Acing the SQE/Land Law

Core principles of land law

Nature of Land

distinction between real property and personal property

• Real: An interest in land, which is either corporeal (mines and minerals; buildings; fixtures and fittings) or non‐corporeal (rent or easement)

• Personal: An interest in anything that is not land

Title to Land

registration of title to land: estates that can be substantively registered how to protect interests interests that override registration and interests that need to be protected on the register core principles of unregistered title to land: role of title deeds Land Charges continuing role of doctrine of notice.

Co-ownership and Trusts

Leases

relationship between landlord and tenant in a lease essential characteristics of a lease including the difference between a lease and a licence privity of contract and privity of estate rules for the passing of the benefit and burden of leasehold covenants and enforceability purpose and effect of an alienation covenant remedies for breach of leasehold covenants (including forfeiture) different ways a lease can be terminated.

Core principles of criminal liability

The core principles of criminal liability relating to the specified criminal offences listed below:

Specified criminal offences

offences against the person

s. 47 Offences Against the Person Act 1861

Assault occasioning Actual Bodily Harm (ABH) A person intentionally or recklessly assaults another, thereby causing Actual Bodily Harm. It must be proved that the assault (which includes “battery”) “occasioned” or caused the bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to interfere with the health or comfort of the victim: such hurt need not be permanent, but must be more than transient and trifling: (R v Donovan [1934] 2 KB 498).

s. 20 Offences Against the Person Act 1861

mens reas for GBH: D intended, or actually foresaw, that the act might cause some harm

theft offences

s. 1 Theft Act 1968 (Theft)

• Theft is dishonest Appropriation Of property belonging to another with the intention of permanently depriving the other of it.
• D need not assume all the rights of the owner (part of the rights is OK)
• intangible property such as copyrights is included but information is not
• intends only to borrow temporarily is not the intention to permanently depriving
• Defences: entitled to the property, owner's consent or without an owner

s. 8 Theft Act 1968 (Robbery)

• A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
• Fake weapon still causes apprehension of force

s. 9 Theft Act 1968 (Burglary)

There are two types of burglary:

• Definition:

(a) Burglary by Trespass with Intent: he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or (b) Burglary by Offence Following Trespassory Entry: having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

• any part of their body is sufficient
• For burlgary (b), criminal damage is not included but attempted and completed theft and GBH are

s. 10 Theft Act 1968 (Aggravated Burglary)

• A commits burglary whilst armed with a weapon or explosive

1. A firearm or imitation firearm (including an airgun);
2. A weapon of offence (any article made or adapted to cause injury or intended by the defendant to be used as such); or
3. An explosive (any article manufactured to create an explosion or intended by the defendant to explode).

criminal damage

Criminal damage in English law Section 1(1) Criminal Damage Act 1971 - A person who without lawful excuse destroys or damages any property belonging to another, intending to destroy or damage any such property, or being reckless as to whether any such property would be destroyed or damaged, shall be guilty of an offence.

simple criminal damage

This falls under s.1(1) of the Criminal Damage Act and requires damage/destruction of property belonging to another (AR) and intention or reckless (MR)

aggravated criminal damage

This falls under s.1(2) of the Criminal Damage Act with intention to endanger life or being reckless whether life is endangered.

arson

This falls under s.1(3) of the Criminal Damage Act where damage/destruction caused by fire.

homicide

murder

Murder is committed where a person unlawfully causes the death of another person with an intention to kill or cause GBH

involuntary manslaughter

IM is unlawful killing is done without an intention to kill or to cause grievous bodily harm. There are two types of involuntary manslaughter, that caused by the defendant's gross negligence and that caused by his unlawful or dangerous act.

1. Gross Negligence Manslaughter The death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant - R v Adomako [1994] UKHL 6.

2. Unlawful act manslaughter The accused intentionally did an unlawful and dangerous act from which death inadvertently resulted

fraud

Fraud_Act_2006

by false representation

section 2

by abuse of position

section 3

by failing to disclose

section 4

Definition of the offence

actus reus

The external element of the offence

mens rea

The fault, or mental element ("guilty mind")

Inchoate offences

Attempt to commit an offence

Section 1(1) of the Criminal Attempts Act creates the offence of attempt:

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

Criminal_Attempts_Act_1981

Advising clients, including vulnerable clients, about the procedure and processes at the police station

Rights of a suspect being detained by the police for questioning:

right to legal advice

In English criminal litigation, a suspect who has been detained by the police for questioning has the right to legal advice. This right is guaranteed by the Police and Criminal Evidence Act 1984 (PACE), which sets out the procedures that the police must follow when detaining and questioning suspects. When a person is detained by the police, they must be informed of their right to legal advice, and they must be given the opportunity to consult with a solicitor. The police must provide the suspect with a notice of their rights, which explains the right to legal advice and how to access it. If the suspect requests legal advice, the police must arrange for them to speak to a solicitor. The solicitor may be present during questioning and may advise the suspect on what to say or how to respond to police questions. The solicitor may also challenge the legality of the detention and any evidence gathered during the investigation. If the suspect cannot afford a solicitor, they may be eligible for legal aid. The police are required to provide the suspect with information about how to apply for legal aid, and they must not start questioning the suspect until the legal advice has been obtained. The right to legal advice is an important safeguard for suspects in the criminal justice system. It ensures that they are aware of their rights and can make informed decisions about how to respond to police questioning. It also helps to prevent miscarriages of justice by ensuring that evidence gathered during the investigation is obtained in a fair and lawful manner.

right to have someone informed of arrest

A person who has been arrested has the right to have someone informed of their arrest. This right is guaranteed by the Police and Criminal Evidence Act 1984 (PACE), which sets out the procedures that the police must follow when arresting and detaining suspects. When a person is arrested, they must be informed of their right to have someone informed of their arrest as soon as is practicable. This means that the police should inform the person of this right at the earliest opportunity, and should allow them to exercise the right as soon as it is reasonably possible to do so. The person who is arrested may choose to have a friend, relative, or lawyer informed of their arrest. The police must make reasonable efforts to contact the chosen person, and must inform them of the reason for the arrest and the location of the police station where the suspect is being held. The purpose of this right is to ensure that the person who is arrested is not completely isolated from the outside world, and to provide them with some level of support and assistance during the arrest and detention process. It can also help to protect the rights of the person who is arrested, by ensuring that someone is aware of their situation and can take steps to ensure that they are being treated fairly and lawfully. It is important to note that the right to have someone informed of an arrest is not an absolute right, and it may be subject to some restrictions in certain circumstances, such as where it is necessary to protect ongoing police investigations or to prevent harm to the suspect or others. However, any restrictions on this right must be proportionate and necessary, and the police must be able to justify them in accordance with the law.

reviews and detention time limits under PACE 1984, Code C.

In English criminal litigation, the Police and Criminal Evidence Act 1984 (PACE), Code C sets out the rules and procedures for the detention, treatment, and questioning of suspects in police custody. One of the key provisions of Code C is the requirement for regular reviews of detention time limits. Under PACE Code C, a person who is arrested and detained by the police must be reviewed by an officer of the rank of inspector or above at least once every six hours. During each review, the officer must consider whether the detention of the person is necessary and proportionate, and whether there are any grounds for the person to be released. The maximum period of time that a person can be detained in police custody without charge is 24 hours. However, this period can be extended to a maximum of 36 hours in certain circumstances, such as where the person is suspected of a serious arrestable offence, such as terrorism. If the police want to extend the detention beyond 24 hours, they must obtain an extension from a magistrates' court. The magistrates' court can extend the detention for up to 36 hours, and must be satisfied that the extension is necessary and proportionate. After 36 hours, the person must be either charged with an offence or released. If the police still need to detain the person for further questioning, they must apply for a further extension from a senior police officer, who must consider the matter afresh and be satisfied that the extension is necessary and proportionate. The regular reviews and detention time limits set out in PACE Code C are important safeguards to protect the rights of suspects and to prevent unnecessary and excessive detention. By ensuring that the detention of suspects is subject to regular and independent review, the police can ensure that the detention is lawful, necessary, and proportionate, and can prevent arbitrary or unjustified detention.

Identification procedures:

In English criminal litigation, identification procedures are used to help identify suspects or witnesses who are involved in a criminal case. There are different types of identification procedures used, such as video identification, identity parades, and photofit images. Identification procedures are usually carried out when a suspect is being investigated for a crime, or when a witness has seen or heard something related to a crime. The purpose of the identification procedure is to establish whether a witness or victim can identify the suspect, or to confirm the identity of a witness who has provided information. When an identification procedure is required, the police will follow a set of guidelines to ensure that the procedure is fair and reliable. These guidelines are set out in the PACE Codes of Practice, and include the following: 1. The identification procedure should be carried out as soon as possible after the crime has been reported. 2. The person who conducts the identification procedure should not know who the suspect is, and should not be involved in the investigation. 3. The witness or victim should be told that the person they are identifying may or may not be the suspect, and that they should not feel under pressure to make an identification. 4. The person who is being identified should be presented to the witness or victim in a way that is consistent with the description provided. 5. The identification procedure should be recorded, either by audio or video, to ensure that the procedure is fair and reliable. The PACE Codes of Practice also set out specific procedures for different types of identification procedures, such as identity parades and video identification. Overall, the purpose of identification procedures in English criminal litigation is to help establish the facts of a case and to ensure that any evidence that is presented is reliable and accurate. By following the guidelines set out in the PACE Codes of Practice, identification procedures can help to ensure that any identification evidence is fair and reliable.

different types of identification procedure

There are several types of identification procedures that can be used in English criminal litigation, including: 1. Video identification: This involves showing a video recording of the suspect to the witness or victim, who then identifies whether or not the person in the video is the suspect. The video is usually made shortly after the crime has been committed, and the suspect is shown performing specific actions or saying certain phrases. 2. Identity parade: This involves presenting the suspect alongside several other people who have a similar appearance or physical characteristics. The witness or victim is then asked to identify the suspect from the group. 3. Photofit images: This involves creating a composite image of the suspect's face based on witness descriptions, and then showing this image to the witness or victim to see if they recognize the suspect. 4. Live identity parade: This involves presenting the suspect in person alongside several other people who have a similar appearance or physical characteristics. The witness or victim is then asked to identify the suspect from the group. 5. Show-up identification: This involves presenting the suspect to the witness or victim shortly after the crime has been committed, usually in the immediate vicinity of the crime scene. The witness or victim is then asked to identify the suspect. The type of identification procedure used will depend on the circumstances of the case and the nature of the evidence available. It is important that any identification procedure is conducted fairly and in accordance with the guidelines set out in the PACE Codes of Practice to ensure that the evidence obtained is reliable and admissible in court.

procedure for carrying out an identification procedure PACE 1984, Code D

The procedure for carrying out an identification procedure in English criminal litigation is set out in Code D of the Police and Criminal Evidence Act 1984 (PACE). The purpose of the identification procedure is to allow witnesses or victims to identify a suspect in a fair and reliable manner. The following are the general steps for carrying out an identification procedure: 1. The person conducting the procedure should explain the purpose and process of the identification to the witness or victim. 2. The witness or victim should be given an opportunity to describe the person they saw committing the offence, including their physical appearance, clothing, and any other relevant details. 3. The identification procedure should be carried out as soon as possible after the offence has been committed, while the witness or victim's memory is still fresh. 4. The identification procedure should be conducted in a neutral location, such as a police station or other suitable venue, and not in the presence of the suspect or any other potentially suggestive influences. 5. The identification procedure should be conducted using one of the recognized methods, such as a video identification, identity parade, photofit image, live identity parade, or show-up identification. 6. The identification procedure should be conducted by a person who is independent of the investigation and who does not know the identity of the suspect. 7. The person conducting the identification procedure should keep a record of the procedure, including the details of the witness or victim's description of the suspect, the method used, and the outcome of the identification. It is important that any identification procedure is conducted fairly and in accordance with the guidelines set out in the PACE Codes of Practice to ensure that the evidence obtained is reliable and admissible in court.

Advising a client, including vulnerable clients, whether to answer police questions

right to silence

The right to silence allows an accused to remain silent during police questioning or in court proceedings, without this silence being used against them as evidence of guilt. This right is protected under common law, as well as the Police and Criminal Evidence Act 1984 (PACE). It is an important safeguard against self-incrimination and is a fundamental aspect of the criminal justice system.

Under PACE, a person being questioned by the police has the right to remain silent and not answer any questions, except for providing their name, address, and date of birth. The police must inform the suspect of their right to remain silent, and any statement made by the suspect may be used as evidence in court. However, the prosecution cannot comment on the suspect's decision to remain silent or use it as evidence of guilt.

In court proceedings, the right to silence allows a defendant to choose not to testify in their own defense, and the prosecution cannot comment on this decision or use it as evidence of guilt. The burden of proof remains on the prosecution to prove their case beyond a reasonable doubt, and the defendant is not required to prove their innocence.

However, it is important to note that the right to silence is not absolute, and there are certain circumstances where a failure to provide an explanation or answer questions may be viewed as evidence of guilt. For example, if the suspect has a reasonable excuse for not answering questions, such as providing an alibi or medical condition, then their silence cannot be used against them. Additionally, if the suspect has previously given a false or misleading statement, their silence may be taken as evidence of guilt.

adverse inferences

Adverse inferences (AI) are the use of a suspect's silence or failure to answer as evidence of guilt. This means that if a suspect refuses to answer questions or gives a vague or evasive response during police questioning or court proceedings, the prosecution may argue that their silence suggests that they have something to hide or are guilty of the offense.

Adverse inferences are permitted under certain circumstances, particularly under the Police and Criminal Evidence Act 1984 (PACE). Under PACE, a suspect has the right to remain silent and not answer any questions during police interviews. However, if the suspect fails to mention any fact that they later rely on in court, or if they provide a false or misleading answer to any question during the interview, the prosecution may use this to argue that the suspect's silence suggests guilt.

Additionally, if the suspect chooses not to testify in court, the prosecution may use their silence as evidence of guilt, particularly if they have previously given false or misleading statements or if there is other evidence against them.

The use of adverse inferences is subject to certain safeguards and limitations. For example, the judge must warn the jury that the suspect's silence does not automatically mean that they are guilty, and that the prosecution must prove their case beyond a reasonable doubt. The use of adverse inferences is also subject to human rights considerations, particularly the right to a fair trial under Article 6 of the European Convention on Human Rights. Overall, the use of adverse inferences is a controversial aspect of English criminal litigation, as it involves balancing the rights of the suspect against the need to protect the public and bring criminals to justice.

Procedure for interviewing a suspect under PACE 1984

role and appropriate conduct by defence legal representative/ solicitor including representation of vulnerable client

The role of the defence legal representative/solicitor during a police interview of a suspect under PACE 1984 is to protect the interests of their client and ensure that their rights are respected. They must ensure that the police follow the rules and procedures set out in PACE and that their client's interests are not prejudiced. In representing a vulnerable client during a police interview, the defence legal representative/solicitor should be particularly mindful of their client's vulnerability and any special needs or requirements they may have. They should also be aware of the guidelines and procedures set out in the Achieving Best Evidence (ABE) guidance, which provides guidance on interviewing vulnerable suspects and witnesses. Appropriate conduct by the defence legal representative/solicitor during a police interview includes the following:

1. Advising the client of their rights: The defence legal representative/solicitor should inform the client of their right to remain silent and their right to legal representation. They should also explain the implications of waiving these rights.

2. Monitoring the interview: The defence legal representative/solicitor should monitor the interview to ensure that the police are following the rules and procedures set out in PACE, and that their client's rights are not being infringed.

3. Asking questions: The defence legal representative/solicitor may ask questions on behalf of their client, but they must not interfere with the interview or prevent the police from asking their own questions.

4. Challenging improper conduct: If the defence legal representative/solicitor believes that the police are acting improperly or that their client's rights are being infringed, they may challenge this and seek to have the interview stopped.

5. Representing the client's interests: The defence legal representative/solicitor should represent their client's interests at all times, and may advise their client on the appropriateness of answering specific questions or making specific statements.

6. Ensuring a fair process: The defence legal representative/solicitor should ensure that the process is fair and that their client is not being unfairly prejudiced. This may involve challenging evidence or seeking to have certain evidence excluded.

In representing a vulnerable client, the defence legal representative/solicitor should be particularly aware of any vulnerabilities that may affect their client's ability to participate in the interview, and should take steps to ensure that the interview is conducted in a way that is appropriate and fair to their client. They should also ensure that any special needs or requirements of their client are met, such as providing an interpreter or other support.

role of appropriate adult and who can be an appropriate adult

Under PACE 1984, an appropriate adult is an individual who is called upon to assist and support a suspect who is being interviewed by the police, and who is deemed to require an adult present during the interview process. The role of the appropriate adult is to ensure that the suspect understands their rights and the interview process and to help them communicate effectively with the police.

An appropriate adult can be anyone who is over 18 years of age, and who is not a police officer, a witness, or a person involved in the investigation. The appropriate adult can be a family member or a friend of the suspect, but they must not be a witness or involved in the case in any way.

The appropriate adult is required to attend the interview with the suspect and must be present throughout the interview process. They have the right to communicate with the suspect privately and to advise them on the best course of action during the interview. The appropriate adult is also responsible for ensuring that the suspect is comfortable and that their needs are being met, for example, by requesting breaks or refreshments if necessary. It is important for the appropriate adult to act in the best interests of the suspect and to ensure that their rights are protected throughout the interview process. The appropriate adult should also be mindful of the suspect's vulnerability, if any, and should provide support and reassurance throughout the interview.

The role of the defence legal representative/ solicitor during the interview process is to provide legal advice and representation to the suspect. The solicitor can advise the suspect on their rights and the interview process, as well as provide legal representation during the interview. They can also challenge any inappropriate questioning or treatment of the suspect by the police.

If the suspect is vulnerable or has communication difficulties, the defence legal representative/ solicitor should work closely with the appropriate adult to ensure that the suspect's rights are protected and that they are receiving the support they need.

The procedures and processes involved in criminal litigation

Bail applications

Bail means that the person is allowed to leave custody, but they must promise to attend court on the specified dates and comply with any other conditions set by the court.

the right to bail and exceptions

The right to bail is a fundamental principle in the English criminal justice system that allows a person who has been charged with a criminal offence to be released from custody while they await their trial or other legal proceedings. In general, everyone who is arrested and charged with a criminal offence has the right to apply for bail. However, there are exceptions to this general rule, and some individuals may be denied bail under certain circumstances. These exceptions include:

1. Flight risk: If there is a risk that the defendant will flee the country or fail to attend their court hearings, they may be denied bail.
2. Public safety: If there is a risk that the defendant will harm themselves or others if they are released on bail, they may be denied bail.
3. Risk of committing further offences: If there is a risk that the defendant will commit further offences if they are released on bail, they may be denied bail.
4. Seriousness of the offence: If the offence is particularly serious, such as a violent crime or a crime with a lengthy prison sentence, the defendant may be denied bail.
5. Previous convictions: If the defendant has a history of failing to appear in court or committing similar offences, they may be denied bail.

In addition to these exceptions, there are also situations where the court may impose conditions on the defendant's bail. For example, the court may require the defendant to surrender their passport or report to a police station regularly. If the defendant fails to comply with these conditions, their bail may be revoked, and they may be returned to custody.

conditional bail

Conditional bail is a type of bail that may be granted to a defendant in English criminal litigation. It allows the defendant to be released from custody before their trial or other legal proceedings, but with certain conditions attached.

The conditions of conditional bail may be imposed by the court, and are designed to ensure that the defendant complies with certain requirements while they are out on bail. These conditions can include:

1. Reporting to a police station on a regular basis
2. Surrendering their passport or other travel documents
3. Residing at a particular address
4. Observing a curfew
5. Refraining from contacting certain people or going to certain locations
6. Abstaining from alcohol or drugs
7. Attending medical or psychiatric appointments

The purpose of these conditions is to address any concerns that the court may have about the defendant's behavior while they are out on bail. For example, if the court is concerned that the defendant may commit further offenses, they may impose conditions that restrict the defendant's movements or activities.

If a defendant breaches any of the conditions of their conditional bail, they may be arrested and brought back to court. In some cases, the court may also revoke their bail and require them to remain in custody until their trial or other legal proceedings have concluded.

First hearings before the magistrates’ court

classification of offences

Classification of offences: - statutory offence or common law offence - Summary only, triable either way or indictable only

the role of the defence solicitor at the hearing

A defence solicitor represents the accused at the first hearing before the magistrates' court. The first hearing is also known as the "plea hearing" or "initial appearance." The procedures of this hearing can be summarized as follows: 1. Introduction to the accused: The solicitor should introduce themselves to the accused and explain their role in the proceedings. 2. Obtain instructions: The solicitor should obtain instructions from the accused, which involves getting a full account of what happened and other relevant information to prepare the defence. 3. Provide legal advice: The solicitor should advise the accused on the charge(s) against them, the potential penalties, and the legal process. 4. Enter a plea: The solicitor should advise the accused on whether to plead guilty or not guilty. If the accused pleads guilty, the solicitor should explain the implications of the plea and the possible outcomes. If the accused pleads not guilty, the solicitor should provide advice on the next steps, such as preparing a defence and setting a trial date. 5. Make bail applications: If the accused is in custody, the solicitor should make an application for bail. 6. Make requests for the prosecution's case: The solicitor can request the prosecutor to provide disclosure of evidence, which is information or evidence that the prosecution has that may help the defence. 7. Set a trial date: If the accused pleads not guilty, the solicitor should agree on a trial date with the court. Overall, the defence solicitor's role at the first hearing before the magistrates' court is to ensure that the accused understands the charges against them, provide legal advice, and ensure that the accused's rights are protected throughout the proceedings.

Plea before Venue

When a defendant is charged with a criminal offence and appears before a court for the first time, they are required to enter a plea. This process is known as the "plea before venue," and the procedure can be summarized as follows: 1. Reading of the charge: The clerk of the court reads out the charge against the defendant. 2. Explanation of the charge: The defendant is informed of the details of the charge and what the prosecution needs to prove for a conviction. 3. The defendant's plea: The defendant is required to enter a plea of guilty or not guilty. 4. Advice from the defendant's solicitor: The defendant's solicitor may advise the defendant on whether to plead guilty or not guilty and explain the implications of each plea. 5. Court's powers of adjournment: If the defendant is unable to enter a plea or if there is any uncertainty about the plea, the court has the power to adjourn the hearing to a later date. 6. Setting a trial date: If the defendant pleads not guilty, the court sets a trial date. 7. Sentence hearing: If the defendant pleads guilty, the court may proceed to sentence the defendant on the same day or adjourn the hearing for a later date. Overall, the plea before venue is an essential part of the English criminal litigation process. It provides the defendant with an opportunity to enter a plea of guilty or not guilty and sets the stage for the subsequent trial or sentencing hearing. The defendant's solicitor plays a crucial role in advising the defendant on the plea and ensuring that the defendant's rights are protected throughout the process.

procedure on defendant entering plea

The plea before venue is an important process where the defendant enters a plea of guilty or not guilty. The plea before venue also involves the defendant's solicitor advising the client on whether to elect for trial in the Magistrates' Court or the Crown Court. The procedures and processes involved in advising the client on trial venue in the plea before venue can be summarized as follows:

1. Explanation of the options: The defendant's solicitor explains to the client the two options available for trial venue - trial at the Magistrates' Court or trial at the Crown Court.
2. Factors to consider: The solicitor will discuss with the client the various factors that may influence their decision, including the nature and seriousness of the offence, the defendant's criminal record, and the likely sentence.
3. Advantages and disadvantages: The solicitor will also explain the advantages and disadvantages of each option. For example, trial in the Magistrates' Court may be faster and less expensive, but the Crown Court may provide a higher level of legal representation and a jury trial.
4. Client's decision: After considering all the factors and advice from the solicitor, the client will make a decision on where they wish to be tried.
5. Election: If the defendant elects for trial in the Crown Court, they must sign a document known as a "written notice of election" and file it with the Magistrates' Court.

Allocation of business between magistrates' court and Crown Court

procedure ss. 19–20 and s. 22A Magistrates' Courts Act 1980

Sections 19-20 and 22A of the Magistrates' Courts Act 1980 outline the procedures for the allocation of business between the magistrates' court and the Crown Court in criminal cases. Section 19 provides that certain offences, such as murder, rape, and other serious crimes, can only be tried in the Crown Court. However, for other offences, the defendant can choose whether they wish to be tried in the magistrates' court or the Crown Court. Under section 20, if the defendant chooses to be tried in the magistrates' court, the case will be heard by magistrates, who will consider whether they have the power to deal with the case or whether it should be sent to the Crown Court. If the magistrates believe that the offence is too serious to be dealt with in the magistrates' court, they will send the case to the Crown Court for trial. This process is known as "sending" the case to the Crown Court. Section 22A allows for the Crown Court to "send back" certain cases to the magistrates' court for trial if it is deemed appropriate. This may occur when the Crown Court determines that the case is less serious than originally thought, or if the defendant changes their plea to guilty. Overall, the procedures outlined in sections 19-20 and 22A of the Magistrates' Courts Act 1980 aim to ensure that criminal cases are heard in the appropriate court based on the seriousness of the offence and the preference of the defendant, while allowing for flexibility in case circumstances change.

sending without allocation s. 50A Crime and Disorder Act 1998

In English criminal litigation, "sending without allocation" is a process for transferring a case from a magistrates' court to the Crown Court without the case being allocated to a particular level of trial within the Crown Court. Section 51A of the Crime and Disorder Act 1998 allows the magistrates' court to send an either-way offence directly to the Crown Court for trial without first allocating it to a particular level of trial within the Crown Court. This is done when the magistrates' court considers that its powers of punishment are insufficient, or the defendant has elected for trial at the Crown Court. The procedure for sending without allocation involves the magistrates' court notifying the defendant of the date and time of the preliminary hearing at the Crown Court and providing the defendant with a copy of the written charge or indictment. At the preliminary hearing, the judge will decide whether the case is suitable for summary trial in the magistrates' court or for trial on indictment in the Crown Court. If the case is suitable for summary trial, the case may be sent back to the magistrates' court for trial, or if the case is suitable for trial on indictment, it will be allocated to a level of trial within the Crown Court. Sending without allocation is a relatively recent procedure, introduced by the Crime and Disorder Act 1998, and is used in cases where the magistrates' court considers that its powers of punishment are insufficient or the defendant has elected for trial at the Crown Court. It streamlines the allocation process by bypassing the need for the magistrates' court to determine the appropriate level of trial within the Crown Court before sending the case to the higher court.

Case management and pre-trial hearings

Magistrates' court case management directions

In English criminal litigation, case management directions (CMDs) are issued by the magistrates' court to ensure that cases are managed effectively and efficiently. The magistrates' court has a duty to ensure that cases progress through the system in a timely manner and that all parties are aware of what is required of them. The CMDs may include directions on matters such as the disclosure of evidence, the filing of witness statements, and any legal arguments that need to be addressed before the trial. They may also set deadlines for the submission of certain documents, such as defence statements and lists of witnesses. Pre-trial hearings are held to discuss the progress of the case and to ensure that all parties are ready for trial. The court will consider any issues that have arisen, such as problems with evidence or the availability of witnesses. The court may also make rulings on legal issues and set deadlines for the completion of any outstanding tasks. The purpose of case management and pre-trial hearings is to ensure that the case is managed effectively and that any issues are dealt with before the trial. This helps to avoid delays and ensures that trials are conducted in a fair and efficient manner.

Plea and Trial Preparation Hearing

The Plea and Trial Preparation Hearing (PTPH) is a pre-trial hearing that occurs in the Crown Court of English criminal litigation. The purpose of this hearing is to ensure that the defendant is prepared for trial and to streamline the trial process. At the PTPH, the defendant is expected to enter a plea of guilty or not guilty. Before the PTPH, the prosecution must disclose all relevant evidence to the defense. At the PTPH, the defense and prosecution will discuss any unresolved issues and the judge may make rulings on evidentiary matters or other procedural issues. The judge will also set a timetable for the trial, including the dates for any further pre-trial hearings and the expected length of the trial. If the defendant pleads guilty at the PTPH, sentencing may also take place at this hearing. If the defendant pleads not guilty, the trial will proceed at a later date, and the case may be adjourned for further pre-trial hearings as needed. Overall, the PTPH serves as an important stage in the criminal litigation process, allowing for a clear and efficient path forward towards trial, and ensuring that both the prosecution and the defense are prepared to present their respective cases.

disclosure – prosecution, defence and unused material

Disclosure is the process of providing information and evidence relevant to the case to both the prosecution and the defence. The disclosure process is governed by the Criminal Procedure and Investigations Act 1996 and the Criminal Procedure Rules. The court may make orders for disclosure at any stage of the proceedings and can impose sanctions on parties who fail to comply with their disclosure obligations.

• Disclosure by the Prosecution

The prosecution is required to disclose any material that may undermine their case, assist the defence, or affect the credibility of the prosecution's witnesses. This includes witness statements, police reports, and other evidence that the prosecution intends to rely on at trial.

• Disclosure by the Defence

The defence is also required to disclose any material that may support their case, undermine the prosecution's case, or affect the credibility of the defence's witnesses. The defence must provide a defence case statement, which outlines the nature of the defence's case and the issues in dispute.

• Disclosure of Unused Material

In addition, there may be material that is not relevant to either the prosecution or the defence case, known as "unused material." The prosecution is also required to disclose any unused material that may reasonably be considered capable of undermining the prosecution's case or of assisting the defence.

Principles and procedures to admit and exclude evidence

visual identification evidence and Turnbull Guidelines

• Visual identification evidence

Visual identification evidence is used to identify a suspect based on visual observations, such as through a lineup or identification parade. The principles and procedures for admitting or excluding such evidence are governed by the common law and the Police and Criminal Evidence Act 1984 (PACE). The procedures for admitting or excluding visual identification evidence involve a voir dire, a trial within a trial. During the voir dire, the prosecution will present evidence to support the admissibility of the identification evidence, while the defence will have an opportunity to challenge the reliability of the evidence. The court will then consider the evidence and make a ruling on its admissibility. If the court finds the visual identification evidence to be admissible, it may still be excluded if its prejudicial effect outweighs its probative value. This means that the evidence could be excluded if its admission could result in unfair prejudice to the defendant or if its probative value is limited compared to its potential to prejudice the defendant.

• Turnbull Guidelines

The Turnbull Guidelines were developed in England and Wales to ensure a fair trial in criminal cases by providing the defendant with access to all relevant evidence, including material that undermines the prosecution's case or assists the defense's case. Prosecutors have a duty to disclose any relevant statements or evidence that contradicts the prosecution's case or supports the defense's case. In addition, they must disclose any evidence that may affect the sentence imposed if the defendant is convicted. Failure to disclose relevant evidence may result in a miscarriage of justice and lead to the conviction of an innocent person.

hearsay evidence

definition

Litigation, hearsay evidence is defined as any statement made out of court which is being relied upon in court to prove the truth of the matter asserted in the statement. It is considered second-hand information, where the witness is repeating what someone else said outside of the court. Hearsay evidence is generally inadmissible in criminal trials, as it is not considered reliable and may be subject to manipulation or inaccuracies. However, there are exceptions to this rule, such as when the statement was made by a person who is unavailable to give evidence, or when the statement was made as part of an official record or document.

grounds for admitting hearsay evidence

Hearsay evidence is generally considered inadmissible in English criminal litigation as it is considered less reliable and more prone to error or manipulation. However, there are a few exceptions where hearsay evidence may be admitted in court. One exception is when the hearsay statement is made by a person who is unavailable to give evidence in court, such as when the person is deceased, too ill to testify, or has left the jurisdiction. In such cases, the hearsay evidence may be admissible if the court is satisfied that the statement is reliable and that admitting it would serve the interests of justice. Another exception is where the statement falls under a statutory exception. For example, under the Criminal Justice Act 2003, a statement made by a child under the age of 13 alleging sexual abuse may be admissible as hearsay in certain circumstances. A third exception is where the statement forms part of the res gestae (the events that form part of the whole occurrence), and is therefore regarded as part of the transaction that is being proved. This is sometimes referred to as "spontaneous statement" evidence, where the statement is made at the time of the event and is an integral part of the incident. Overall, the admissibility of hearsay evidence is subject to the discretion of the judge, who will weigh the probative value of the evidence against the potential prejudice to the defendant.

confession evidence

definition

Confession evidence involves a statement made by a defendant that tends to incriminate them in the alleged offence. It can be an admission of guilt or a statement indicating responsibility for the crime. Confession evidence is often considered highly probative and can be very influential in a trial. However, it is also subject to strict rules and scrutiny to ensure that it has been obtained legally and is reliable. Confessions obtained through improper methods, such as coercion or deception, may be excluded as evidence.

admissibility

Confession evidence refers to statements or admissions made by a suspect or defendant that tend to incriminate them in the commission of a criminal offense. In English criminal litigation, confession evidence is admissible in court if it was made voluntarily and the circumstances in which it was made do not make it unreliable or unfair to admit. If a confession was obtained through oppression, such as through torture or duress, it is not admissible in court. Similarly, if the confession was made in response to a threat or promise, it may also be deemed involuntary and excluded from evidence. The court will consider the totality of circumstances in which the confession was made to determine if it was voluntary or not. Confession evidence obtained during police questioning must also comply with the codes of practice under the Police and Criminal Evidence Act 1984, which set out rules for the treatment of suspects in police custody. Failure to comply with these codes of practice can lead to the exclusion of confession evidence in court. Moreover, a confession must be corroborated by other evidence to be admissible in certain cases, such as in a charge of murder or manslaughter. This means that there must be independent evidence, which tends to support the truthfulness of the confession evidence before it can be admitted. The admissibility of confession evidence in court is a complex area of law, and the court will take into account various factors, including the circumstances in which the confession was made, the reliability of the evidence and its probative value, and whether it was obtained fairly or through oppressive means.

challenging admissibility ss. 76 and 78 PACE 1984

A confession may be excluded if it was obtained by oppression, such as through torture or threats, or if it is unreliable, such as if it was made as a result of mental or physical abuse. In addition, under section 78, a confession may be excluded if its admission would have an adverse effect on the fairness of the trial. The defense may challenge the admissibility of confession evidence on the grounds that it was obtained in breach of PACE, or that it was obtained by means that were oppressive or otherwise improper. The court will consider the circumstances under which the confession was made, including the defendant's physical and mental state at the time, the manner in which the confession was obtained, and whether the defendant was properly advised of their right to remain silent and to legal representation. If the court determines that the confession was obtained in breach of PACE or that its admission would be unfair to the defendant, it may exclude the evidence from the trial.

character evidence

definition of bad character

“Bad character" refers to evidence that suggests a defendant has a propensity to commit a crime or behave in a certain way. This includes evidence of previous convictions, previous acquittals or charges, or evidence that shows the defendant's behavior is consistent with a tendency to commit a certain type of offense. It can also include evidence of the defendant's conduct that is not directly related to the current charges but is relevant to their general character. The term "bad character" is used in contrast to "good character" evidence, which is evidence that suggests the defendant is less likely to have committed the crime they are accused of.

the 7 gateways s. 101(1) Criminal Justice Act 2003

These gateways are circumstances where evidence of a defendant's bad character may be admitted, subject to the judge's discretion, to prove that the defendant has a tendency to act in a certain way. They are as follows: 1. Evidence relevant to an important matter in issue between the defendant and the prosecution 2. Evidence relevant to the credibility of a witness 3. Evidence that the defendant has a tendency to commit offences of the same or similar kind 4. Evidence of the defendant's previous false statements or lies 5. Evidence of the defendant's bad character that is relevant to an alleged offence or a defence in the case 6. Evidence that the defendant has been convicted of an offence 7. Evidence that the defendant has behaved in a way that is similar to the behaviour alleged in the case.

procedure for admitting bad character evidence

The procedure for admitting bad character evidence depends on whether the evidence falls under one of the seven gateways specified in Section 101(1) of the Criminal Justice Act 2003. If the evidence does not fall under one of the seven gateways, it is likely to be inadmissible. If the evidence falls under one of the seven gateways, the party seeking to admit the evidence must apply to the court to do so. The application must be made in writing and served on the other parties in the case, who have the opportunity to respond. The court will then hold a hearing to determine the admissibility of the evidence. The hearing will be held in the absence of the jury, and the judge will consider the factors outlined in Section 101(3) of the Criminal Justice Act 2003, which include the probative value of the evidence, the risk of unfair prejudice to the defendant, and the nature and circumstances of the alleged offense. The judge will then decide whether the evidence is admissible or not. If the evidence is admitted, the judge will give directions to the jury on how to use the evidence in their deliberations. If the evidence is not admitted, the jury will not be allowed to hear it or consider it in their deliberations.

court’s powers to exclude bad character evidence

In English criminal litigation, a court has the power to exclude bad character evidence if the court considers it necessary to do so in the interests of justice. Under section 101(3) of the Criminal Justice Act 2003, the court must exclude bad character evidence if it is satisfied that the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The court may also exclude bad character evidence if it is unfairly prejudicial to the defendant, if it is irrelevant to an issue in the case, if its probative value is substantially outweighed by the risk of prejudice to the defendant, or if its admission would otherwise be an abuse of the court's process. Additionally, the court has the power to give a warning to the jury about the limited use that can be made of bad character evidence that is admitted. The court can instruct the jury to use the evidence only for a limited purpose, such as to evaluate the credibility of a witness, and not to use it to infer that the defendant is guilty of the offense charged.

exclusion of evidence

scope and application of s. 78 PACE and the right to a fair trial.

Section 78 PACE provides the court with a discretionary power to exclude evidence that has been obtained in a manner that would render the proceedings unfair. This includes any evidence that is admissible but may have been obtained in an unfair or prejudicial manner, or if the admission of the evidence would affect the fairness of the trial. Section 78 applies to all types of evidence, including confessions, identification evidence, and bad character evidence, as well as any other evidence obtained during the investigation or trial. In order to exclude evidence under s. 78, the court must be satisfied that the prejudicial effect of the evidence outweighs its probative value. The court must consider the overall impact that the evidence will have on the fairness of the trial and the extent to which the defendant's right to a fair trial will be compromised by the admission of the evidence. The court must also consider any other factors that are relevant to the case, such as the reliability of the evidence, the nature of the offence, and the strength of the prosecution case. The court must balance the interests of the prosecution and the defendant, and ensure that the trial remains fair and impartial. The right to a fair trial is a fundamental principle of English criminal law, enshrined in the European Convention on Human Rights. The exclusion of evidence under s. 78 is one of the mechanisms available to protect this right. The court's power to exclude evidence is a safeguard against the admission of evidence that would render the proceedings unfair, and it is an important aspect of ensuring that the trial remains fair and impartial.

Trial procedure in magistrates’ court and Crown Court

The trial procedure varies depending on whether the trial is held in the magistrates' court or the Crown Court. In both courts, the trial proceeds after the defendant has entered a plea of not guilty, and the prosecution has provided the defence with all the relevant evidence in the case. In the magistrates' court, the trial is usually held before a bench of three lay magistrates or a district judge, who are responsible for deciding on both the facts and the law. The prosecution presents its case first, calling witnesses and presenting evidence. The defence has the opportunity to cross-examine each witness, and then presents its own case. The defendant may give evidence on their own behalf, but is not obliged to do so. After the close of evidence, the prosecution and defence make their closing statements, and the magistrates retire to consider their verdict. If the defendant is found guilty, the magistrates will sentence them. If the offence is too serious to be sentenced by the magistrates' court, the defendant will be sent to the Crown Court for sentencing. In the Crown Court, the trial is presided over by a judge and a jury. The prosecution presents its case first, calling witnesses and presenting evidence. The defence has the opportunity to cross-examine each witness, and then presents its own case. The defendant may give evidence on their own behalf, but is not obliged to do so. After the close of evidence, the prosecution and defence make their closing statements, and the judge sums up the case for the jury. The jury then retires to consider their verdict. If the defendant is found guilty, the judge will sentence them. The Crown Court also has the power to deal with cases where the defendant has pleaded guilty, and the sentencing may take place immediately after the plea is entered.

burden and standard of proof

The burden of proof in a criminal trial lies with the prosecution, who must prove beyond a reasonable doubt that the defendant committed the alleged offence. The standard of proof required in a criminal trial is the highest standard of proof in the legal system, beyond a reasonable doubt. This means that the prosecution must prove their case to a level where the jury is sure of the defendant's guilt. In a magistrates' court trial, the trial is usually conducted by a bench of three magistrates or a district judge sitting alone. The prosecution presents their case first, calling witnesses to give evidence and presenting any relevant exhibits. The defence then has the opportunity to cross-examine the prosecution's witnesses and present their own evidence, including calling their own witnesses and presenting any relevant exhibits. In a Crown Court trial, the trial is conducted before a judge and a jury of 12 people. The trial follows a similar structure to that of a magistrates' court trial, with the prosecution presenting their case first, followed by the defence. However, the trial is usually more formal and complex, and both the prosecution and defence may be represented by barristers. At the end of the trial, the jury will consider the evidence presented and decide whether the defendant is guilty or not guilty of the offence charged. In a magistrates' court, the bench of magistrates or the district judge will make this decision. If the defendant is found guilty, the court will then consider any sentencing options available to them. In a Crown Court trial, if the defendant is found guilty, the judge will usually adjourn the case to a later date for sentencing.

stages of a criminal trial, including submission of no case to answer

Explain stages of a criminal trial, including submission of no case to answer in the trial procedure in magistrates’ court and Crown Court in English criminal litigation. 1. Preliminary Hearing: Before the trial, there may be a preliminary hearing to address any procedural or legal issues that could affect the trial's conduct. The defendant may enter a plea of guilty or not guilty at this hearing. 2. Opening Statements: At the beginning of the trial, the prosecution and defence will make opening statements outlining their respective cases. 3. Presentation of Evidence: The prosecution will present its case first, calling witnesses and introducing evidence to prove the defendant's guilt. The defence will then have an opportunity to cross-examine the prosecution witnesses and present its own evidence. 4. No Case to Answer: At the end of the prosecution case, the defence can make a submission of no case to answer if they feel the prosecution has not presented sufficient evidence to prove the defendant's guilt. 5. Closing Statements: After all the evidence has been presented, the prosecution and defence will make closing statements summarising their respective cases and arguments. 6. Judge's Summing Up: The judge will then give a summing up of the evidence and the law to the jury, explaining how they should consider the evidence in deciding the case. 7. Jury Deliberation and Verdict: The jury will then retire to consider their verdict. In the magistrates' court, the magistrates will make a decision themselves. The jury must decide if they find the defendant guilty or not guilty, based on the standard of proof. 8. Sentencing: If the defendant is found guilty, the court will proceed to sentencing. The defence and prosecution will make submissions on appropriate sentence, and the judge will make the final decision. In the Crown Court, the defendant can elect to be tried by judge and jury or by judge alone.

modes of address and Court room etiquette

In the trial procedure of magistrates' court and Crown Court in English criminal litigation, there are certain modes of address and court room etiquette that should be followed by all parties involved. When addressing the judge, it is important to use the correct form of address, which is "Your Honour" or "My Lord/Lady" in Crown Court. Counsel should also address their clients as "Mr/Mrs/Miss" or "Sir/Madam". It is not appropriate to interrupt when someone else is speaking, and it is important to wait for the judge to address you before speaking. During a trial, it is important to maintain proper court room etiquette. This includes standing when the judge enters or leaves the court, and remaining standing until the judge sits down or stands up. It is also important to be respectful and polite to all parties involved, including the judge, prosecution, and defence. In addition, all mobile phones and other electronic devices should be turned off or put on silent during court proceedings. Finally, it is important to dress appropriately and professionally when attending court.

difference between leading and non-leading questions

In the trial procedure in magistrates’ court and Crown Court in English criminal litigation, questioning of witnesses is an important part of the process. Two types of questioning are leading questions and non-leading questions. A leading question is one that suggests an answer or puts words in the witness's mouth, while a non-leading question is one that is open-ended and allows the witness to answer freely. Leading questions are generally not allowed on direct examination (when a lawyer is questioning their own witness) because they can be used to manipulate the witness's testimony. However, they may be allowed on cross-examination (when a lawyer is questioning the opposing party's witness) to challenge the credibility of the witness or to elicit information that the witness may not have offered on their own. Non-leading questions are typically used during direct examination to allow the witness to give their own account of events without the lawyer suggesting an answer. This allows the jury or judge to make their own assessment of the witness's credibility and the evidence presented. In summary, leading questions suggest answers to the witness, while non-leading questions allow the witness to give their own account of events. The use of leading questions is generally limited to cross-examination in English criminal litigation.

competence and compellability

In English criminal litigation, a witness must have both competence and compellability to give evidence in court. Competence refers to a witness's ability to understand questions and provide coherent answers. It is presumed that every person is competent to give evidence unless the court rules otherwise. Compellability, on the other hand, refers to a witness's legal obligation to give evidence in court. Certain categories of people are not compellable, meaning they cannot be legally forced to give evidence. These include spouses or civil partners of the defendant, children under the age of 14, and people with mental disabilities who cannot understand the nature of the oath or affirmation. Even if a witness is compellable, they may still refuse to answer certain questions if doing so would incriminate them. In this case, the witness can claim the right to remain silent under the privilege against self-incrimination. However, the privilege does not apply to all questions and may be overridden by the court in certain circumstances.

special measures

Special measures refer to the various measures or adjustments that can be made in court proceedings to assist vulnerable and intimidated witnesses or defendants to give evidence or participate in the trial process. These measures aim to minimize any disadvantage or stress that may be caused by the court process to vulnerable or intimidated parties, and to ensure that they can participate fully and effectively in the trial. Special measures can include a range of different provisions, such as giving evidence through a live video link or behind a screen, the use of an intermediary to help with communication, or the use of an aid to communication, such as a hearing loop or sign language interpreter. Special measures are available to both prosecution and defence witnesses and defendants, and the decision to grant them is made by the judge, based on an assessment of the individual's needs and circumstances. The use of special measures is governed by Part 3 of the Youth Justice and Criminal Evidence Act 1999 and the Criminal Procedure Rules.

solicitor’s duty to the court

In the trial procedure in magistrates' court and Crown Court in English criminal litigation, solicitors have a duty to the court that is separate and distinct from their duty to their client. This means that the solicitor's primary obligation is to assist the court in the administration of justice. Solicitors are officers of the court and they must act with integrity, independence and objectivity. They are bound to uphold the rule of law and the proper administration of justice. This duty extends to the conduct of the solicitor during the trial, including the presentation of evidence and cross-examination of witnesses. Solicitors have a duty to ensure that the court is provided with full and frank disclosure of all material facts, including any weaknesses or inconsistencies in the evidence. They must not deceive or mislead the court, and they must not knowingly present false or misleading evidence. In addition, solicitors have a duty to ensure that their client's case is presented as fully and effectively as possible within the bounds of the law. However, this duty must be balanced against the solicitor's duty to the court, and the solicitor must not act in a manner that undermines the administration of justice. Overall, solicitors are required to act with honesty, integrity, and in the interests of justice, in order to maintain the proper functioning of the criminal justice system.

Sentencing

role of sentencing guidelines

Sentencing guidelines are a set of principles and rules established by the Sentencing Council for England and Wales to provide guidance to judges and magistrates in sentencing offenders. The guidelines aim to ensure that similar cases are treated similarly and that sentencing decisions are made in a consistent, transparent and proportionate manner. The guidelines provide a framework within which a sentencing judge or magistrate considers the seriousness of the offence, the culpability of the offender, and any mitigating or aggravating factors. The guidelines also take into account the harm caused to the victim and the impact of the offence on the community. The guidelines cover a wide range of criminal offences, from minor traffic offences to serious violent crimes. They set out the range of sentences that may be appropriate for each type of offence, taking into account the specific circumstances of the offence and the offender. Judges and magistrates are required to follow the guidelines unless they are satisfied that it would be contrary to the interests of justice to do so. If they depart from the guidelines, they must provide reasons for doing so. The guidelines are regularly reviewed and updated to ensure that they reflect changes in legislation, case law and societal attitudes towards particular types of offences.

determining seriousness (aggravating and mitigating facts)

When a judge or magistrate is determining a sentence for an offence in English criminal litigation, they must take into account both the aggravating and mitigating factors of the case in order to determine the seriousness of the offence. Aggravating factors are those which increase the seriousness of the offence, while mitigating factors are those which decrease the seriousness. Examples of aggravating factors include:

• The offence was premeditated
• The offence was committed while on bail
• The offence was racially or sexually motivated
• The offence was committed against a vulnerable victim

Examples of mitigating factors include:

• The offender has no previous convictions
• The offender has shown remorse
• The offender has cooperated with the police investigation
• The offender has made efforts to make amends or compensate the victim

The judge or magistrate will consider all relevant aggravating and mitigating factors when determining the sentence, and will balance these against the statutory guidelines and any other relevant sentencing principles. The sentence must be proportionate to the seriousness of the offence, and should reflect the offender's level of culpability, the harm caused, and the public interest in punishing and deterring such offences.

concurrent and consecutive sentences

In English criminal litigation, concurrent and consecutive sentences refer to the ways in which a court can order a defendant to serve multiple sentences for different criminal offenses. A concurrent sentence is where the court orders that two or more sentences of imprisonment should be served at the same time. For example, if a defendant is convicted of two offenses and sentenced to three years in prison for each offense, and the judge orders that the sentences should be served concurrently, the defendant will serve a total of three years in prison, rather than six. A consecutive sentence, on the other hand, is where the court orders that two or more sentences of imprisonment should be served one after the other. For example, if a defendant is convicted of two offenses and sentenced to three years in prison for each offense, and the judge orders that the sentences should be served consecutively, the defendant will serve a total of six years in prison. When deciding whether to impose concurrent or consecutive sentences, the court will consider a range of factors, including the seriousness of the offenses, the defendant's criminal history, and any aggravating or mitigating factors. The court may impose consecutive sentences if it feels that the defendant's criminal conduct warrants a more severe punishment, or if it feels that concurrent sentences would not adequately reflect the gravity of the offenses.

mitigation

Mitigation in sentencing refers to the circumstances or factors that may reduce the level of punishment for an offence. When deciding on the appropriate sentence, the court will take into account any mitigating factors to ensure that the punishment fits the crime. Mitigating factors can be any aspect of the offender’s background, the nature of the offence or their personal circumstances that may explain or lessen their culpability. For instance, an offender who pleads guilty at the earliest opportunity may be eligible for a reduced sentence. Similarly, an offender who has no previous criminal record may receive a lesser sentence than one with a history of similar convictions. Other factors that may be considered as mitigating factors include:

• Cooperation with the investigation and the police
• Remorse and contrition expressed by the offender
• Any mental health issues suffered by the offender
• Any personal or domestic circumstances that may have led to the commission of the offence
• Any significant positive contributions made by the offender to the community or the society

The court may also consider other mitigating factors that are specific to the case in question. However, it is important to note that mitigation cannot reduce a sentence below the statutory minimum. Additionally, the court may take into account aggravating factors that may offset the effect of any mitigating factors.

types of sentence

custodial sentences

A custodial sentence is a type of sentence that involves the offender being sent to prison for a specified period of time. Custodial sentences are considered to be the most severe form of punishment, and are generally reserved for more serious offences or repeat offenders. There are different types of custodial sentences that can be imposed, depending on the seriousness of the offence and other factors. These include:

1. Determinate sentences: These are fixed-term sentences, where the offender is given a specific amount of time to be spent in custody. The length of the sentence will depend on the offence and the circumstances of the case.

2. Indeterminate sentences: These are sentences where the offender is not given a fixed term, but is instead given a minimum term to be served. The length of the sentence will depend on the seriousness of the offence, and the offender will only be released if the Parole Board deems them to no longer be a risk to the public.

3. Life sentences: These are the most severe form of custodial sentence, and are reserved for the most serious offences such as murder. A life sentence means that the offender will spend the rest of their life in prison, unless they are granted parole.

When imposing a custodial sentence, the court will consider a range of factors, including the nature and seriousness of the offence, the offender's previous convictions and their personal circumstances. The court may also take into account any mitigating factors, such as the offender's guilty plea or their cooperation with the authorities, when determining the length of the sentence.

Custodial sentences are usually served in a prison or young offender institution, and the offender will be subject to a range of rules and regulations while in custody. They may also be eligible for early release on licence, subject to certain conditions such as attending rehabilitation programs or reporting to a probation officer.

suspended sentences

A suspended sentence is a type of sentence that allows a convicted offender to avoid immediate imprisonment. Instead, the offender is given a custodial sentence, which is suspended for a specified period of time on the condition that the offender complies with certain requirements and does not commit any further offences. The court can suspend a sentence for any period up to two years, and the offender must comply with certain requirements during that time. These requirements can include: 1. Abiding by the law: The offender must not commit any further offences during the suspension period. 2. Community service: The offender may be required to perform unpaid work in the community. 3. Rehabilitation: The offender may be required to attend counselling, treatment programs, or other forms of rehabilitation. 4. Curfew: The offender may be required to stay at home during certain hours of the day or night. 5. Prohibition: The offender may be prohibited from doing certain things, such as going to certain places or contacting certain people. If the offender complies with the conditions of the suspended sentence, they will not have to serve the custodial sentence. However, if they breach the conditions, they may be required to serve the custodial sentence. Suspended sentences are often used in cases where the offence is not serious enough to warrant immediate imprisonment, but where the court wants to impose a custodial sentence as a deterrent or to show that the offence is taken seriously. They can also be used in cases where the offender has shown genuine remorse and is unlikely to reoffend.

community orders

Explain community orders in types of sentence in English criminal litigation. Community orders are a type of non-custodial sentence that can be imposed by a court in English criminal litigation. The purpose of a community order is to provide an offender with a punishment that requires them to address their offending behavior while remaining in the community. A community order may include a range of requirements that an offender must comply with, which may include one or more of the following: 1. Unpaid work requirement: The offender is required to carry out a specified number of hours of unpaid work in the community. This requirement is designed to provide the offender with the opportunity to make reparation for their offending behavior and contribute to their local community. 2. Curfew requirement: The offender is required to remain at a specified address during certain hours of the day. This requirement is designed to restrict an offender's movements and reduce the likelihood of them committing further offences. 3. Exclusion requirement: The offender is required to stay away from certain places or people. This requirement is designed to protect the public and prevent the offender from coming into contact with individuals or situations that may lead to further offending. 4. Supervision requirement: The offender is required to meet with a probation officer who will provide support and guidance to help them address their offending behavior. 5. Rehabilitation requirement: The offender is required to attend a course or program designed to help them address the underlying causes of their offending behavior, such as drug or alcohol addiction. 6. Mental health treatment requirement: The offender is required to attend a program or receive treatment for a mental health issue that may have contributed to their offending behavior. Community orders are usually imposed for a period of 12 months but can be extended for up to 36 months in some cases. If an offender fails to comply with the requirements of a community order, they may be brought back before the court and sentenced to a more severe punishment, such as a custodial sentence.

Newton hearings

Newton hearings are a type of hearing in English criminal litigation that are used to determine disputed factual issues that arise during the trial process. They are typically conducted in the Crown Court before a judge without a jury. Newton hearings arise when the prosecution and defence disagree on a factual issue that is relevant to the case, but that cannot be resolved by the evidence already presented. For example, if the defendant is accused of possessing drugs with intent to supply, the prosecution might argue that the drugs were found in the defendant's possession, while the defence might argue that the drugs belonged to someone else. If the judge is unable to resolve the dispute based on the existing evidence, a Newton hearing may be held to hear additional evidence or testimony from witnesses. During a Newton hearing, the judge will hear evidence from both sides and make a determination on the disputed factual issue. The standard of proof in a Newton hearing is the balance of probabilities, which means that the judge must decide which version of events is more likely to be true. The judge's decision is binding and will be incorporated into the overall verdict in the case. Newton hearings are named after a 1982 Court of Appeal case, R v Newton, which established the use of these hearings as a means of resolving disputed factual issues in criminal trials.

Appeals procedure

appeals from the magistrates’ court

procedure for appeal against conviction and/or sentence

If a defendant is convicted and/or sentenced in a Magistrates' Court in England, they have the right to appeal against the conviction and/or sentence to the Crown Court. The procedure for appealing against a conviction and/or sentence from a Magistrates' Court involves the following steps: 1. Notice of Appeal: The defendant must file a Notice of Appeal with the Magistrates' Court within 21 days of the date of conviction and/or sentence. The Notice of Appeal should set out the grounds of appeal, which are the reasons why the defendant believes the conviction and/or sentence was wrong or unjust. 2. The appeal hearing: The appeal will be heard in the Crown Court. The defendant can choose to have the appeal heard by a judge alone or by a judge and two magistrates. The Crown Prosecution Service will be informed of the appeal and will be given an opportunity to respond to the grounds of appeal. 3. Grounds of appeal: The defendant will need to argue their grounds of appeal in front of the court. The defendant may need to produce evidence to support their grounds of appeal, such as witness statements, expert reports or new evidence that was not available at the time of the original trial. 4. The decision: The Crown Court will consider the grounds of appeal and decide whether the conviction and/or sentence was wrong or unjust. The court may decide to:

• Dismiss the appeal: The conviction and/or sentence will stand, and the defendant will have no further right of appeal.
• Allow the appeal: The conviction and/or sentence will be quashed, and the defendant will be retried in the Magistrates' Court or sentenced again.
• Substitute the sentence: The conviction will stand, but the sentence will be varied.

5. Further appeals: If the defendant is not satisfied with the decision of the Crown Court, they may be able to appeal further to the Court of Appeal or the Supreme Court. However, the grounds for appeal must be based on an error of law or a significant procedural irregularity. It is important to note that the appeal process can be complex and time-consuming. It is recommended that anyone considering an appeal seek legal advice to ensure they have the best possible chance of success.

powers of the Crown Court

In appeals from the Magistrates' Court in England, the Crown Court has a number of powers and responsibilities, including:

1. Re-hearing the case: The Crown Court has the power to re-hear the case and consider all the evidence afresh. This means that the Crown Court can make its own decision on the guilt or innocence of the defendant.

2. Quashing the conviction: If the Crown Court finds that the conviction was unsafe, it has the power to quash the conviction. This means that the conviction is set aside, and the defendant is deemed to be not guilty.

3. Quashing the sentence: If the Crown Court finds that the sentence was excessive or inappropriate, it has the power to quash the sentence and substitute a more appropriate sentence. This means that the defendant will be re-sentenced.

4. Varying the sentence: The Crown Court may decide to vary the sentence imposed by the Magistrates' Court. This means that the Crown Court can increase or decrease the sentence as appropriate.

5. Remitting the case to the Magistrates' Court: The Crown Court has the power to remit the case back to the Magistrates' Court for re-sentencing or re-trial.

6. Making costs orders: The Crown Court has the power to make costs orders in relation to the appeal. This means that the Crown Court can order one party to pay the costs of the other party.

It is important to note that the powers of the Crown Court in appeals from the Magistrates' Court are limited by the grounds of appeal. The Crown Court can only consider the grounds of appeal that are specified in the Notice of Appeal. The Crown Court cannot consider new evidence that was not presented in the Magistrates' Court unless there is a good reason for doing so.

appeal to the High Court by way of case stated

An appeal to the High Court by way of case stated is a type of appeal that can be made by a defendant who has been convicted or sentenced in a Magistrates' Court in England. This type of appeal involves the High Court considering a "case stated" - a statement of facts and legal issues - that has been prepared by the Magistrates' Court. The procedure for making an appeal to the High Court by way of case stated is as follows: 1. Notice of Appeal: The defendant must file a Notice of Appeal with the Magistrates' Court within 21 days of the date of conviction and/or sentence. The Notice of Appeal should set out the grounds of appeal, which are the reasons why the defendant believes the conviction and/or sentence was wrong or unjust. 2. Case Stated: The Magistrates' Court will then prepare a case stated. This will be a document that sets out the relevant facts of the case, the legal issues that arose during the trial, and the decision of the Magistrates' Court. 3. Appeal to the High Court: The defendant can then appeal to the High Court by way of case stated. The defendant can only appeal on a point of law or on a question of jurisdiction. 4. High Court hearing: The High Court will then hear the appeal and consider the case stated. The High Court will not consider new evidence or re-hear the case. The High Court can only consider the facts and legal issues as set out in the case stated. 5. The decision: The High Court will consider the grounds of appeal and decide whether the conviction and/or sentence was wrong or unjust. The court may decide to:

• Dismiss the appeal: The conviction and/or sentence will stand, and the defendant will have no further right of appeal.
• Allow the appeal: The conviction and/or sentence will be quashed, and the defendant will be retried in the Magistrates' Court or sentenced again.

It is important to note that an appeal to the High Court by way of case stated is a complex and technical process. It is recommended that anyone considering an appeal seek legal advice to ensure they have the best possible chance of success.

appeals from the Crown Court

grounds of appeal

Explain grounds of appeal in appeals from the Crown Court in English criminal litigation. An appeal to the High Court by way of case stated is a type of appeal that can be made by a defendant who has been convicted or sentenced in a Magistrates' Court in England. This type of appeal involves the High Court considering a "case stated" - a statement of facts and legal issues - that has been prepared by the Magistrates' Court. The procedure for making an appeal to the High Court by way of case stated is as follows: 1. Notice of Appeal: The defendant must file a Notice of Appeal with the Magistrates' Court within 21 days of the date of conviction and/or sentence. The Notice of Appeal should set out the grounds of appeal, which are the reasons why the defendant believes the conviction and/or sentence was wrong or unjust. 2. Case Stated: The Magistrates' Court will then prepare a case stated. This will be a document that sets out the relevant facts of the case, the legal issues that arose during the trial, and the decision of the Magistrates' Court. 3. Appeal to the High Court: The defendant can then appeal to the High Court by way of case stated. The defendant can only appeal on a point of law or on a question of jurisdiction. 4. High Court hearing: The High Court will then hear the appeal and consider the case stated. The High Court will not consider new evidence or re-hear the case. The High Court can only consider the facts and legal issues as set out in the case stated. 5. The decision: The High Court will consider the grounds of appeal and decide whether the conviction and/or sentence was wrong or unjust. The court may decide to:

• Dismiss the appeal: The conviction and/or sentence will stand, and the defendant will have no further right of appeal.
• Allow the appeal: The conviction and/or sentence will be quashed, and the defendant will be retried in the Magistrates' Court or sentenced again.

It is important to note that an appeal to the High Court by way of case stated is a complex and technical process. It is recommended that anyone considering an appeal seek legal advice to ensure they have the best possible chance of success.

procedure for making the appeal

In English criminal litigation, an appeal can be made against conviction and/or sentence in the Crown Court. The procedure for making an appeal in this context is as follows: 1. Notice of Appeal: The first step in making an appeal is to file a Notice of Appeal. This must be done within 28 days of the date of conviction and/or sentence. The Notice of Appeal should set out the grounds of appeal, which are the reasons why the appellant believes the conviction and/or sentence was wrong or unjust. 2. Grounds of Appeal: The appellant must set out their grounds of appeal in writing. These grounds must be set out clearly and concisely, and they must relate to the law or the facts of the case. 3. Supporting Documents: The appellant must also provide any documents that support their appeal, such as transcripts of the trial, witness statements, and expert reports. 4. Application for Bail: If the appellant is in custody, they can apply for bail pending the appeal. This will involve making an application to the Court of Appeal. 5. Grounds of Appeal Hearing: The appellant will then attend a Grounds of Appeal Hearing before a single judge in the Court of Appeal. This hearing is to determine whether the appeal has any merits or not. 6. Full Appeal Hearing: If the appeal is allowed to proceed, a Full Appeal Hearing will be scheduled. At this hearing, the Court of Appeal will consider the grounds of appeal and any supporting documents, and may also hear oral arguments from the appellant's legal team and the Crown Prosecution Service. 7. The Decision: The Court of Appeal will then make a decision on the appeal. The court may decide to:

• Dismiss the appeal: The conviction and/or sentence will stand, and the appellant will have no further right of appeal.
• Allow the appeal: The conviction and/or sentence will be quashed, and the appellant may be retried in the Crown Court or sentenced again.

It is important to note that the appeals process can be complex and time-consuming. It is recommended that anyone considering an appeal seek legal advice to ensure they have the best possible chance of success.

powers of the Court of Appeal

In English criminal litigation, the Court of Appeal is responsible for hearing appeals against conviction and/or sentence from the Crown Court. The Court of Appeal has a number of powers in relation to these appeals, which are explained below: 1. Power to dismiss an appeal: The Court of Appeal has the power to dismiss an appeal if it considers that there are no grounds on which to challenge the conviction or sentence. 2. Power to allow an appeal: If the Court of Appeal considers that there are grounds to challenge the conviction or sentence, it has the power to allow the appeal. This means that the conviction and/or sentence will be quashed. 3. Power to order a retrial: If the appeal is allowed and the conviction is quashed, the Court of Appeal may order a retrial. This means that the case will be sent back to the Crown Court to be retried. 4. Power to substitute a verdict: In some cases, the Court of Appeal may decide to substitute its own verdict for that of the jury. This means that the Court of Appeal will decide whether the defendant is guilty or not guilty. 5. Power to vary a sentence: If the appeal is against sentence, the Court of Appeal has the power to vary the sentence. This means that the Court of Appeal may decide to increase or decrease the sentence. 6. Power to consider new evidence: The Court of Appeal has the power to consider new evidence if it is relevant to the appeal. However, the Court of Appeal will only consider new evidence if it is satisfied that it is in the interests of justice to do so. 7. Power to grant or refuse bail: The Court of Appeal has the power to grant or refuse bail pending the appeal. Overall, the Court of Appeal has significant powers in relation to appeals from the Crown Court. These powers enable the Court of Appeal to carefully consider appeals and ensure that justice is served.

Youth court procedure

The Youth Court is a special court designed to deal with cases involving defendants under the age of 18.

jurisdiction and grave crimes

The Youth Court has a limited jurisdiction and can only deal with certain types of cases.

• Jurisdiction: the defendant is under the age of 18 at the time of the offence. This includes cases where the defendant was under 18 when they were charged, even if they have since turned 18.

The Youth Court can only deal with cases that fall within its limited jurisdiction. These include:

1. Criminal offences that are triable only summarily (i.e., less serious offences that can only be heard in the Magistrates' Court).

2. Offences that are triable either way (i.e., can be heard in either the Magistrates' Court or the Crown Court) but are being heard in the Youth Court because the defendant is under 18.

3. Appeals against decisions made by the Youth Court or by a Magistrates' Court in relation to a youth defendant.

• Grave Crimes

There are certain offences that are considered to be "grave crimes" and cannot be heard in the Youth Court. These include:

1. Murder

2. Manslaughter

3. Rape

4. Kidnapping

5. Robbery

If a young defendant is charged with a grave crime, their case will be transferred to the Crown Court for trial. However, if the defendant is also charged with less serious offences that fall within the Youth Court's jurisdiction, these offences may still be heard in the Youth Court.

allocation

When a young defendant is charged with an offence, the case will usually be initially allocated to the Youth Court, however, in some cases, the case may be allocated to the Crown Court instead. The allocation decision is made by the Magistrates' Court or the Crown Court, depending on where the case is first heard. The allocation decision is based on a number of factors, including:

1. The nature and seriousness of the offence: If the offence is a "grave crime" (such as murder or rape), the case will usually be allocated to the Crown Court.

2. The age of the defendant: If the defendant is under 18, the case will usually be allocated to the Youth Court.

3. The defendant's previous convictions and/or cautions: If the defendant has a history of offending, the case may be more likely to be allocated to the Crown Court.

4. The likely sentence: If the offence is serious and the likely sentence is greater than the maximum sentence that can be imposed in the Youth Court (usually 24 months' detention), the case may be more likely to be allocated to the Crown Court.

In some cases, the allocation decision may be reviewed at a later stage. For example, if new evidence comes to light that changes the seriousness of the offence, the case may be re-allocated to a different court.

• youths jointly charged with adult

sentencing

• Role of the Sentencing Children and Young People – definitive guidelines

The Sentencing Children and Young People – definitive guidelines is a document issued by the Sentencing Council in 2017 which sets out the framework for sentencing in cases involving children and young people. It provides guidance to judges and magistrates on how to approach sentencing in a way that takes into account the unique circumstances of young defendants.

The guidelines set out a number of key principles that should be followed in sentencing young defendants, including:

1. The welfare of the child: The welfare of the child should be the court's paramount consideration. This means that the court should take into account the child's age, maturity, background and any other factors that may affect their welfare.

2. The seriousness of the offence: The court should take into account the seriousness of the offence and any harm caused to the victim.

3. The culpability of the offender: The court should consider the extent to which the young defendant is responsible for the offence.

4. The impact of the offence on the victim: The court should consider the impact of the offence on the victim and their family.

5. The need for punishment and rehabilitation: The court should consider the need to punish the young defendant for their offence, but also the need to rehabilitate them and prevent future offending.

The guidelines also set out a range of factors that should be taken into account when determining the appropriate sentence for a young defendant. These include the young defendant's age, previous offending history, family circumstances, and any other relevant factors.

Overall, the guidelines play an important role in ensuring that young defendants are sentenced in a way that takes into account their age, maturity and individual circumstances. By following the guidelines, judges and magistrates can ensure that young defendants receive appropriate and proportionate sentences that are designed to prevent further offending and promote rehabilitation.

• referral orders

A referral order is a type of sentence that can be given to young offenders who have pleaded guilty to a criminal offence. When a young offender is given a referral order, they will be referred to a youth offender panel, which is made up of trained volunteers who work with the young person to develop a rehabilitation plan. The panel will assess the young person's needs and develop a plan that is tailored to their individual circumstances. The plan may include things like education and training programs, counseling or mentoring, and restorative justice activities.

The length of a referral order will typically be between three and twelve months, depending on the needs of the young person and the nature of the offence. During this time, the young person will be required to attend regular meetings with the youth offender panel, and to comply with the terms of their rehabilitation plan. Failure to comply with the terms of the referral order can result in the case being returned to court, and the young person being sentenced to a more severe penalty.

Referral orders are intended to be a restorative and rehabilitative approach to youth justice, rather than a punitive one. By addressing the underlying causes of offending behavior and providing support and guidance to young offenders, referral orders aim to prevent further offending and reduce the overall level of youth crime in the community.

• detention and training orders

Detention and training orders (DTOs) are a type of custodial sentence that can be imposed on young offenders in the Youth court procedure in English criminal litigation. A DTO is designed to combine detention with education, training, and support for rehabilitation. A DTO is only available for young people who are aged between 12 and 17 at the time of the offence, and who have been convicted of a criminal offence that is sufficiently serious to warrant a custodial sentence. The minimum length of a DTO is four months, and the maximum is 24 months. A DTO is made up of two parts: 1. The detention period: This is the period of time that the young person will spend in custody. The length of the detention period will depend on the seriousness of the offence, the young person's age and maturity, and other relevant factors. During the detention period, the young person will be housed in a secure facility. 2. The training period: This is the period of time that the young person will spend receiving education, training, and support. The training period will be set by the court and can be up to half the length of the detention period. During the training period, the young person will receive support to help them address the underlying causes of their offending behavior, such as substance abuse or mental health problems. During a DTO, the young person will be closely supervised and supported by a range of professionals, including teachers, counselors, and youth justice workers. The aim of a DTO is to provide the young person with the support and guidance they need to turn their life around and avoid future offending. It's worth noting that DTOs are only used in cases where the young person's offending behavior is considered to be serious and persistent. The Youth court will carefully consider all of the relevant factors before imposing a DTO, and will only do so if it is considered to be in the best interests of the young person and the wider community.

• youth rehabilitation orders

Youth rehabilitation orders (YROs) are a type of community sentence that can be imposed on young offenders. YROs are designed to help young people address the underlying causes of their offending behavior, and to prevent them from reoffending in the future.

YROs may only be imposed if the court thinks that the offence was 'serious enough to warrant the making of such an order'. A YRO can last for up to three years.

When a young person is given a YRO, they will be required to comply with a range of conditions that are designed to help them address the issues that may be contributing to their offending behavior. The conditions of a YRO will be tailored to the individual needs of the young person, and may include things like:

• Attending educational or vocational training programs
• Participating in counseling or mentoring programs
• Undertaking drug or alcohol treatment
• Performing unpaid work in the community
• Participating in restorative justice activities

During the period of the YRO, the young person will be closely supervised and supported by a youth offender manager, who will work with them to help them meet the conditions of the order. The aim of the YRO is to provide the young person with the guidance, support, and structure they need to address the issues that may be contributing to their offending behavior, and to help them develop the skills and confidence they need to make positive choices in the future.

It's worth noting that a YRO is only used in cases where the young person's offending behavior is considered to be relatively minor, and where a custodial sentence would not be appropriate. The Youth court will carefully consider all of the relevant factors before imposing a YRO, and will only do so if it is considered to be in the best interests of the young person and the wider community.