World-class legal education

in the heart of London

Bar Vocational Course

Criminal Litigation & Sentencing
Large Group Session No. 2

www.city.ac.uk/law
 Objectives
To understand:
• Consequences of failure to attend court
• Consequences of breach of bail conditions
• Determination of mode of trial for either-way
offences (including ‘plea before venue’)
• Summary trial of adults
• How summary trial of young defendants differs
from summary trial of adults
 Not according to plan
You arrive at the Magistrates’ Court
ready for the start of a summary trial.
But there’s a problem. Your client, who
was granted bail on the last occasion,
has not turned up.
1. What are the possible consequences for
your client?
2. What do you do?
 Failure to Surrender
• Bench warrant (backed/not backed for bail)
BCP D7.71-74
Guidance (Thomas LJ)
http://www.judiciary.gov.uk/docs/judgments_
guidance/protocols/bail_trials_absence.pdf
:
• Warning letters should be used rather than warrants backed
for bail – in any event, should be uncommon cases, as court
should usually issue a warrant (not backed for bail) or
proceed in absence of D;
• Should be unusual for D to be re-bailed on same conditions;
• Proper evidence is required if D claims he is unfit to attend
court.
 Consequences of failure to surrender
(cont’d)
• Trial in the absence of the accused: MCA 1980, s 11 – unless it
appears to the court to be contrary to the interests of justice,
court must proceed in D’s absence. Court must not proceed in
absence of D if there appears to be an acceptable reason for
his failure to appear (s 11(2A))
• Separate offence of failing to surrender (Bail Act, s 6;
Consolidated PD , para 56); R v White [2003] 2 Cr App R (S) 29
(BCP D7.83-84); Sentencing Guidelines Council definitive
guidance on sentencing for failure to surrender:
– http://www.sentencing-guidelines.gov.uk/docs/Fail%20to%20
Surrender%20to%20Bail.pdf
• Consequences for later cases involving D
 Sentencing range
Nature of failure & harm Starting point Sentencing range

Crown Court
Deliberate failure to attend Community order (medium)
causing delay and/or – 40 weeks custody
14 days custody
interference with the Magistrates’ courts
administration of justice. Community order (low) – 10
weeks custody

Negligent or non-deliberate
failure to attend causing delay Fine – Community order
Fine
and/or interference with the (medium)
administration of justice.

Surrenders late on day but

Fine Fine
case proceeds as planned.
 Factors
Additional 1. Lengthy absence
aggravating 2. Serious attempts to evade justice
factors 3. Determined attempt seriously to undermine
the course of justice
4. Previous relevant convictions and/or repeated
breach of court orders or police bail

Additional 1. Prompt voluntary surrender

mitigating factors When not amounting to a defence:
2. Misunderstanding
3. A failure to comprehend bail significance or
requirements
4. Caring responsibilities
 Breach of bail conditions
BA 1976, s 7(3): where a person has been bailed to attend a
court, a police officer may arrest him without warrant prior to the
bail date if:
(a) the officer has reasonable grounds for believing that he is not
likely to surrender to custody; or
(b) the officer has reasonable grounds for believing that he either
has broken or is likely to break any condition of his bail; or
(c) a surety has given written notice to the police that the person
bailed is unlikely to surrender to custody and for that reason the
surety wishes to be relieved of his obligations.
Section 7(4): following arrest under s 7(3), person must be
brought before a magistrate as soon as practicable and, in any
event, within 24 hours (excluding Sundays)
See R (DPP) v Havering Magistrates' Court [2001] 1 WLR 805;
R (Vickers) v West London Magistrates' Court (2003) 167 JP
473 (BCP D7.79-81)
 Classification of offences

• Is the offence summary, either-way or

indictable-only?
• What the quickest way to find out?
 Mode of trial procedure
• Advance information request?
– CrimPR, Pt 21; BCP D6.4-6.9
– Lack of sanction: R (AP, MD, JS) (2001) 165 JP
684
– Para 57 of A-G’s guidelines (BCP, App. 5)
• Determining mode of trial: see BCP D6.10-
30
• Indication of plea (“plea before venue”):
– “Guilty”  sentencing stage
– “Not guilty”/no indication  mode of trial:-
• Prosecution representations (including D’s
previous convictions)
• Defence representations
• Bench decide whether case ‘suitable’ for
summary trial
• Mode of Trial Guidelines in Consolidated
Practice Direction, section 51 (BCP App 7) (cf.
Sentencing Guidelines Council ‘allocation
guidelines’: BCP D6.28)
– Key question: adequacy of sentencing powers
– Presumption in favour of summary trial (N.B. Criminal
Justice and Immigration Act 2008 restores power of
committal for sentence after conviction following trial, which
was to have been abolished by CJA 2003)
– If mags decide case not suitable for summary trial
(they ‘decline jurisdiction’), case sent to Crown
Court for trial (transfer under CDA 1998, s 51)
– If mags decide case suitable for summary trial: D
is asked whether he consents to summary trial
– Before answering, D may seek an indication of
sentence (custodial or not) that would be passed if
he consents to summary trial and pleads guilty [CJA
2003]
– If D does not consent to summary trial, case sent to
Crown Court for trial (transfer under CDA 1998, s
51, as amended by CJA 2003)
 Advising the defendant on mode
of trial
• Are the magistrates likely to accept jurisdiction
(that is, decide that summary trial is suitable)?
• If so, should your client agree to summary trial?
• If the magistrates are not likely to agree to
summary trial, should you try to persuade them
to accept jurisdiction?
 Mags or Crown Court?
Crown Court trial:
• Higher chance of acquittal
• Better for points of law, esp. admissibility of
evidence (since triers of law and fact are split),
but N.B. mags’ power to make binding pre-trial
rulings under the MCA 1980, s 8A
• Prosecution witness statements (but defence
can obtain these through ‘Advance
Information’)
• Risk of higher sentence
 Pros & cons of Mags Ct trial
• Lower chance of acquittal (e.g. mags more likely to
believe police, ‘case-hardened’)
• Trial shorter, less formal (and cheaper – relevant to D
if no legal aid)
• Limit on sentence
– under CJA 2003, mags’ powers to be increased to
12 months for one either-way offence (65 weeks for
more than one offence)
 CPS figures 2007-08
Annex A: Casework Statistics in the CPS Annual
Report for 2007-08:
http://www.cps.gov.uk/publications/reports/2007
/annex_a.html

Mags: of defendants pleading not guilty, 63%

were convicted and 37% were acquitted
(compared with 64% and 36% respectively in
both 2006-07 and 2005-06).
Crown Ct: of defendants pleading not guilty, 54%
were convicted and 46% were acquitted
(compared with 54%:46% in 2006-07 and
In 2007-08, 89% of cases were sent to the
Crown Court for trial because the
magistrates declined jurisdiction (with only
11% going to the Crown Court because of
defendant chose trial on indictment).
These figures are very similar to those for
2006-07 (90%:10%) and 2005-06
(91%:9%).
 Evidence at a summary trial

• What evidence will the prosecution want

to call?
– ‘live’ witnesses
– witness statements to be read to the court
– real evidence (exhibits)
• What evidence will the defence want to
call?
– should the defendant testify?
 Summary trial outline
• Prosecution opening speech
• ‘Live’ witnesses/witness statements
– Defence objections to prosecution evidence
• Submission of no case to answer (BCP D21.39-42)
• Defence evidence (N.B. risk of adverse inferences if D
doesn’t testify - CJPOA 1994, s 35)
• Defence closing speech
• Verdict
• See generally CrimPR Pt 37
• Role of clerk/court legal adviser (Consolidated PD,
section 55): BCP D21.51-56
 CrimPR Part 37.1
(1) On the summary trial of an information, where the accused
does not plead guilty, the prosecutor shall call the evidence for
the prosecution, and before doing so may address the court.
(2) At the conclusion of the evidence for the prosecution, the
accused may address the court, whether or not he afterwards
calls evidence.
(3) At the conclusion of the evidence, if any, for the defence, the
prosecutor may call evidence to rebut that evidence.
(4) At the conclusion of the evidence for the defence and the
evidence, if any, in rebuttal, the accused may address the
court if he has not already done so.
(5) Either party may, with the leave of the court, address the
court a second time, but where the court grants leave to one
party it shall not refuse leave to the other.
(6) Where both parties address the court twice the prosecutor
shall address the court for the second time before the accused
does so.
 Procedure following guilty verdict
If verdict is ‘guilty’:
– ? Pre-sentence report on D
– Plea in mitigation by defence
– Sentence passed by Mags
– Possible committal for sentence (under PCC(S)A
2000, s 3) [power to commit after trial was to be
abolished by CJA 2003 but this was reversed by
Criminal Justice and Immigration Act 2008]
 Procedure on a guilty plea
• Summary of facts by prosecution
• ? Committal for sentence (if serious either-
way offence)
• ? Adjourn for pre-sentence report
• Plea in mitigation by defence
• Sentence
 Juveniles – key points
• Normal distinction between indictable and
non-indictable offences does not apply:
youth court can try indictable-only offences
(except homicide)
• Trial process in the youth court is less formal
(e.g. courtroom layout – no dock, accused
sits near parent and advocate; public
excluded from courtroom; use of first names
for juvenile accused and witnesses) and
magistrates have to be specially trained.
Next Crim Lit Large Group:

Juveniles; Disclosure

Blackstone’s Criminal Practice 2009

D23: Juveniles
D9: Disclosure