Criminal Procedure and Sentencing

PreliminariesThe structure of the criminal courts in England and WalesMagistrates’ courtsThe Crown CourtPublic access to the courtsThe overriding objective of the Criminal Procedure RulesThe court’s case management powers"Better Case Management”Sanctions for non-complianceInvestigative powers of the policePower to stop and searchSearching premisesEntry with a warrantEntry without a warrantPowers of arrestArrest without warrantMeaning of ‘reasonable grounds’Information to be given on arrest‘Citizen's arrest’Voluntary attendance at a police stationArrest with a warrantRules governing detention and interviews of suspectsProcedure after arrest‘Street bail’Arrival at the police station: duties of the custody officerThe right to have someone informed of the arrestRelease from custody or detention without chargeDetention without charge: reviewsDetention beyond 24 hoursDetention beyond 36 hoursNon-compliance with review timetableInterviewing suspectsThe cautionThe police interviewAccess to legal adviceWrongful denial of access to legal adviceSecuring access to legal adviceThe role of the solicitor during police interviewsSpecial rules for interviewing juveniles and persons at riskThe decision to prosecuteThe Full Code TestThe Threshold TestSelection of chargesAccepting guilty pleasReconsidering a prosecution decisionChallenging a decision to prosecuteChallenging a decision not to prosecuteDiscontinuing proceedingsCommencement of proceedingsWritten charge and requisitionLaying an information and issuing a summonsLaying an informationIssuing a summonsContents of the written charge (or information and summons)Service of the requisition or summonsCharge after arrestInvolvement of the CPS in the charging decisionPolice bail after chargeImposition of conditions on police bail after chargeFurther questioningRelease without charge on police bailEarly administrative hearingsPrivate prosecutionsAlternatives to prosecutionCautionsAdults: ‘simple cautions’Adults: conditional cautionsYouth offenders: cautionsYoung offenders: conditional cautionsFixed penalty noticesAbuse of processBailAdjournmentsRemands: procedure in courtPeriod of remand in custody prior to convictionRemands in the absence of the defendantUse of live linksRemand after convictionThe Bail Act 1976Imprisonable offencesGrounds for withholding bailFactors to be consideredThe bail decisionChildren and young personsMurder, manslaughter and rapeSummary offencesNon-imprisonable offencesConditional bailExamples of commonly imposed conditionsSuretiesWhen may conditions be imposed?Breaking conditions of bailApplication for variation of conditionsOptions open to defendant where bail refusedRepeated bail applicationsApplication to the Crown CourtAppeal against conditions of bailJurisdiction of High CourtProsecution challenges to decision to grant bailApplication for reconsideration of bailAppeal to the Crown CourtFailure to surrender to custodyAdjournmentPolice powersProceeding in the absence of the defendantBench warrantsFailure to attend to answer requisition or summonsAfter arrest under a bench warrantLoss of presumption in favour of bailForfeiture of recognisanceThe offence of abscondingThe penalty for abscondingCustody time limitsExtending the time limitBail and the European Convention on Human RightsStrasbourg case lawClassification of Offences and Allocation of Either-Way OffencesClassification of offencesProcedural consequences of classificationEither-way offences: the 'plea before venue’ hearingIndication of guilty pleaIndication of not guilty plea‘Mixed’ pleasProceedings in absence of defendantProcedure for determining allocationThe mode of trial hearingPresence of accusedProcedure where court decides in favour of summary trialProcedure where court decides in favour of trial on indictmentRestriction on summary trial for either-way offencesThe accused's decisionFailure to follow correct procedure in determining mode of trialChallenging a decision to accept jurisdictionChanging the decision as to mode of trialWithdrawal of consent to summary trialCriminal damage: special provisionsLow-value shopliftingAdjusting the charge to dictate mode of trialProcedural consequences of the classification of the offenceDisclosureInitial details of the prosecution caseDisclosure of prosecution evidenceProsecution disclosure of ‘unused’ materialThe duty of the investigatorThe duty of disclosureThe scope of the prosecution disclosure obligations under s.3Continuing duty of disclosureDisclosure by the defenceAlibisDrafting defence statementsDisclosure of expert evidenceNotification of intention to call defence witnessesSummary trial: voluntary disclosure by defenceSanctions for failure to comply with defence disclosure obligationsDefence application for disclosureThird-party disclosurePublic interest immunityPrinciples underpinning public interest immunityUse of ‘special counsel’ in Pll applicationsShortcomings in the disclosure regimeTerritorial jurisdictionTime limitsThe contents of the chargeCase managementActive case managementPower to make pre-trial rulings‘Special measures’ directionsPreparation for Trial HearingsSecuring the attendance of witnessesDefects in the charge or informationMinor defectsDefects requiring amendmentIrremediable defectsTrying more than one offence or more than one defendantAttendance of the partiesNon-attendance by the prosecutionNon-attendance by the defendantTrial in absence of the defendantSetting aside conviction where the defendant did not know of proceedingsPleading guilty by postThe 'single justice’ procedureWithdrawal of charge/offering no evidenceSummary trial procedureOutline of a summary trialWitnessesReading witness statementsWitnesses the prosecution must callAdmissionsObjecting to prosecution evidence in a summary trialSection 76 of PACESection 78 of PACESubmission of no case to answerReopening the prosecution caseThe defendant’s evidenceReopening the prosecution case after defence evidence has been calledHearing further evidence after the justices have retired to consider their verdictChange of pleaSeeing the magistrates in privateThe magistrates’ decisionAlternative verdictsProcedure where the defendant is convictedThe role of the court clerk/justices’ legal adviserCommittal for sentenceSection 3 of the Powers of Criminal Courts (Sentencing) Act 2000Challenging a decision to commit for sentenceProcedure in the Crown CourtCommittal for breach of Crown Court orderSection 4 of the Powers of Criminal Courts (Sentencing) Act 2000Dangerous offenders: s.3A of the Powers of Criminal Courts (Sentencing) Act 2000Section 6 of the Powers of Criminal Courts (Sentencing) Act 2000Errors in the committal processYoung Defendants and Youth Court TrialsThe aims of the youth justice systemTerminologyAge of criminal responsibilityYouth offending teamsYouth courtsAttendance of parent or guardianReporting restrictions in the youth courtDetention where bail is withheldRemands to local authority accommodationRemands to youth detention accommodationDifferences between the youth court and the adult magistrates’ courtExclusion of the publicSummary trial procedureCourt of first appearancePlace of trialCrown Court trial of child/young personsMurder and manslaughterSection 91 of the Powers of Criminal Courts (Sentencing) Act 2000The decision to send for trial in a s.91 caseRelated offencesChallenging refusal to send for trial in a s.91 caseChallenging the decision to send for trial in a s.91 caseJoint charge with adult to be tried in the Crown CourtPlea before venueCommittal for sentence following plea before venueDangerous offendersSpecial arrangements where a child/young person is tried in an adult courtAccused testifying via live linkSentencing young defendants after Crown Court trial alongside an adultSummary trial of child/young persons in adult magistrates’ courtAdult being tried in Crown CourtAdult being tried in the magistrates’ courtDetermining the age of the defendantReporting restrictions in the adult courtsRelevant date for determining ageInternational instruments on youth justiceReforming the youth justice systemAppeals from Magistrates’ Courts and Youth CourtsSetting aside conviction or sentenceSetting aside a convictionVarying or rescinding a sentenceAppeals to the Crown CourtProcedure for appeal to the Crown CourtBail pending appealThe hearing of the appeal in the Crown CourtAppeals against convictionAppeals against sentenceDecisionReasons for the decisionEquivocal pleasPowers of the Crown CourtFurther appeal from the Crown CourtAppeal to the High Court by way of case statedProcedure for appealing by way of case statedRefusal to state a caseThe statement of caseBail pending appealThe hearingPowers of the Divisional CourtEffect on the right of appeal to the Crown CourtJudicial reviewGrounds for seeking judicial reviewAvailability of appeal to the Crown CourtProcedureBailRemediesAppeals against sentenceCase stated or judicial reviewFurther appealsFrom the Crown CourtAppeal from the Divisional CourtProposals for reform of the system of appeals from magistrates’ courtsSending Cases to the Crown Court for TrialIntroductionSection 51 of the Crime and Disorder Act 1998Linked offencesCo-accusedReporting restrictionsProcedure after the case has been sent to the CrownApplications for dismissal of chargePower of the Crown Court to deal with summary offenceProcedure where main offence sent for trial is not on the indictmentNotices of transferSerious or complex fraud casesChild witness casesSubmissions of no case to answerLinked offencesVoluntary bills of indictmentIndictmentsTerminologyDrafting the indictmentTime limitForm of indictmentThe rule against duplicityCo-defendantsJoinder of countsSame factsContradictory countsSame or similar characterJoinder of defendantsJoinder of summary offences under s.40 of the Criminal Justice Act 1988Discretion to order separate trialsSeparate countsCo-defendantsDeciding the contents of the indictmentSubstituting offencesAdding additional offencesMore than one indictmentAdding an additional defendantAlternative countsAmending the indictmentQuashing the indictmentHistorical note: the previous rules on joinderCrown Court TrialPre-trial hearingsPlea and Trial Preparation Hearing (‘PTPH’)ArraignmentSeeking an indication as to sentencePleading guilty to an alternative offenceOffering no evidence; leaving counts on the fileDifferent pleas from different defendantsPreparatory hearingsSecuring the attendance of witnessesPresence of defendantBailThe juryWho can serve on a jury?Excusal and deferralEmpanelling a juryStarting with more than 12 jurorsChallenges to jurorsStanding a juror byChallenging for causeDischarge of individual jurors during the trialDischarge of the entire juryJury irregularitiesSpecial measuresSpecial measures directionsSpecial measure for defendantsThe trialAn outline of trialWitnesses waiting to testifyThe start of the trial: preliminary directions to the juryProsecution opening speechDefence confirmation of the issuesProsecution evidenceFormal admissionsProsecution witnessesReading witness statements with the consent of the defenceReading witness statements without the consent of the defenceReal evidenceWitnesses whom the prosecution must callExpert evidenceChallenging the admissibility of prosecution evidenceConfessions: s.76 of PACEUnfairness: s.78 of PACESubmission of no case to answerAcquittal by judge of his own motionThe defence caseDefence evidenceClosing speechesVariation in procedure where there is more than one defendantDefendants separately representedDefendants jointly representedThe judge’s directions to the juryThe summing up to the juryRespective functions of judge and juryBurden and standard of proofBurden of proofStandard of proofExceptional cases where the burden is on the defendantExplanation of the law involved and how it relates to the factsSuch warnings as are appropriateCo-defendants or more than one countIdentification evidenceAdverse inferences for silenceAlibi evidenceLies by the defendantDefendant's previous convictionsThe defendant's good characterAccomplicesExpert evidenceAlternative countsConcluding directionsRetirement of the juryNo further evidence after retirementQuestions from the jury after retirementReturning a verdictMajority verdictsJury still unable to reach a verdictThe Watson directionDischarge of juryVerdict of guilty to an alternative offenceExpress inclusionImplied inclusionDirecting the jury on alternative offencesChange of pleaProcedure where defendant is convictedVariation of sentenceFitness to pleadAutrefois convict and autrefois acquitTrial on indictment without a juryJury tamperingAppeals to the Court of AppealThe Court of Appeal (Criminal Division)Appeal against convictionThe need for leave to appealAppeal against conviction where the defendant pleaded guiltyProcedure for obtaining leave to appealTimelimitTranscript of evidence and summing up‘Perfecting’ the grounds of appealChange of representativeGranting of leave to appeal: the single judgeBailPresence of the appellantThe hearing of the appeal against convictionGrounds of appeal against convictionErrors in the course of the trialSafety of conviction and fairness of trialAppeals relating to the juryInconsistent verdictsFresh evidence in the Court of AppealResult of appeal against convictionAppeal dismissedSuccessful appealOrdering a retrialSubstituting a conviction for an alternative offenceUnmeritorious appeals: directions for loss of timeAppeal against sentenceLeave to appealProcedure for appealing against sentenceGrounds of appeal against sentenceEffect of appeal against sentenceRe-opening appealsAppeals by the prosecutionAttorney General’s reference following acquittalAttorney General’s reference: unduly lenient sentenceProsecution appeals terminating rulingsAppeals to the Supreme CourtThe role of the Divisional CourtThe Criminal Cases Review CommissionChanges in the law as a ground of appealRetrials for serious offencesCourt of Appeal statisticsLegal Aid and CostsAdvice and assistance for individuals in custodyLegal aid in criminal proceedingsThe interests of justice testThe means testContribution ordersRecovery of Defence Costs OrdersCosts ordersDefendant’s costs ordersProsecution costs from central fundsDefendant to pay prosecution costsWasted costs ordersWasted costs orders against partiesWasted costs orders against representativesWasted costs order against third partiesAppeals on costsSentencing Principles and ProcedureThe purposes of sentencingSentencing guidelinesDuty of court to follow guidelinesDetermining the seriousness of the offenceCulpabilityHarmStatutory aggravating factorsPrevious convictionsOffending while on bailRacial or religious aggravationNon-statutory aggravating factorsCommission of offence whilst under the influence of alcohol or drugsOffence committed as part of a group or gangOffence involved use or threat of use of a weaponPlanning of an offenceCommission of the offence for financial gainHigh level of profit from the offenceAbuse of trust or dominant positionGratuitous degradation of victim/maximising distress to victimVulnerable victimVictim providing a public service or performing a public duty at the time of the offenceOther(s) put at risk of harm by the offendingOffence committed in the presence of other(s) (especially children)Actions after the event, including attempts to cover up/conceal evidenceBlame wrongly placed on other(s)Failure to respond to warnings or concerns expressed by others about the offender’s behaviourOffence committed on licence or post-sentence supervision or while subject to court order(s)Location and/or timing of offenceEstablished evidence of community/wider impactPrevalenceThresholdsCustody thresholdCommunity sentence thresholdReduction in sentencing for pleading guiltyThe amount of the reductionRelationship between guilty plea and remorseWhere the prosecution case is overwhelmingProcedure following a plea of guiltyBasis of plea agreementsThe Newton hearingProcedure for Newton hearingsStandard of proof in a Newton hearingEffect of Newton hearing on guilty plea discountExceptional cases where Newton does not have to be appliedAppeals in Newton casesProcedure following conviction after a ‘not guilty’ pleaPre-sentence reportsCircumstances where a pre-sentence report is requiredDisclosure of the pre-sentence reportAdjournments prior to sentenceKeeping sentencing options openVictim Personal StatementsCommunity Impact StatementsImpact Statement for BusinessThe plea in mitigationFactors reducing seriousness or reflecting personal mitigationNo previous convictions or no relevant/recent convictionsGood character and/or exemplary conductRemorseSelf-reportingCooperation with the investigation/early admissionsLittle or no planningLesser or subordinate roleInvolvement through coercion, intimidation or exploitationLimited awareness or understanding of the offenceLittle or no financial gainActivity originally legitimateAge and/or lack of maturitySole or primary carer for dependent relativesPhysical disability or serious medical conditionMental disorder or learning disabilityDetermination to address addiction or offending behaviourAssisting the authoritiesQualities of a good plea in mitigationSentencing only for offences of which defendant stands convicted or has admittedOffences taken into consideration (‘TICs’)‘Specimen’ or ‘sample’ countsReasons for sentencing decisionsSentencing in the absence of the defendantDeferring sentenceThe responsibility of the advocatesRestorative JusticeSentencing Adult OffendersCustodial sentencesImprisonmentLength of sentenceConcurrent and consecutive sentencesEffect of time spent on remandRelease from custodySuspended sentencesBreach of suspended sentence of imprisonmentDealing with breaches of suspended sentencesLife sentencesMandatory life sentencesDiscretionary life sentencesLife sentence for ‘second listed offence’Life sentences for serious offencesRelease of life prisonersDangerous offendersExtended sentences for violent or sexual offencesAssessing dangerousnessSpecial custodial sentences for certain offenders of particular concernMandatory sentencesThird Class A drug trafficking offenceMinimum sentence for a third domestic burglaryMinimum sentence for certain firearms offencesViolent Crime Reduction Act 2006Discount for guilty pleaCustodial sentencing powers of magistrates’ courtsSummary offencesEither-way offencesConsecutive terms of imprisonmentCommunity sentencesUnpaid work requirementRehabilitation activity requirementProgramme requirementProhibited activity requirementCurfew requirementExclusion requirementResidence requirementForeign travel prohibition requirementMental health treatment requirementDrug rehabilitation requirementAlcohol treatment requirementAttendance centre requirementElectronic monitoring requirementRestrictions on community ordersBreach of community ordersCommission of further offencesFinesCrown Court finesMagistrates’ courts finesFixing the amount of the fineFine bands in magistrates’ courtsEnforcement of finesDischargesAbsolute dischargeConditional dischargeBreach of conditional dischargeCompensation ordersSurchargesOther orders that may be made following convictionEndorsement of driving licences and disqualification from drivingForfeitureConfiscation ordersCriminal Behaviour OrdersRegistration of sex offendersBind oversSentencing Young OffendersSentencing young offendersWelfareCustodial sentencesDetention and Training Orders (DTО)Duration of a detention and training orderSupervision under a DTOCommission of further offences during the supervision period of a DTODetention under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000Detention in a young offender institutionLife sentencesYouth rehabilitation orders (YROs)Activity requirementSupervision requirementUnpaid work requirementProgramme requirementAttendance centre requirementProhibited activity requirementCurfew requirementExclusion requirementResidence requirementLocal authority residence requirementMental health treatment requirementDrug treatment requirementIntoxicating substance treatment requirementEducation requirementElectronic monitoring requirementIntensive supervision and surveillanceFostering requirementDuration of YROBreach of YROCommission of subsequent offencesReparation ordersReferral ordersFinesSurchargeBind over: parental recognisanceRelevant age for determining age of offenderPowers of an adult magistrates’ courtPowers of youth court and Crown CourtSummary: sentences available according to age
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