Solicitors' Higher Rights of Audience Qualification Criminal Procedure and Higher Courts (Criminal Proceedings) Syllabus

What is the legal effect of a binding ruling made at an ordinary pre-trial hearing (s.40 CPIA 1996)?

A ruling on the admissibility of evidence or any question of law made at a pre-trial hearing in the Crown Court is binding until the case is disposed of, unless it is in the interests of justice to vary or discharge it.

State the presumption in favour of bail and its statutory source.

There is a general right to bail for an accused under s.4 Bail Act 1976; bail must be granted unless one of the statutory exceptions in Schedule 1 applies.

For an imprisonable indictable/either-way offence, what are the principal grounds for refusing bail?

Substantial grounds for believing that, if released, the defendant would: fail to surrender to custody, commit further offences while on bail, or interfere with witnesses or otherwise obstruct the course of justice (Sch.1 Part 1 Bail Act 1976).

List factors the court considers when deciding whether a Schedule 1 ground for refusing bail is made out.

The nature and seriousness of the offence and likely sentence; the defendant's character, antecedents, associations and community ties; previous bail record; and the strength of the evidence (Sch.1 para.9 Bail Act 1976).

What conditions may be attached to bail and for what purpose?

Conditions such as residence, reporting to a police station, curfew, surety, security, surrender of passport, or non-contact with witnesses, imposed where necessary to prevent absconding, further offences, or interference with witnesses/justice (or for the defendant's own protection).

State the standard custody time limits before trial in the magistrates' court and the Crown Court.

Generally 70 days in the magistrates' court before summary trial (56 days if the either-way decision to try summarily is taken within 56 days), and 182 days from sending to the Crown Court (less time already spent in custody in the magistrates' court) before the start of the Crown Court trial.

On what basis may the prosecution obtain an extension of a custody time limit?

The court may extend the limit if satisfied that there is good and sufficient cause to do so and that the prosecution has acted with all due diligence and expedition (s.22(3) Prosecution of Offences Act 1985).

How many jurors sit on a Crown Court trial jury and from where is the panel drawn?

Twelve jurors try the case, selected from a larger panel summoned at random from the electoral register; the panel is brought into court and twelve are balloted and sworn.

What is the difference between challenging a juror 'for cause' and the prosecution's 'stand by'?

A challenge for cause must be supported by a reason showing the juror is ineligible or not impartial, and is available to both parties; 'stand by for the Crown' allows the prosecution to put a juror to the back of the panel without giving reasons (to be used sparingly per Attorney General's guidelines). The defence peremptory challenge has been abolished.

What is a Watson direction and when is it given to a jury?

A direction (from R v Watson) that may be given to a jury that is having difficulty reaching a verdict, reminding jurors to combine to reach agreement if they can conscientiously do so while each remaining true to their oath; it must not pressure the jury and is usually given before a majority direction.

What majority verdicts may a Crown Court jury return and after what minimum deliberation time?

After at least 2 hours 10 minutes of deliberation, the judge may accept a majority verdict of 11-1 or 10-2 (or 10-1/9-1 if the jury has fallen below 12); a unanimous verdict is required before that time.

What must the foreman state in open court when delivering a majority guilty verdict?

The number of jurors who agreed and the number who dissented (e.g. 'ten agreed and two did not'), so that the majority basis is recorded; for a majority not-guilty verdict the numbers need not be stated.

In the conduct of a Crown Court trial, what is the order of speeches and evidence?

Prosecution opening speech; prosecution evidence (examination-in-chief, cross-examination, re-examination); (any submission of no case); defence evidence; prosecution closing speech; defence closing speech; judge's summing up; jury deliberation and verdict.

State the test for a successful submission of no case to answer.

The Galbraith test: there is no case to answer where (a) there is no evidence that the crime was committed by the defendant, or (b) the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

What is the burden and standard of proof the judge must direct the jury on in a standard criminal trial?

The legal (persuasive) burden is on the prosecution to make the jury sure of guilt (proof beyond reasonable doubt); the defendant does not have to prove anything, subject to specific reverse-burden defences such as insanity or diminished responsibility.

What is a 'route to verdict' (or steps to verdict) document?

A written sequence of factual questions, prepared by the judge (often with counsel's input), which the jury answers in order to reach a logically correct verdict on each count, used as part of the summing up.

What must a judge's summing up cover?

Directions of law (burden and standard of proof, the legal elements of each offence, and any specific directions such as on identification, lies, or character) together with a balanced and fair summary of the evidence and the issues, identifying the defence case.

What is a Turnbull direction and when must it be given?

A direction (from R v Turnbull) required where the case depends wholly or substantially on disputed identification evidence: the judge warns the jury of the special need for caution, explains why mistaken identification can occur, and directs them to examine the circumstances of the identification (using mnemonic ADVOKATE).

What are the five purposes of sentencing for adults under s.57 Sentencing Act 2020?

The punishment of offenders; the reduction of crime (including by deterrence); the reform and rehabilitation of offenders; the protection of the public; and the making of reparation by offenders to persons affected by their offences.

What is the role of the Sentencing Council guidelines and a court's duty regarding them?

Under s.59 Sentencing Act 2020 a court must follow any relevant sentencing guideline unless satisfied it would be contrary to the interests of justice to do so; guidelines provide offence categories, ranges and aggravating/mitigating factors.

Outline the typical guideline methodology for arriving at a sentence.

Determine the offence category by assessing culpability and harm; identify the starting point and category range; adjust for aggravating and mitigating factors; consider reductions (e.g. assistance to prosecution); apply any guilty-plea reduction; consider totality; then ancillary orders and time on remand.

What is the sentencing threshold for imposing a custodial sentence?

A custodial sentence may only be passed where the offence (or combination of offence and associated offences) was so serious that neither a fine alone nor a community sentence can be justified (s.230 Sentencing Act 2020).

What is the maximum reduction in sentence for a guilty plea and when must it be given?

A maximum reduction of one-third, available where the guilty plea is indicated at the first stage of proceedings; the reduction decreases on a sliding scale to one-quarter after that and to a maximum of one-tenth at the door of the court or after trial has begun (Reduction in Sentence for a Guilty Plea Guideline).

What is a plea in mitigation and what is its purpose?

A speech made on behalf of the defendant after conviction but before sentence, presenting factors about the offence and the offender that reduce culpability or warrant leniency, in order to persuade the court to pass the least severe appropriate sentence.

Distinguish offence mitigation from offender mitigation in a plea in mitigation.

Offence mitigation reduces the seriousness of the offence itself (e.g. minor role, provocation, lack of premeditation); offender mitigation relates to the defendant personally (e.g. age, good character, remorse, ill-health, family circumstances, prospects of rehabilitation).

What is a Newton hearing and when is it held?

A hearing held where a defendant pleads guilty but on a factual basis disputed by the prosecution that materially affects sentence; the judge hears evidence and determines the factual basis, and the defendant may lose some plea credit if their version is rejected (R v Newton).

Give three examples of ancillary orders a court may make on sentencing.

A compensation order (and a duty to consider one), a confiscation order under the Proceeds of Crime Act 2002, a victim surcharge, costs orders, disqualification from driving, restraining orders, and forfeiture/deprivation orders.

What is the route of appeal from the magistrates' court to the Crown Court and who may bring it?

A defendant convicted in the magistrates' court may appeal to the Crown Court against conviction (only if they pleaded not guilty) and/or sentence; the prosecution has no equivalent right of appeal to the Crown Court. Notice is generally given within 15 business days of sentence.

What is the nature of an appeal to the Crown Court from the magistrates' court?

It is a complete rehearing of the case before a judge sitting with (usually two) magistrates, with no jury; witnesses may be called again. The Crown Court may confirm, reverse or vary the decision, and may impose any sentence the magistrates could have imposed, including a more severe one (up to the magistrates' maximum).

What is an appeal by way of case stated and to which court does it go?

An appeal on a point of law or jurisdiction from the magistrates' court (or the Crown Court in its appellate capacity) to the High Court (Administrative Court/Divisional Court), where the lower court 'states a case' setting out the facts found and the question of law for the High Court's opinion.

What is required for a defendant to appeal from the Crown Court to the Court of Appeal (Criminal Division)?

Leave (permission) of the Court of Appeal (or a certificate of fitness for appeal from the trial judge) is required; the notice and grounds of appeal must generally be served within 28 days of conviction or sentence (Criminal Appeal Act 1968).

State the test the Court of Appeal applies when deciding an appeal against conviction.

The Court of Appeal must allow the appeal if it thinks the conviction is unsafe, and otherwise must dismiss it (s.2(1) Criminal Appeal Act 1968, as amended).

What is the test for the Court of Appeal receiving fresh evidence on an appeal?

Under s.23 Criminal Appeal Act 1968 the court may receive evidence if it is necessary or expedient in the interests of justice, having regard to whether it appears capable of belief, whether it may afford a ground for allowing the appeal, whether it would have been admissible at trial, and whether there is a reasonable explanation for the failure to adduce it then.

What is the role of the Criminal Cases Review Commission (CCRC) in references?

The CCRC investigates alleged miscarriages of justice and may refer a conviction or sentence to the Court of Appeal (or a magistrates' decision to the Crown Court) where it considers there is a real possibility the conviction/sentence would not be upheld, normally based on new evidence or argument not previously raised.

What is an Attorney General's reference for an unduly lenient sentence?

Under s.36 Criminal Justice Act 1988, the Attorney General may, with the leave of the Court of Appeal, refer certain Crown Court sentences thought to be unduly lenient; the Court of Appeal may then increase the sentence. Application must usually be made within 28 days of sentence.

What is an Attorney General's reference on a point of law after an acquittal (s.36 Criminal Justice Act 1972)?

Following a Crown Court acquittal, the Attorney General may refer a point of law to the Court of Appeal for its opinion to clarify the law for future cases; the acquittal itself is not affected by the court's ruling.