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 228–230 circumstances 57
own defence 229 appeals against decisions on 120–​121
spouse of 229–231 appeals by defendant 120–​121
as witness appeals by prosecution 121
for a co-​accused 229 breach of 57, 122–​123
for the Crown 228–229 before charge 53–​54
adverse inference 55, 137–​138, 162, 163 conditional bail 115–​117
Advocacy Assistance (Court Duty Solicitor) failing to surrender (absconding) 121
Scheme 80 chargeable offences 122
appeals 258, 268 consequences of 121–​122
against conviction and/​or sentence court’s action 121
258–259 further applications for 120
Crown Court, powers of 259 procedure for applying for 118–​119
from Crown Court by defendant 261–267 refusal after charging juveniles 68–​69
appeal against conviction 262–264 remands 108–​110
appeal against sentence 265–266 after conviction 110
prosecution appeals 266–267 before conviction 108–​109
to the High Court by way of case stated youth court 276–277
259–261 consequences of refusal of 276–277
advising client 261 bail, right to
hearing 260 exceptions to
procedure 259–260 either-​way imprisonable offences
judicial review 261 111–​114
from magistrates’ court to Crown Court 258 ‘no real prospect of custody’ restriction
appeals against conviction 258 110–​111
appeals against sentence 258 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 155–​156
attendance of witness at trial evidential burden 155–​156
exceptions 129–​130 legal burden 155
securing of 128–​129
Attorney-​General, powers of 266
audibly recorded interviews 24 C
case management see magistrates’ court case
B management directions
certificate of full argument 118
bail 108, 123–​124 character evidence
after charge 55–​57 bad character 199
bail denied 57 court’s powers to exclude 198
bail granted 57 procedure for admitting evidence of 200
Index
character evidence (Continued)
bad character, definition of 188
gateway (a) 188
gateway (b) 189
gateway (c) 189
gateway (d) 189–195
commit an offence, propensity to
190–191
exclusions 193–195
guidelines 191–192
summary of 194–195
untruthful, propensity to be 192–193
gateway (e) 195–196
commit offences of same kind,
propensity to 195–196
untruthful, propensity to be 196
gateway (f) 196–197
gateway (g) 197–198
attack on person’s character 197–198, 199
exclusions 198
bad character of persons other than the
defendant 200–204
charge sheet 55
charging juveniles 68–​69
alternatives to 69–​70
community resolution 69
youth cautions 69, 70
youth conditional cautions 69–​70
juveniles refused bail after charge 68–​69
refused bail after charge 68–​69
secure accommodation 68–​69
charging the suspect 52, 60–​61
alternatives to 57–​60
commencing a case other than by
charge 60
conditional cautions 59–​60
informal warnings 58
penalty notices 58
simple cautions 58–​59
bail after charge 55–​57
bail denied 57
bail granted 57
breaching of 57
conditional bail 56–​57
denial of bail decision 55–​56
first appearance at court
circumstances 57
bail before charge 53–​54
charge sheet 55
decision to charge 54–​55
interviewing after charge 55
release under investigation 52
NFA (no further action) 52
RUI (suspect under investigation) 52
286
children
competence of 228
Sentencing Children and Young People
principles 278–279
sentencing of 276–280
unsworn evidence 274
client
information gathering from 17–​18
alleged offence details 18
client preparation for interview 18
client’s instructions 18
next step in 18
solicitor’s identity and role of 17
interview at police station see interview, at
police station
community resolution 69
compellability
general rule 225
general rule, exceptions to 228–229
accused 228–229
spouse of accused 229–230
competence
general rule 227
general rule, exception to 227–228
children 228
defective intellect, people with 228
conditional bail 115–​117
conditional cautions 59–​60
conduct issues at police station 31–​34
client admitting guilt 31–​32
conflict of interest 32–​33
circumstances of conflict 32–​33
disclosure
of client information by solicitor 33
of client’s case to third party 33
solicitor’s duty of disclosure to
client 33–​34
withdrawing from acting 34
confession evidence 177, 180–186
admissibility 181–182
confessions and a co-​accused 182
mixed statements 181
challenging admissibility 181–186
co-​defendant’s reliance on another
defendant's confession 184–185
confessions the defendant accepts
having made 185
confessions the defendant denies
having made 185–186
in Crown Court 186
in magistrates’ court 186
oppression 183
procedure for 186
unreliability 183–184
 Index

definition of 180–181 custody threshold 247–248

inadmissible confession 186 cut-​throat defence 196
confrontations, identification procedures 42, 45
conviction, appeal against 262–264 D
powers of Court of Appeal to 264
procedure for 263–264 dangerous offender, in specified
Court of Appeal, powers of 264, 266 offences 275
criminal damage offence 79 defective intellect, competence of people
Criminal Defence Direct (CDD) 9 with 228
criminal trials defence disclosure 136–​138
in Crown Court 220–223 adverse inference 137–​138
change of plea, from guilty to not contents of defence statement 136–​137
guilty 221 defendant’s approval on defence
order of events 221–223 statement 137
in the magistrates’ court 212–219 Defence Solicitor Call Centre (DSCC) 9
arguments on points of law 214–215 defence witness obligations 129
closing speeches 218–219 detention clock 11–​12
defence case 216–217 detention log 7
opening speech 213 detention of suspect 6, 34–​35
order of defence witnesses 218 conditions of 8
prosecution evidence 213 conduct issues
submission of no case to answer client admitting guilt 31–​32
215–216 conflict of interest 32–​33
verdict 219 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 261–267 withdrawing from acting 34
appeal against conviction 262–264 detention clock 11–​12
powers of Court of Appeal to 264 relevant time 11–​13
procedure for 263–264 extensions of maximum period of
appeal against sentence 265–266 detention 12–​13
Court of Appeal, powers of 266 grounds for 8
procedure 265 interviewing under PACE 1984 see PACE
when will an appeal be 1984, interviewing under
successful? 265 juveniles see juveniles
prosecution appeals 266–267 possible extensions 13
applications for retrial by CPS 266–267 procedure on arrival 6–​8
Attorney-​General, powers of 266 custody officer 6–​7
termination and evidential rulings 266 decision to detain 7–​8
culpability assessment 279 review clock 14
custodial sentences 246–248 review officer 14
dangerous offenders 249 solicitor’s role at police station 15
early release 249–250 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

287
Index

detention of suspect (Continued) evidential test 267

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 148 chargeable offences 122
disposable income calculation 84 consequences of 121–​122
Divisional Court, power of 260 court’s action 121
documentary evidence 130 firearms offences 275
double jeopardy, rule against 266 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, 266 offences triable only on indictment 78
criminal damage 79 procedures 85–​87
custody time limits 109 either-​way offences 86
disclosure 148 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 251–252
evidence 154, 207–208 activity requirement 251
burden and standard of proof 155–​156 alcohol treatment requirement 251
confession evidence see confession evidence attendance sentence requirement 252
exclusion of 204–205 breach of 252
evidence obtained by entrapment and contents of 251
abuse of process 207 curfew requirement 251
PACE (s 78) and right to fair trial 204–205 drug rehabilitation requirement 251
hearsay evidence see hearsay evidence exclusion requirement 251
inferences foreign travel prohibition requirement 252
under s 34 CJPOA 162–165 further offences committed
under s 35 CJPOA 171–172 during 253
under s 36 CJPOA 166–167 guidance from Sentencing Council 252
under s 37 CJPOA 167 mental health treatment requirement 251
right to silence 162 programme requirement 251
silence at trial 171–172 prohibited activity requirement 251
Turnbull guidelines 157–​160 residence requirement 251
application of 158–​160 supervision requirement 252
in the magistrates’ court 160 unpaid work requirement 251
visual identification evidence 156–​157 grave crimes 275
evidential burden 155–​156 group identification, 42, 44–​45
burden on defence 155–​156 Guide for Appropriate Adults 66
burden on prosecution 155 ‘Guideline Judgments Case Compendium’ 248

288
 Index

H initial details of the prosecution case

(IDPC) 93
harm assessment 279 plea and trial preparation hearing (PTPH)
hearsay evidence 172–180 130–​131
admissibility right to bail 111–​114
by agreement 178 informal warnings 58
confession evidence 177 initial details of the prosecution case
determination of 180 (IDPC) 92–​93
grounds for 173 contents 92–93
in the interests of justice 178–179 interests of justice test 80–​83, 267
as part of the res gestae 177–178 expert cross-​examination 83
under a preserved common law factors considered 81
exception 177–178 inability to understand court
procedure for 179–180 proceedings 82–​83
business and other documents 175–177 inappropriate for a defendant to represent
business records 176 themself 83
statements prepared for use in liberty concerns 81
criminal proceedings 176–177 livelihood concerns 82
criminal proceedings, examples in 173 reputation damage 82
definition 172–173 substantial question of law 82
first-​hand hearsay 173 suspended sentence of imprisonment 81
multiple hearsay 173 witnesses 83
statutory provision 174–175 interview see also PACE 1984,
witness unavailable to attend court 174–175 interviewing under
homicide offences 275 appropriate adult’s role in 66–​67
audibly recorded interviews 24
I client preparation for interview 18
identification officers 45–​46 vulnerable suspects, interviewing
identification parades 42, 43–​44, 47 of 67
identification procedures 40, 48 interview, at police station 18 see also PACE
circumstances for 40–​41 1984, interviewing under
confrontation 42, 45 answering all questions 19–​20
eyewitness identification, necessity of 40–​41 advantages of 19
group identification 42, 44–​45 disadvantages of 19–​20
and identification officer 45–​46 remaining silent 20–​22
identification parades 42, 43–​44, 47 advantages of 20
involving vulnerable suspects 67–​68 disadvantages of 20
legal adviser’s role at 46–​48 ‘no comment’ advise to
identification parades 47 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, 266 investigating officers
disclosure 146 and evidence 24
first hearings procedure 86–​87 and identification procedure 45

289
Index

investigating officers (Continued) expert witnesses 129

information gathering from 16–​17 obtaining unused material from CPS 130
disclosure 16–​17 securing attendance of witness at trial
next steps 17 128–​129
significant statements 17 case management hearing 128
means test 80–​81, 84
J mental health issues, suspects with 64, 67
mitigation
juveniles 64, 268 see also vulnerable clients objective 244–245
appropriate adult 65–​66 structure
detention of 68–​69 likely sentence 245
persistent young offenders (PYOs) 270 offence 245–246
rights of 64 offender 245–246
juveniles trials, determination of mode of 275–276 suggested sentence 247
firearms offences 275
grave crimes 275
homicide offences 275
N
specified offences 275 Newton hearings 86, 253
basis of plea 253–254
L NFA (no further action) 52
‘no comment’ interview 20–​22
language issues 64
legal advice
denial of access 165
O
Legal Aid Agency (LAA) 80, 273 offences
legal burden 155 either-​way offences 79
legal privilege 165 criminal damage 79
legal representation 273 low-​value shop theft 79
Legal Aid Agency 273 indictable-​only offences 78
representation orders 273 propensity to commit 190–191, 195–196
local authority accommodation 276 offences of same category 190–191
low-​value shop theft 79 offences of same description 190
summary offences 79
M offenders 244–246
age of the defendant 245
magistrates’ court 95–​96 see also first hearings character 246
before the magistrates’ court early guilty plea 245
defence costs 95–​96 family circumstances 246–247
differences with youth court 274–276 health of the defendant 245
age 274–275 low risk of re-​offending 247
juveniles trials, determination of mode remorse 246
of 275–276 voluntary compensation 246
plea before venue and allocation 276 operational period 249
limited sentencing powers 95 oppression, during interview 28
no obligation to serve defence
statement 96
prosecution costs 95
P
speed and stress 95 PACE 1984, interviewing under 24–​31
trial preparation form 139–​145 client preparation for interview
magistrates’ court case management directions 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

290
 Index

interview 29–​31 public funding, to defendant 80–​85

opening statement by solicitor 30 work done after client is charged 80
and seating arrangements 29 duty solicitor scheme 80
solicitor intervention during 30–​31 representation order, applying
solicitor’s role in 29 for 80–​84
solicitor removal 31 representation order, scope of 84–​85
start of interview 26–​27 work done at police station 80
caution 26–​27
continuing right to legal advice 27 R
significant statements and silences 27
parents/​guardians, role of 272–273 referral orders 72
penalty notices 58 release
fixed penalty notices (FPN) 58 on bail whilst file is passed to the CPS 53–​54
penalty notices for disorder (PNDs) 58 under investigation 52
persistent young offenders (PYOs) 274 of suspect under investigation (RUI) 52
plea 86 relevant time 11–​13
advising on 93 remain silent 162
for either-​way offences 97–​98 remands 108–​110
allocation 98–​100 after case committed or sent to Crown
different pleas at the plea before Court 109
venue hearing 101–​102 after conviction 110
indicating a guilty plea 97–​98 on bail 109
procedure 98–​102 before conviction 108–​109
sending without allocation 102 in custody 108–​109
plea and trial preparation hearing (PTPH) basic rule 108–​109
132–​133 custody time limits 109
arraignment 133 place of custody 109
change of plea 134 reporting restrictions 273
either-​way offences 131–​132 representation orders 273
cases to which allocation procedure applying for 80–​84
applies 131 scope of 84–​85
linked summary offences 131–​132 requisition, document by prosecutor 60
guilty pleas 133 responsible officer 64
indication of sentence 133 restorative justice 59
listing the case for trial 134 review clock 14
not guilty pleas 133–​134 review officer 14
offences triable only on indictment 130–​131
sending hearing in magistrates’ S
court 131 Sentencing Children and Young People
preliminary hearings in the Crown Court 132 principles
Police Station Advice and Assistance Scheme 80 avoid ‘criminalising’ children and young
prepared written statement, use of 163–164 people 278
pre-sentence report before plea 243–244 custodial sentence as last resort 278
pre-​sentence report by YOT, key document in emotional and developmental age of 278
sentencing process 278 rehabilitation, focus on 278
prosecution appeals 266–267 restorative justice disposals 278
applications for retrial by CPS 266–267 welfare of child and young person,
CJA 2003 provisions 266–267 regard to 278
double jeopardy, rule against 266 without undue penalisation or stigma 278–279
evidential test 267 youth justice system, regard to 278
interests of justice test 267 Sentencing Code 2020 236, 241
Attorney-​General, powers of 266 Sentencing Council of England and Wales 19,
termination and evidential rulings 266 99, 236–237
prosecution disclosure 134–​136, 138

291
Index

sentencing/​sentence 234, 250–251, 277–281 statutory aggravating factors

appeal against 265–266 hostility based on sexual orientation or
Court of Appeal, powers of 266 disability 238
procedure 265 offences committed while on bail 238
success of 265 previous convictions 238
of children and young people 278–280 racial or religious aggravation 238
concurrent sentences 243–244 street bail 6
consecutive sentences 243–244 ‘sufficient evidence,’ in suspect detention 7
custodial sentences 247 summary offences 79
dangerous offenders 249 first hearings procedure 86
early release 249 initial details of the prosecution case
detention and training orders 280–281 (IDPC) 92–​93
determination of 279–280 juveniles 84
generic community orders 250–251 plea and trial preparation hearing (PTPH)
breach of 252 131–​132
contents of 251–252 right to bail 114
further offences committed supervision period 250
during 253 suspect, rights of 8–​15
guidance from Sentencing Council 252 detention clock 11–​12
mitigation see mitigation extensions of maximum period of
Newton hearings 253 detention 12–​13
principle of seriousness 237 to legal advice 9–​10
culpability 237 delay possibilities of right to 10
harm 237 possible extensions 13
prevalence 237 relevant time 11–​13
procedure 277–278 review clock 14
referral orders 280 review officer 14
Sentencing Council of England and Wales right not to be held incommunicado 10
236–237 volunteer’s right 15
Sentencing Guidelines 240–242 suspended sentences 2​ 49–250
sentencing pyramid 247 breach of 2​ 50
sentencing ranges 248 imposition of 247
seriousness, determination of 238–240 ‘operational period’ 249
aggravating factors list 238 ‘supervision period’ requirements 249
mitigating factors list 238–239
offences taken into consideration 240 T
reduction in sentence for a guilty
plea 239 TIC (take other offences into consideration) 240
statutory aggravating factors 238 trial procedure 212, 232
totality principle 239–240 address modes 225
suspended sentences 249–250 burden of proof 212
breach of 249–250 compellability
imposition of 249 general rule 227
‘supervision period’ requirements 249 general rule on, exceptions
youth rehabilitation orders (YRO) 280 to 228–229
seriousness lists 238–239 competence
significant silence 27 general rule 227
significant statement 17, 27 general rule, exception to 227–228
silence court room etiquette 225
on legal advice 164–165 criminal trial
right to 1​ 62 in Crown Court 220–223
simple cautions 58–​59 in the magistrates’ court 212–219
specified offences 275 leading and non-​leading questions
stand down report 278 225–227

292

cross-​examination 226–227
examination-​in-​chief 225–226
re-​examination 227
solicitor’s duty to court 231
preparing defendant to give evidence 231
special measures 230–231
standard of proof 212
trial venue 94–​95
Crown Court 94–​95
challenging admissibility of prosecution
evidence 94–​95
chance of acquittal 94
time to prepare defence case 95
magistrates’ court 95–​96
defence costs 95–​96
limited sentencing powers 95
no obligation to serve defence
statement 96
prosecution costs 95
speed and stress 95
professional conduct 96
pleading guilty, benefits of 96
pleading not guilty, limitations of 96–​97 youth cautions 69, 70
Turnbull guidelines 157–​160
application of 158–​160
assessing quality of identification
evidence 158
identification is good quality 158–​159
identification poor and unsupported 160
identification poor but supported 159–​160
in the magistrates’ court 160
U bail 276–277
unsafe conviction 262–264
unsworn evidence, by child witnesses 274
untruthful, propensity to be 192
convictions following a not guilty plea 193
previous offence 192–193, 196
unused material
challenging prosecution failure to
provide 138
obtaining from CPS 130
prosecution withholding disclosure of
135–​136
V parents/​guardians, role of 272–273
video identification 42, 43, 47
visually impaired suspects 65
voir dire 94, 214, 221
volunteer, right of 15
vulnerable clients 64–​65, 71
appropriate adult 65–​66
Index
blind suspect or suspect with serious visual
impairment 65
charging juveniles 68–​69
alternatives to charging juveniles 69–​70
hearing or speech impediment, client
with 64
and identification procedures 67–​68
informing the person responsible for the
juvenile’s welfare 64
juveniles
refused bail after charge 68–​69
secure accommodation 68–​69
language difficulties 64
vulnerable suspects, interviewing of 67
vulnerable suspects, interviewing of 67
W
written charge 60
written records 48
Y
youth conditional cautions 69–​70
youth court 272, 281
adult magistrates’ court, differences with
274–275
age 274–275
juveniles trials, determination of mode
of 275–276
plea before venue and allocation 276
appeal jurisdiction from 281
bail, consequences of refusal of 276–277
local authority accommodation 276
youth detention accommodation
276–277
jurisdiction 273–274
sentencing 277–281
of children and young people 278–280
detention and training orders 278–281
procedure 276–278
referral orders 280
youth rehabilitation orders (YRO) 280
youth justice system 272–273
legal representation 273
reporting restrictions 273
Youth Offending Team (YOT), role of 272
youth detention accommodation 276–278
youth offender contract 280
youth offender panel 280
Youth Offending Team (YOT), role of 272
293