low-value shop theft is not an either-way offence
and in any event, even if it were, this is not the reason why the Crown Court can increase the
sentence.

Question 2

A man is convicted following trial in the Crown Court. During the trial, the judge failed to
adequately direct the jury on the operation of the burden of proof. Following conviction, the
man’s case is adjourned for three weeks for the preparation of a pre-sentence report. At
the adjourned hearing, the man is sentenced to a community order.
Can the man now appeal against his conviction?
A Yes, because he has 28 days to appeal from the date of his sentence and his ground
of appeal will be because of the trial judge’s failure to direct the jury correctly.
B_ Yes, because he has 28 days to appeal from the date of his conviction and he will
argue his conviction is unsafe because of the trial judge's failure to direct the jury
correctly.
C No, because he has failed to appeal within the correct time period and his conviction
will be upheld even if there was an error or mistake made by the trial judge when
directing the jury.
D_ No, because although he has 28 days to appeal from the date of his conviction, this
will be upheld even if there was an error or mistake made by the trial judge when
directing the jury.
E Yes, because he has 28 days to appeal from the date of his sentence and his grounds
of appeal will be that his conviction is unsafe because of the trial judge’s failure to
direct the jury correctly.

Answer
Option B is the best answer. The defendant has 28 days to appeal from the date of his
conviction, rather than the date of his sentence. In this case the man still has seven days in
which to serve his appeal notice, together with the draft grounds of appeal on the Registrar
of Criminal Appeals at the Court of Appeal. Moreover, there is only one ground of appeal
against conviction, namely that the conviction is unsafe (CAA 1968, s 2).
Option A is therefore wrong because the 28-day time period to appeal against conviction
does not run from the date of sentence (unlike the magistrates’ court where it does run from

261
Criminal Practice

the correct
that date). Option C is wrong because the man has not failed to appeal within
be upheld even if there was an error
time period. Moreover, although a conviction may
the jury, this would only happen where
or mistake made by the trial judge when directing
not been made, the correct and only
the Court of Appeal considers that, had the mistake
one of guilty. This explanatio n also applies to, option
reasonable verdict would still have been
the wrong grounds of appeal. As mentioned above,
D. Option E is wrong because it refers to
be
there is only one ground of appeal. The reference in option E is to the factors that could
used to support the one ground.

262
 Youth Court Procedure

13.1 Introduction , 264

13.2 The aims of the youth justice system 264
13.3. The Youth Court’s jurisdiction 265
es, Differences with the adult magistrates’ court 266
13.5 Bail 268
13.6 Sentencing 269
13.7. Appeal jurisdiction from the Youth Court 273

SQE1 syllabus
This chapter will enable you to achieve the SQE1 Assessment Specification in relation
to Functioning Legal Knowledge concerned with the following procedures and
processes in the Youth Court:
¢ youths charged with grave crimes;
¢ allocation;
¢ youths jointly charged with an adult;
* sentencing;
* appeals jurisdiction from the Youth Court.
Note that, for SQE1, candidates are not usually required to recall specific case names
or cite statutory or regulatory authorities. These are provided for illustrative purposes
only unless otherwise stated.

Learning outcomes
By the end of this chapter you will be able to apply relevant core legal principles
and rules appropriately and effectively, at the level of a competent newly qualified
solicitor in practice, to realistic client-based and ethical problems and situations in the
following areas of Youth Court work:
¢ What the Youth Court is required to do when dealing with youths charged with a
grave crime.
¢ The different approach taken in the Youth Court from an adult magistrates’ court
to the allocation procedure where a youth is charged with an either-way offence.
¢ Which court youths are dealt with where they are jointly charged with an adult.
¢ The powers given to the Youth Court when dealing with the question of bail.

263
Criminal Practice

¢ The range of sentences available in the Youth Court and the approach taken
when sentencing youths, particularly:
° the role of the Sentencing Children and Young People - definitive guidelines
° referral orders
° youth rehabilitation orders
° detention and training orders.
¢ How the appeal jurisdiction operates when appealing a case from the
Youth Court.

13.1 Introduction
In this chapter we will consider the procedures which take place in the Youth Court, and how
these differ from proceedings in the adult magistrates’ court. We will begin by describing the
aims of the youth justice system and which categories of juvenile may be dealt with by the
Youth Court. We will then consider the circumstances in which a juvenile who would ordinarily
appear in the Youth Court may have their case heard before either the magistrates’ court
or the Crown Court. We will also consider the powers of the Youth Court in relation to the
granting of bail, and the chapter concludes by describing the sentencing powers the Youth
Court may exercise and how decisions from the Youth Court may be appealed.

13.2 The aims of the youth justice system

The principal aim of the youth justice system is to prevent offending by children and young
persons (CDA 1998, s 37(1)). All those involved in the youth justice system (including solicitors
representing juveniles) must have regard to this aim. The Youth Court must also have regard
to the welfare of the juvenile, so the approach taken by the Youth Court is very different to that
taken by an adult magistrates’ court or the Crown Court.

13.2.1 Role of the Youth Offending Team (YOT)

YOTs are responsible for coordinating the provision of youth justice services in their particular
local area. A member of the YOT will attend each sitting of the Youth Court. This is likely to
be a member of the Probation Service who has received training in dealing with youth justice
matters.
The YOT will assist the Youth Court with the following matters:
(a) investigating and confirming the personal circumstances and previous convictions of
juveniles;
(b) providing support for juveniles who are granted bail;
(c) preparing pre-sentence reports; and
(d) administering any non-custodial sentence imposed by the Youth Court.

13.2.2 Role of parents/guardians

A juvenile appearing before the Youth Court who is aged under 16 must be accompanied by
their parents or guardian during each stage of the proceedings, unless the court is satisfied
that it would be unreasonable to require such attendance.

264
 Youth Court Procedure

For juveniles aged 16 or 17, the court has a discretion as to whether to make an order
requiring the attendance of the juvenile’s parents or guardian.
Parents or guardians who attend the Youth Court play an active role in the proceedings.
The court will want to hear their views (particularly in relation to sentencing) and may direct
questions to them.

13.2.3 Reporting restrictions

The only people who are usually allowed to attend a hearing in the Youth Court are:
(a) the district judge/youth justices
(b) court staff (such as the court clerk and usher)
(c) the juvenile and his parents or guardian
(d) the CPS representative
(e) the juvenile’s solicitor
(f) a representative from the YOT
(g) members of the press.
The press is restricted in what they are allowed to report about a hearing before the Youth
Court. They cannot report the name, address or school, or any other details which are likely to
lead to the identification of the juvenile or any other child or young person (such as a witness)
involved in the case.
These reporting restrictions that apply specifically to children or young persons end
automatically when they reach the age of 18.
Section 78 of the Criminal Justice and Courts Act 2015 allows for a lifelong reporting restriction
in respect of a victim or witness who is under the age of 18 during the proceedings.
Section 49 of the Children and Young Persons Act 1933 allows the court to lift these restrictions
either to avoid injustice, or, following conviction, if the court is satisfied that it is in the public
interest to reveal the juvenile’s identity. The courts should use this ability to ‘name and shame’
juveniles only when doing so will provide some real benefit to the community, such as making
the public aware of the identity of a prolific offender. This power though should not be used
as an ‘extra’ punishment imposed on the juvenile.

13.2.4 Legal representation

As well as observing the overriding aim of the youth justice system mentioned above (to help
prevent offending by children), the solicitor representing a juvenile in the Youth Court plays the
same role as they would were they representing an adult in the magistrates’ court.
Representation orders are applied for in the same manner as in the adult court and will be
determined by the Legal Aid Agency applying the same interests of justice test. The Legal Aid
Agency must, however, take into account the age of the juvenile when deciding whether a
representation order should be granted.
In respect of the means test, all juveniles under the age of 18 will be automatically eligible,
regardless of their actual means.

13.3 The Youth Court’s jurisdiction

The Youth Court is part of the magistrates’ court system. A hearing in the Youth Court will
therefore take place before either a district judge or a bench of youth justices. The Youth Court
deals with cases involving defendants aged between 10 and 17 inclusive. Children aged 10
and over are subject to the criminal law in the same way as adults. There is a conclusive

265
Criminal Practice

presumption that children under the age of 10 cannot be guilty of committing a criminal
offence.
Juveniles in the Youth Court are sometimes referred to as either ‘children’ or ‘young people’.
‘Children’ are juveniles aged between 10 and 13 inclusive. ‘Young people’ are juveniles aged
between 14 and 17 inclusive. This distinction is relevant in terms of the sentencing powers of
the court (see below).
Collectively, juveniles in the Youth Court are referred to as youths or ‘juveniles’. There is a
slight difference between the term ‘juveniles’ when applied to juveniles in the Youth Court
and ‘juveniles’ at the police station. A ‘juvenile’ at the police station is a suspect who is, or
appears to be, under 18 years of age. A ‘juvenile’ in the Youth Court is a juvenile who is under
18 years of age.
Some juveniles appearing before the Youth Court are classified by the court and the police
as ‘persistent young offenders’ (PYOs). The Home Office categorises a PYO as a juvenile
who has been sentenced on three separate occasions for one or more recordable offences
(a recordable offence is any offence for which a juvenile may receive a custodial sentence).
A juvenile who is a PYO will have their case expedited so the Youth Court may deal with them
as quickly as possible.

13.4 Differences with the adult magistrates’ court

Procedures in the Youth Court are modified to take account of the age of the juvenile. The
layout of the court room is less formal than the magistrates’ court, with all participants in the
case sitting at the same level rather than there being a raised dock or bench. The juvenile
will usually sit on a chair in front of the CPS representative and his own solicitor, and in full
view of the magistrates. The use of straightforward language rather than legal terminology
is encouraged, and solicitors remain seated when addressing the court. Juveniles (and any
child witnesses) are usually spoken to and referred to by their first name. Witnesses ‘promise’
rather than ‘swear’ to tell the truth, and child witnesses under the age of 14 must give unsworn
evidence (as, in fact, is the case in the adult magistrates’ court). Emphasis is placed on there
being as much communication as possible between the magistrates, the juvenile and his
parent or guardian.
Magistrates receive special training in youth justice matters before being allowed to sit in the
Youth Court.
Some of the terminology in the Youth Court also differs from that in the adult magistrates’
court. For example, there will be a ‘finding of guilt’ rather than a conviction, and the court will
make an ‘order upon a finding of guilt’ rather than give a sentence.
Most of the procedural and evidential issues that may arise in the context of a case before
the Youth Court are the same as for the case of an adult juvenile before the magistrates’
court. In particular, the magistrates will issue the same standard directions for the parties to
comply with in advance of trial as would be issued were the case being tried before the adult
magistrates’ court. The only exception to this will be if the juvenile is a PYO (see above). If the
juvenile is a PYO, the magistrates will issue revised directions to ensure that an expedited trial
takes place. Whether or not standard directions have been issued, a trial in the Youth Court
will follow the same procedure as a trial before the adult magistrates’ court.

13.4.1 Age
If a juvenile is charged with an offence when aged 17, but turns 18 prior to their first
appearance in the Youth Court, the court does not have jurisdiction to deal with them and the
case must be dealt with in the adult magistrates’ court.

266
 Youth Court Procedure

If convicted, the juvenile will be subject to the full range of sentencing powers which the
magistrates’ court may exercise.
If a juvenile makes his first appearance in the Youth Court before their 18th birthday, but
becomes 18 whilst the case is ongoing, the Youth Court may either remit the case to the adult
magistrates’ court or retain the case. If the Youth Court retains the case, it will have the full
range of sentencing powers that the adult magistrates’ court would have were it dealing with
the juvenile.

13.4.2 Determining mode of trial of juveniles

As a starting point, most trials of juveniles should take place in the Youth Court. There are
however five circumstances where a juvenile’s case either must or may be sent to an adult
court (a magistrates’ court or Crown Court).
(a) Homicide offences
Where a juvenile is accused of a homicide offence (murder or manslaughter), the case
must be dealt with in the Crown Court.
(b) Firearms offences
Where the juvenile has attained the age of 16 at the time of the alleged offence, the case
must be sent to the Crown Court.
(c) Grave crimes
‘Grave’ crimes are offences for which an offender aged 21 years or over may receive a
custodial sentence of 14 years or more (such as robbery, rape, assault by penetration,
s 18 GBH), together with a number of specific sexual offences, including sexual assault.
The Youth Court may accept jurisdiction in a case involving a grave crime or send such a
case to the Crown Court for trial.
The Youth Court should send for trial a case involving a grave crime only if it considers
that its maximum sentencing powers (a 24-month detention and training order - see
below) will be insufficient in the event that the juvenile is convicted, and that a sentence
of long-term detention would be more appropriate.

© Example
Zaina (aged 16) is charged with robbery and appears before the Youth Court. She has a
previous conviction for the same offence. Zaina intends to plead not guilty to the charge.
When they hear the facts of the case, the magistrates consider that, were Zaina to be
convicted before them, their sentencing powers would be insufficient and that, were the
case before the Crown Court, there is a real possibility that the judge would impose a
sentence of long-term detention. The magistrates will send Zaina to the Crown Court
for trial.

(d) Specified offences

Where a juvenile is charged with an offence of violence or a sexual offence their case
may be sent to the Crown Court, but only where they can properly be regarded as a
‘dangerous offender’ (see Chapter 11). So if it appears to the court that the criteria would
be met for the imposition of automatic life imprisonment, discretionary life imprisonment
or an extended sentence, the juvenile is likely to have their case sent to the Crown Court.
(e) Jointly charged with an adult
(i) Adult's case dealt with in Crown Court
A juvenile may also be sent to the Crown Court, but only where this would be
regarded as necessary in the interests of justice.

267
Criminal Practice

(ii) Adult’s case dealt with in the magistrates’ court

If the adult is to be tried in the magistrates’ court, the adult and juvenile will be tried
together in the adult magistrates’ court. If the juvenile is convicted, the magistrates
will normally remit their case to the Youth Court for sentence unless they propose to
deal with the matter by way of a fine or a discharge, in which case they will usually
sentence the juvenile themselves.

13.4.3 Plea before venue and allocation

This procedure applies to the cases listed above where the court may send the juvenile’s case
to the Crown Court. So, for grave crimes, specified offences and where a juvenile is charged
with an adult whose case is to be dealt with in the Crown Court, the juvenile will be asked to
indicate their plea.
If the juvenile indicates a guilty plea, the Youth Court will either sentence the juvenile or send
them to the Crown Court for sentence where they believe their sentencing-powers would be
inadequate (ie the juvenile will receive a detention and training order in excess of 24 months).
If the juvenile indicates a not guilty plea, a similar allocation procedure will then be followed
to that in the magistrates’ court for an either-way offence (see Chapter 6). For such cases,
the Youth Court will only decline jurisdiction and send the case to the Crown Court for
trial where they believe their sentencing powers would be inadequate if the juvenile were
convicted following trial (ie the juvenile will receive a detention and training order in excess of
24 months). However, unlike an adult magistrates’ court, a juvenile does not have any right of
election. If the Youth Court accepts jurisdiction, the trial must take place in the Youth Court.

13.5 Bail
Under the Bail Act 1976, the Youth Court has the power to remand a juvenile:
(a) on bail (with or without conditions)
(b) into local authority accommodation or
(c) in the case of 17-year-olds, into custody.
In deciding whether to grant bail, the Youth Court will normally have before it a report from
the YOT providing details of the juvenile’s antecedents and also their record in relation to
previous grants of bail. In addition, the report will inform the court about the juvenile’s home
situation and their attendance record at school, college or work.

13.5.1 Consequences of refusal of bail

Where the court refuses bail, a juvenile may be remanded to local authority accommodation
or to youth detention accommodation.

(a) Local authority accommodation

A remand to local authority accommodation is a remand to accommodation provided by or
on behalf of a local authority.
Ten- to 11-year-olds may only be remanded on bail or to local authority accommodation. They
cannot be remanded to youth detention accommodation.
If a juvenile reaches the age of 12 during the course of a remand, it is possible that they may
then be remanded to youth detention accommodation at the next court appearance should
the relevant conditions be met (see below).

(b) Youth detention accommodation

268
 Youth Court Procedure

There are four sets of conditions that must be met for a remand to youth detention
accommodation to take place. They are:
(i) The juvenile must be aged 12 to 17 years.
(ii) The juvenile must usually have legal representation.
(iii) The offence will usually need to be either a violent or sexual offence or one for which an
adult could be punished with a term of imprisonment of 14 years or more. Alternatively,
the juvenile will need to have a history of absconding whilst remanded to local authority
accommodation or youth detention accommodation; or a recent history of committing
imprisonable offences whilst on bail or remand to local authority accommodation or youth
detention accommodation.
(iv) The court must believe a remand to youth detention accommodation is necessary either
to protect the public from death or serious personal injury (physical or psychological)
occasioned by further offences committed by the juvenile, or to prevent the commission by
the juvenile of further imprisonable offences.

© Example
Jamie is aged 15. He has been charged with an offence of robbery, it being alleged that
he stole a mobile phone from a fellow pupil at school whilst threatening the victim with a
piece of wood. Jamie is not welcome home as he has fallen out with his parents following
this latest incident. Jamie has a history of committing acquisitive crime including several
offences of theft and robbery, some of which were committed whilst on bail. Jamie has
also failed to surrender to custody in the past and for his most recent offence he received
a youth detention and training order for 24 months. The training part of the order has not
yet been completed. When Jamie appears in the Youth Court he is legally represented
and indicates a not guilty plea. The Youth Court believes that its powers of punishment
are inadequate to deal with Jamie and so his case is sent to the Crown Court for
sentence. The CPS object to bail on the basis that there are substantial grounds to believe
that if granted bail Jamie would fail to surrender to custody and commit further offences
whilst on bail.
The Youth Court may remand Jamie into youth detention accommodation as all four of the
above conditions are satisfied.

13.6 Sentencing
Before a juvenile ever comes before a Youth Court, it is likely that they will have been through
the formal system of youth cautions. When the Youth Court sentences a juvenile, it must
balance the seriousness of the offence (and the juvenile’s previous record) with the welfare
requirements of the juvenile. The court must at all times have regard to the principal aim of
preventing offending.

13.6.1 Sentencing procedure

Sentencing in the Youth Court follows a similar procedure to that in the adult magistrates’
court. The CPS representative will give the facts of the case to the magistrates (assuming
the juvenile has pleaded guilty rather than having been convicted following a trial), and the
juvenile’s solicitor will then give a plea in mitigation. The court is also likely to want to hear
from the juvenile’s parents or guardian before deciding the appropriate penalty.
A key document in the sentencing process is the pre-sentence report prepared by the YOT.
The Youth Court must usually always obtain this report before sentencing the juvenile. The
court is likely to indicate the type of sentence it has in mind when it orders a report, and

269
Criminal Practice

the report will address the juvenile’s suitability for that type of sentence. The court will place
great emphasis on the contents of the report when deciding the sentence to impose. The
Youth Court may either adjourn the sentencing hearing to enable the YOT to prepare the
pre-sentence report, or may ask the member of the YOT who is present in court to prepare
a ‘stand down’ report so that sentencing can take place without the need for the caseto be
adjourned.

13.6.2 Role of the Sentencing Children and Young People - definitive guidelines
As with adult offenders, a sentencing court is required to apply the relevant sentencing
guidelines provided by the Sentencing Council. However, the approach taken is different to
adults as can be seen from the extract below of the overarching principles of sentencing
children and young people that apply to these guidelines.

Overarching principles
1. When sentencing children or young people a court must have regard to:
° the principal aim of the youth justice system (to prevent offending by children and
young people); and
° the welfare of the child or young person.
2. Whilst the seriousness of the offence will be the starting point, the approach to sentencing
should be individualistic and focused on the child or young person, as opposed to
offence focused. For a child or young person, the sentence should focus on rehabilitation
where possible. A court should also consider the effect the sentence is likely to have on
the child or young person (both positive and negative) as well as any underlying factors
contributing to the offending behaviour.
3. Domestic and international laws dictate that a custodial sentence should always be a
measure of last resort for children and young people and statute provides that a custodial
sentence may only be imposed when the offence is so serious that no other sanction is
appropriate.
4. It is important to avoid ‘criminalising’ children and young people unnecessarily; the
primary purpose of the youth justice system is to encourage children and young people to
take responsibility for their own actions and promote re-integration into society rather than
to punish. Restorative justice disposals may be of particular value for children and young
people as they can encourage them to take responsibility for their actions and understand
the impact their offence may have had on others.
It is important to bear in mind any factors that may diminish the culpability of a child or
young person. Children and young people are not fully developed, and they have not
attained full maturity. As such, this can impact on their decision-making and risk-taking
behaviour. It is important to consider the extent to which the child or young person has
been acting impulsively and whether their conduct has been affected by inexperience,
emotional volatility or negative influences. They may not fully appreciate the effect their
actions can have on other people and may not be capable of fully understanding the
distress and pain they cause to the victims of their crimes. Children and young people
are also likely to be susceptible to peer pressure, and other external influences and
changes taking place during adolescence can lead to experimentation, resulting in
criminal behaviour. When considering a child or young person’s age, their emotional
and developmental age is of at least equal importance to their chronological age
(if not greater).
For these reasons, children and young people are likely to benefit from being given an
opportunity to address their behaviour and may be receptive to changing their conduct.
They should, if possible, be given the opportunity to learn from their mistakes without

270
 Youth Court Procedure

undue penalisation or stigma, especially as a court sanction might have a significant

effect on them. This section does not apply when imposing a mandatory life sentence,
when imposing a statutory minimum custodial sentence, or when imposing detention for
life under the dangerous offender provisions.
These guidelines go on to adopt a similar structure and approach to those that apply to
adult offenders but as can be seen from s 4 that sets out how a court should determine the
sentence for a juvenile, they do so in a more sympathetic way:
Determining the sentence (Section 4)
1. In determining the sentence, the key elements to consider are:
° the principal aim of the youth justice system (to prevent re-offending by children and
young people);
° the welfare of the child or young person;
° the age of the child or young person (chronological, developmental and emotional);
° the seriousness of the offence;
° the likelihood of further offences being committed; and
° the extent of harm likely to result from those further offences.
2. The seriousness of the offence is the starting point for determining the appropriate
sentence; the sentence imposed and any restriction on liberty must be commensurate with
the seriousness of the offence.
3. The approach to sentencing children and young people should always be individualistic
and the court should always have in mind the principal aims of the youth justice system.
4. In order to determine the seriousness of the offence the court should assess the culpability
of the child or young person and the harm that was caused, intended to be caused or
could foreseeably have been caused.
5. In assessing culpability the court will wish to consider the extent to which the offence
was planned, the role of the child or young person (if the offence was committed as
part of a group), the level of force that was used in the commission of the offence and
the awareness that the child or young person had of their actions and its possible
consequences. There is an expectation that in general a child or young person will be
dealt with less severely than an adult offender. In part, this is because children and young
people are unlikely to have the same experience and capacity as an adult to understand
the effect of their actions on other people or to appreciate the pain and distress caused
and because a child or young person may be less able to resist temptation, especially
where peer pressure is exerted. Children and young people are inherently more
vulnerable than adults due to their age and the court will need to consider any mental
health problems and/or learning disabilities they may have, as well as their emotional
and developmental age. Any external factors that may have affected the child or young
person’s behaviour should be taken into account.
6. In assessing harm the court should consider the level of physical and psychological harm
caused to the victim, the degree of any loss caused to the victim and the extent of any
damage caused to property. (This assessment should also include a consideration of
any harm that was intended to be caused or could foreseeably have been caused in the
committal of the offence.)
7. The court should also consider any aggravating or mitigating factors that may increase
or reduce the overall seriousness of the offence. If any of these factors are included
in the definition of the committed offence they should not be taken into account when
considering the relative seriousness of the offence before the court.

271
Criminal Practice

For further detail see: https://sentencingcouncil.org.uk

We will now consider some of the sentences that can be passed on a juvenile offender.

13.6.3 Referral orders

A referral order must be made for a juvenile who pleads guilty to an offence (which carries
a possible custodial sentence) and who has never previously been convicted or bound over
by a court, unless the court is proposing either to impose a custodial sentence or to make an
absolute discharge. Referral orders cannot be made unless the juvenile pleads guilty to the
offence with which they have been charged, although if the juvenile has entered a mixed plea
(ie guilty to one or more offences but not guilty to others), the court has the power to make a
referral order but is not obliged to do so.
The court may also make a second referral order in exceptional circumstances.
If the court makes a referral order, the juvenile will be referred to a ‘youth offender panel’. The
youth offender panel comprises a member of the YOT and two community volunteers. At the
meetings, the panel will speak to the juvenile and their family with a view to:
(a) stopping any further offending;
(b) helping the juvenile right the wrong they did to their victim; and
(c) helping the juvenile with any problems they may have.
The panel will agree with the juvenile a ‘youth offender contract’. This is a programme
of behaviour designed to prevent the juvenile re-offending and will last between three
and 12 months. The terms of the contract are agreed between the juvenile and the panel
members, rather than by the Youth Court.

13.6.4 Youth rehabilitation orders (YRO)

This is the equivalent of a generic community order for adult offenders. It allows the court
to include one or more requirements to achieve punishment for the offence, protection of
the public, reduction in re-offending and reparation (for a period of up to three years). The
requirements are similar but not identical to the requirements that can be attached to an adult
community order (see Chapter 11).

13.6.5 Detention and training orders

A detention and training order is the only type of custodial sentence that the Youth Court
has the power to impose. The Youth Court should not impose a detention and training order
unless it is of the opinion that the offence (or the combination of the offence and one or more
offences associated with it) is so serious that neither a fine alone nor a community sentence
can be justified for the offence, and the court must also consider whether a YRO with intensive
supervision and surveillance is appropriate. The court would need to state the reasons why
such a YRO was inappropriate.
Detention and training orders cannot be imposed on juveniles aged 10 or 11. If a juvenile is
aged between 12 and 14 inclusive, an order may only be made if the court considers that the
juvenile is a ‘persistent young offender’ (see above). For juveniles aged 15 or over, there is no
restriction on the making of such an order.
An order may be imposed for fixed periods of 4, 6, 8, 10, 12, 18 or 24 months. The length
of the order must be for the shortest period of time the court considers commensurate with
the seriousness of the offence, or the offence and one or more offences associated with it.
A detention and training order may be imposed only if the court has received from the YOT a
pre-sentence report that specifically addresses custody as a possible sentencing option.

272
 Youth Court Procedure

When the court makes such an order, the juvenile will be held in detention in a young
offenders’ institution for one half of the period of the order. They will then be released into
the community under the supervision of the YOT for the second half of the order. The degree
of supervision is decided upon by the YOT (not the court) but is likely to include electronic
monitoring and intensive supervision. ‘
A juvenile offender who breaches the supervision element of their sentence can be further
punished for such a breach.

o Example
Kyle appears before the Youth Court and is convicted of the burglary of domestic
premises. The youth justices impose a detention and training order for a period of
12 months. Kyle will spend the first six months in detention at a young offenders’
institution. He will then spend the second six months in the community under the
supervision of the YOT.

13.7. Appeal jurisdiction from the Youth Court

As the Youth Court is a type of magistrates’ court, a juvenile convicted or sentenced by the
Youth Court has the same rights of appeal as a defendant who is convicted or sentenced by
the adult magistrates’ court (see Chapter 12).

Summary
In this chapter you have considered a range of matters relating to the Youth Court. Notably:
¢ Aims of the youth justice system. How the principal aim of the youth justice system is to
prevent offending by children and young persons.
e The Youth Court’s jurisdiction. The relevance of a child or young person’s age and how
those aged between 10 and 17 (inclusive) will generally be dealt with in the Youth Court.
¢ Differences between an adult court and the Youth Court. Particularly how mode of trial
operates differently in the Youth Court, including the five circumstances where a juvenile
must or may have their case dealt with in an adult court. For those cases where the
juvenile may be dealt with in an adult court, we also considered the approach taken at
the plea before venue and allocation hearing and saw that a juvenile never has a right to
elect trial in the Crown Court.
¢ Bail. How the same right to bail applies to juveniles and how very similar grounds and
factors apply to refuse this right to bail. We also considered the consequences where a
juvenile is refused bail and remanded either in local authority accommodation or in youth
detention accommodation.
¢ Sentencing. The role of the Sentencing Children and Young People - definitive guidelines
and the range of sentences that can be passed on a juvenile, particularly the use of
referral orders, YROs and detention and training orders.
¢ Appeals. How an appeal from the Youth Court follows the same approach as an appeal
from an adult magistrates’ court.

273
Criminal Practice

Sample questions

Question 1
A boy, aged 16, has been jointly charged with a man, aged 18. They have been charaed
with an offence of theft of goods valued at £350 from a shop. The man consents to have his
trial dealt with in the magistrates’ court.
In which court will the boy’s trial take place?
A The trial may take place in the magistrates’ court or the Youth Court. The boy does not
have a right of election to have his trial dealt with in the Crown Court.
B_ The trial may take place in the magistrates’ court although the boy also has a right to
elect trial in the Crown Court since he is charged with an either-way offence.
C_ The trial must take place in the magistrates’ court, although if convicted the boy may be
sentenced in either the magistrates’ court or have his case remitted for sentence to the
Youth Court.
D_ The trial must take place in the magistrates’ court as the boy has no right of election
since he is charged with a summary-only offence.
E The trial may take place in the magistrates’ court or the Youth Court depending on
where the magistrates’ court believe it will be in the interests of justice for the boy’s
case to be dealt with.

Answer
Option C is the correct answer. If the adult is to be tried in the magistrates’ court, the adult
and juvenile must be tried together in the adult magistrates’ court. If the boy is convicted,
the magistrates will normally remit the case to the Youth Court for sentence unless they
propose to deal with the matter by way of a fine or a discharge, in which case, they will
usually sentence the boy themselves.
Option A is wrong. Although it is correct to say the boy does not have a right of election
to have his trial in the Crown Court, the case must, not may, be dealt with in the adult
magistrates’ court. Option B is also wrong for the same reason given for option A, but also
because a juvenile will never have a right of election to have their trial in the Crown Court,
even though the boy has been charged with an either-way offence. Option D is wrong
because although it is correct to say the case must be tried in the magistrates’ court, this
is not a summary-only offence (the value of the goods stolen is not under £200). Option E
is wrong because the magistrates do not have any discretion where the boy’s case can be
tried, although they do have a discretion where he can be sentenced if he is convicted.

Question 2
A girl, aged 11, has been charged with an offence of assault. It is alleged that she
assaulted a teacher at school. When interviewed about the offence, the girl denied the
assault and wrongly claimed the teacher had sexually assaulted her. The girl is to appear
in the Youth Court and having received legal advice, now intends to plead guilty. The girl
received a youth caution for an offence of assault on a fellow pupil two months ago and a
conditional caution for an offence of criminal damage one month ago. The Youth Court will
not take the view that the custody threshold has been met for this offence, nor will they deal
with it by way of an absolute discharge.

274
 Youth Court Procedure

Will the girl receive a referral order when she appears in the Youth Court?
A Yes, because she will plead guilty to the offence and she has never previously been
convicted or bound over by a court.
B_ No, because the girl will now be classed as a persistent young offender and so will not
be eligible to receive a referral order.
C Yes, because the court has a discretion to impose such an order where the girl
indicates a guilty plea.
D No, because the offence will be regarded by the Youth Court as being too serious
given the girl’s wrongful allegation against the teacher.
E No, because the girl did not make an early admission of guilt when first interviewed by
the police.

Answer

Option A is the correct answer. A referral order must be made for a juvenile who pleads guilty
to an offence (which carries a possible custodial sentence which assault does) and who has
never previously been convicted or bound over by a court, unless the court is proposing either
to impose a custodial sentence or to make an absolute discharge. Referral orders cannot be
made unless the juvenile pleads guilty to the offence with which they have been charged. In
this case, we are told the girl will plead guilty, she has no previous convictions and the court is
not proposing either to impose a custodial sentence or to make an absolute discharge.
Option B is wrong because the girl will not be classed as a PYO as she does not yet have
any previous convictions recorded against her (only two youth cautions). Option C is wrong
because the Youth Court does not have a discretion - they must impose such an order (subject
to the qualifications mentioned above which do not apply here.) Option D is wrong because
we are told the offence does not meet the custody threshold, so a referral order must be
made, even though the girl’s wrongful allegation against the teacher is an aggravating factor
in the case. Option E is wrong because the eligibility for a referral order is based on a guilty
plea in court, not for an early admission of guilt when first interviewed by the police.

275
 4)
a —_——

wis

o sottodin ull Gia acai Hes

yh Narre nS lean

2 TAs ivh ful eas 1 Si

tsals Hi (woe yeus a 2 ~

A. GFE Res oe a nce
me »
7 OTe wy tt we i : fi Diet, Sah e] ow pete2
asin Ua, (gy Reales 1 Shower oF vortie finlbo gong, tet
1 Fibye’ | SIT SUOISE grow zl Bok a
Hage olrodrs’ 21ceneeucos
ee suet) We sock eo) abelian
Tae ay Cote, yt aie tet
heel arte 0
ty yhoxz’s / Trt OBO nS, atc well igi
2) HOS O | ThA Waa eIvieo ott ie vot vv,
‘ Ba Oe) iw cud us a4
' 1 DO. ONS
a dikeis
rt.

bi Ye ma OM seep:“a
. 2. wt bidet 2

) A ied he boy
RANG ¥ het‘

we were

rT sa nee ab dohae

eid iti tes

Pi Gatley ~e) Deer
Geog.

BE
 Index

A breach of 57
conditional bail 56-57
absconding see failing to surrender
denial of bail decision 55-56
(absconding)
first appearance at court
accused 220-221
circumstances 57
own defence 221
appeals against decisions on 120-121
spouse of 221-222
appeals by defendant 120-121
as witness
appeals by prosecution 121
for a co-accused 221
breach of 57, 122-123
for the Crown 220-221
before charge 52-54
adverse inference 55, 137-138, 159, 160
conditional bail 115-117
Advocacy Assistance (Court Duty Solicitor)
failing to surrender (absconding) 121
Scheme 80
chargeable offences 122
appeals 250, 260
consequences of 121-122
against conviction and/or sentence
court’s action 121
250-251
further applications for 120
Crown Court, powers of 251
procedure for applying for 118-119
from Crown Court by defendant 253-259
refusal after charging juveniles 68-69
appeal against conviction 254-256
remands 108-110
appeal against sentence 257-258
after conviction 110
prosecution appeals 258-259
before conviction 108-109
to the High Court by way of case stated
Youth Court 268-269
251-253
consequences of refusal of 268-269
advising client 253
bail, right to
hearing 252
exceptions to
procedure 251-252
either-way imprisonable offences
judicial review 253
111-114
from magistrates’ court to Crown Court 250
‘no real prospect of custody’ restriction
appeals against conviction 250
110-111
appeals against sentence 250
non-imprisonable offences 114-115
appropriate adults
offences triable only on indictment
definition of 65-66
111-114
legal representative/solicitor, awareness of
summary-only imprisonable offences 114
role of 66
procedural rules 110
role in interview 66-67
burden and standard of proof 153-154
attendance of witness at trial
evidential burden 153-154
exceptions 129-130
legal burden 153
securing of 128-129
Attorney-General, powers of 258
audibly recorded interviews 24 Cc
case management see magistrates’ court case
management directions
certificate of full argument 118
bail 108, 123-124
character evidence
after charge 55-57
bad character 196
bail denied 57
court’s powers to exclude 195
bail granted 57
procedure for admitting evidence of 197
character evidence (Continued) children
bad character, definition of 185 competence of 220
gateway (a) 185 Sentencing Children and Young People
gateway (b) 186 principles 270-271
gateway (c) 186 sentencing of 270-272
gateway (d) 186-192 unsworn evidence 266
commit an offence, propensity to client
187-188 information gathering from 17-18
exclusions 190-192 alleged offence details 18
guidelines 188-189 client preparation for interview 18
summary of 191-192 client’s instructions 18
untruthful, propensity to be 189-190 next step in 18
gateway (e) 192-193 solicitor’s identity and role of 17
commit offences of same kind, interview at police station see interview, at
propensity to 192-193 police station”
untruthful, propensity to be 193 community resolution 69
gateway (f) 193-194 compellability
gateway (g) 194-195 general rule 219
attack on person’s character 194-195, 196 general rule, exceptions to 220-221
exclusions 195 accused 220-221
charge sheet 55 spouse of accused 221-222
charging juveniles 68-69 competence
alternatives to 69-70 general rule 219
community resolution 69 general rule, exception to 219-220
youth cautions 69, 70 children 220
youth conditional cautions 69-70 defective intellect, people with 220
juveniles refused bail after conditional bail 115-117
charge 68-69 conditional cautions 59-60
refused bail after charge 68-69 conduct issues at police station 31-34
secure accommodation 68-69 client admitting guilt 31-32
charging the suspect 52, 60-61 conflict of interest 32-33
alternatives to 57-60 circumstances of conflict 32-33
commencing a case other than by disclosure
charge 60 of client information by solicitor 33
conditional cautions 59-60 of client’s case to third party 33
informal warnings 58 solicitor’s duty of disclosure to client 33-34
penalty notices 58 withdrawing from acting 34
simple cautions 58-59 confession evidence 174, 177-183
bail after charge 55-57 admissibility 178-179
bail denied 57 confessions and a co-accused 179
bail granted 57 mixed statements 178
breaching of 57 challenging admissibility 179-183
conditional bail 56-57 co-defendant’s reliance on another
denial of bail decision 55-56 defendant's confession 181-182
first appearance at court confessions the defendant accepts
circumstances 57 having made 182
bail before charge 52-54 confessions the defendant denies
charge sheet 55 having made 182-183
decision to charge 54-55 in Crown Court 183
interviewing after charge 55 in magistrates’ court 183
release under investigation 52 oppression 180
NFA (no further action) 52 procedure for 183
RUI (suspect under investigation) 52 unreliability 180-181
 Index

definition of 177-178 custody threshold 238-239

inadmissible confession 183 cut-throat defence 193
confrontations, identification procedures 42, 45
conviction, appeal against 254-256 D
powers of Court of Appeal to 256
procedure for 255-256 dangerous offender, in specified
Court of Appeal, powers of 256, 258 offences 267
criminal damage offence 79 defective intellect, competence of people
Criminal Defence Direct (CDD) 9 with 220
criminal trials defence disclosure 136-138
in Crown Court 212-215 adverse inference 137-138
change of plea, from guilty to not contents of defence statement 136-137
guilty 213 defendant's approval on defence
order of events 213-215 statement 137
in the magistrates’ court 204-211 Defence Solicitor Call Centre (DSCC) 9
arguments on points of law 206-207 defence witness obligations 129
closing speeches 210-211 detention clock 11-12
defence case 208-209 detention log 7
opening speech 205 detention of suspect 6, 34-35
order of defence witnesses 210 conditions of 8
prosecution evidence 205 conduct issues
submission of no case to answer client admitting guilt 31-32
207-208 conflict of interest 32-33
verdict 211 disclosing client's case to third
Crown Court 94-95 party 33
challenging admissibility of prosecution disclosure of client information by
evidence 94-95 | solicitor 33
chance of acquittal 94 solicitor’s duty of disclosure to
time to prepare defence case 95 client 33-34
Crown Court, appeals from 253-259 withdrawing from acting 34
appeal against conviction 254-256 detention clock 11-12
powers of Court of Appeal to 256 relevant time 11-13
procedure for 255-256 extensions of maximum period of
appeal against sentence 257-258 detention 12-13
Court of Appeal, powers of 258 grounds for 8
procedure 257 interviewing under PACE 1984 see PACE
when will an appeal be 1984, interviewing under
successful? 257 juveniles see juveniles
prosecution appeals 258-259 possible extensions 13
applications for retrial by CPS 258-259 procedure on arrival 6-8
Attorney-General, powers of 258 custody officer 6-7
termination and evidential rulings 258 decision to detain 7-8
culpability assessment 271 review clock 14
custodial sentences 238-239 review officer 14
dangerous offenders 239 solicitor’s role at police station 15
early release 239 client, information gathering
custody officers from 17-18
information gathering from 15-16 client’s options see interview, at police
initial steps of 6-7 station
procedure on arrival of suspect at police custody officer, information gathering
station 6-7 from 15-16
search of detained person by 7 investigating officer, information
custody record 6-7, 15-16 gathering from 16-17

279
Index

detention of suspect (Continued) evidential test 259

suspect's rights 8-15 expert witnesses 129
detention time limits and reviews of eyewitness identification, necessity of 40-41
detention 11-14
to legal advice 9-10 F
right not to be held incommunicado 10
volunteer's right 15 failing to surrender (absconding) 121
disclosure flowchart 146 chargeable offences 122
disposable income calculation 84 consequences of 121-122
Divisional Court, power of 252 court’s action 121
documentary evidence 130 firearms offences 267
double jeopardy, rule against 258 first hearings before the magistrates’
duty solicitor scheme 80 court 78, 87-88 see also
magistrates’ court
either-way offences 79
E criminal damage 79
early guilty plea 19 low-value shop theft 79
either-way offences 79, 94, 258 offences triable only on indictment 78
criminal damage 79 procedures 85-87
custody time limits 109 either-way offences 86
disclosure 146 offences triable only on
first hearings procedure 86 indictment 86-87
initial details of the prosecution case summary offences 86
(IDPC) 92-93 public funding, to defendant 80-85
juveniles 84-85 solicitor’s, role 87
low-value shop theft 79 summary offences 79
plea and trial preparation hearing (PTPH)
131-132 G
plea for 97-102
right to bail 111-114 general criminal contract 80
specified by the Secretary of State 58-59 generic community orders 241-242
evidence 152, 199-200 activity requirement 242
burden and standard of proof 153-154 alcohol treatment requirement 242
confession evidence see confession evidence attendance sentence requirement 242
exclusion of 197 breach of 243
evidence obtained by entrapment and contents of 241-242
abuse of process 199 curfew requirement 242
PACE (s 78) and right to fair trial 197-198 drug rehabilitation requirement 242
hearsay evidence see hearsay evidence exclusion requirement 242
inferences foreign travel prohibition requirement 242
under s 34 CJPOA 159-162 further offences committed
under s 35 CJPOA 168-169 during 243-244
under s 36 CJPOA 162-163 guidance from Sentencing Council 243
under s 37 CJPOA 163 mental health treatment requirement 242
right to silence 158-159 programme requirement 242
silence at trial 168-169 prohibited activity requirement 242
Turnbull guidelines 155-158 residence requirement 242
application of 156-158 supervision requirement 242
in the magistrates’ court 158 unpaid work requirement 242
visual identification evidence 154-155 grave crimes 267
evidential burden 153-154 group identification, 42, 44-45
burden on defence 153-154 Guide for Appropriate Adults 66
burden on prosecution 153 ‘Guideline Judgments Case Compendium’ 239

280
 Index

H initial details of the prosecution case

(IDPC) 93
harm assessment 271
plea and trial preparation hearing (PTPH)
hearsay evidence 169-177
130-131
admissibility
right to bail 111-114
by agreement 175
informal warnings 58
confession evidence 174
initial details of the prosecution case
determination of 177
(IDPC) 92-93
grounds for 170
either-way offences 92-93
in the interests of justice 175-176
offences triable only on indictment 93
as part of the res gestae 174-175
summary offences 92-93
under a preserved common law
interests of justice test 80-83, 259
exception 174-175
expert cross-examination 83
procedure for 176-177
factors considered 81
business and other documents 172-174
inability to understand court
business records 173
proceedings 82-83
statements prepared for use in
inappropriate for a defendant to represent
criminal proceedings 173-174
themself 83
criminal proceedings, examples in 170
liberty concerns 81
definition 169-170
livelihood concerns 82
first-hand hearsay 170
reputation damage 82
multiple hearsay 170
substantial question of law 82
statutory provision 171-172
suspended sentence of imprisonment 81
witness' unavailable to attend court 171-172 witnesses 83
homicide offences 267 interview see also PACE 1984,
interviewing under
appropriate adult's role in 66-67
identification officers 45-46 audibly recorded interviews 24
identification parades 42, 43-44, 47 client preparation for interview 18
identification procedures 40, 48 vulnerable suspects, interviewing of 67
circumstances for 40-41 interview, at police station 18 see also PACE
confrontation 42, 45 1984, interviewing under
eyewitness identification, necessity of 40-41 answering all questions 19-20
group identification 42, 44-45 advantages of 19
and identification officer 45-46 disadvantages of 19-20
identification parades 42, 43-44, 47 remaining silent 20-22
involving vulnerable suspects 67-68 advantages of 20
legal adviser’s role at 46-48 disadvantages of 20
identification parades 47 ‘no comment’ advise to client 20-22
initial advice to the client 46-47 selective silence 22
video identification 47 written statement 22-24
written records 48 content of 22
refusal to take part in 46 handing in time 23-24
types of 42 usage of 22
choice of 42 interviewing see also PACE 1984,
recognising a suspect from a interviewing under
photograph 42 after charge 55
unusual features in suspect, concealment or
adverse inference 55
replication of 43, 44, 47 interview record content 26
video identification 42, 43, 47 of vulnerable suspects 67
indictable-only offences 78, 258 investigating officers
disclosure 146 and evidence 24
first hearings procedure 86-87 and identification procedure 45

281
Index

investigating officers (Continued) expert witnesses 129

information gathering from 16-17 obtaining unused material from
disclosure 16-17 CPS 130
next steps 17 securing attendance of witness at trial
significant statements 17 128-129
case management hearing 128
J means test 80-81, 84
mental health issues, suspects with 64, 67
juveniles 64, 266 see also vulnerable clients mitigation
appropriate adult 65-66 objective 235
detention of 68-69 structure
persistent young offenders (PYOs) 266 likely sentence 235-236
rights of 64 offence: 236
juveniles trials, determination of mode of offender 236-238
267-268 suggested sentence 238
firearms offences 267
grave crimes 267
homicide offences 267
Nl
specified offences 267 Newton hearings 86, 244
NFA (no further action) 52
L ‘no comment’ interview 20-22

language issues 64
Legal Aid Agency (LAA) 80, 265
O
legal burden 153 offences
legal privilege 162 either-way offences 79
legal representation 265 criminal damage 79
Legal Aid Agency 265 low-value shop theft 79
representation orders 265 indictable-only offences 78
local authority accommodation 268 propensity to commit 187-188, 192-193
low-value shop theft 79 offences of same category 187-188
offences of same description 187
M summary offences 79
offenders 236-238
magistrates’ court 95-96 see also first hearings age of the defendant 236
before the magistrates’ court character 237
defence costs 95-96 early guilty plea 236
differences with Youth Court 266-268 family circumstances 237
age 266-267 health of the defendant 236
juveniles trials, determination of mode low risk of re-offending 238
of 267-268 remorse 237
plea before venue and allocation 268 voluntary compensation 236
limited sentencing powers 95 operational period 240
no obligation to serve defence oppression, during interview 28
statement 96
prosecution costs 95 Pp
speed and stress 95
trial preparation form 139-145 PACE 1984, interviewing under 24-31
magistrates’ court case management directions client preparation for interview 28-29
128-130 Codes C and E requirements 24
additional trial preparation 128-130 interviewing before obtaining legal
defence witness obligations 129 advice 25-26
do all witnesses need to attend the suspect's condition 25
trial? 129-130 conduct of interview 28
documentary evidence 130 interview period 28

282
 Index

interview 29-31 work done after client is charged 80

opening statement by solicitor 30 duty solicitor scheme 80
and seating arrangements 29 representation order, applying
solicitor intervention during 30-31 for 80-84
solicitor’s role in 29 representation order, scope of 84-85
solicitor removal 31 work done at police station 80
start of interview 26-27
caution 26-27
continuing right to legal advice 27
significant statements and silences 27 referral orders 72
parents/guardians, role of 264-265 release
penalty notices 58 on bail whilst file is passed to the CPS 53-54
fixed penalty notices (FPN) 58 under investigation 52
penalty notices for disorder (PNDs) 58 of suspect under investigation (RUI) 52
persistent young offenders (PYOs) 266 relevant time 11-13
plea 86 remain silent 161
advising on 93 remands 108-110
for either-way offences 97-98 after case committed or sent to Crown
allocation 98-100 Court 109
different pleas at the plea before after conviction 110
venue hearing 101-102 on bail 109
indicating a guilty plea 97-98 before conviction 108-109
procedure 98-102 in custody 108-109
sending without allocation 102 basic rule 108-109
plea and trial preparation hearing (PTPH) custody time limits 109
132-133 place of custody 109
arraignment 133 reporting restrictions 265
change of plea 134 representation orders 265
either-way offences 131-132 applying for 80-84
cases to which allocation procedure scope of 84-85
applies 131 requisition, document by prosecutor 60
linked summary offences 131-132 responsible officer 64
guilty pleas 133 restorative justice 59
indication of sentence 133 review clock 14
listing the case for trial 134 review officer 14
not guilty pleas 133-134
offences triable only on indictment 130-131 Ss
sending hearing in magistrates’
Sentencing Children and Young People
court 131
principles
preliminary hearings in the Crown Court 132
avoid ‘criminalising’ children and young
Police Station Advice and Assistance Scheme 80
people 270
prepared written statement, use of 160-161
custodial sentence as last resort 270
pre-sentence report by YOT, key document in
emotional and developmental age of 270
sentencing process 269-270
rehabilitation, focus on 270
prosecution appeals 258-259
restorative justice disposals 270
applications for retrial by CPS 258-259
welfare of child and young person,
CJA 2003 provisions 258-259
regard to 270
double jeopardy, rule against 258
without undue penalisation or
evidential test 259
stigma 270-271
interests of justice test 259
youth justice system, regard to 270
Attorney-General, powers of 258
Sentencing Code 2020 228, 233
termination and evidential rulings 258
Sentencing Council of England and Wales 19,
prosecution disclosure 134-136, 138
99, 228-229
public funding, to defendant 80-85

283
Index

sentencing/sentence 228, 244-245, 269-273 statutory aggravating factors

appeal against 257-258 hostility based on sexual orientation or
Court of Appeal, powers of 258 disability 230
procedure 257 offences committed while on bail 230
success of 257 previous convictions 230
of children and young people 270-272 racial or religious aggravation 230
concurrent sentences 234-235 street bail 6
consecutive sentences 234-235 ‘sufficient evidence,’ in suspect detention 7
custodial sentences 238-239 summary offences 79
dangerous offenders 239 first hearings procedure 86
early release 239 initial details of the prosecution case
detention and training orders 272-273 (IDPC) 92-93
determination of 271-272 juveniles 84
generic community orders 241-244 plea and trial preparation hearing (PTPH)
breach of 243 131-132 6
contents of 241-242 right to bail 114
further offences committed during supervision period 240
243-244 suspect, rights of 8-15
guidance from Sentencing Council 243 detention clock 11-12
mitigation see mitigation extensions of maximum period of
Newton hearings 244 detention 12-13
principle of seriousness 229 to legal advice 9-10
culpability 229 delay possibilities of right to 10
harm 229 possible extensions 13
prevalence 229 relevant time 11-13
procedure 269-270 review clock 14
referral orders 272 review officer 14
Sentencing Council of England and Wales right not to be held incommunicado 10
228-229 volunteer's right 15
Sentencing Guidelines 232-234 suspended sentences 240-241
sentencing pyramid 238 breach of 240-241
sentencing ranges 243 imposition of 240
seriousness, determination of 230-232 ‘operational period’ 240
aggravating factors list 230 ‘supervision period’ requirements 240
mitigating factors list 230-231
offences taken into consideration 232 a)
reduction in sentence for a guilty
plea 231 TIC (take other offences into consideration) 232
statutory aggravating factors 230 trial procedure 204, 224
totality principle 231-232 address modes 217
suspended sentences 240-241 burden of proof 204
breach of 240-241 compellability
imposition of 240 general rule 219
‘supervision period’ requirements 240 general rule on, exceptions to 220-221
youth rehabilitation orders (YRO) 272 competence
seriousness lists 230 general rule 219
significant silence 27 general rule, exception to 219-220
significant statement 17, 27 court room etiquette 217
silence criminal trial
on legal advice 161-162 in Crown Court 212-215
right to 158-159 in the magistrates’ court 204-211
simple cautions 58-59 leading and non-leading questions
specified offences 267 217-219
stand down report 270 cross-examination 218-219

284
 Index

examination-in-chief 217-218 impairment 65

re-examination 219 charging juveniles 68-69
solicitor’s duty to court 223 alternatives to charging juveniles 69-70
preparing defendant to give evidence 223 hearing or speech impediment, client
special measures 222-223 with 64
standard of proof 204 and identification procedures 67-68
trial venue 94-95 informing the person responsible for the
Crown Court 94-95 juvenile’s welfare 64
challenging admissibility of prosecution juveniles
evidence 94-95 refused bail after charge 68-69
chance of acquittal 94 secure accommodation 68-69
time to prepare defence case 95 language difficulties 64
magistrates’ court 95-96 vulnerable suspects, interviewing of 67
defence costs 95-96 vulnerable suspects, interviewing of 67
limited sentencing powers 95
no obligation to serve defence W
statement 96
prosecution costs 95 written charge 60
speed and stress 95 written records 48
professional conduct 96
pleading guilty, benefits of 96 Y
pleading not guilty, limitations of 96-97
youth cautions 69, 70
Turnbull guidelines 155-158
youth conditional cautions 69-70
application of 156-158
Youth Court 264, 273
assessing quality of identification
adult magistrates’ court, differences with
evidence 156
266-268
identification is good quality 156-157
age 266-267
identification poor and unsupported 158
juveniles trials, determination of mode
identification poor but supported 157-158
of 267-268
in the magistrates’ court 158
plea before venue and allocation 268
appeal jurisdiction from 273
U bail 268-269
unsafe conviction 254-256 bail, consequences of refusal of 268-269
unsworn evidence, by child witnesses 266 local authority accommodation 268
untruthful, propensity to be 189 youth detention accommodation
convictions following a not guilty plea 190 268-269
previous offence 189-190, 193 jurisdiction 265-266
unused material sentencing 269-273
challenging prosecution failure to of children and young people 270-272
provide 138 detention and training orders 272-273
obtaining from CPS 130 procedure 269-270
prosecution withholding disclosure of referral orders 272
135-136 youth rehabilitation orders (YRO) 272
youth justice system 264-265
legal representation 265
V
parents/guardians, role of 264-265
video identification 42, 43, 47 reporting restrictions 265
visually impaired suspects 65 Youth Offending Team (YOT),
voir dire 94, 206, 213 role of 264
volunteer, right of 15 youth detention accommodation 268-269
vulnerable clients 64-65, 71 youth offender contract 272
appropriate adult 65-66 youth offender panel 272
blind suspect or suspect with serious visual Youth Offending Team (YOT), role of 264

285
 ae) ree MAING f re CA a)GIRoy ; I
7d 84 Shlinevyl
- 4
pniprars
% 4
wiry Seed
ia 7
QE *

sShnaTU) | CO at shaawinwreise - “a 22

eee a aeainaiaa
a 40 eniio wi . BX x PP a on aii o

. ; me, es ae
Hevniadd ME MONCE,9 halle < > ng
diate naitiecep rio yabrcigairnbe paigneltod aL
Mio lie 40) - eee tmmmnebive —e Ms
r 1 tee f ee, erit +3: tetages to: its Ss me
nS hubHrat 4s (eccngal alpgei OF iN a
rictorpeitey . \ S8y2? Hyco eq

+ dihe ineriied ote 'me

: 7 ( bMS eleas rovuaerdt
aay fos ono OR pamia bro bes!
a. » a? eiRieealarionite gees
- Y " $R lalstiaciod ailing qiitioals
> Atuciy a ae ea Rent —_ fon bere
Li tes pli iad Shy o 5cGi a 2 th
“ sf 5 f ww . (ie mat er.siite 4 abet iy : noting
. a
matreAits! lo. AQlinup oniges
| were oxed det eotebivg wv
- | rit,A | \er oes jiMoup Saag & erode 2
Sk BC? top Pinikethe
to ood. Gqrartvtexay athe

é ? britaraane AR omae yes 2a

ay le. on chestwear marist
hey a wi? 4 ;
ik : vail ttc aly te fal) 4 Zz
ud
nAoO. tele
tit | ra Mg

M2 onerdaicant parted
}
; nS
; ‘Vis ee ee
! Ow os” eoaZzenatiw Bis da
WIRY “) PSP ad Styther
ai les mpSasha
et ovlg yiliug
. ase
NaHS res ;
tineRRA
y ‘iad BLT
REa
iets Be ane i oan ena
& t t vir i" yea ze
t i] oy

d ie Ly ta fm; ‘ie
MY \ ; ar: q eungerinDiny Ot: bahay
Amy
As £1999 aT lopapenitets bes
AE) aot.
eb Toiilidenen 4 — geen cere!
: ae 075 aL phe -
a LAN auevl ri { cwereaniginy
PAS Ashi =) ecole Hale ai ’ : an :

wily . © ay arobipup\eiraiod P
=
Aes 2 italia patio }
AY Fdet DribnaltO. dtuct

mie cleo SSS SS tong tae

| oe . Vittomina 1

_* gh
Jame
ae“tftfoneneepons
rapori
~: 4

Se
 The University of Law SQE1 manuals provide clarity, authority Titles in this series:
and value. The manuals succinctly set out the principles and rules ° Business Law and Practice
in each area of law and practice that form part of the SRA’s © Constitutional and Administrative
Solicitors Qualifying Examination. Each title is complemented by Law and EU Law
various worked examples and sample assessment questions to © Contract
aid the reader's understanding of examinable topics. ¢ Criminal Law
Published and updated regularly, these user-friendly guides are ¢ Criminal Practice
designed to help the reader successfully prepare for the SQE1 * Dispute Resolution
exams. ¢ Ethics and Professional Conduct
Criminal Practice provides a thorough, up-to-date and practical ¢ Land Law
review of how solicitors in criminal practice work. It starts at * Legal Services
the police station and then looks at how cases progress to trial * Legal System of England and
and sentence. It looks at adult and juvenile defendants and the Wales
range of appeal processes available to both. * Property Practice

Sean Hutton is an Associate Professor at The University of Law * Solicitors Accounts

in Leeds. He is also a practising criminal defence solicitor and * Tort
former member of the Law Society’s Higher Rights of Audience * Trusts
Exam Board and Quality Assurer for the Criminal Litigation * Wills and the Administration
Accreditation Scheme on behalf of the SRA. of Estates

At T f Law, we've always been passionate about preparing

SOLICITORS
| QUALIFYING
||
n exam EXAMINATION
= Be ey rye ra J
preparation - they - give
“A
you eo
the perfect
eat OR
foundation
Pe oe Hee
for na anee exciting
rt
legal
—
career.
Y .

Ip arguments, critical thinking and commercial

ire prepared for the competitive challenges ahead.
teams are second to none and provide extensive
firms and employers to help you achieve those crucial

etwork of over 71,000 alumni. From global business

a entrepreneurs to members of parliament and social ce
campaig! , our alumni are forging successful careers across the globe and are N
at the forefront of many of the most ground-breaking legal cases of our time. Our NO
alumni vork gives you access to this incredible pool of talent, mentoring and rm
employment opportunities. NO
©
Find out more about our range of courses and careers support at law.ac.uk

The
University
of
f fs
ibaa
\
om
4
fm
:
al ( ) AT A j ;

oat igen we es 9"781914°2191 39