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Criminal Procedure and Sentencing

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

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