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Criminal Procedure and Sentencing Updates (to September 2011)

Welcome to the latest cumulative update to Criminal Procedure and Sentencing (Peter

Hungerford-Welch).

Web links Chapter 1: Theoretical perspectives in criminal litigation Criminal Procedure Rules 2011: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/rulesmenu.htm Code for Crown Prosecutors (February 2010): http://www.cps.gov.uk/publications/code_for_crown_prosecutors/ Essential Case Management: Applying the Criminal Procedure Rules: http://www.judiciary.gov.uk/publications-and-reports/protocols/criminal-protocols/applying-criminal-procedure-rules Case Management Forms: Magistrates‘ Courts: Preparation for Trial: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/docs/crim-pr-2011-part3-magistrates-courts-trial-preparation-form.pdf Guidance Notes: http://www.justice.gov.uk/criminal/procrules_fin/docs/guidance-notes-magistrates-courts-trial-preparation-form-aug2010.pdf Crown Court: Plea and Case Management Gearing: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/docs/crimpr-part3-pcmh-revised-aug-2011.pdf Guidance Notes: http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/docs/crim-pr-part3-pcmh-guidance-notes-aug-2011.pdf Chapter 2: Preliminaries

CPS Annual Report and Resource Accounts 2010-11 http://www.cps.gov.uk/publications/reports/2010/ CPS Annual Report 2009-10: http://www.cps.gov.uk/publications/reports/2009/ CPS Annual Report 2008-09: http://www.cps.gov.uk/publications/reports/2008/

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CPS Annual Report 2007-08: http://www.cps.gov.uk/publications/reports/2007/ CPS Report of the thematic review of the quality of prosecution advocacy and case presentation (July 2009): http://www.hmcpsi.gov.uk/documents/services/reports/THM/ADV_thm_Jul09_rpt.pdf The Joint Thematic Review of the New Charging Arrangements (published in November 2008) by HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary: http://www.hmic.gov.uk/media/joint-inspection-statutory-charging-20081031.pdf Home Office Circular 16/2008: Simple Cautioning of Adult Offenders:

http://www.homeoffice.gov.uk/about-us/home-office-circulars/circulars-2008/016-2008/ The Director's Guidance on Adult Conditional Cautions: Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984 has been issued (6th Edition, January 2010): http://www.cps.gov.uk/publications/directors_guidance/adult_conditional_cautions.html Revised Code of Practice for Conditional Cautions – Adults: http://www.official-

documents.gov.uk/document/other/9789999098144/9789999098144.pdf Director's Guidance On Youth Conditional Cautions: Guidance to Police Officers, Youth Offending Teams and Crown Prosecutors Issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984 (1st edition, January 2010): http://www.cps.gov.uk/publications/directors_guidance/youth_conditional_cautioning.pdf Code of Practice for Youth Conditional Cautions for 16 & 17 Year Olds (issued pursuant to s 66G of the Crime and Disorder Act 1998): http://www.official-documents.gov.uk/document/other/9789999098137/9789999098137.pdf Guidance from Ministry of Justice on use of fixed penalty notices for theft from shops and criminal damage (http://www.justice.gov.uk/publications/docs/circular-04-2009-pnds-retail-theft.pdf) 2009 Criminal Statistics (Ministry of Justice, October 2010): http://www.justice.gov.uk/publications/docs/criminal-statistics-annual.pdf 2008 Criminal Statistics (Ministry of Justice, January 2010): http://www.justice.gov.uk/publications/docs/criminal-stats-2008.pdf 2007 Criminal Statistics (Ministry of Justice, November 2008): http://www.justice.gov.uk/docs/crim-stats-2007-tag.pdf 2010 Judicial and Court Statistics (Ministry of Justice, June 2011):

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http://www.justice.gov.uk/downloads/publications/statistics-and-data/courts-and-sentencing/judicial-court-stats.pdf 2009 Judicial and Court Statistics (Ministry of Justice, October 2010): http://www.justice.gov.uk/publications/docs/jcs-stats-2009-211010.pdf 2008 Judicial and Court Statistics (Ministry of Justice, September 2009): http://www.official-documents.gov.uk/document/cm76/7697/7697.pdf Chapter 3: Bail

―Virtual Courts‖: http://www.legalservices.gov.uk/docs/cds_main/VC_Informationfordefencerepresentatives_v3.pdf Sentencing Council guideline on failure to surrender to bail: http://sentencingcouncil.judiciary.gov.uk/docs/web_Fail_to_Surrender_to_Bail.pdf Chapter 4: Classification and allocation of offences

2010 Judicial and Court Statistics (Ministry of Justice, June 2011): http://www.justice.gov.uk/downloads/publications/statistics-and-data/courts-and-sentencing/judicial-court-stats.pdf 2009 Judicial and Court Statistics (Ministry of Justice, October 2010): http://www.justice.gov.uk/publications/docs/jcs-stats-2009-211010.pdf 2008 Judicial and Court Statistics (Ministry of Justice, September 2009): http://www.official-documents.gov.uk/document/cm76/7697/7697.pdf Chapter 6: Young defendants and trial in the youth court

Reporting restrictions in the criminal courts (Judicial Studies Board et al, October 2009): http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/crown_court_reporting_restrictions_021009.pdf Overarching Principles – Sentencing Youths (Sentencing Guidelines Council):

http://sentencingcouncil.judiciary.gov.uk/docs/web_overarching_principles_sentencing_youths.pdf A Youth Crime Action Plan 2008 was published by the Ministry of Justice in July 2008:

http://www.justice.gov.uk/youth-crime-action-plan.pdf Chapter 8: Disclosure under the Criminal Procedure and Investigations Act 1996 Prosecution Interview of Defence Witnesses (s 6C of the Criminal Procedure and Investigations Act 1996): Code of Practice: http://www.opsi.gov.uk/acts/acts1996/related/ukpgacop_19960025_en.pdf

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Chapter 12: Crown Court trial – the course of the trial

Judicial Studies Board Criminal Benchbook March 2010): http://www.judiciary.gov.uk/Resources/JCO/Documents/Training/benchbook_criminal_2010.pdf The Attorney General's Guidelines on Plea Discussions in Cases of Serious or Complex Fraud and Foreign Bribery (May 2009): http://www.attorneygeneral.gov.uk/Publications/Documents/AG%27s%20Guidelines%20on%20Plea%20Discussions%20in%20Cases%20of%20Serious%20or%20Complex%20Fraud.pdf A major research project into juries was carried out by Professor Cheryl Thomas: Are Juries Fair? (Ministry of Justice Research Series 1/10, February 2010): http://www.justice.gov.uk/publications/docs/are-juries-fair-research.pdf 2010 Judicial and Court Statistics (Ministry of Justice, June 2011): http://www.justice.gov.uk/downloads/publications/statistics-and-data/courts-and-sentencing/judicial-court-stats.pdf 2009 Judicial and Court Statistics (Ministry of Justice, October 2010): http://www.justice.gov.uk/publications/docs/jcs-stats-2009-211010.pdf Chapter 13: Appeals to the Court of Appeal

A Guide to Commencing Proceedings in the Court of Appeal (Criminal Division): http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/courts/court-of-appeal/criminal-division/proc_guide.pdf Chapter 14: Public funding of criminal litigation

‗The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission‘ (Audit Commission, November 2009): http://www.nao.org.uk/publications/0910/procurement_of_legal_aid.aspx Chapter 15: Costs in criminal cases

Practice Direction (Costs in Criminal Proceedings): http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/docs/costs-in-criminal-proceedings-practicedirection-july-2010.pdf Chapter 16: Sentencing procedure and principles

Sentencing Council of England and Wales:

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http://www.sentencingcouncil.org.uk/ Sentencing Council Guidelines: http://www.sentencingcouncil.org.uk/guidelines/guidelines-to-download.htm Overarching Principles: Seriousness: http://sentencingcouncil.judiciary.gov.uk/docs/web_seriousness_guideline.pdf Reduction in Sentence for a Guilty Plea: http://sentencingcouncil.judiciary.gov.uk/docs/Reduction_in_Sentence_for_a_Guilty_Plea_-Revised_2007.pdf Sentencing Council Magistrates’ Court Guidelines:

http://sentencingcouncil.judiciary.gov.uk/docs/Magistrates_Guidelines_including_update_1__2__3_4_web.pdf Sentencing Commission Working Group Report, Sentencing Guidelines in England and Wales: an evolutionary approach

Published July 2008 http://www.justice.gov.uk/publications/docs/sentencing-guidelines-evolutionary-approach.pdf ‗Public Attitudes to the Principles of Sentencing‘ (Sentencing Advisory Panel, June 2009): http://www.icpr.org.uk/media/10369/Attitudes%20to%20principles%20of%20sentencing.pdf Chapter 17 and 18: Adult offenders

Sentencing Council guidelines New Sentences under the Criminal Justice Act 2003: http://sentencingcouncil.judiciary.gov.uk/docs/web_new_sentences_guideline1.pdf Dangerous Offenders - Guide for Sentencers and Practitioners:

http://sentencingcouncil.judiciary.gov.uk/docs/web_Dangerous_Offenders_Guide_for_Sentencers_and_Practitioners.pdf Chapters 20 and 21: Young offenders Overarching Principles – Sentencing Youths (Sentencing Guidelines Council, November

2009: http://sentencingcouncil.judiciary.gov.uk/docs/web_overarching_principles_sentencing_youths.pdf

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Chapter 1: Theoretical perspectives in criminal litigation

Criminal Procedure Rules

The current version of the Criminal Procedure Rules came into effect on 3 October 2011. See http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/criminal/rulesmenu.htm Chapter 1.2.1.8: Case management (pp 20-25)

Roderick L Denyer, in Non-compliance with case management orders and directions [2008] Crim LR 784, refers to rule 3.5(6) and says:

… it is not clear what other sanctions a court can impose where no express power is given by statute--perhaps a court could bear such non-compliance in mind in the context of extending or not extending custody time limits or, in an extreme case, rely upon the failure as supporting a stay on abuse grounds.

He quotes from para 229 of the Auld Review of the Criminal Courts of England and Wales, where Sir Robin Auld says:

I have mentioned the lack of effective sanctions … Orders of costs, wasted costs orders, the drawing of adverse inferences or depriving one or other side of the opportunity of advancing all or part of its case at trial, are not in the main apt means of encouraging and enforcing compliance with criminal pre-trial procedures. In these respects criminal courts have much less control than civil courts.

Denyer argues that:

The situation will only improve as the culture changes and all lawyer participants regard it as their professional duty to comply, so far as is possible, with time limits set out in Rules and with pre-trial orders. Stringent costs regimes will almost certainly not do the trick.

The current version of Part 3 of the Criminal Procedure Rules reads as follows: 3.1. This Part applies to the management of each case in a magistrates‘ court and in the Crown Court (including an appeal to the Crown Court) until the conclusion of that case. 3.2. (1) The court must further the overriding objective by actively managing the case. (2) Active case management includes―

(a) the early identification of the real issues; (b) the early identification of the needs of witnesses; (c) achieving certainty as to what must be done, by whom, and when, in particular by

the early setting of a timetable for the progress of the case; (d) monitoring the progress of the case and compliance with directions; (e) ensuring that evidence, whether disputed or not, is presented in the shortest and

way; (f) discouraging delay, dealing with as many aspects of the case as possible on the

same occasion, and avoiding unnecessary hearings;

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(g) encouraging the participants to co-operate in the progression of the case; and (h) making use of technology.

(3) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible.

3.3. Each party must― (a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and (b) apply for a direction if needed to further the overriding objective.

3.4. (1) At the beginning of the case each party must, unless the court otherwise directs―

(a) nominate an individual responsible for progressing that case; and (b) tell other parties and the court who he is and how to contact him.

(2) In fulfilling its duty under rule 3.2, the court must where appropriate― (a) nominate a court officer responsible for progressing the case; and (b) make sure the parties know who he is and how to contact him.

(3) In this Part a person nominated under this rule is called a case progression officer. (4) A case progression officer must―

(a) monitor compliance with directions; (b) make sure that the court is kept informed of events that may affect the progress

of that case; (c) make sure that he can be contacted promptly about the case during ordinary

business hours; (d) act promptly and reasonably in response to communications about the case; and (e) if he will be unavailable, appoint a substitute to fulfil his duties and inform the

other case progression officers. 3.5. (1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step

actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.

(2) In particular, the court may― (a) nominate a judge, magistrate or justices‘ legal adviser to manage the case; (b) give a direction on its own initiative or on application by a party; (c) ask or allow a party to propose a direction; (d) for the purpose of giving directions, receive applications and representations by letter, by telephone or by any other means of electronic communication, and conduct a hearing by such means; (e) give a direction―

(i) at a hearing, in public or in private, or (ii) without a hearing;

(f) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (g) shorten or extend (even after it has expired) a time limit fixed by a direction; (h) require that issues in the case should be determined separately, and decide in

what order they will be determined; and (i) specify the consequences of failing to comply with a direction.

(3) A magistrates‘ court may give a direction that will apply in the Crown Court if the case is to continue there.

(4) The Crown Court may give a direction that will apply in a magistrates‘ court if the case is to continue there.

(5) Any power to give a direction under this Part includes a power to vary or revoke that direction.

(6) If a party fails to comply with a rule or a direction, the court may— (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (b) exercise its powers to make a costs order; and (c) impose such other sanction as may be appropriate.

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3.6. (1) A party may apply to vary a direction if―

(a) the court gave it without a hearing; (b) the court gave it at a hearing in his absence; or (c) circumstances have changed.

(2) A party who applies to vary a direction must― (a) apply as soon as practicable after he becomes aware of the grounds for doing

so; and (b) give as much notice to the other parties as the nature and urgency of his

application permits. 3.7. (1) The parties may agree to vary a time limit fixed by a direction, but only if―

(a) the variation will not― (i) affect the date of any hearing that has been fixed, or (ii) significantly affect the progress of the case in any other way;

(b) the court has not prohibited variation by agreement; and (c) the court‘s case progression officer is promptly informed.

(2) The court‘s case progression officer must refer the agreement to the court if he doubts the condition in paragraph (1)(a) is satisfied.

3.8. (1) At every hearing, if a case cannot be concluded there and then the court must give

directions so that it can be concluded at the next hearing or as soon as possible after that.

(2) At every hearing the court must, where relevant― (a) if the defendant is absent, decide whether to proceed nonetheless; (b) take the defendant‘s plea (unless already done) or if no plea can be taken then

find out whether the defendant is likely to plead guilty or not guilty; (c) set, follow or revise a timetable for the progress of the case, which may include a

timetable for any hearing including the trial or (in the Crown Court) the appeal; (d) in giving directions, ensure continuity in relation to the court and to the parties‘

representatives where that is appropriate and practicable; and (e) where a direction has not been complied with, find out why, identify who was

responsible, and take appropriate action. (3) In order to prepare for a trial in the Crown Court, the court must conduct a plea and case

management hearing unless the circumstances make that unnecessary. (4) In order to prepare for the trial, the court must take every reasonable step to encourage

and to facilitate the attendance of witnesses when they are needed. 3.9. (1) This rule applies to a party‘s preparation for trial or appeal, and in this rule and rule 3.10

trial includes any hearing at which evidence will be introduced. (2) In fulfilling his duty under rule 3.3, each party must―

(a) comply with directions given by the court; (b) take every reasonable step to make sure his witnesses will attend when they are

needed; (c) make appropriate arrangements to present any written or other material; and (d) promptly inform the court and the other parties of anything that may―

(i) affect the date or duration of the trial or appeal, or (ii) significantly affect the progress of the case in any other way.

(3) The court may require a party to give a certificate of readiness. 3.10. In order to manage a trial or an appeal, the court—

(a) must establish, with the active assistance of the parties, what are the disputed issues;

(b) must consider setting a timetable that—

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(i) takes account of those issues and of any timetable proposed by a party, and

(ii) may limit the duration of any stage of the hearing; (c) may require a party to identify—

(i) which witnesses that party wants to give evidence in person, (ii) the order in which that party wants those witnesses to give their

evidence, (iii) whether that party requires an order compelling the attendance of a

witness, (iv) what arrangements are desirable to facilitate the giving of evidence by a

witness, (v) what arrangements are desirable to facilitate the participation of any

other person, including the defendant, (vi) what written evidence that party intends to introduce, (vii) what other material, if any, that person intends to make available to the

court in the presentation of the case, and (viii) whether that party intends to raise any point of law that could affect the

conduct of the trial or appeal; and (d) may limit—

(i) the examination, cross-examination or re-examination of a witness, and (ii) the duration of any stage of the hearing.

...

Case Management in Magistrates Courts

In December 2009, Leveson LJ (Senior Presiding Judge for England and Wales) issued a document entitled Essential Case Management: Applying the Criminal Procedure Rules. It contains the following key points:

(A) Generally

... at every hearing, including at trial, it is the personal responsibility of the Magistrates or District Judge actively to manage the case ...

Unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time ...

(B) The first hearing: taking the plea At every hearing (however early):

Unless it has been done already, the court must take the defendant‘s plea ... This obligation does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid.

If the plea really cannot be taken, or if the alleged offence is indictable only, the court must find out what the plea is likely to be ... [a footnote adds that ‗Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified‘.]

(C) If the plea is ‘guilty’

The court should pass sentence on the same day, if at all possible (unless committing for sentence).

If information about the defendant is needed from the Probation Service, it may be that a report prepared for earlier proceedings will be sufficient or a ‗fast delivery‘ report (oral or written) may be prepared that day, depending on local arrangements.

If a ‗Newton‘ hearing is needed, the court, with the active assistance of the parties, must identify the disputed issue ... and if possible, determine it there and then or, if it really cannot be decided, give directions specifically relating to that disputed issue to ensure that the next hearing is the last.

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(D) If the plea is ‘not guilty’ ...

The relevant disputed issues must be explicitly identified and the case must be managed by the court to ensure that the ‗live‘ evidence at trial is confined to those issues.

The parties must complete the prescribed case progression form ... and the court must rigorously consider each entry on the form in order to comply with its duty actively to manage the case by making properly informed directions specific to each case.

Only those witnesses who are really needed in relation to genuinely disputed, relevant issues should be required to attend. The court must take responsibility for this (and not simply leave it to the parties) in order to comply with the Overriding Objective of the Rules ...

The court‘s directions must include a timetable for the progress of the case (which can include a timetable for the trial itself) ...

The time estimate for the trial should be made by considering, individually, how long each ‗live‘ witness will take having regard to the relevant disputed issue(s).

(E) The parties’ obligations to prepare for trial include:

Getting witnesses to court ...

Making arrangements for the efficient presentation of written evidence/other material ...

Promptly warning the court and other parties of any problems ... (F) At trial Before the trial begins, the court must establish, with the active assistance of the parties, what disputed issues they intend to explore ... The court may require the parties to provide:

A timed, ‗batting order‘ of live witnesses ...

Details of any admissions/written evidence/other material to be adduced ...

Warning of any point of law ...

A timetable for the whole case ... During the trial the court must ensure that the ‗live‘ evidence, questions, and submissions are strictly directed to the relevant disputed issues.

The new Case Management form for magistrates‘ courts reflects many of the points made by Leveson LJ.

Chapter 1.3: Abuse of Process (pp 26-40)

R (Dacre) v City of Westminster Magistrates' Court [2008] EWHC 1667 (Admin); [2009] 1

WLR 2241, per Latham LJ (at paras 26 and 27):

There has been no dispute before us about the jurisdiction of the Magistrates' Court to stay proceedings on the grounds that they amount to an abuse of the process of the court. There are essentially two main strands of cases where the jurisdiction has been exercised. The first is where it would be impossible to give the accused a fair trial. That is not suggested in the present application. Second, is where it would offend the court's sense of justice for the prosecution to proceed … And in this context, both motive and conduct can clearly be relevant. As far as motive is concerned, proceedings tainted by mala fides or spite or some other oblique motive may fall into this category …

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However in Bow Street Metropolitan Stipendiary Magistrate ex p South Coast Shipping Company Limited [1993] QB 645 this court held that the mere presence of an indirect or improper motive in launching a prosecution did not necessarily vitiate it; and the court would be slow to halt such a prosecution in the case of mixed motives unless the conduct was truly oppressive.

Drawing an analogy with the principles relating to entrapment in relation to public prosecutions (set out in R v Looseley [2001] 1 WLR 2060), his Lordship went on (at para

31):

… there is … no reason in principle why … a private prosecution should not be considered an abuse of process if the crime which is the subject of the prosecution is one that has been encouraged by the private prosecutor or when in some other way the private prosecutor has essentially created the same mischief as that about which he or she complains.

In R v Momodou [2005] EWCA Crim 177; [2005] 1 WLR 3442, Judge LJ (at para 54)

said:

The steady development of the abuse of process jurisdiction suggests that, notwithstanding that the prosecution or prosecuting authority may be blameless, as a matter of principle, the judge is vested with jurisdiction to order that proceedings should be stayed. The activities of third parties may constitute an abuse of process making a fair trial impossible, and if so, in an extreme case, this discretion is available to be exercised. That said, it has been pointed out time and again that difficulties, even great difficulties, created for the defence are almost always capable of being addressed by the trial process itself. This is usually achieved by evidence or agreed facts which properly inform the jury of the difficulties faced by the defendant. Then, with the benefit of the judge's directions as well as counsel's submissions before its retirement, the jury is well able to appreciate the impact of these difficulties on the proper preparation and conduct of the defence, and to take them fully into account before deciding whether the evidence demonstrates that the prosecution case has been proved. Juries have a strongly developed sense of fairness. Experience shows that they lean over backwards to see that the prosecution does not benefit from and that the defendant is not prejudiced by any unfairness, whatever its source. These considerations should properly inform the exercise by the trial judge of the salutary, but rarely exercised, power to halt a prosecution as an abuse.

In Warren v HM Attorney General of the Bailiwick of Jersey [2011] UKPC 10; [2011] 3

WLR 464, the Privy Council considered a case where there had been serious misconduct on the part of the police. Lord Dyson (at paras 21 and 22) said:

Some of the leading authorities on the abuse of process jurisdiction in cases of prosecutorial misconduct were reviewed by the Supreme Court of the United Kingdom in R v Maxwell [2010] UKSC 48; [2011] 1 WLR 1837. That was a case about a decision by the Court of Appeal of England and Wales to order a retrial following the quashing of a conviction on the grounds of serious misconduct by the police. Although the judgments (which were given on 17 November 2010) will not be reported until the retrial has been completed later this year, they were circulated to the parties in the present case on a confidential basis. It is possible to refer to certain parts of the judgments without risking any prejudice to the retrial.

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Sir John Dyson SCJ said:

13. It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will 'offend the court's sense of justice and propriety' (per Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 74G) or will 'undermine public confidence in the criminal justice system and bring it into disrepute' (per Lord Steyn in R v Latif [1996] 1 WLR 104, 112F).

The Privy Council went on to consider R v Grant [2005] EWCA Crim 1089, [2006] QB

60, holding (at para 36) that the decision of the Court of Appeal in that case was wrong. At para 37, Lord Dyson said:

It may not always be easy to distinguish between (impermissibly) granting a stay "in order to express the court's disapproval of official conduct pour encourager les autres" and (permissibly) granting a stay because it offends the court's sense of justice and propriety. But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police.

At para 46-50, Lord Dyson discussed the factors present in Warren. The factors favouring a stay were that the misconduct was very serious (it involved misleading the Jersey Attorney General and the Chief of Police and the authorities of three foreign states) and, unlike in the case of Grant, without the product of the unlawfulness, there

would have been no trial. However, there were also several factors against a stay: the offence with which the defendants were charged was very serious; the ringleader was a ‗professional drug dealer of the first order‘; unwise advice from the Crown Advocate mitigated, to some extent, the gravity of the misconduct of the police; there was no attempt to mislead the Jersey court; and there was real urgency in the case (‗it was in these circumstances that the police cut corners and acted unlawfully‘). Lord Kerr, at para 83, said that a number of principles had emerged from recent jurisprudence.

(i) the principal purpose of the examination, in the second category of cases, of the question

whether proceedings should be stayed is to determine whether this is necessary in order

to protect the integrity of the criminal justice system ... it should now be recognised that

the best way to describe this basis for a stay is that ... it should be granted where

necessary to protect the integrity of the criminal justice system.

(ii) A balancing of interests should be conducted in deciding whether a stay is required to

fulfil this primary purpose ... [W]here a stay is being considered in order to protect the

integrity of the criminal justice system, "the public interest in ensuring that those that are

charged with grave crimes should be tried" will always weigh in the balance - Lord Steyn

in Latif at 113A-B. Lord Steyn mentioned that a possible countervailing factor was that

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the impression should not be created that the court is giving its sanction to an approach

that the end justifies any means. With the emphasis that is given in this and other cases

to statements that prosecutorial or police misbehaviour will never be condoned, this may

not be as significant a consideration as heretofore ...

(iii) The "but for" factor (i.e. where it can be shown that the defendant would not have stood

trial but for executive abuse of power) is merely one of various matters that will influence

the outcome of the inquiry as to whether a stay should be granted. It is not necessarily

determinative of that issue.

(iv) A stay should not be ordered for the purpose of punishing or disciplining prosecutorial or

police misconduct. The focus should always be on whether the stay is required in order to

safeguard the integrity of the criminal justice system.

In Ahmed [2011] EWCA Crim 184 (a case where the accused had allegedly been subject to torture outside the UK), Hughes LJ said (at para 24) that the jurisdiction to stay for abuse of process may be exercised ‗where, by reason of gross executive misconduct manipulating the process of the court, the defendant has been deprived of the protection of the rule of law and it would as a result be unfair to put him on trial at all‘. His Lordship added that ‗the jurisdiction does not exist to discipline the police or other executive arms of the State (although of course it will incidentally do so), but rather to protect the integrity of the processes of justice‘. The Court of Appeal upheld the refusal of a stay on the basis that the judge had been right to hold that what is required is a connection between the alleged wrongdoing and the trial. In the instance case, no evidence which was the product of torture or other ill-treatment was adduced at the trial, and the investigation did not amount, directly or indirectly, to employing the product of torture to make a case against the accused (at para 39).

Chapter 1.3.1: Abuse of process – delay (pp 29-33) Bullen and Soneji v UK (Application no. 3383/06), ECtHR, para 58:

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants.

In Burns v HM Advocate [2008] UKPC 63; [2009] 1 AC 720, it was held the reasonable time requirement must be interpreted and applied in a way that will tend to achieve its purpose, which is to avoid undue uncertainty on the part of a person charged, and so the matter ought to be examined from the perspective of the individual concerned (per Lady Cosgrove at para 53). Chapter 1.3.3: Abuse of process – going back on a promise (pp 35-37)

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In R v Gore [2009] EWCA Crim 1424; [2009] 1 WLR 2454, the two defendants had each

received a fixed penalty notice for public disorder. The following day, the police reviewed the CCTV evidence of the incident and decided that the fixed penalty notices were inappropriate. The defendants were arrested and charged with inflicting grievous bodily harm. The Court of Appeal ruled that there had been no improper escalation of charge, nor any departure from any reasonable expectation that either defendant would not be prosecuted, if any more serious consequences of their conduct, and evidence justifying prosecution for an offence of violence came to light after the issue of the notice. In CPS v Mattu [2009] EWCA Crim 1483, it was held that, where a detailed ‗basis of

plea‘ has been agreed upon and approved by the court, it would be an abuse of process to prosecute related matters where the case advanced by the prosecution is wholly inconsistent with that basis of plea. In the instant case, the basis of plea was comprehensive and carefully drafted, with the prosecution involved in agreeing its terms for submission to the court. The judge considered it to be a suitable basis for sentence and proceeded to sentence. The basis of plea had therefore achieved a status which precluded the prosecution from attempting to go behind it (per Pill LJ at para 19). However, his Lordship observed (at para 20) that ‗there will be cases, where, for example, fresh evidence emerges and circumstances change, in which it may be possible for the prosecution to circumvent a basis of plea they have agreed‘. Chapter 1.3.5 Abuse of Process: entrapment (pp 38-39)

In R v M [2011] EWCA Crim 648, Stanley Burnton LJ, at para 15, said that there ‗may be

a difficult line to draw between legitimate police conduct and improper entrapment. In general, however, conduct that is open to a finding of such entrapment as to render a prosecution improper involves some pressure or persuasion on the defendant to commit the crime. Providing the opportunity for the commission of the crime will not of itself lead to a finding of entrapment‘. His lordship concluded (at para 18) that it is ‗an inherent aspect of any undercover police operation that the undercover police officer insinuates himself into the confidence of those involved in the criminal conduct at which the operation is directed. For an officer who has so insinuated himself to offer an opportunity to a defendant to commit a criminal offence, in the absence of persuasion or pressure or the offer of a significant inducement, will not generally result in its being an abuse of the process to prosecute the person who takes that opportunity to commit an offence‘. Chapter 1.4 Ethics (legal representation) (pp 41ff)

In R v Ulcay [2007] EWCA Crim 2379; [2008] 1 WLR 1209, the accused changed his

instructions at the close of the prosecution case, and his legal representatives withdrew on the grounds of ‗professional embarrassment‘. The judge refused an application from the new representatives for a two-week adjournment and the new representatives also withdrew. The accused remained unrepresented during the trial. The Court of Appeal had to decide whether his subsequent conviction was safe. Sir Igor Judge P gave

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guidance (at para 28) on what should be done by defence counsel where the accused changes his instructions during the trial:

It is for counsel to decide whether, consistent with his obligations to his client, and the court, and the rules of his profession, he is so professionally embarrassed that he cannot continue with the case. If so, again consistent with his duty to the court, but without contravening the legal privilege which underpins his professional relationship with his client, he should inform the court of his situation, providing such explanation as he can, to enable the judge to decide how to proceed. It is difficult to imagine cases in which it would be appropriate for the trial judge to direct counsel that he must continue with a case, or refuse him permission to withdraw on the grounds of professional embarrassment if, having heard counsel explain his position, counsel remains unpersuaded that he may properly continue to act, not least because counsel will almost certainly be better informed than the judge, in particular because there are likely to be considerations which he may be unable to reveal.

His Lordship held (at para 36) that the judge was entitled to exercise his discretion to refuse the lengthy adjournment sought by counsel, since a lengthy adjournment would have necessitated the discharge of the jury, thereby causing prejudice to the co-accused and public inconvenience and cost (or else trying the accused separately from his co-accused, with the cost and inconvenience that would involve). His Lordship went on (at para 41) to hold that the ‗cab-rank‘ rule (r. 602 of the Bar Code of Conduct, which requires a barrister to accept any brief to appear before a Court in which he professes to practice and to act for any person on whose behalf he is instructed; and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person) ‗applies whenever, and however late, the barrister is instructed. The absence of what he would regard as sufficient time for the purpose of preparation does not constitute an exception.‘ Moreover, r. 701(b)(ii), which says that a barrister should not undertake any task for which ‗he does not have adequate time and opportunity to prepare for or perform‘ does not constitute an exception to the cab-rank rule. It follows that newly instructed counsel should ‗soldier on and do the best he can notwithstanding the judge‘s decision that the period of adjournment should be significantly shorter than the time sought by counsel‘ (at para 42). Finally, his Lordship said that r 2.01(b) of the Law Society rules, which requires the solicitor without sufficient resources or lacking the necessary competence to cease to act, does not prevent a solicitor from acting (nor does it require him to cease to act) where an order of the court creates difficulties and makes it harder for him to discharge his professional obligations to his client (at para 44). In R v Anderson [2010] EWCA Crim 2553, Lord Judge emphasised the importance of

lawyers keeping a record of instructions given by the client. His Lordship said (at para 52):

Although not laid down in prescriptive form in the rules of conduct, we believe that it is the usual practice for solicitor or counsel to make a brief note of instructions on important issues as to the conduct of the defence given in conference. In any event we strongly recommend that such a note be made to record both the instructions, and the advice that has been given on the essential issues. Such a note will be to the benefit of the client, in that it will serve to ensure that he or she has been given the appropriate advice, and will also serve to protect the advocate and his instructing solicitors from criticism based on

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assertions made after the event by a dissatisfied client. If such a note had been kept in this case, the time of the court would not have been occupied in examining and assessing the allegation of professional incompetence, particularly in the context of the strategic decisions which were made in this case.

Code of Conduct for Crown Prosecutors A revised Code for Crown Prosecutors was published in February 2010: http://www.cps.gov.uk/publications/code_for_crown_prosecutors/ Section 2 deals with general principles and says:

1. ... Fair and effective prosecution is essential to the maintenance of law and order. It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible. Casework decisions taken fairly, impartially and with integrity help to deliver justice for victims, witnesses, defendants and the public. 2. ... Prosecutors must ensure that the law is properly applied; that all relevant evidence is put before the court; and that obligations of disclosure are complied with, in accordance with the principles set out in this Code. 3. Although each case must be considered on its own facts and on its own merits, there are general principles that apply to the way in which prosecutors must approach every case. 4. Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction. ...

Section 3 deals with decision whether to prosecute:

2. The police and other investigators are responsible for conducting enquiries into an allegation that a crime may have been committed. Every case that prosecutors receive from the police or other investigators is reviewed. Prosecutors must ensure that they have all the information they need to make an informed decision about how best to deal with the case. This will often involve prosecutors providing guidance and advice to the police and other investigators about lines of inquiry, evidential requirements, and assistance in any pre-charge procedures throughout the investigative and prosecuting process. However, prosecutors cannot direct the police or other investigators. 3. Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test (see section 5), they should swiftly stop cases which do not meet the evidential stage of the Full Code Test (see section 4) and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution (see section 4). Although the prosecutor primarily considers the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help to inform the prosecutor's decision. 4. Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test (see section 4). The exception is when the Threshold

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Test (see section 5) may be applied where it is proposed to apply to the court to keep the suspect in custody after charge, and the evidence required to apply the Full Code Test is not yet available. 5. Prosecutors must make sure that they do not allow a prosecution to start or continue where to do so would be seen by the courts as oppressive or unfair so as to amount to an abuse of the process of the court. 6. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. Wherever possible, they should talk to the investigator first if they are thinking about changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the prosecution service. ...

Section 4 sets out the ‗Full Code Test‘. This has two separate stages, the evidential stage and then the public interest stage:

2. In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these rare instances, prosecutors may decide that the case should not proceed further. 3. Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test set out in this section. ... The Evidential Stage 5. Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. 6. A realistic prospect of conviction is an objective test based solely upon the prosecutor's assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty. 7. When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. In particular, prosecutors will need to consider the following issues.

Can the evidence be used in court? 1. Is it likely that the evidence will be excluded by the court? There are legal rules that might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was obtained?

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2. Is the evidence hearsay? If so, is the court likely to allow it to be presented under any of the exceptions which permit such evidence to be given in court? 3. Does the evidence relate to the bad character of the suspect? If so, is the court likely to allow it to be presented? Is the evidence reliable? 4. What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does the evidence support an innocent explanation? 5. Is there evidence which might support or detract from the reliability of a confession? Is its reliability affected by factors such as the suspect's level of understanding? 6. Is the identification of the suspect likely to be questioned? Is the evidence of his or her identity strong enough? Have the appropriate identification procedures been carried out? If not, why not? Will any failure to hold the appropriate identification procedures lead to the evidence of identification being excluded? 7. Are there concerns over the accuracy, reliability or credibility of the evidence of any witness? 8. Is there further evidence which the police or other investigators should reasonably be asked to find which may support or undermine the account of the witness? 9. Does any witness have any motive that may affect his or her attitude to the case? 10. Does any witness have a relevant previous conviction or out-of-court disposal which may affect his or her credibility? 11. Is there any further evidence that could be obtained that would support the integrity of evidence already obtained?

8. Where it is considered that it would be helpful in assessing the reliability of a witness' evidence or in better understanding complex evidence, an appropriately trained and authorised prosecutor should conduct a pre-trial interview with the witness in accordance with the relevant Code of Practice. 9. Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction. The Public Interest Stage 10. In 1951, Sir Hartley Shawcross, who was then Attorney General, made the classic statement on public interest: "[i]t has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution". He added that there should be a prosecution: "wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest" (House of Commons Debates, Volume 483, 29 January 1951). This approach has been endorsed by Attorneys General ever since. 11. Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. 12. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender's record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.

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13. Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. 14. The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the offence was not "carried out by a group" does not transform the "factor tending in favour of a prosecution" into a "factor tending against prosecution". 15. Some common public interest factors which should be considered when deciding on the most appropriate course of action to take are listed below. The following lists of public interest factors are not exhaustive and each case must be considered on its own facts and on its own merits. Some common public interest factors tending in favour of prosecution 16. A prosecution is more likely to be required if: 1. a conviction is likely to result in a significant sentence;

2. a conviction is likely to result in an order of the court in excess of that which a prosecutor is able to secure through a conditional caution;

3. the offence involved the use of a weapon or the threat of violence; 4. the offence was committed against a person serving the public (for

example, a member of the emergency services; a police or prison officer; a health or social welfare professional; or a provider of public transport);

5. the offence was premeditated; 6. the offence was carried out by a group;

7. the offence was committed in the presence of, or in close proximity to, a child;

8. the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics;

9. the offence was committed in order to facilitate more serious offending; 10. the victim of the offence was in a vulnerable situation and the suspect

took advantage of this; 11. there was an element of corruption of the victim in the way the offence

was committed; 12. there was a marked difference in the ages of the suspect and the victim

and the suspect took advantage of this; 13. there was a marked difference in the levels of understanding of the

suspect and the victim and the suspect took advantage of this; 14. the suspect was in a position of authority or trust and he or she took

advantage of this; 15. the suspect was a ringleader or an organiser of the offence;

16. the suspect's previous convictions or the previous out-of-court disposals which he or she has received are relevant to the present offence;

17. the suspect is alleged to have committed the offence in breach of an order of the court;

18. a prosecution would have a significant positive impact on maintaining community confidence;

19. there are grounds for believing that the offence is likely to be continued or repeated.

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Some common public interest factors tending against prosecution 17. A prosecution is less likely to be required if: 1. the court is likely to impose a nominal penalty;

2. the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies (see section 7);

3. the suspect has been subject to any appropriate regulatory proceedings, or any punitive or relevant civil penalty which remains in place or which has been satisfactorily discharged, which adequately addresses the seriousness of the offending and any breach of trust involved;

4. the offence was committed as a result of a genuine mistake or misunderstanding;

5. the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement;

6. there has been a long delay between the offence taking place and the date of the trial, unless:

the offence is serious;

the delay has been caused wholly or in part by the suspect;

the offence has only recently come to light;

the complexity of the offence has meant that there has been a long

investigation; or

new investigative techniques have been used to re-examine previously

unsolved crimes and, as a result, a suspect has been identified;

7. a prosecution is likely to have an adverse effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence and the views of the victim about the effect of a prosecution on his or her physical or mental health;

8. the suspect played a minor role in the commission of the offence; 9. the suspect has put right the loss or harm that was caused (but a suspect

must not avoid prosecution or an out-of-court disposal solely because he or she pays compensation or repays the sum of money he or she unlawfully obtained);

10. the suspect is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated. Prosecutors apply Home Office guidelines about how to deal with mentally disordered offenders and must balance a suspect's mental or physical ill health with the need to safeguard the public or those providing care services to such persons;

11. a prosecution may require details to be made public that could harm sources of information, international relations or national security.

The views of victims or their families 18. In deciding whether a prosecution is required in the public interest, prosecutors should take into account any views expressed by the victim regarding the impact that the offence has had. In appropriate cases, for example, a case of homicide or where the victim is a child or an adult who lacks capacity as defined by the Mental Capacity Act 2005, prosecutors should take into account any views expressed by the victim's family. 19. However, the prosecution service does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest. 20. Where prosecutors have a responsibility to explain their decision to the victim, for example, when they stop a case or substantially alter the charge in a case, they must comply with the Code of Practice for Victims of Crime and all relevant CPS Guidance.

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Prosecutors must follow any agreed procedures, including abiding by any time period within which such decisions should be notified to the victim.

Section 5 of the Code goes on to deal with the ―threshold Test‖:

1. Prosecutors will apply the Full Code Test wherever possible. However, there will be cases where the suspect presents a substantial bail risk if released and not all the evidence is available at the time when he or she must be released from custody unless charged. 2. In such cases, prosecutors may apply the Threshold Test in order to make a charging decision. When the Threshold Test may be applied 3. The Threshold Test may only be applied where the prosecutor is satisfied that all the following four conditions are met:

1. there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and

2. there are reasonable grounds for believing that further evidence will become available within a reasonable period; and

3. the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and

4. there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case an application to withhold bail may properly be made.

4. Where any of the above conditions is not met, the Threshold Test cannot be applied and the suspect cannot be charged. Such cases must be referred back to the custody officer who will determine whether the person may continue to be detained or released on bail, with or without conditions. 5. There are two parts to the evidential consideration of the Threshold Test. The first part of the Threshold Test - is there reasonable suspicion? 6. First, the prosecutor must be satisfied that there is at least a reasonable suspicion that the person to be charged has committed the offence. 7. In determining whether reasonable suspicion exists, the prosecutor must consider the evidence which is currently available. This may take the form of witness statements, material or other information, provided the prosecutor is satisfied that: 1. it is relevant; and

2. it is capable of being put into an admissible format for presentation in court; and

3. it would be used in the case. 8. If this part of the Threshold Test is satisfied, the prosecutor should proceed to the second part of the Threshold Test. The second part of the Threshold Test - will there be a realistic prospect of conviction? 9. Secondly, the prosecutor must be satisfied that there are reasonable grounds for believing that the continuing investigation will provide further evidence, within a reasonable period of time, so that all the evidence taken together is capable of establishing a realistic prospect of conviction in accordance with the Full Code Test. 10. The further evidence must be identifiable and not merely speculative. 11. In reaching a decision under this second part of the Threshold Test, the prosecutor must consider:

1. the nature, extent and admissibility of any likely further evidence and the impact it will have on the case;

2. the charges that all the evidence will support; 3. the reasons why the evidence is not already available;

4. the time required to obtain the further evidence and whether any consequential delay is reasonable in all the circumstances.

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12. If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time. Reviewing the Threshold Test 13. A decision to charge under the Threshold Test must be kept under review. The evidence must be regularly assessed to ensure that the charge is still appropriate and that continued objection to the granting of bail is justified. The Full Code Test must be applied as soon as is reasonably practicable and in any event before the expiry of any applicable custody time limit or extended custody time limit.

Section 6 gives guidance on selection of charges:

1. Prosecutors should select charges which: 1. reflect the seriousness and extent of the offending supported by the

evidence; 2. give the court adequate powers to sentence and impose appropriate

post-conviction orders; and 3. enable the case to be presented in a clear and simple way. 2. This means that prosecutors may not always choose or continue with the most serious charge where there is a choice. 3. Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one. 4. Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard. 5. Prosecutors must take account of any relevant change in circumstances as the case progresses after charge.

Section 7 of the Code deals with out-of-court disposals, including cautions:

1. The prosecution service is responsible for deciding whether to offer an offender a conditional caution in certain cases. In such cases, the Full Code Test must be met. Prosecutors will offer a conditional caution where it is a proportionate response to the seriousness and the consequences of the offending and where the conditions offered meet the aims of rehabilitation, reparation or punishment within the terms of the Criminal Justice Act 2003. 2. ... Prosecutors may offer a conditional caution where, having taken into account the views of the victim, they consider that it is in the interests of the suspect, victim or community to do so. 3. Prosecutors must follow the relevant Code of Practice and the DPP's Guidance on Conditional Cautioning when deciding whether to offer an offender a conditional caution. 4. ... If the terms of the conditional caution are not complied with, the prosecutor will reconsider the public interest and decide whether to charge the offender. Usually, a prosecution should be brought for the original offence. 5. Only prosecutors can decide whether to authorise the offer of a simple caution to an offender for an offence that may only be heard in the Crown Court. The occasions when this will be an appropriate disposal will be exceptional. 6. In all other cases, prosecutors may direct that a simple caution be offered ... or suggest, for example, the issue of a Penalty Notice for Disorder. The issue of a Penalty Notice for Disorder is, however, a decision for the police. 7. Prosecutors must be satisfied that the Full Code Test is met and that there is a clear admission of guilt by the offender in any case in which they authorise or direct a simple caution to be offered by the police.

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8. ... If the offer of a simple caution is refused, a prosecution must follow for the original offence. If any other out-of-court disposal is not accepted, prosecutors will apply the Full Code Test, upon receipt of the case from the police or other investigators, and decide whether to prosecute the offender.

Section 8 of the Code deals with young defendants (‗youths‘), i.e. those under the age of 18:

... 2. Prosecutors must bear in mind in all cases involving youths that the United Kingdom is a signatory to the United Nations 1989 Convention on the Rights of the Child and the United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice. In addition, prosecutors must have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. Prosecutors must consider the interests of the youth when deciding whether it is in the public interest to prosecute. 3. Prosecutors should not avoid a decision to prosecute simply because of the suspect's age. The seriousness of the offence or the youth's past behaviour is very important. 4. Cases involving youths are usually only referred to the prosecution service for prosecution if the youth has already received a reprimand and final warning, unless the offence is so serious that neither is appropriate or the child or young person does not admit committing the offence. 5. Reprimands, final warnings and conditional cautions (see section 7) are intended to prevent re-offending and the fact that a further offence has occurred may indicate that those previous disposals have not been effective. The public interest will usually require a prosecution in such cases.

Section 9 addresses the mode of trial hearing (more detailed guidance is to be found in the Consolidated Criminal Practice Direction):

... 2. Speed must never be the only reason for asking for a case to stay in the magistrates' courts. But prosecutors should consider the effect of any likely delay if a case is committed or sent to the Crown Court, and the possible effect on any victim or witness if the case is delayed. Venue for trial in cases involving youths 3. Generally, prosecutors must bear in mind that youths should be tried in the youth court, wherever possible. It is the court which is best designed to meet their specific needs. A trial of a youth in the Crown Court should be reserved for the most serious cases or where the interests of justice require a youth to be jointly tried with an adult.

Section 10 of the Code deals with the acceptance of guilty pleas:

... 2. Prosecutors should only accept the defendant's plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Prosecutors must never accept a guilty plea just because it is convenient. 3. In considering whether the pleas offered are acceptable, prosecutors should ensure that the interests and, where possible, the views of the victim, or in appropriate cases the views of the victim's family, are taken into account when deciding whether it is in the public interest to accept the plea. However, the decision rests with the prosecutor.

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4. It must be made clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis. 5. Where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence at court, prosecutors will consider whether a prosecution is required for that offence. Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review. 6. Particular care must be taken when considering pleas which would enable the defendant to avoid the imposition of a mandatory minimum sentence. When pleas are offered, prosecutors also must bear in mind the fact that ancillary orders can be made with some offences but not with others. ...

Section 11 goes on to address the role of the prosecutor at the sentencing stage:

1. Sentencing is a decision for the court, but prosecutors have a duty to offer assistance to the sentencing court in reaching its decision as to the appropriate sentence by drawing the court's attention to the following factors: 1. any aggravating or mitigating factors disclosed by the prosecution case; 2. any Victim Personal Statement;

3. where appropriate, evidence of the impact of the offending on a community;

4. any statutory provisions, sentencing guidelines, or guideline cases which may assist; and

5. any relevant statutory provisions relating to ancillary orders (such as anti-social behaviour orders).

2. Prosecutors may also offer assistance to the court by making submissions, in the light of all the above factors, as to the sentencing range within which the current offence falls. 3. In all complex cases or where there is the potential for misunderstanding, the prosecutor must set out in writing the aggravating and mitigating factors that he or she will outline when informing the court of the case in the sentencing hearing. In all other cases, this approach should be considered and undertaken if it will be of benefit to the court or the public to understand the case. 4. It is the duty of the prosecutor to apply for compensation and ancillary orders, such as anti-social behaviour orders and confiscation orders, in all appropriate cases. When considering which ancillary orders to apply for, the prosecutor must always have regard to the victim's needs, including the question of their future protection. 5. Prosecutors should challenge any assertion made by the defence in mitigation that is inaccurate, misleading or derogatory. If the defence persist in the assertion, and it appears relevant to the sentence, the court should be invited to hear evidence to determine the facts and sentence accordingly. ...

Reference should also be made to the Attorney-General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise. Section 12 of the Code governs reconsideration of a decision not to prosecute a suspect:

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1. People should be able to rely on decisions taken by the prosecution service. Normally, if the prosecution service tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, the case will not start again. But occasionally there are special reasons why the prosecution service will overturn a decision not to prosecute or to deal with the case by way of an out-of-court disposal or when it will re-start the prosecution, particularly if the case is serious. 2. These reasons include:

1. rare cases where a new look at the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision;

2. cases which are stopped so that more evidence which is likely to become available in the fairly near future can be collected and prepared. In these cases, the prosecutor will tell the defendant that the prosecution may well start again;

3. cases which are stopped because of a lack of evidence but where more significant evidence is discovered later; and

4. cases involving a death in which a review following the findings of an inquest concludes that a prosecution should be brought, notwithstanding any earlier decision not to prosecute.

... Ethics and Criminal Justice - Crown Prosecution Service (pp 49-56)

The conclusions and recommendations contained in the House of Commons Justice Committee Report: The Crown Prosecution Service: Gatekeeper of the Criminal Justice

(HC 186, 6 August 2009) include the following:

1. The prosecution plays a pivotal role in the criminal justice system... 2. The aims and purposes of the Crown Prosecution Service need to be clear and it also needs to be clear how they relate to the overarching aims and purposes of the criminal justice system as a whole... 3. The CPS needs to take a bold and robust approach as the independent prosecutor. Part of that role is challenging the police to do better. The CPS is not a minor partner in the criminal justice system. 4. There is much to commend in the collaborative approach being taken by the police and the CPS, which helps to raise overall standards through understanding the challenges and expertise of other agencies. While such arrangements are working well we do not see the need for the CPS to have powers such as those of the Procurator Fiscal to direct the police. The debate about whether the CPS should have such powers has to be seen in the light of the increasing development of joined up working between the police and the CPS at earlier stages of an investigation. In theory this could raise a question over the way in which the CPS will be expected—at a later stage—to make an independent decision about whether or not to prosecute but in practice it seems better to have that relationship throughout an investigation as long as both sides are clear that joint working must not blur the distinction between the police responsibility to investigate, and the CPS responsibility to take the decision about prosecution and to manage any subsequent process... 5. We heard strong support on grounds of principle for the charging decision to rest with the prosecutor. We also heard concerns that the arrangements for statutory charging had resulted in delays. Nevertheless, these considerations did not lead us to a conclusion that statutory charging should be wholly or partly abandoned. There is clearly a willingness on behalf of the CPS and the police to resolve what are significant practical problems.

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6. CPS Direct provides a telephone and IT based ‗remote‘ service, which appears to be well regarded by its users and we hope that it can contribute to the consistency and ease of access to legal advice provided for the police. However, this service should not be assumed to be a substitute for local engagement and should operate within the context of a good working relationship and mutual understanding between the police and the CPS at a local level. 7. The decision as to what offence an individual is charged with is pivotal, with significant implications for the rest of their journey through the criminal justice system. It also goes to the heart of what that system is trying to achieve; we are not trying to maximise conviction rates, we are trying to maximise convictions of guilty people for the crime they have committed. While perceptions of both under- and over-charging may be inevitable, they are nonetheless damaging to public confidence... 8. An effective and ongoing evaluation of the extent to which under- or over-charging happens is important not least because of what it tells us about whether plea bargaining is happening. Expanding the use of plea bargaining would have significant consequences and in our opinion needs the utmost care and consideration. We must not drift towards a situation where it is commonplace without discussing whether it is desirable and, if so, what safeguards must be put in place for defendants, victims and the public. 9. Conditional cautions are part of a significant change to how the criminal justice system operates, making a material difference to the process by which the state punishes people. The fact that prosecutors can now recommend that an individual be conditionally cautioned, and a prosecution suspended subject to the fulfilment of particular conditions, represents a significant change to the prosecutor‘s role. On the other hand if such decisions prevent an individual being drawn further into the criminal justice system, and therefore succeed in reducing the likelihood that they will re-offend, that is in the interests of potential victims and society as a whole, as well as having a benefit to the individual. Such decisions can therefore contribute to the responsibility of the CPS to reduce re-offending. 10. However, the growth in the number of out-of-court disposals represents a fundamental change to our concept of a criminal justice system and raises a number of concerns about consistency and transparency in the application of punishment. Different patterns of fines may simply reflect local priorities and be argued to be a feature of community engagement. However, we believe the use of these disposals requires systematic scrutiny, and we recommend that as a first step they should be the subject of a multi-inspectorate review... 11. The development of CPS advocacy cannot simply be seen as the next logical step in how the CPS should develop: it has wider implications for the criminal justice system and will lead to a very different organisation from that which was originally set-up. 12. ... The idea of advocates moving more freely between employed and self-employed work is an attractive one, not least because it would preserve the benefits of experience of both prosecution and defence work, which probably produces better advocates. 13. We do not dismiss the anecdotal concerns raised from a number of quarters about the quality of CPS advocates and the systems for their deployment, such as allegations that complex cases are dumped on self-employed barristers at short notice, but regard this as evidence of a need for better case management by the CPS, rather than providing a general argument against CPS advocacy... 14. Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed. Furthermore, the criminal justice system is set up to represent the public rather than individuals, and there are good reasons for this. The CPS‘s role as independent arbiter of decisions about prosecution is critical. Explaining this role clearly to victims such that their expectations are managed realistically, rather than raised then disappointed, is vital.

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15. Victims want to be treated as people, which often does not happen in a criminal justice system that is driven by process... 16. The lack of a consistent, effective and readily understood complaints handling system has been a serious weakness of the CPS... 17. Special measures are a crucial part of the criminal justice system which should enable a witness to give the best evidence they are capable of giving. We are concerned by the evidence that individuals are not being identified as being suitable for special measures, or that delivery failures mean they do not receive them once their need has been identified. We are also concerned at the suggestion that the CPS may be reluctant to recognise that people with mental health problems can be credible witnesses at all. The CPS is not the only agency with a role to play in identifying those who need special measures but it is a key agency and should be alert at the charging stage to what people need. The CPS could also work with the police to ensure that they are identifying individuals for special measures effectively... 18. Inconsistency in CPS delivery was a clear theme in the evidence we received and must be tackled ... The development of community prosecutors is a further fundamental change to what we expect from prosecutors in the criminal justice system, raising questions about what kind of local discretion is desirable and beneficial to the public interest... 20. We ... would also like to see the CPS, as the principal prosecutor and owner of the Code for Crown Prosecutors, demonstrating leadership within the wider prosecutorial family. The public interest test may invoke different considerations in different circumstances, but choices about prosecution across different agencies should be consistent and transparent. 21. We have not come to the conclusion that England and Wales should move towards the Scottish model of a single prosecuting authority ... but, given the diverse structure of prosecuting authorities, we regard co-ordination and the sharing of best practice as essential.

In The relationship between victims and prosecutors: defending victims' rights? [2010]

Crim LR 31, Matthew Hall examines the contention that victims are being put ‗at the heart‘ of the criminal justice system with a specific focus on what this means for prosecutors, in the light of the report by the House of Commons Justice Committee. He concludes that victims ‗are not yet parties in that system and certainly do not have prosecutors working exclusively in their interests ... victims are still some way from becoming parties, or otherwise being put at the centre of the criminal justice system ... [T]he immediate concern therefore becomes whether, by implying differently, policy-makers and politicians may ultimately further damage the public's perceptions of the CPS, and the criminal justice system as a whole‘.

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Chapter 2: Preliminaries

Chapter 2.1.5: Crown Prosecutors (pp 59-61)

In the magistrates‘ courts, the CPS sometimes uses barristers or solicitors in private practice to present cases (instead of a Crown Prosecutor). The CPS Annual Report 2007-08 notes that, regarding such ‗agent usage‘:

The proportion of half day sessions in magistrates' courts covered by lawyers in private practice acting as agents in 2007-08 was 16.8% compared with 19.6% in 2006-07.

The 2008-09 Annual Report notes that ‗the proportion of half day sessions in magistrates' courts covered by lawyers in private practice acting as agents in 2008-09 was 14.7%‘; the 2009-10 Report reveals that ‗the proportion of half day sessions in magistrates' courts covered by lawyers in private practice acting as agents in 2009-10 was 14.9%‘. In July 2009, the CPS published a ‗thematic review‘ of advocacy and case presentation to assess, amongst other things, the quality of advocacy by Crown prosecutors, Crown advocates and prosecuting counsel in the Crown Court, and associate prosecutors, Crown Prosecutors and agents in the magistrates‘ courts, together with ancillary aspects of case handling and case progression at court. The report concludes:

1.7 The CPS has made considerable progress against its goal of increasing the quantity of court work undertaken by in-house advocates. The number of cases handled in-house has increased year on year since the advocacy strategy was implemented … 1.8 Less progress has been made against the stated aim to provide high quality advocates in all courts. Our observations confirmed that the quality of advocacy was variable, both with in-house and external advocates, with a number of very good people and a small number who were very poor. Whilst overall the substantial majority were fully competent or better, there is a significant group where further improvement is needed. Trial advocacy is in need of particular attention for CPS prosecutors. Quality, especially in the Crown Court, has been affected by weaknesses in case preparation and progression which have been exacerbated by the new strategy. … 1.17 The overall advocacy assessments included consideration where relevant of professional ethics; planning and preparation; applying CPS policies; written advocacy; the case in court; preparation for trial; trial advocacy; and the advocate in court. These are based on the national standards of advocacy published by the CPS. 1.18 The overwhelming majority of advocates were competent or better in upholding the standards of professional ethics (91.0%), applying CPS policies (94.5%) and to a lesser extent in the quality of written advocacy (86.0%). The majority of advocates were competent or above in their planning and preparation (78.0%), preparation for trial (80.1%) and handling of the case in court (76.8%). 1.19 The findings were less good in relation to the two remaining aspects, the advocate (presenting) in court (68.2%) and in trial advocacy (63.2%). Substantial issues that undermined the quality of advocacy were lack of awareness of gaps or weaknesses in evidence, poor or unfocused cross-examination, poor legal argument, inaccurate statement of facts or ancillary information and inappropriate acceptance of pleas of guilty to lesser offences or basis of pleas that reduce the gravity of the offence.

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1.20 Good advocacy assists the court in arriving at a just decision; poor advocacy can mislead the court and when lacklustre is unimpressive to those to whom each case is extremely important. Significant weaknesses demonstrated in court in relation to style were the inability of the advocate to present with an air of authority, failing to make use of appropriate tone and pace and the inability to present engagingly. Other factors that impacted but were less significant were the inability to present in a clear and projected voice; failing to make appropriate eye contact; failing to minimise distractions such as paper shuffling and specific mannerisms; and failing to use, where appropriate, simple and concise language. To a far lesser extent we observed examples of advocates dressed inappropriately for court; being discourteous to others in court; and a lack of awareness of the practice and procedure relevant to the court in which they are appearing, including failing to use the correct form of address for the judge or magistrate. 1.21 The differences in our findings on the ground between self employed counsel and crown advocates were not so striking as much of the feedback and comments we received had led us to expect. At this stage of development of CPS in-house advocacy there is much that is sound, but some that is weak and drawing substantial criticism. Counsel on the whole have higher skill levels, in particular in trial advocacy. Fewer less competent counsel are being allocated cases because of the proportion undertaken by crown advocates (nationally about 21% of the generality of cases in the Crown Court by value). 1.22 Crown advocates, with some exceptions, are providing competent quality non-trial advocacy. The exceptions flow from lower standards of case preparation, in the office and by the advocate, and in some instances too ready an acceptance of an inappropriate basis of plea of guilty. In addition the move into the Crown Court has reduced the availability of more experienced crown prosecutors to conduct trial advocacy in the magistrates‘ courts and these standards must be addressed.

Chapter 2.2.3: Contents of the written charge or information (pp 64-65)

Part 7 of the Criminal Procedure Rules now provides as follows. Part 7 applies in a magistrates' court where a prosecutor wants the court to issue a summons or warrant under s 1 of the Magistrates' Courts Act 1980, or where a public prosecutor (as defined in s 29 of the Criminal Justice Act 2003) wants the court to issue a warrant under s 1 of the Magistrates' Courts Act 1980 or issues a written charge and requisition under s 29 of the Criminal Justice Act 2003,or where a person who is in custody is charged (by the police) with an offence. Under rule 7.2(1), a prosecutor who wants the court to issue a summons must either serve an information in writing on the court officer or else present an information orally to the court, together with a written record of the allegation that it contains. Under rule 7.2(2), a prosecutor who wants the court to issue an arrest warrant must serve on the court officer an information in writing, or a copy of a written charge that has already been issued, or present to the court either of those documents. Rule 7.2(3) stipulates that a public prosecutor who issues a written charge must notify the court officer immediately. Under rule 7.2(4), a single document may contain more than one information or more than one written charge.

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Under rule 7.3(1), an allegation of an offence in an information or charge must contain:

(a) a statement of the offence that— (i) describes the offence in ordinary language, and (ii) identifies any legislation that creates it; and

(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

Rule 7.3(2) provides that:

More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

Under rule 7.4(1), the court may issue (or withdraw) a summons or warrant without giving the parties an opportunity to make representations, at a hearing in public or in private, or without a hearing. Under rule 7.4(2), a summons, warrant or requisition may be issued in respect of more than one offence. Rule 7.4(3) provides that a summons or requisition must contain notice of when and where the defendant is required to attend the court and must specify each offence in respect of which it is issued. Under rule 7.4(4), a summons may be contained in the same document as an information, and under rule 7.4(5), a requisition may be contained in the same document as a written charge. Under rule 7.4(7), where a public prosecutor issues a requisition, that prosecutor must serve on the defendant the requisition and the written charge, and must serve a copy of both on the magistrates‘ court officer. Under rule 7.4(8), a replacement summons or requisition may be issued without a fresh information or written charge where the one replaced was served by leaving it at, or posting it to, an address where it is reasonably believed that the individual will receive it (under rule 4.7) but is shown not to have been received by the addressee. Rule 7.4(9) provides that a summons or requisition issued to a defendant under 18 may require that defendant‘s parent or guardian to attend the court with the defendant, or else a separate summons or requisition may be issued for that purpose. Chapter 2.2.5: Arrest without warrant – the ‘necessity’ test (pp 66-68)

The necessity test was considered by the High Court in Northern Ireland in Re Alexander [2009] NIQB 20 (the relevant legislation is identical to that in England and

Wales). Kerr LCJ, at para 5, said that the reasons listed in the Northern Irish equivalent of s 24(5) of the Police and Criminal Evidence Act 1984

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are exhaustive. The arresting officer must therefore relate his decision that the arrest is necessary to at least one of those grounds. The existence of reasonable grounds for belief that, for one of the reasons in [subs] (5), the arrest is necessary is a jurisdictional pre-condition. In other words, unless the constable has reasonable grounds for believing that it is necessary to arrest the person in question, he does not have power to arrest.

At para 16, his Lordship went on to say:

We consider that where a police officer is called upon to make a decision as to the necessity for an arrest, the grounds on which that decision is based can only be considered reasonable if all obviously relevant circumstances are taken into account. In particular, it is necessary that he make some evaluation of the feasibility of achieving the object of the arrest by some alternative means, such as inviting the suspect to attend for interview. That is not to say that the police officer may only arrest when no conceivable alternative is possible. For reasons that we will discuss below, we do not consider that arrest need be in every instance a matter of last resort; that it can only be deemed necessary where there is no feasible alternative.

The Court went on to consider the views expressed by R.C. Austin in The new powers of arrest: plus ca change: more of the same or major change? [2007] Crim LR 459, that

‗necessary‘ means that there is no alternative to arrest. The Court disagreed, holding (at paras 18 and 19):

We consider that the requirement that the constable should believe that an arrest is necessary does not signify that he requires to be satisfied that there is no viable alternative to arrest. Rather, it means that he should consider that this is the practical and sensible option. We can illustrate this with an example. If an officer considers that a person's presence at a police station is essential for the purpose of questioning, he may decide that it is necessary to arrest even though it is theoretically possible that the individual would agree to attend voluntarily. Thus, if he concludes that the person to be questioned might initially agree to attend for questioning but is likely to refuse to remain if the questioning becomes difficult for him, he may have reasonable grounds for deciding that the arrest is necessary from the outset.

Given the scope of decision available to a constable contemplating arrest, we do not consider that it is necessary that he interrogate a person as to whether he will attend a police station voluntarily. But he must, in our judgment, at least consider whether having a suspect attend in this way is a practical alternative. The decision whether a particular course is necessary involves, we believe, at least some thought about the different options. In many instances, this will require no more than a cursory consideration but it is difficult to envisage how it could be said that a constable has reasonable grounds for believing it necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure.

In Richardson v Chief Constable of the West Midlands [2011] EWHC 773 (QB); [2011] 2

Cr App R 1, Slade J considered the powers of arrest conferred on the police by s 24 of the Police and Criminal Evidence Act 1984. At para 51, her Ladyship said that:

where a constable suspects that an offence has been committed, in order for the arrest of an individual to be lawful a) the constable must have reasonable grounds for suspecting the person to be guilty of it; b) the grounds for arrest must be one of those listed in PACE

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Section 24(5), and c) the constable must have reasonable grounds for believing that it is necessary to arrest the person in question.

At para 60, her Ladyship set out three propositions:

(1) In determining satisfaction of the 'necessity' requirement the state of mind is that of

the arresting officer, subjective as to the first question, the fact of belief that arrest

was necessary and objective as to the second and third questions, whether he had

reasonable grounds for it and whether he exercised his discretionary power of arrest

in Wednesbury reasonably.

(2) It is for the police to establish the first two requirements, namely that an arresting

officer believed that the arrest of the Claimant was necessary for one of the Section

24(5) reasons and that he had reasonable grounds for his belief. Whether the officer

had that belief and reasonable grounds for it is a question of fact for the Court to

determine ...

(3) If the police establish those requirements the arrest is lawful, (all other preconditions

being satisfied) unless the Claimant can establish on Wednesbury principles that the

arresting officer's exercise of his power of arrest was unreasonable ...

In the present case, the claimant had attended the police station voluntarily but was then arrested. There was no evidence that the claimant was likely to leave the interview before the end, and a belief that his arrest was necessary was therefore ‗Wednesbury

unreasonable‘. Similarly, in Graham v Chief Constable of West Mercia Constabulary [2011] EWHC 4

(QB), it was held (at para 56) that the test to determine whether the requirements of ss 24(4) and (5) of the Police and Criminal Evidence Act 1984 are satisfied is: ‗did the arresting officer actually believe that it was necessary to arrest the person in question for one of the reasons set out in s 24(5), and, if so, did he or she have reasonable grounds for that belief?‘ The position was confirmed by the Court of Apepal in Hayes v Chief Constable of Merseyside Police [2011] EWCA Civ 911, Hughes LJ said (at para 40) that there is a

two-stage test to determine whether the necessity test for an arrest is satisfied: ‗(1) the policeman must honestly believe that arrest is necessary, for one or more identified section 24(5) reasons, and (2) his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds‘. Chapter 2.2.5.1: Arrest – meaning of ‘reasonable suspicion’ (pp 68-69) O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 was considered in Metropolitan Police Commissioner v Raissi [2008] EWCA Civ 1237; [2009] QB 564. Sir Anthony Clarke MR (at para 13) summarised the conclusions reached by Lord Steyn in O’Hara as follows:

(i) In order to have a reasonable suspicion the officer need not have evidence amounting to a prima facie case …

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(ii) Hearsay evidence may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers. (iii) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (iv) The executive "discretion" to arrest or not, as Lord Diplock described it in Mohammed-Holgate v Duke [1984] AC 437, 446, vests in the constable, who is engaged on the decision whether to arrest or not, and not in his superior officers.

It follows from the fact that the final discretion to arrest or not is that of the arresting officer, that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion. At para 19, his Lordship observed that it is ‗the information actually in the possession of the officer upon which the question whether he had reasonable grounds for suspicion must be judged‘ and, therefore, ‗it does not avail the officer to say that his superior probably had other information justifying arrest but he did not tell him what it was‘. That said, ‗the threshold for the existence of reasonable grounds for suspicion is low‘ (para 20). Chapter 2.3.3: Detention for questioning (pp 77-81) The Police (Detention and Bail) Act 2011 amends sections 34 and 47 of the Police and Criminal Evidence Act 1984, so that any time spent on police bail is not included in the calculation of period during which the suspect is regarded as being in police detention. This amendment is retrospective and reverses the effect of R (Chief Constable of Greater Manchester Police) v Salford Magistrates’ Court and Paul Hookway [2011] EWHC 1578 (Admin). Chapter 2.3.4 Interviewing suspects (pp 81-91)

In Charles v CPS [2009] EWHC 3521 (Admin), the defendant was not informed of the offence for which the police were investigating him at the outset of that interview. Moses LJ (at para 10) said that the provisions in the Police and Criminal Evidence Act 1984:

are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the Police and Criminal Evidence Act and the Code relating to [interview under] caution, are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how they are to behave. If they can secure a serious conviction in breach of those provisions that is an important matter which undermines the protection of a detainee in the police station. That is not say, by any means, that every breach will lead to the exclusion of the evidence obtained in consequence of that breach; far from it. It is merely to emphasise the general importance of the breaches when exercising the judgment in s 78. Their significance must be taken into account. There is no hint in the case stated that any of those factors were taken into account by the magistrates.

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Chapter 2.3.4.3: Access to legal advice – s 58 of PACE (pp 84-87)

R v Samuel [1988] QB 615 was followed in R v James [2008] EWCA Crim 1869, where

the Court of Appeal emphasised (at paras 35 and 36) a number of propositions set out in Samuel, namely that the right of access to legal advice is one of the most important and

fundamental rights of a citizen; where it is sought to justify denial of the right of access to a solicitor on reasonable grounds, that cannot be done except by reference to specific circumstances; it will only be in rare cases that the officer will genuinely have the requisite belief, namely that the solicitor will act improperly; the grounds put forward must relate to a specific solicitor, not solicitors generally. Chapter 2.3.4.5: European Convention and right to legal advice (pp 86-87)

The importance of access to legal advice was emphasised in Salduz v Turkey (2009) 49 EHRR 19, where the European Court of Human Rights ruled as follows:

50. The Court reiterates that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a ―tribunal‖ competent to determine ―any criminal charge‖, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ... 51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of fair trial ... Nevertheless, Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to ―guarantee not rights that are theoretical or illusory but rights that are practical and effective‖ and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ... 52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances ... 53. These principles ... are also in line with the generally recognised international human rights standards ... which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused. 54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial ... At the same time, an accused often finds himself in a particularly vulnerable position at

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that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused ... Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination ... In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, in which the committee repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies. 55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently ―practical and effective‖ ... Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 ... The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.

This decision was considered in the Scottish case of Cadder v Her Majesty's Advocate (Scotland) [2010] UKSC 43; [2010] 1 WLR 2601. Lord Hope said, at para 41, that (in

light of what the European Court said in para 55 of its judgement), Article 6(1) permits a departure from the principle that access to a lawyer should be provided as from the first interrogation of a suspect ‗only if the facts of the case make it impracticable to adhere to it. The reference in that paragraph to its being demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict the right reinforces this interpretation. It is the particular circumstances of the case, not other guarantees that are available in the jurisdiction generally, that will justify such a restriction‘. At para 48, Lord Hope went on to say that the Salduz principle cannot be confined to

admissions made during police questioning; it extends to incriminating evidence obtained from elsewhere as a result of lines of inquiry that the detainee's answers have given rise to. His Lordship concluded that ‗the effect of Salduz is that the contracting

states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are ‗compelling reasons‘ for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning‘. Similarly, Lord Rodger (at para 95) said that the right to legal assistance at the stage when a suspect is to be questioned is ‗not absolute and must be subject to exceptions when, in the particular circumstances, there are compelling reasons to restrict it‘ but that ‗even a justified restriction may deprive an accused of a fair hearing and so lead to a violation of Article 6‘.

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Lord Brown, at para 108, said:

The Strasbourg jurisprudence makes plain that it is not sufficient for a legal system to ensure that a suspect knows of his right to silence and is safeguarded (perhaps most obviously by the video recording of any interviews) against any possibility that by threats or promises of one sort or another he may nonetheless be induced against his will to speak and thereby incriminate himself. It is imperative too that before being questioned he has the opportunity to consult a solicitor so that he may be advised not merely of his right to silence (the police will already have informed him of that) but also whether in fact it is in his own best interests to exercise it: by saying nothing at all or by making some limited statement. He must in short have the opportunity to be advised by a solicitor not to make incriminating statements despite whatever inclination he might otherwise have to do so. It is clearly Strasbourg's judgment that whatever in the result may be lost in the way of convicting the guilty as a result (wholly or partly) of their voluntary admissions is more than compensated for by the reinforcement thereby given to the principle against self-incrimination and the guarantees this principle provides against any inadequacies of police investigation or any exploitation of vulnerable suspects.

Chapter 2.3.5.1 Involvement of the CPS in the charging decision (‘statutory charging’) (pp 91-96)

The Joint Thematic Review of the New Charging Arrangements (published in November

2008) by HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary includes the following:

5. There have been undoubted benefits from the scheme, not least of which is the improved 5 working relationship between the police service and the CPS. The permanent presence of duty prosecutors in police stations has assisted in developing the ‗prosecution team‘ ethos between prosecutors and police and improved the understanding of their respective roles. However there has been criticism directed at the actual or perceived time taken to get a decision and the amount of work the investigator has to undertake before the decision will be taken, which is supported to a significant extent by the review findings. … Key benefits 10. On a positive front inspectors identified the following key benefits:

the final charging decisions by prosecutors were of good quality;

discontinuance had happened earlier, preventing weak cases from entering the court system;

some progress had been made against most of the anticipated benefits in terms of casework outcomes and delivery of Public Service Agreement targets;

there were a number of examples of good practice for individual processes within the overall scheme;

relationships between the police and CPS had improved which had helped develop a more joined-up approach to managing initiatives; and

feedback at multiple levels suggested that the statutory scheme was particularly helpful in managing serious and complex cases.

Aspects requiring improvement 11. Aspects of work that required improvement included:

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Police and CPS processes were inconsistent, overly complex, inefficient and lacking in pragmatism in too many instances, often leading to avoidable delays and frustration;

the practice of delivering advice in a face-to-face meeting was not providing the anticipated benefits in all cases;

police file quality supervision needed to be more robust;

greater consistency of approach was needed by prosecutors in the level of information required to make a charging decision;

conflicting CPS and police targets were not helpful (this issue was being addressed in the latter stages of the review);

some guidance and definitions required clarification;

a number of delays in CPS and police processes had a detrimental and significant knock-on effect on bail management; and

performance management needed to be strengthened. … 15. The provision of face-to-face charging decisions by prosecutors was the accepted norm for delivering pre-charge advice. Whilst for some cases this was clearly right, observations showed a considerable number of examples where little value was added by this process; there is little value in the face-to-face appointment when it is not the investigator who attends on behalf of the police. They are unable to deal with queries raised by the prosecutor on important issues such as the demeanour and reliability of witnesses. The value of these appointments also depends much on the skills of the prosecutor in conducting the consultation and this is minimal when there is no discussion of the merits of the case. Some meetings were very good and added value, others added no more than if the investigator had left the file and come back at the end of the allotted time for the decision. 16. A more flexible approach that enables an informed decision as to the best means of discussing a case is desirable. There were a considerable number of investigators who expressed a preference for using CPSD, which operates by telephone and fax. 17. Almost all the areas visited had concerns over the time taken to get a charging decision from a prosecutor, which was borne out by inspectors‘ observations. 18. A gap is growing in the expectations of many police officers and the CPS in respect of what is required for a charging decision … This was in part due to a lack of confidence in the police doing any additional work once charge was authorised and, also, the pressure to comply with the requirements of the Criminal Justice: Speedy, Simple, Summary (CJSSS) initiative, which requires the prosecution and the defence to identify trial issues at the first hearing, with the trial date normally set within six weeks of that hearing. … 20. Inspectors found that the gap in expectations was leading to frustration on the part of investigators, increasing the number of times a suspect was re-bailed and contributing to the overall delay (because the investigator has to gather more admissible evidence at the investigative stage or subsequently when they went away with another action plan requiring further work to be undertaken and not a charging decision). … The impact on casework outcomes 34. Outcomes had improved since the scheme was introduced; discontinuance and overall successful outcome rates were better and guilty plea rates had improved. From a wider criminal justice system viewpoint, there had been improvements in the level of ineffective trials and the number of offences brought to justice. These were all potential benefits identified during the pilot scheme. However based on the findings of the review it was clear that greater improvements could have been achieved…

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35. There had been a gradual but steady decrease (improvement) in the percentage of cases where the decision was that there should be no further action. In 2007-08 the CPS directed that there should be no further action against 158,975 suspects (29.1% of the total of charging decisions)… Working relationships 42. The introduction of the scheme had strengthened working relationships between the police and the CPS and was a contributing element to the development of the prosecution team ethos. 43. Relationships tended to be stronger at a national level, partly because they were further away from the day-to-day challenges faced at operational level, although concerns expressed about the operation of the scheme were causing some tensions. There were still issues that need to be addressed, for example police concerns that some prosecutors were risk averse and prosecutor fears that police officers were less likely to complete work post-charge. However the working environment was now one where such issues could be discussed more openly and frankly with less emphasis on blame. The key challenge is to translate the benefits of these better working relationships into more effective management, delivering improved efficiency. … Conclusion 49. To be fully effective the scheme, as a minimum, requires the process to deliver two things which overall the findings from the review indicate are requiring improvement. First there needs to be good supervision by the police service at all stages of the investigative process, coupled with proactive oversight of cases by supervisors to ensure that only appropriate ones are referred to a prosecutor. 50. Secondly the CPS must be in a position to provide an effective charging decision when it is needed on a file that meets the prescribed standard, regardless of whether the suspect is on bail or in custody. As the findings indicate, the CPS and the police also needed to consider whether the drive to deliver the decision face-to-face during office hours in all cases adds value, coupled with whether there is a necessity for the charging decision to be delivered locally. The impact of the CPS London Direct initiative on reducing the time an investigator has to wait for an appointment will assist to inform the way forward. 51. The scheme was intended to be fairly straight forward and efficient, aimed at ensuring that the right people were prosecuted (or not) with the right charges being applied first time, contributing to more offenders being brought to justice and improved efficiency as cases progressed through the system. For a variety of reasons the processes have become too complex, impacting on the effective delivery of the anticipated benefits. A more flexible ‗common sense‘ approach to issues would improve efficiency.

Chapter 2.4.1: Power to stop and search (pp 99-102) With effect from 1 January 2009, some paragraphs of Code A (issued under the Police and Criminal Evidence Act 1984) were amended:

2.2 Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind … Reasonable suspicion can never be supported on the basis of personal factors. It must rely on intelligence or information about, or some

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specific behaviour by, the person concerned. For example, other than in a witness description of a suspect, a person‘s race, age, appearance, or the fact that the person is known to have a previous conviction, cannot be used alone or in combination with each other, or in combination with any other factor, as the reason for searching that person. Reasonable suspicion cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity. A person‘s religion cannot be considered as reasonable grounds for suspicion and should never be considered as a reason to stop or stop and search an individual.

2.3 Reasonable suspicion can sometimes exist without specific information or intelligence and on the basis of the behaviour of a person. For example, if an officer encounters someone on the street at night who is obviously trying to hide something, the officer may (depending on the other surrounding circumstances) base such suspicion on the fact that this kind of behaviour is often linked to stolen or prohibited articles being carried…

… 4.2 Except in the circumstances set out in paragraph 4.2A, a copy of a record made

at the time must be given immediately to the person who has been searched. In all cases the officer must ask for the name, address and date of birth of the person searched, but there is no obligation on a person to provide these details and no power of detention if the person is unwilling to do so.

4.2A A receipt of the record rather than a copy of the record may be given immediately to the person who has been searched provided it is produced by electronic means and states how the full record can be accessed.

In B v DPP [2008] EWHC 1655 (Admin); (2008) 172 JP 449, it was held that a police officer in plain clothes who wishes to exercise his power to stop and search must ordinarily produce his warrant card before so doing; otherwise, the search becomes unlawful and the officer in question would not be acting in the execution of his duty. Chapter 2.4.2: Searching premises (pp 103-107) In Scopelight Ltd v Chief Constable of Northumbria [2009] EWCA Civ 1156; [2010] 2

WLR 1138, it was held that that s 22 of the Police and Criminal Evidence Act 1984 does not preclude the police from retaining seized property where that property was required for the purpose of investigating or prosecuting an offence, even where the CPS had notified the parties of its decision not to prosecute those from whom the property had been seized. The police then have power to determine whether it is necessary in all the circumstances that the property seized should be retained for further examination or for use as evidence at a trial for an offence. Leveson LJ, at para 53, said that

If a prosecution is not to be pursued by the CPS but some other public or private body wishes to pursue a private prosecution, the relevant circumstances include (but are not limited to): the identity and motive of the potential prosecutor; the gravity of the allegation along with the reasoning behind the negative decision of the CPS and thus the extent to which, in this case, the public have a legitimate interest in the criminal prosecution of this conduct; the police view of the significance of what has been retained; and any material fact concerning the proposed defendant. All this falls to be considered so that a balanced decision can be reached upon whether retention is necessary ―in all the circumstances‖. Such a decision would be capable of challenge on traditional public law grounds.

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Chapter 2.4.2.2: Entry without a warrant (pp 104-105)

In Syed v DPP [2010] EWHC 81 (Admin); [2010] 1 Cr App R 34, the court considered

the effect of s 17(1)(e) of the Police and Criminal Evidence Act 1984. Collins J, at paras 11 and 12, said:

It is plain that Parliament intended that the right of entry by force without any warrant should be limited to cases where there was an apprehension that something serious was otherwise likely to occur, or perhaps had occurred, within the house, hence the adjective "serious" applied to any question of damage; and, although I entirely agree with May LJ that the expression "danger to life or limb" is somewhat outmoded, it again indicates a serious matter — that what had happened in the premises, or what might happen in the premises, would involve some serious injury to an individual therein. The test applied by the officers, and accepted by the justices in this case, was a concern for the welfare of someone within the premises. Concern for welfare is not sufficient to justify an entry within the terms of s 17(1)(e). It is altogether too low a test. I appreciate and have some sympathy with the problems that face police officers in a situation such as was faced by these officers. In a sense they are damned if they do and damned if they do not, because if in fact something serious had happened, or was about to happen, and they did not do anything about it because they took the view that they had no right of entry, no doubt there would have been a degree of ex post facto criticism. But it is important to bear in mind that Parliament set the threshold at the height indicated by section 17(1)(e) because it is a serious matter for a citizen to have his house entered against his will and by force by police officers. Parliament having set that level, it is important that it be met in any particular case.

Chapter 2.6.1: Alternatives to prosecution – simple cautions for adults (pp 111-115) Home Office Circular 16/2008: Simple Cautioning of Adult Offenders replaces Home

Office Circular 30/2005. Chapter 2.6.2: Alternatives to Prosecution – adults – conditional cautions (pp 115-125)

A revised version of The Director's Guidance on Adult Conditional Cautions: Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984 has been

issued (6th Edition, January 2010). There is also a Revised Code of Practice for Conditional Cautions – Adults (issued

pursuant to s 25 of the Criminal Justice Act 2003). In R (Guest) v DPP [2009] EWHC 594 (Admin); (2009) 173 JP 511, judicial review was

sought of a decision to administer a conditional condition, rather than prosecute, in a

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case involving a serious assault. The court noted that it could not be said that, where a conditional caution in respect of an alleged offence was quashed, any subsequent prosecution in respect of that alleged offence would inevitably amount to an abuse of process. Goldring LJ added (at para 56):

By Part 3 of the Criminal Justice Act 2003, Parliament has decided to place very considerable responsibility on the Crown Prosecution Service. By a decision to offer a conditional caution to an offender, the court is effectively bypassed. It means that someone who is guilty of committing a criminal offence is not prosecuted, does not appear before the court and is not sentenced by the court. The importance of taking such a decision conscientiously and in accordance with the law can hardly be overstated. The effect on the victim and the damage to the criminal justice system is self-evident if such a decision is taken without proper regard to the relevant guidance.

Chapter 2.6.4: Youth Conditional Cautions (pp 128-129)

The DPP has issued a Code of Practice for Youth Conditional Cautions (which have been brought into force in certain areas). See the Director's Guidance on Youth Conditional Cautions: Guidance to Police Officers, Youth Offending Teams and Crown Prosecutors, issued by the Director of Public Prosecutions under Section 37A of the

Police and Criminal Evidence Act 1984 (January 2010). There is also a Code of Practice for Youth Conditional Cautions for 16 & 17 Year Olds (issued pursuant to s 66G of the Crime and Disorder Act 1998). Chapter 2.6.2: Conditional cautions (pp 115-125); chapter 2.6.4: Youth conditional cautions (pp 128-129) The Criminal Justice Act 2003 (Conditional Cautions: Financial Penalties) Order 2009 (SI 2009/2773) lists offences to which the conditional caution provisions apply and prescribes a maximum penalty of £150 (£75 for young offenders under the Crime and Disorder Act 1998 (Youth Conditional Cautions: Financial Penalties) Order 2009 (SI 2009/2781). Chapter 2.6.5: Fixed penalty notices (p 129)

In R v Gore [2009] EWCA Crim 1424; (2009) 173 JP 505, the two defendants had each

received a fixed penalty notice for public disorder. The following day, the police reviewed the CCTV evidence of the incident and decided that the fixed penalty notices were inappropriate. The defendants were arrested and charged with inflicting grievous bodily harm. The Court of Appeal ruled that there had been no improper escalation of charge, nor any departure from any reasonable expectation that either defendant would not be prosecuted, if any more serious consequences of their conduct, and evidence justifying prosecution for an offence of violence came to light after the issue of the notice.

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Guidance from Ministry of Justice on the use of fixed penalty notices for theft from shops and criminal damage notes that a fixed penalty notice for retail theft should not be issued if the value of the goods stolen exceeds £100, and that only one penalty notice should ever be issued to an individual for retail theft (where a penalty notice has previously been issued to the individual, it will not be appropriate to issue a second one if he or she re-offends). A penalty notice is not appropriate for criminal damage if the value of the damage exceeds £300. Penalty notices should not be issued for issue for either retail theft or criminal damage where it is known that an offender is a substance mis-user. Chapter 2.7.2: Challenging the decision not to prosecute (pp 131-132)

In R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756, Lord Bingham of Cornhill noted (at para 30) that ‗authority makes plain that only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator‘. His Lordship went on to say (at para 41) that the issue is not whether the decision ‗was right or wrong, nor whether the Divisional Court or the House agrees with it, but whether it was a decision which the Director was lawfully entitled to make‘. Chapter 2.7.4: Prosecutions by public bodies other than the police (p 134) The Borders, Citizenship and Immigration Act 2009 includes provision for the investigation of offences and detention of suspects by designated customs officials and immigration officers, and for the application of PACE Codes in investigations conducted and detention authorised by such officials and officers. Section 31 empowers the Attorney General to assign to the Director of Revenue and Customs Prosecutions the function of instituting (or assuming the conduct of) criminal proceedings in England and Wales related to criminal investigations by customs officials, immigration officers, officials of the Secretary of State, the Secretary of State, the Director of Border Revenue (appointed under s 6 of the Act), and by the police. Chapter 2.7.5: Private prosecutions (pp 134-136)

In R (Barry) v Birmingham Magistrates' Court [2009] EWHC 2571 (Admin); [2010] 1 Cr

App R 13, Cranston J said (at para 13) that ‗there is no requirement for a person seeking to have a summons issued to approach the police first‘. His Lordship observed that, ‗in a particular case it may be a relevant circumstance whether or not the person seeking a summons has approached the police. The failure of the police to proceed in a particular case may demonstrate that it is hopeless‘. However, there is no ‗invariable requirement that the person take the matter first to the police‘.

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In R v DPP ex p Duckenfield [2000] 1 WLR 55, the Divisional Court considered the

basis upon which the DPP ought to take over private prosecutions in order to stop them. It was held that the DPP acted quite properly in not adopting the same test for stopping a prosecution as for starting one. The policy of the DPP was that he would only intervene to stop a private prosecution on evidential grounds where there was clearly no case to answer, and the Divisional Court made it clear that such a policy was in accordance with s. 6(1) of the 1985 Act. It follows that, provided there is evidence to support a private prosecution, the DPP does not have to intervene to stop it, even though he would not have commenced proceedings himself. Laws LJ said (at p. 68), that ‗it could not be right for the DPP to apply across the board the same tests, in particular the 'reasonable prospect of conviction' test ..., in considering whether to take over and discontinue a private prosecution as the Code enjoins Crown Prosecutors to follow in deciding whether to institute or proceed with a prosecution themselves [because] the consequence would be that the DPP would stop a private prosecution merely on the ground that the case is not one which he would himself proceed with‘. However, a new CPS policy on private prosecutions was published on 23 June 2009. The section of the policy dealing with taking over private prosecutions in order to discontinue them states that:

A private prosecution should be taken over and stopped if, upon review of the case papers, either the evidential sufficiency stage or the public interest stage of the Full Code Test is not met. However, even if the Full Code Test is met, it may be necessary to take over and stop the prosecution on behalf of the public where there is a particular need to do so, such as where the prosecution is likely to damage the interests of justice.

The lawfulness of this new policy was considered in R (Gujra) v CPS [2011] EWHC 472

(Admin); (2011) 175 JP 161. The view expressed by Laws LJ (quoted above) was held to be obiter and heavily influenced by the terms of the policy then in place. The essence of the decision in Duckenfield was that the DPP had to comply with the terms of the CPS

policy which was then in force, namely that a private prosecution should be terminated only if there was ‗clearly no case to answer‘. In Gujra, Richards LJ (at para 23) said that:

The Code [for Crown Prosecutors] is issued pursuant to s.10(1) of the 1985 Act to give guidance on the general principles that are to be applied in determining, inter alia, whether proceedings of which the CPS has the conduct should be discontinued. Since the test must be applied if the CPS does take over the conduct of proceedings, it cannot in my view be unlawful to apply that test in determining whether to take over the conduct of proceedings in the first place. Moreover the policy arguments in favour of a uniform approach are compelling and provide a sound basis for the adoption of the Code test when deciding, in the exercise of the broad discretion under s.6(2), whether to take over the conduct of proceedings in circumstances where there is no duty to take them over.

His Lordship (at para 24) conceded that it was true that the ‗realistic prospect of conviction‘ test leaves less scope for the continuation of private prosecutions than did the ‗clearly no case to answer‘ test under the former policy, but said that:

Private prosecutions can continue, however, where the CPS assesses there to be a realistic prospect of conviction (and provided that the other elements of the policy, notably the public interest test, do not tell in favour of intervention, whether with a view to

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discontinuing the proceedings or with a view to their being carried on by the CPS). In practice, private prosecutions remain far from a dead letter.

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Chapter 3: Bail

Chapter 3.2: Adjournments (pp 139-143)

In Visvaratnam v Brent Magistrates Court [2009] EWHC 3017 (Admin); (2010) 174 JP 61, Openshaw J (at para 18) said that the ‗prosecution must not think that they are always allowed at least one application to adjourn the case‘. His Lordship added (at para 19), that

… there is a high public interest in trials taking place on the date set for trial, and that trials should not be adjourned unless there is a good and compelling reason to do so … An improvement in timeliness and the achievement of a more effective and efficient system of criminal justice in the Magistrates' Court will bring about great benefits to victims and to witnesses and huge savings in time and money.

In Balogun v DPP [2010] EWHC 799 (Admin); [2010] 1 WLR 1915, the defendant‘s

conviction was quashed because the magistrates‘ court had agreed to a request for an adjournment from the prosecution without submitting the application to the ‗rigorous scrutiny‘ required by Lord Bingham CJ (as he became) in R v Hereford Magistrates' Court ex p Rowlands [1998] QB 110, at 127G. Leveson LJ (at para 32) said that

‗challenges to such a decision will be difficult to mount and should only be commenced if the circumstances are exceptional. If brought, however, an application for judicial review must be pursued as a matter of extreme urgency - within days rather than weeks – so as not to affect the continued progress of the case if the single judge (who will also consider the case as a matter of urgency) determines that permission should not be granted. If permission is granted, interim relief can be granted to prevent the continued prosecution while the matter is being investigated‘. In R (DPP) v Lancaster Magistrates’ Court [2010] EWHC 662 (Admin); (2010) 174 JP

320, the Divisional Court considered the role of the justices‘ clerk/court legal adviser in the granting of adjournments. Foskett J (at para 30) said:

… it is clear from paragraph 7 of the Schedule to the Justices' Clerks Rules 2005 that a Justice's Clerk or a duly authorised assistant may sanction the adjournment of a case where both parties agree. It does not, however, … mean that such a person has the power to refuse an adjournment simply because one party objects. Since questions of adjournment essentially involve the exercise of a judicial discretion, … where there is no agreement about adjourning a case, the application for the adjournment should be listed before the Magistrates for consideration … which … is where the true exercise of the relevant judicial discretion lies.

Chapter 3.4.1.1: Grounds for refusing bail (pp 146-150)

Section 114(2) of the Coroners and Justice Act 2009 amends para 6 of Part 1 of Schedule 1 to the Bail Act 1976 by inserting a para 6ZA:

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If the defendant is charged with murder, the defendant may not be granted bail unless the court is of the opinion that there is no significant risk of the defendant committing, while on bail, an offence that would, or would be likely to, cause physical or mental injury to any person other than the defendant.

Section 114(3) adds an additional sub-paragraph (e) to para 9 of that schedule (matters to which the court is to have regard when taking decisions about granting bail):

(e) if the court is satisfied that there are substantial grounds for believing that the defendant, if released on bail (whether subject to conditions or not), would commit an offence while on bail, the risk that the defendant may do so by engaging in conduct that would, or would be likely to, cause physical or mental injury to any person other than the defendant.

Section 115 of the 2009 Act restricts the granting of bail in murder cases. It provides:

(1) A person charged with murder may not be granted bail except by order of a judge of the Crown Court. (2) Ss (3) and (4) apply where a person appears or is brought before a magistrates‘ court charged with murder. (3) A judge of the Crown Court must make a decision about bail in respect of the person as soon as reasonably practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the magistrates‘ court. (4) The magistrates‘ court must, if necessary for the purposes of subs (3), commit the person to custody to be brought before a judge of the Crown Court. ... (6) In this section a reference to a person charged with murder includes a person charged with murder and one or more other offences. (7) For the purposes of subsection (3), when calculating the period of 48 hours Saturdays, Sundays, Christmas Day, Good Friday and bank holidays are to be excluded.

In R(F) v Southampton Crown Court [2009] EWHC 2206 (Admin), the judge refused to

grant bail because he was ‗not sure‘ the accused would ‗turn up or stay out of trouble‘. On appeal, Collins J (at para 3) notes that the correct test is that contained in the Bail Act, s 4(4), applying sch 1; this ‗requires the judge to have substantial grounds for believing that the defendant before him would fail to surrender, commit offences on bail, or transgress one of the other provisions in sch 1‘. The judge had therefore applied the wrong test. As Collins J said (at para 8), ‗It is not a question of him not being sure that the defendant would turn up or stay out of trouble, but he was only entitled to refuse bail if there were substantial grounds for believing that he would breach, he would fail to turn up or would commit further offences‘. The case was therefore remitted to the Crown Court for reconsideration. Chapter 3.5.1: Conditions of bail (pp 156-157)

The electronic monitoring provisions are amended by the Criminal Justice and Immigration Act 2008 so that the Bail Act 1976 now contains the following:

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Section 3AA:

(1) A court may not impose electronic monitoring requirements on a child or young person unless each of the following conditions is met.

(2) The first condition is that the child or young person has attained the age of twelve years.

(3) The second condition is that— (a) the child or young person is charged with or has been convicted of a

violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more; or

(b) he is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings— (i) amount, or (ii) would, if he were convicted of the offences with which he is

charged, amount, to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation.

(4) [Third condition – availability in relevant area.] (5) The fourth condition is that a youth offending team has informed the court that in

its opinion the imposition of [electronic monitoring requirements] will be suitable in the case of the child or young person.

Section 3AB:

(1) A court may not impose electronic monitoring requirements on a person who has attained the age of seventeen unless each of the following conditions is met.

(2) The first condition is that the court is satisfied that without the electronic monitoring requirements the person would not be granted bail.

(3) [Third condition – availability in relevant area.] (4) If the person is aged seventeen, the third condition is that a youth offending team

has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in his case.

Chapter 3.5.4: Breaking conditions of bail (pp 158-162)

In R v Rowland (Court of Appeal, 14 February 1991), cited in R (Gangar) v Leicester Crown Court [2008] EWCA Crim 2987, Hobhouse J said that

Section 7 does not create any offences: it merely gives a power of arrest and provides for the court before whom he is brought to deal with the person and grant or refuse further bail in the light of what has happened. There is a power to arrest on suspicion and in respect of anticipated breaches, not merely breaches that have already occurred. A mere failure to comply with the conditions of bail is not itself a statutory offence, nor is it itself without more a contempt of court… There may be cases where the breach of a bail condition could also be a contempt of court or some other offence …

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… [I]t is important to stress that a mere breach of the terms of bail does not without more not amount to a criminal contempt of court. It does not amount to a criminal offence in itself …

Similarly, in R v Ashley [2003] EWCA Crim 2571; [2004] 1 WLR 2057 (also cited in Gangar), Rose LJ (at para 10) said that

if the conduct breaching bail is known about, ... the bail of the defendant can be revoked. Furthermore, there may well be cases ... in which the breach of bail condition does give rise to a further offence, constituting an interference with the administration of justice, for example, by discouraging a witness from attending trial.

In R (Thomas) v Greenwich Magistrates' Court [2009] EWHC 1180 (Admin); (2009) 173 JP 345, Hickinbottom J ruled that neither the hearsay provisions in the CJA 2003, nor the ruling of the European Court in Al-Khawaja v UK (2009) 49 EHRR 1, made any

difference to the existing jurisprudence in relation to breach of bail proceedings. It follows that, in considering whether he is ‗of the opinion that that person … has broken … any condition of bail‘, a justice is entitled to rely upon written hearsay material, so long as the material is properly evaluated (para 12). Chapter 3.7: Repeated bail applications (pp 169-170) In R (B) v Brent Youth Court [2010] EWHC 1893 (Admin), there had been two bail

applications to the magistrates and one at the Crown Court; the defence sought to make a further application to the magistrates on the basis, inter alia, of a new set of possible conditions. The magistrates ruled that the possibility of new conditions did not amount to a change of circumstances and that the revised conditions could have been put before the court on a previous occasion; accordingly, they refused to hear the application. This refusal was quashed by the High Court. Wilkie J referred to the sch 1, part IIA, of the Bail Act 1976 saying (at para 9) that the

effect of this is that the court is obliged to entertain two bail applications regardless of whether the arguments put forward in the second are arguments which have been advanced previously. But if those arguments are sought to be put forward a third time the court is not obliged to entertain them, though it may do so. But this only applies to the extent that arguments put forward as to fact or law are arguments which the court has heard previously.

His Lordship went on to say this is almost invariably referred to as the ‗change of circumstance‘ condition but that this phrase ‗does not accurately reflect the statutory provisions‘. His Lordship noted that these provisions were apparently designed to give statutory expression to what had been said by the Court of Appeal in R v Nottingham Justices ex p Davies [1981] 1 QB 38 (in particular, the passage starting at p 44F) and

so, at para 16, his Lordship concluded that the mere fact that a suggested condition ‗could have possibly been put forward before but had not been is not an argument for concluding that there was no statutory obligation to consider it … the question is a little wider than "Has there been a change?", it is "Are there any new considerations which were not before the court when the accused was last remanded in custody?"‘.

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Thus, the test to be applied is the ‗new considerations‘ test from the Nottingham Justices case (not necessarily the same thing as a ‗change of circumstances‘). Wilkie J also ruled that the requirement imposed by s 44 of the Children and Young Persons Act 1933, to have regard to the ‗welfare‘ of a defendant under the age of 18, requires the court to consider whether, notwithstanding the restrictions on repeated bail applications contained in part IIA of the 1976 Act, it should nonetheless consider substantively a further bail application in order to have regard to the welfare of the defendant. Thus, for juveniles the restrictions on hearing repeated bail applications may be trumped by the statutory welfare principle. Chapter 3.8: Bail and the European Convention on Human Rights (pp 170-176)

In R (Fergus) v Southampton Crown Court [2008] EWHC 3273 (Admin), Silber J, at para 19, referred to R (Thompson) v Central Criminal Court, a decision given on 6 October

2005, where Collins J (at para 10) had said:

The approach under the Bail Act is entirely consistent with the approach which the European Court has regarded as proper under Article 5, namely there must be a grant of bail unless there are good reasons to refuse. The approach therefore really is not should there be bail granted but should custody be opposed, that is, is it necessary for the defendant to be in custody. That is the approach that the court should take. Only if persuaded that it is necessary should a remand in custody take place. It would be necessary if the court decides that whatever conditions can be reasonably imposed in relation to bail there are nevertheless substantial grounds for believing that the defendant will either fail to surrender to custody, commit an offence, interfere with witnesses or otherwise obstruct justice.

Silber J concluded (at para 21) that certain consequences flowed from this:

First, it is not reasonable for a court to withdraw bail unless it is necessary to do so especially as any decision to withdraw bail engages rights under Article 5. Second, any such reason justifying the decision to withdraw bail must be stated by the decision maker explaining why bail should be withdrawn and that reason must relate to the facts. Such a reason must be more than merely reciting that one of the statutory grounds has been made out. The underlying facts have to be put forward.

In the present case, the judge had been wrong to withdraw bail from an accused who had been on bail for more than four months, had complied with all reporting and residence conditions of bail, and had surrendered to bail when required to do so. Chapter 3.11.2: prosecution appeals against grant of bail (pp 182-184) In Allen v United Kingdom (Application no. 18837/06) [2010] ECHR 420, the applicant

was not allowed to attend the hearing of the prosecution's appeal against her being granted bail. The ECtHR ruled that this amounted to a breach of Article 5§4 (entitlement

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to take proceedings by which the lawfulness of detention shall be decided speedily by a court and release ordered if the detention is not lawful). The Court considered ‗of central importance the fact that the relevant domestic law qualifies a prosecution appeal against bail as a re-hearing of the application for bail, thereby entitling the judge hearing the appeal to remand the accused in custody or to grant bail subject to such conditions as he may deem appropriate‘. The Court ruled that it followed ‗that the applicant should have been afforded the same guarantees at the prosecution's appeal as at first instance‘ and found ‗no evidence of any compelling reasons in the present case which might have rendered the applicant's presence undesirable or impracticable‘; indeed it was ‗accepted that the applicant's representatives had made arrangements for her to be present at the court building on the day of the prosecution appeal hearing, and that no inconvenience would have been caused in allowing her to attend‘ (para 44). Having regards to ‗the particular circumstances of the applicant's case ..., fairness required that the applicant's request to be present at the appeal be granted‘ (para 47). It followed that there had been a violation of Article 5§4 of the Convention. Rule 19.17(4) of the Criminal Procedure Rules has since been amended to remove the restrictions on the defendant's right to be present at the hearing of a prosecutor's appeal against the grant of bail. It now provides that: ―The person concerned shall be entitled to be present at the hearing of the appeal.‖ It should also be noted that, under ss 57A and 57B of the Crime and Disorder Act 1998, the person concerned is to be treated as present in court when, by virtue of a ‗live link‘ direction, that person attends a hearing through a live link. Chapter 3.13: Bail – custody time limits (pp 197-202)

In O'Dowd v UK [2010] ECHR 1324, the European Court of Human Rights observed (at para 68) that:

Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention ...

It follows, said the Court (at para 69), that it falls to the 'national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time'. The Court went on to say (at para 70) that the 'persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices'. At that point, there must not only be 'sufficient' grounds to justify the deprivation of liberty, but the 'national authorities' (i.e. the prosecution) must display 'special diligence' in the conduct of the proceedings. In assessing whether the 'special diligence' requirement has been met, regard must be had 'to periods of unjustified delay, to the overall complexity of the proceedings and to any steps taken by the authorities to speed up proceedings to ensure that the overall length of detention remains "reasonable"'.

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The Court ruled (at para 73) that the 'due diligence' required by s 22(3) of the Prosecution of Offences Act 1985 (extension of custody time limits), cannot be equated to the 'special diligence' required by Article 5(3). The Court went on to explain that:

Unlike the approach of the domestic courts to compliance with the 1985 Act, in assessing compliance with Article 5(3), this Court will examine the proceedings as a whole and assess any particular periods of inactivity or delay by the authorities within the context of the overall period of pre-trial detention, with particular regard to any recognition by the authorities of the length of time already spent in detention and the need to take additional steps to bring about a more speedy trial.

The Court found that, in the present case, there had been no breach of Article 5(3). This was largely because the accused had contributed substantially to the overall length of his pre-trial detention (e.g., dismissing his legal advisers shortly before hearings, which resulted in the hearings being postponed). Chapter 3.13.4: Use of live links – ‘virtual courts’ – Crime and Disorder Act 1998, s 57A (pp 196-197) The Virtual Court is intended to speed up first hearings. It enables a defendant charged in a police custody suite to appear in a magistrates' court for a first hearing whilst still physically located in the police station (significantly reducing the time from charge to first hearing). The defendant will be online at the police station, with the magistrates or District Judge, legal adviser, CPS and Probation Service based at the court. The defendant‘s solicitor can be either at the police station or court. Once an accused has been charged with an offence, the case papers are uploaded into a virtual ‗collaboration space‘ document management system to which police, courts, CPS and the probation service all have access. The CPS can, for example, review the case file remotely and decide what material should be served under Part 21 (disclosure of initial details of the prosecution case); this material can then be printed off at the court and the police station, and is served on the accused and/or his legal representative. During the hearing the defendant is able to view the court, the judge or bench, CPS, probation officer and public gallery via a screen on the wall of the interview room (and there are plasma screens in the courtroom so that the justices, and the public, can see the accused). If the defendant enters a guilty plea, the court may pass sentence at that first hearing (although there may need to be an adjournment for the preparation of a pre-sentence report). The Virtual Court is designed to take all first hearings, except cases where there is more than one accused, cases involving juveniles, and cases where the accused suffers from mental health problems or learning difficulties. If the justices feel that the process is unsuitable for a particular case, they can terminate proceedings at any stage and refer the case for a standard court hearing. Section 106 of the Coroners and Justice Act 2009 amends ss 57B of the Crime and Disorder Act 1998 to empower a single justice to give or rescind a live link direction, thus obviating the need to convene a full court for that purpose (s 57B(7)). Section 57C of the 1998 Act is amended to remove the requirement for the defendant's consent to attendance via a live link for a preliminary hearing in a magistrates‘ court where the

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defendant is at the police station and to add a requirement that a live link direction may be given only if the court is satisfied that it is not contrary to the interests of justice (s 57C(6A)). Similarly, s 57D is amended so as to remove the requirement for the defendant's consent both to continued attendance via live link and to his giving oral evidence through the live link. Section 106 also amends s 57D of the Crime and Disorder Act 1998 by removing the requirement for a defendant‘s consent to be sentenced by live link where he has pleaded guilty at a live link preliminary hearing. However, the court has to be satisfied that the defendant continuing to attend through the live link would not be contrary to the interests of justice Section 106 also amends s 57E of the Crime and Disorder Act 1998 by removing the need for the defendant‘s consent for a live link sentencing hearing where he has previously been convicted of the offence and is in custody.

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Chapter 4: Classification and allocation of offences

Chapter 4.7.3: Mode of trial statistics (pp 219-220)

Crown Prosecution Service Annual Reports The introductory note to Annex A: Casework Statistics in the CPS Annual Report for 2007-08 explains that:

In these statistics, a defendant represents one person in a single set of proceedings, which may involve one or more charges. A set of proceedings usually relates to an incident or series of related incidents that are the subject of a police file. If a set of proceedings relates to more than one person, then each is counted as a defendant. Sometimes one person is involved in several sets of proceedings during the same year: if so, he or she is counted as a defendant on each occasion. The figures comprise defendants dealt with by the 42 Areas of the Service, but do not include the specialised casework handled by Casework Directorate.

The Annex also makes the point that

Counting rules for the presentation of case volumes and outcomes were amended with effect from April 2007. Cases involving mixed pleas of guilty to some charges while other charges proceeded to contest were formerly double counted, but are now treated as a single defendant case. Historical figures in the present report have been adjusted in accordance with the revised rules, giving a consistent run of figures.

This means that some of the figures set out in the main work need to be revised. Statistics relevant to mode of trial/allocation CPS Statistics from the Annual Report and Resources Accounts 2010-11 contain the

following information: In magistrates‘ courts, of defendants pleading not guilty, 61% were convicted and 39% were acquitted. Figures for previous years are: 61%:39% in 2009-10; 62%:38% in 2008-09; 63%:37% in 2007-08; 64%:36% in 2006-07). In the Crown Court, of defendants pleading not guilty, 52% were convicted and 48% were acquitted. Figures for previous years: 52%:48% in 2009-10; 54%:46% in 2008-09; 54:46% in 2007-08, 54%:46% in 2006-07. So far as the allocation decision is concerned, of either-way offences going to the Crown Court for trial, 86% were sent because the magistrates declined jurisdiction, and 14% because the defendant elected Crown Court trial. Figures for previous years are: 87%:13% in 2009-10; 88%:12% in 2008-09; 88%:12% in 2007-08; 90%:10% in 2006-07; 91%:9% in 2005-06.

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The Judicial Statistics for 2010, which cover all cases (not just CPS cases), present a slightly different picture. In the Crown Court, the figures for 2010 show that guilty pleas were entered in 70% of cases. Of defendants who pleaded not guilty, 64% were acquitted and 36% were convicted. The guilty plea figures for previous years are: 2009: 71% 2008: 70% 2007: 68% 2006: 65% 2005: 63% 2004: 60% 2003: 59% 2002: 58% 2001: 56% 2000: 56% The acquittal rates for previous years are: 2009: 62% 2008: 60% 2007: 61% 2006: 59% 2005: 53% 2004: 50% 2003: 51% 2002: 50% 2001: 51% 2000: 51% Chapter 4.11: The advance information rules (initial details of prosecution case) (pp 225-227) Part 21 of the Criminal Procedure Rules now provides as follows:

Part 21: Initial details of the prosecution case 21.1 (1) This Part applies in a magistrates' court, where the offence is one that can be

tried in a magistrates' court. (2) The court may direct that, for a specified period, this Part will not apply—

(a) to any case in that court; or (b) to any specified category of case.

21.2 The prosecutor must provide initial details of the prosecution case by— (a) serving those details on the court officer; and

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(b) making those details available to the defendant, at, or before, the beginning of the day of the first hearing. 21.3 Initial details of the prosecution case must include— (a) a summary of the evidence on which that case will be based; or (b) any statement, document or extract setting out facts or other matters on which

that case will be based; or (c) any combination of such a summary, statement, document or extract; and (d) the defendant‘s previous convictions.

The main changes are:

The new Part 21 refers to disclosure of ‗initial details‘ of the prosecution case, rather than ‗advance information‘.

The new Part 21 applies to all offences that may be tried in a magistrates‘ court, and so encompasses both summary and either-way offences (whereas the original Part 21 applied only to summary offences).

The requirement for the prosecution to disclose the initial details is not dependent upon a request being made by the defence (whereas under the old Part 21, advance information had to be requested by the defence)

Under the new Part 21, the initial details of the prosecution case must be provided no later than the date of the first hearing in the magistrates‘ court (whereas under the old Part 21, advance information had to be provided by the time of the mode of trial hearing).

It remains the case that the initial details of the prosecution case may be disclosed through the provision of a summary of the prosecution case, or through handing over witness statements or other documents setting out the facts on which the prosecution case is based, or through a combination of a summary and witness statements. Chapter 4.13: Section 41 of the Criminal Justice Act 1988 (pp 228-231) In R v Dodson [2009] EWCA Crim 1830, the Court noted that s 41 of the Criminal Justice

Act 1988 provides for committal of a summary offence only when it is committed to the Crown Court with an associated offence which is triable either way. Moreover, the decision in R v Avery [1994] RTR 419 makes it plain that the Crown Court has power to

deal with the offence committed under s 41 only if a charge on the indictment is pursued and there is a conviction (per Hallett LJ, at para 6). Chapter 4.14: Adjusting charges to dictate mode of trial (pp231-232)

In DPP v Hammerton [2009] EWHC 921 (Admin); [2010] QB 79, the defendant was

charged with attempted theft (triable either way); the prosecution subsequently sought to replace the charge with one of interfering with a motor vehicle (a summary offence). In R v Liverpool Stipendiary Magistrate, ex parte Ellison [1990] RTR 220, Leggatt J (at p 226)

had said that: ‗In the absence of bad faith on the part of the prosecutor or of unfairness

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or prejudice to the accused, the prosecutor's motive in making the substitution was irrelevant. The question is whether the substitution is … a proper one‘. However, in the present case, Davis J pointed out that the courts now have to take into account the Criminal Procedure Rules, and in particular the overriding objective. At para 24, his Lordship said that: ‗It seems to me that the language of ‗proper and appropriate‘ better conveys the correct approach in cases of this kind, in the light of the Criminal Procedure Rules; and I doubt if it now needs be shown that bad faith as such needs be shown in all cases before an application to substitute a new charge can be disallowed‘. At para 30, his Lordship added that ‗in the vast majority of cases everyone concerned will be entirely content for a lesser charge to be substituted. But where a lesser charge is to be substituted, first, it must be proper and appropriate to the facts of the case; secondly, the application should be made promptly and not left until the last minute, at all events without any proper explanation; and, thirdly, an eye should also be kept on considerations of the good administration of justice and the wider picture …‘. For example, the impact on any co-accused might be relevant.

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Chapter 5: Summary trial

Chapter 5: Summary trial procedure (pp 247ff)

Part 37 of the Criminal Procedure Rules now provides as follows: Under 37.2(1)

(a) the general rule is that the hearing must be in public; but (b) the court may exercise any power it has to—

(i) impose reporting restrictions, (ii) withhold information from the public, or (iii) order a hearing in private…

Rule 37.2(1)(c) repeats the rules on who may be present in a youth court:

unless the court otherwise directs, only the following may attend a hearing in a youth court— (i) the parties and their legal representatives, (ii) a defendant‘s parents, guardian or other supporting adult, (iii) a witness, (iv) anyone else directly concerned in the case, and (v) a representative of a news-gathering or reporting organisation.

Rule 37.2(2) sets out what must happen at the start of the trial: Unless already done, the justices' legal adviser or the court must—

(a) read the allegation of the offence to the defendant; (b) explain, in terms the defendant can understand (with help, if necessary)—

(i) the allegation, and (ii) what the procedure at the hearing will be;

(c) ask whether the defendant has been advised about the potential effect on sentence of a guilty plea;

(d) ask whether the defendant pleads guilty or not guilty; and (e) take the defendant‘s plea.

Under rule 37.2(3): The court may adjourn the hearing—

(a) at any stage, to the same or to another magistrates' court; or (b) to a youth court, where the court is not itself a youth court and the defendant is

under 18.

Rule 37.3 sets out what should happen where the defendant enters a not guilty plea (or does not enter a plea and so is deemed to be pleading not guilty, or where there may be grounds for making a hospital order without convicting the defendant, as where the defendant is unfit to plead). Firstly, if a not guilty plea was taken on a previous occasion, the justices' legal adviser or the court must ask the defendant to confirm that plea (r. 37.3(2)). Rule 37.3(3) sets out the order of events in a summary trial:

In the following sequence—

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(a) the prosecutor may summarise the prosecution case, identifying the relevant law and facts;

(b) the prosecutor must introduce the evidence on which the prosecution case relies; (c) at the conclusion of the prosecution case, on the defendant‘s application or on its

own initiative, the court— (i) may acquit on the ground that the prosecution evidence is insufficient for

any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make

representations; (d) the justices‘ legal adviser or the court must explain, in terms the defendant can

understand (with help, if necessary)— (i) the right to give evidence, and (ii) the potential effect of not doing so at all, or of refusing to answer a

question while doing so; (e) the defendant may introduce evidence; (f) a party may introduce further evidence if it is then admissible (for example,

because it is in rebuttal of evidence already introduced); (g) the prosecutor may make final representations in support of the prosecution

case, where— (i) the defendant is represented by a legal representative, or (ii) whether represented or not, the defendant has introduced evidence other

than his or her own; and (h) the defendant may make final representations in support of the defence case.

Thus, the sequence of events in a summary trial is:

1. The prosecutor may make an opening speech. 2. The prosecution evidence is then called. 3. The defence may make a submission of no case to answer. Unless the

magistrates are minded to rule that there is a case to answer, they must give the prosecution a chance to respond to the defence submission before making their decision. The magistrates may indicate that they are minded to dismiss the case at this stage without the defence inviting them to do so, but the prosecution must be given the opportunity to make representations first.

4. The court (usually through the clerk) must inform the defendant that he has the right to give evidence and must warn the defendant of the risk of adverse inferences being drawn (under s 35 of the Criminal Justice and Public order act 1994) if he does not testify (or refuses to answer questions while testifying).

5. The defendant may then testify and call any supporting witnesses. 6. Either party may call further evidence, for example evidence in rebuttal. It is

submitted that, since the defence will have just called their evidence, it is likely to be the prosecution who seek to make use of this provision. It is also suggested that the calling of rebuttal evidence should be regarded as an exceptional course of action.

7. The prosecution may make a closing speech (unless the defendant is unrepresented and called no witnesses other than his own testimony).

8. The defence may make a closing speech (thus, the defence will always have the last word before the magistrates decide their verdict).

Under r. 37.3(4)(a), where a party wants to introduce evidence or make representations after their opportunity to do so under r. 37.3(3), the court may refuse to receive any such

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evidence or representations. Rule 37.3(4)(b) preserved the principle of finality by providing that the court must not receive any such evidence or representations after it has announced its verdict. Under r. 37.3(5), if the court convicts the defendant, it must give ‗sufficient reasons to explain its decision‘. The same applies where the court makes a hospital order instead of convicting the defendant. Rule 37.3(6)(a), if the court acquits the defendant, it may (but is not required to) give an explanation of its decision. Rule 37.4(2)(a) says that a witness waiting to give evidence must wait outside the courtroom unless he or she is an expert witness. Under r. 37.4(3), before giving evidence a witness must either take an oath or affirm (i.e. promise, rather swear, to tell the truth). Rule 37.4(4) goes on to stipulate that: In the following sequence—

(a) the party who calls a witness must ask questions in examination-in-chief; (b) every other party may ask questions in cross-examination; (c) the party who called the witness may ask questions in re-examination; (d) at any time while giving evidence, a witness may refer to a record of that witness'

recollection of events, if other legislation so permits; (e) the party who calls a witness, in examination-in-chief may ask that witness to

adopt all or part of such a record as part of that witness' evidence, but only if— (i) the parties agree, and (ii) the court so permits;

(f) if the witness adopts any part of such a record— (i) that part must be read aloud, or (ii) with the court‘s permission, its contents may be summarised aloud.

Rule 37.4(5) says that the justices' legal adviser (or the court) may ask a witness questions and, in particular, where the defendant is not represented, may ask any question that is necessary in the defendant‘s interests. Rule 37.5 deals with evidence being adduced in the form of a written statement of a witness. The party introducing the statement must read or summarise aloud those parts that are relevant to the issues in the case. Rule 37.6 applies where a party introduces in evidence a fact admitted by another party, or parties jointly admit a fact (e.g. under s 10 of the Criminal Justice Act 1967). Unless the court otherwise directs, a written record must be made of the admission. Rule 37.7 deals with cases where the defendant pleads guilty. Provided that the court is ‗satisfied that the plea represents a clear acknowledgement of guilt‘, it may ‗convict the defendant without receiving evidence‘. Rule 37.8 contains a summary of the procedure to be adopted where the defendant pleads guilty by post under s 12 of the Magistrates‘ Courts Act 1980.

(1) This rule applies where— (a) the offence alleged—

(i) can be tried only in a magistrates' court, and (ii) is not one specified under section 12(1)(a) of the Magistrates'

Courts Act 1980(50);

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(b) the defendant is at least 16 years old; (c) the prosecutor has served on the defendant—

(i) the summons or requisition, (ii) the material on which the prosecutor relies to set out the facts of

the offence and to provide information relevant to sentence, (iii) a notice that the procedure set out in this rule applies, and (iv) a notice for the defendant‘s use if the defendant wants to plead

guilty without attending court; and (d) the prosecutor has served on the court officer—

(i) copies of those documents, and (ii) a certificate of service of those documents on the defendant.

(2) A defendant who wants to plead guilty without attending court must, before the hearing date specified in the summons or requisition— (a) serve a notice of guilty plea on the court officer; and (b) include with that notice any representations that the defendant wants the

court to consider on that date. (3) A defendant who wants to withdraw such a notice must notify the court officer in

writing before the hearing date. (4) The court may accept such a guilty plea on the hearing date, and if it does so

must take account only of— (a) the material served by the prosecutor on the defendant under this rule;

and (b) any representations by the defendant.

(5) With the defendant‘s agreement, the court may deal with the case in the same way as under paragraph (4) where the defendant— (a) is present; and (b) has served a notice of guilty plea under paragraph (2); or (c) pleads guilty there and then.

Under r 37.14(4), where the defendant pleads guilty by post, the justices' legal adviser must read aloud to the court:

(a) the material on which the prosecutor relies to set out the facts of the offence and to provide information relevant to sentence (or summarise any written statement included in that material, if the court so directs); and

(b) any written representations by the defendant.

Rule 37.9 applies where the defendant seeks to withdraw a guilty plea:

(2) The defendant must apply to do so— (a) as soon as practicable after becoming aware of the reasons for doing so;

and (b) before sentence.

(3) Unless the court otherwise directs, the application must be in writing and the defendant must serve it on— (a) the court officer; and (b) the prosecutor.

(4) The application must— (a) explain why it would be unjust not to allow the defendant to withdraw the

guilty plea; (b) identify—

(i) any witness that the defendant wants to call, and (ii) any other proposed evidence; and

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(c) say whether the defendant waives legal professional privilege, giving any relevant name and date.

Rule 37.10 applies where the court convicts the defendant (i.e. where the defendant either pleads guilty or is found guilty after a trial). Under r 37.10(2):

The court— (a) may exercise its power to require—

(i) a statement of the defendant‘s financial circumstances, (ii) a pre-sentence report; and

(b) may (and in some circumstances must) remit the defendant to a youth court for sentence where— (i) the defendant is under 18, and (ii) the convicting court is not itself a youth court.

Rule 37.10 goes on to describe what must take place at the sentencing hearing:

(3) The prosecutor must— (a) summarise the prosecution case, if the sentencing court has not heard

evidence; (b) identify any offence to be taken into consideration in sentencing; (c) provide information relevant to sentence; and (d) where it is likely to assist the court, identify any other matter relevant to

sentence, including— (i) aggravating and mitigating factors, (ii) the legislation applicable, and (iii) any guidelines issued by the Sentencing Guidelines Council, or

guideline cases. (4) The defendant must provide information relevant to sentence, including details of

financial circumstances. … (7) Before the court passes sentence—

(a) the court must— (i) give the defendant an opportunity to make representations and

introduce evidence relevant to sentence, and (ii) where the defendant is under 18, give the defendant‘s parents,

guardian or other supporting adult, if present, such an opportunity as well; and

(b) the justices' legal adviser or the court must elicit any further information relevant to sentence that the court may require.

(8) If the court requires more information, it may exercise its power to adjourn the hearing for not more than— (a) 3 weeks at a time, if the defendant will be in custody; or (b) 4 weeks at a time.

Rule 37.10(5) sets out what happens where there is a significant difference between the version of events put forward by the prosecution and the version put forward by the defence:

Where the defendant pleads guilty but wants to be sentenced on a different basis to that disclosed by the prosecution case— (a) the defendant must set out that basis in writing, identifying what is in

dispute;

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(b) the court may invite the parties to make representations about whether the dispute is material to sentence; and

(c) if the court decides that it is a material dispute, the court will— (i) invite such further representations or evidence as it may require,

and (ii) decide the dispute.

Although r 37.10(5)(c) appears to suggest that, where the difference in versions put forward by the parties is significant (in that it would make a difference to the sentence passed), the court has a choice of hearing further representations or evidence, it is submitted that magistrates should follow the procedure laid down by R v Newton (1982)

77 Cr App R 13, and (if they are unwilling simply to accept the defence version of events) hear evidence (i.e. hold a Newton hearing) and then make findings of fact and sentence accordingly. Rule 37.10(9) deals with the actual passing of sentence:

When the court has taken into account all the evidence, information and any report available, the general rule is that the court will— (a) pass sentence there and then; (b) explain the sentence, the reasons for it, and its effect, in terms the defendant can

understand (with help, if necessary); and (c) consider exercising any power it has to make a costs or other order.

Rule 37.10(10) deals with situations where sentence is not passed immediately:

Despite the general rule— (a) the court must adjourn the hearing if—

(i) the case started with a summons or requisition, and the defendant is absent, and

(ii) the court considers passing a custodial sentence, or (iii) the court considers imposing a disqualification (unless it has already

adjourned the hearing to give the defendant an opportunity to attend); (b) the court may exercise any power it has to—

(i) commit the defendant to the Crown Court for sentence (and in some cases it must do so), or

(ii) defer sentence for up to 6 months. Rule 37.11 deals with trial in the absence of a party (except those cases where a defendant pleads guilty by post – see r. 37.8). Rule 37.11(2) mirrors the provisions in s 15 of the Magistrates‘ Court Act 1980 and applies where the prosecutor is absent, and says that the court may:

(a) if it has received evidence, deal with the case as if the prosecutor were present; and

(b) in any other case— (i) enquire into the reasons for the prosecutor‘s absence, and (ii) if satisfied there is no good reason, exercise its power to dismiss the

allegation.

Rule 37.11(3) and (4) mirror the provisions in s 11 of the Magistrates‘ Courts Act 1980 and applies where the defendant is absent:

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(3) (a) the general rule is that the court will proceed as if the defendant— (i) were present, and (ii) had pleaded not guilty (unless a plea already has been taken) and the court must give reasons if it does not do so; but

(b) the general rule does not apply if the defendant is under 18; (c) the general rule is subject to the court being satisfied that—

(i) any summons or requisition was served on the defendant a reasonable time before the hearing, or

(ii) in a case in which the hearing has been adjourned, the defendant had reasonable notice of where and when it would resume;

(d) the general rule is subject also to rule 37.10(10)(a) (restrictions on passing sentence in the defendant‘s absence); and

(e) the hearing must be treated as if it had not taken place at all if— (i) the case started with a summons or requisition, (ii) the defendant makes a statutory declaration of not having found

out about the case until after the hearing began, and (iii) the defendant serves that declaration on the court officer not

more than 21 days after the date of finding out about the case, unless the court extends that time limit.

(4) Where the defendant is absent, the court— (a) must exercise its power to issue a warrant for the defendant‘s arrest, if it

passes a custodial sentence; and (b) may exercise its power to do so in any other case, if it does not apply the

general rule in paragraph (3)(a) of this rule about proceeding in the defendant‘s absence.

Rule 37.14 deals with the role of the justices‘ legal adviser or court clerk:

(1) A justices' legal adviser must attend, unless the court— (a) includes a District Judge (Magistrates' Courts); and (b) otherwise directs.

(2) A justices' legal adviser must— (a) give the court legal advice; and (b) if necessary, attend the members of the court outside the courtroom to

give such advice; but (c) inform the parties of any such advice given outside the courtroom.

(3) A justices' legal adviser must— (a) assist an unrepresented defendant; (b) assist the court by—

(i) making a note of the substance of any oral evidence or representations, to help the court recall that information,

(ii) if the court rules inadmissible part of a written statement introduced in evidence, marking that statement in such a way as to make that clear,

(iii) ensuring that an adequate record is kept of the court‘s decisions and the reasons for them, and

(iv) making any announcement, other than of the verdict or sentence.

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Chapter 5.3: The contents of the charge/information (pp 249-251)

See update to Chapter 2.2.3 for details of Part 7 of the Criminal Procedure Rules. Chapter 5.9.2: Summary trial – pre-trial rulings (pp 264-265)

In R (CPS) v Gloucester Justices [2008] EWHC 1488 (Admin); (2008) 172 JP 506, MacKay J, construing s 8B of the Magistrates‘ Courts Act 1980 (variation of pre-trial rulings) said (at paras 10 and 12):

It appears therefore, on a strict reading of this section, that where the court acts of its own motion to vary a previous ruling, the grounds for discharge or variation are simply the interests of justice, and where an application is made by a party, there is an additional requirement for proof of material change of circumstances.

… I for my part find it difficult, indeed impossible, to accept that it can be in the interests of justice for the same court to feel free, in effect, to annul or discharge its own earlier ruling without there being some compelling reason, such as changed circumstances or fresh evidence, so to do. I would not regard it as being in the interests of justice for one bench to set aside a previous bench's ruling previously because on the same material it thought it would reach a different conclusion.

Chapter 5.10.3.2: Defects in the charge requiring amendment (pp 268-270)

In Williams v DPP [2009] EWHC 2354 (Admin), the accused was suspected of drink-driving. At the police station, he failed to give an adequate breath sample and was asked for a blood or urine sample. He refused to give a blood sample, on the basis that he was scared of needles, and failed to provide a urine sample. However, he was charged with failure to provide a breath specimen. On the day of the trial (some 9 months later), the magistrates acceded to an application by the CPS to amend the charge to allege failure to provide a urine sample. The Divisional Court ruled that this amendment would have been permissible but for the fact that the magistrates also allowed a further adjournment of four months. This decision may be contrasted with R (Thornhill) v Uxbridge Magistrates’ Court [2008] EWHC 508 (Admin), where the opposite view was taken. However, in Williams, Thomas LJ noted (at para 19) that CPS did not appear and were not represented in Thornhill, and so it is of limited value as an authority; in any event, the question whether the offence arises out of the same or substantially the same facts is a factual question. On this basis, it is submitted that Thornhill should not be followed. Chapter 5.10.9: Summary trial: submissions of no case to answer (pp 277-280)

In R (CPS) v Norwich Magistrates' Court [2011] EWHC 82 (Admin), the prosecution

opened the case (a charge of assault) by stating that identification was not in dispute (the section of the case management form completed by the defence raised the issue of

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self-defence). At the close of the prosecution case, the defence made a submission of no case based on the lack of adequate identification. The prosecution sought to call additional evidence, but the magistrates refused to allow this. The Divisional Court said that the decision of the magistrates was wrong. Richards LJ said (at para 22):

... if the defence was going to take a positive point on identification, it was incumbent on it to flag the point at an early stage, not to wait until the close of the prosecution case before raising it for the first time in a submission of no case. It should have been expressed during the case management process and included in terms in the trial information form. That is all the more obvious in the environment in which the parties now operate by reference to the Criminal Procedure Rules and the overriding objective. Even if there had been an omission to deal with it at that earlier stage, it ought to have been raised very clearly when the prosecuting advocate opened the case by telling the magistrates that there was no issue over identification. It was not appropriate, as it seems to me, simply to sit tight and to raise it at the end of the prosecution case by way of a submission of no case.

His Lordship concluded, at para 25, that ‗the decision to refuse the prosecution application to re-open ran counter to the overriding objective of the Criminal Procedure Rules , was plainly contrary to the interests of justice and lacked any reasonable basis‘. Chapter 5.10.12: Speeches in a summary trial (pp 282-283)

Under r. 37.3 of the Criminal Procedure Rules, the prosecutor ‗may make final representations in support of the prosecution case‘ if the accused is represented or (whether represented or not) the accused has called evidence other than his or her own testimony. The accused may then ‗make final representations in support of the defence case‘. Chapter 5.10.17: Summary trial – special measures directions (pp 286-287): See the update to Chapter 11.9 for discussion of the Coroners and Justice Act 2009, reversing the effect of R v Davis [2008] UKHL 36. Chapter 5.11: The role of the clerk/court legal adviser (pp 288-293)

In Cooper v Wrexham Magistrates Court [2010] EWHC 2226 (Admin), the clerk's

intervention in the retiring room meant that he was effectively participating in the decision-making process: "what happened had every appearance ... that what the magistrates' court clerk had to say about facts changed the mind of the magistrates in other than open court, which is where a trial should be conducted, with the result that the magistrates changed their decision which they had reached, which was theirs alone to come to" (per Langstaff J, at para 11). The case is an important reminder of the need to follow closely part V.55 of the Consolidated Criminal Practice Direction.

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Chapter 5.12: Summary trial: the decision of the justices – viewing the scene (p 293)

M v DPP [2009] EWHC 752; [2009] 2 Cr App R 12, per Leveson LJ (at para 31):

What is critical before any court embarks upon any view is that there is absolute clarity about precisely what is to happen on such a view, about who is to stand in what position, about what (if any) objects should be placed in a specific position and about who will do what. None of this should happen at the scene of a view, which should be conducted without discussion for the very reasons identified in this case, namely that otherwise not all involved can participate.

Chapter 5.12.2: Summary trial – setting aside conviction or sentence under s 142 of the MCA 1980 (pp 294-296)

In R (Rhodes-Presley) v South Worcestershire Magistrates' Court [2008] EWHC 2700 (Admin), it was held that, where a magistrates' court sets aside a conviction under s 142 of the Magistrates‘ Courts Act 1980, the court cannot require the Crown to pursue a prosecution. If the prosecution do not wish to proceed with a re-trial, it may be necessary to list the matter before the magistrates; the prosecution will offer no evidence and the magistrates will then have no option but to dismiss the case with a verdict of not guilty. In R (Blick) v Doncaster Magistrates' Court [2008] EWHC 2698 (Admin); (2008) 172 JP

651, notice of the trial date had been sent to the defendant's last known address. In the meantime she had moved address but had not informed the magistrates' court of her change of address. She was convicted in her absence. The refusal by the magistrates‘ court to re-open the case was quashed by the Divisional Court because the magistrates‘ court had been wrong to take the question of whether the claimant had acted with ‗all due diligence‘ as the primary test of whether or not to make the order under s 142(2) and had also erred in taking account of the cost to the ‗public purse‘. In Zykin v CPS [2009] EWHC 1469 (Admin); (2009) 173 JP 361, Bean J quoted from R (Holme) v Liverpool Magistrates' Court [2004] EWHC 3131 (Admin); (2005) 169 JP 306,

and said (at para 16) that s 142 ‗does not confer a wide and general power on a magistrates' court to reopen a previous decision on the grounds that it is in the interests of justice to do so‘; rather, it is ‗a power to be used in a relatively limited situation, namely one which is akin to mistake or the slip rule‘. Rule 42.4(3) if the Criminal Procedure Rules provides that a party seeking a variation in sentence (in the magistrates‘ court, this is under s 142 of the Magistrates‘ Courts Act 1980; in the Crown Court it is under s 155 of the Powers of Criminal Courts (Sentencing) Act 2000) must apply in writing as soon as reasonably practicable, explaining why the sentence should be varied and specifying the variation that the applicant proposes. Under r. 42.4(4), the court cannot vary the sentence in the absence of the defendant

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unless either the court is making the variation which he has proposed, or else he has been given the opportunity to make representations at a hearing. In Holme v Liverpool City Justices [2004] EWHC 3131 (Admin); (2005) 169 JP 306, the

accused pleaded guilty to dangerous driving, a pedestrian having sustained serious injuries. A community sentence was imposed. The magistrates agreed to a request from CPS to reopen the case under s. 142, on the basis that the original counsel for the prosecution had not addressed the extent of the pedestrian‘s injuries and that the difference between the sentence imposed and the custodial sentence that would probably have been imposed had the court known all the facts offended the principles of justice. On appeal to the Divisional Court, Collins J (at para 30) said that:

. . . the power under s 142 is to be used in a relatively limited situation, namely one which is akin to mistake or, as the court says, the slip rule. But there is no reason, on the face of it, to limit it further. It seems to me that if a court has been misled into imposing a particular sentence, and it is discovered that it has been so misled, then the sentence may properly be said to have been imposed because of a mistake; the mistake being the failure of the court to appreciate a relevant fact. That may well give power to the court to exercise the jurisdiction conferred by s. 142, but it does not indicate that that power should necessarily be used.

His lordship went on (at para 33) to say that the sort of case which is appropriate for use of the power under s. 142 is one ‗where the mistake is quickly identified and it is accepted on all sides that a mistake had been made‘. At paras 42–43, his lordship said that it was possible to envisage circumstances in which the failure of the court to be aware of factors which would be relevant to sentence could properly mean that it would be appropriate to resort to s 142, but:

it would only be in very rare circumstances that it would be appropriate to resort to s 142 to consider an increase in sentence, particularly if that increase . . . brought the possibility of custody as opposed to another form of disposal.

The facts of the instant case, said the court, did not come anywhere near justifying such a use of s 142. The power under s 142 should not be used to punish an offender who has misbehaved in the dock after pronouncement of sentence by increasing what was first announced (Powell (1985)7 Cr App R (S) 247, a case which in fact concerned misbehaviour by an

offender at the Crown Court).

In R (Trigger) v Northampton Magistrates' Court [2011] EWHC 149 (QB); (2011) 175 JP

101, it was held to have been inappropriate for the magistrates to exercise their powers under s 142 to increase a sentence originally imposed some 20 months earlier. Ramsey J, at para 33, said that the ‗wide power and absence of any time limit in s 142 must however be exercised taking account of the principle of finality of sentencing. Moreover, although s 142 gives the magistrates jurisdiction to vary or rescind the sentence so as to impose a sentence that could have been imposed at the date of the original sentence, ‗it

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must be borne in mind that it would not usually be in the interests of justice to increase a sentence imposed earlier unless the power is exercised speedily after the date of the original sentence‘. Chapter 5.13.4: Section 6 of the PCC(S)A 2000 ( pp 304-305)

In R v Qayum [2010] EWCA Crim 2237, the Court of Appeal noted that the PCC(S)A 2000, s. 6(3), gives the magistrates a 'secondary' power to commit for sentence in respect of a breach of a suspended sentence order, but only where the 'relevant offence' (i.e. the offence in respect of which the 'primary' power of committal is being exercised) is itself summary only. Chapter 5.15: Speedy summary justice (pp 306-307)

The Judicial Statistics for 2010, published by the Ministry of Justice, show that in 2010,

the estimated average time taken from offence to completion in 2010 was 138 days for defendants in completed criminal cases in magistrates‘ courts (down from 141 days in 2009, 143 days in 2008, 147 days in 2007, and 148 days in 2006).

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Chapter 6: Young defendants and trial in the youth court

Chapter 6.3: The age of criminal responsibility (pp 313-315)

In R v JTB [2009] UKHL 20; [2009] 1 AC 1310, the House of Lords confirmed that, by enacting s 34 of the Crime and Disorder Act 1998, Parliament intended to abolish both the presumption and the defence of doli incapax. In his article, Mens Rea and Defendants Below the Age of Discretion [2009] Crim LR 757, Francis Bennion, a leading authority on statutory interpretation, argues that the decision of the House of Lords in this case was incorrect. Chapter 6.4: Juveniles and bail (pp 315-316)

In R (A) v Lewisham Youth Court [2011] EWHC 1193 (Admin); (2011) 175 JP 321,

Toulson LJ observed (at para 6) that s 23 of the CYPA 1969, is ‗remarkably difficult to follow‘, not least because ‗there are effectively two versions of the section: one version for boys aged between 10 and 14 and girls aged between 10 and 16, and the other version for boys aged 15 or 16‘. The present appeal concerned the effect of s 115 of the Coroners and Justice Act 2009, which provides that, in the case of a murder charge, a Crown Court judge must make the decision about bail. The district judge in the youth court ruled that s 115(4), which requires magistrates to commit an accused charged with murder ‗to custody to be brought before a judge of the Crown Court‘, required him to commit the juvenile to a prison establishment and precluded the operation of s 23. Toulson LJ said (at para 17) that s 115 ‗is capable of being read in harmony with‘ s 23, in that a youth court ‗cannot grant bail to a child or young offender charged with murder, because that can only be granted by the Crown Court, but in determining the form of custody it must apply s 23 as it would in any other case‘. His lordship reasoned (at para 20) that ‗[e]ven for a child or young person charged with an offence as grave as murder, remand in a prison establishment should be the final resort. It is impossible to believe that Parliament can have intended it to be mandatory, regardless of whether the defendant could be safely kept in more suitable accommodation‘. It follows that the youth court should remand in accordance with s 23 when sending a juvenile charged with murder to the Crown Court for the question of bail to be considered. Chapter 6.7.2: Reporting restrictions

On 1 October 2009, the Judicial Studies Board published an updated guide to reporting restrictions in the criminal courts. Chapter 6.12: Juveniles – place of trial (pp 326-338)

In R (D) v Sheffield Youth Court [2008] EWHC 601 (Admin); (2008) 172 JP 576, the defendant was charged with offences falling under s 91 of the Powers of Criminal Courts

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(Sentencing) Act 2000, and he was jointly charged with adults. Thus, both sub-s (1)(a) and sub-s (1)(b) of s 24 of the Magistrates‘ Courts Act 1980 were engaged, and so the magistrates‘ court ought to have considered the matters set out in those sub-sections in order to determine the appropriate venue for trial. However, the court did not do so, simply allowing the defendant to enter pleas of guilty to all charges against him and then remitting the case to the youth court for the defendant to be dealt with there. Richards LJ said (at para 18) that he did ‗not think that it can have been the intention of the legislature that failure to consider the matters set out in s 24(1)(a) and (b) [of the 1980 Act] in circumstances where those provisions are engaged should render subsequent steps invalid‘. It followed that, despite the failure of the court to consider s 24, there had been a valid acceptance of summary jurisdiction by the magistrates' court and equally, therefore, that the subsequent remittal of the case for the defendant to be dealt with by the youth court was valid. His Lordship added that the failure of the magistrates‘ court to proceed in the way that it should have done did not empower the court subsequently to re-open the matter under s 142 of the 1980 Act. It was too late for the matter to be re-opened by the youth court to which the defendant's case had been remitted to be dealt with following acceptance of summary jurisdiction. The decision to re-open the matter was therefore unlawful. In November 2009, the Sentencing Guidelines Council published a document entitled Overarching Principles – Sentencing Youths. In that document, the SGC gives some guidance on cases where the court is considering sending a young defendant to the Crown Court. Dealing with cases where the court is considering sending the young defendant to the Crown Court because the offence falls within s 91 of the Powers of Criminal Courts (Sentencing) Act 2000, paras 12.10 and 12.11 say:

This general power should be used rarely since: i) it is the general policy of Parliament that those under 18 should be tried in the youth court wherever possible; ii) trial in the Crown Court under this provision should be reserved for the most serious cases, recognising the greater formality of the proceedings and the greatly increased number of people involved; iii) offenders aged under 15 will rarely attract a period of detention under this provision and those under 12 even more rarely. Accordingly, i) a young person aged 10 or 11 (or aged 12–14 but not a persistent offender) should be committed to the Crown Court under this provision only where charged with an offence of such gravity that, despite the normal prohibition on a custodial sentence for a person of that age, a sentence exceeding two years is a realistic possibility; ii) a young person aged 12–17 (for which a detention and training order could be imposed) should be committed to the Crown Court under this provision only where charged with an offence of such gravity that a sentence substantially beyond the 2 year maximum for a detention and training order is a realistic possibility.

Dealing with the applicability of the ‗dangerous offender‘ provisions (contained in the Criminal Justice Act 2003 – see chapter 17.1.4) to young defendants, paragraph 12.14

says:

The nature of the offence is likely to be very significant in determining both whether the offender meets the risk and harm criteria and, even if so, whether a sentence under the provisions is necessary (given that there is now wide discretion).

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Since a young offender should normally be dealt with in a youth court, where a young person charged with a specified offence would not otherwise be committed or sent to the Crown Court for trial, generally it is preferable for the decision whether to commit under these provisions to be made after conviction.

Chapter 6.12.1.3: The decision to commit a juvenile to the Crown Court where s 91 of the PCC(S)A 2000 applies (pp 328-333)

In R (W & others) v Brent Youth Court [2006] EWHC 95; (2006) 170 JP 198, Smith LJ (at

para 9) pointed out that where several defendants are charged together and all are under 18, the court must consider the position of each defendant separately ―even if this results in one defendant being tried in the Youth Court and others in the Crown Court‖. It follows that one juvenile cannot be sent to the Crown Court for trial merely because a juvenile co-accused is being sent there (R (W and M) v Oldham Youth Court [2010]

EWHC 661 (Admin)). In R (W & others) v Brent Youth Court, Smith LJ (at para 44) rejected the view that a Youth Court should never accept jurisdiction in the case of a minor charged with rape,

saying that she doubted whether there should be any such hard and fast rule. Her ladyship said that there may well be some cases where the accused in under 14 in which it will not be appropriate to commit him to the Crown Court and so ‗in the case of very young defendants it may be appropriate [for the youth court] to accept jurisdiction‘. A Protocol issued in November 2007 by Leveson LJ (Senior Presiding Judge) and entitled 'Rape Cases in the Youth Court', provides (in para 8) that ‗In considering whether the Youth Court should retain jurisdiction in a rape case, the court will need to consider: (a) the suitability of the Youth Court as a venue; (b) the desirability of the case being heard by a Circuit Judge authorised to try serious sexual cases‘. The Protocol thus envisages a Circuit Judge sitting in the youth court as a District Judge (made possible by s 66 of the Courts Act 2003). In W v Warrington Magistrates' Court [2009] EWHC 1538 (Admin); (2009) 173 JP 561, the Divisional Court upheld just such a decision. Nonetheless, Pill LJ (at para 34) emphasised that the court must apply the statutory test in s 24(1)(a) of the MCA 1980, adding that ‗Parliament has seen fit to grant a right to a Crown Court hearing (including trial by jury) to young offenders in certain circumstances and that cannot be defeated administratively. There will be alleged sexual offences involving very young defendants where committal to the Crown Court is the correct decision‘. In CPS v Newcastle-upon-Tyne Youth Court [2010] EWHC 2773 (Admin), Langstaff J (at para 8) said that where the court is deciding whether or not to commit a s 91 case to the Crown Court for trial,

the decision maker should not decide what sentence he or she would consider appropriate, nor predict the actual sentence which would be passed, but to ask whether there is a real prospect that the case may attract a sentence to which s 91 would apply. Thus, what the court should have in mind is what is within the available range of sentences which are not manifestly excessive, not attempting to establish where within the range a sentence will necessarily be. Plainly, regard must be had to the particular

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facts of a case in forming an appropriate assessment of what the sentencing range might be.

In the present case, the District Judge in question had taken the 'wrong approach', as he

... should not have asked what sentence was likely. He should have asked what sentence was realistically possible bearing in mind the range. He should not, as he appears to have done, taken every feature which bore on the level of sentence at its most favourable to the defendant. That might ultimately be a conclusion of the court but it could not be said there was no real prospect that a court's decision might be otherwise.

Chapter 6.12.1.8: Juveniles – joint charge with adult to be tried in Crown Court (pp 336-338)

The Sentencing Guidelines Council publication Overarching Principles – Sentencing Youths gives some guidance on the venue for the trial where the juvenile is charged

jointly with an adult. Paragraphs 12.16 – 12.18 note that

Any presumption in favour of sending a youth to the Crown Court to be tried jointly with an adult must be balanced with the general presumption that young offenders should be dealt with in a youth court. When deciding whether to separate the youth and adult defendants, a court must consider:

the young age of the offender, particularly where the age gap between the adult and youth is substantial,

the immaturity and intellect of the youth,

the relative culpability of the youth compared with the adult and whether or not the role played by the youth was minor, and

any lack of previous convictions on the part of the youth compared with the adult offender.

A very significant factor will be whether the trial of the adult and youth could be severed without inconvenience to witnesses or injustice to the case as a whole, including whether there are benefits in the same tribunal sentencing all offenders. In most circumstances, a single trial of all issues is likely to be most in the interests of justice.

In R (W and R) v Leeds Crown Court [2011] EWHC 2326, the Divisional Court ruled that where an adult and a juvenile are charged together and the adult is to be tried in the Crown Court, and the magistrates‘ court decides that it is necessary in the interests of justice for the juvenile to be tried in the Crown Court as well, the Crown Court has no power to remit the juvenile back to the youth court even if, for example, the adult pleads guilty in the Crown Court and so the juvenile will be tried alone in the Crown Court. Chapter 6.12.1.9: Special arrangements for trial of vulnerable defendants (pp 338-343)

In R v Camberwell Green Youth Court [2005] UKHL 4; [2005] 1 WLR 393, Baroness Hale of Richmond referred to the decision of the Court of Appeal in R v H [2003] EWCA

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Crim 1208 and said (at para 59) that ‗the court has wide and flexible inherent powers to ensure that the accused receives a fair trial, and this includes a fair opportunity of giving the best evidence he can‘. Her Ladyship added, at para 63, that it was clear that ‗if there are steps which the court can take in the exercise of its inherent powers to assist the defendant to give his best quality evidence, the Youth Justice and Criminal Evidence Act 1999 does not exclude this‘. Similarly, in R (C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin); [2010] 1 All ER 735, Openshaw J (at para 16) noted that ‗there is no statutory power permitting the appointment of an intermediary for a defendant‘ but referred to provisions in the Criminal Procedure Rules (including the overriding objective to deal with criminal cases justly and the court‘s powers of case management). His Lordship concluded (at para 17) that, when trying a young child, especially one with learning and behavioural difficulties,

notwithstanding the absence of any express statutory power, the Youth Court has a duty under its inherent powers and under the Criminal Procedure Rules to take such steps as are necessary to ensure that he has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial. He must be given such help as he needs to understand the case against him; he must be helped to give his own side of the story as his proof of evidence is drawn up; it may be that he needs help to speak to his lawyers, let alone to the court; he will need help to follow the case as it proceeds; … he will need particular help to decide if he is to give evidence, and if so he will need help to do so. It is in the highest degree unlikely that this level of help can be given by a lawyer, however kind and sympathetic she may be. He needs someone to befriend and to help him, both during the trial itself and in preparation for it. In short, he needs an intermediary … Moreover, the court will have to adopt its procedures to ensure that the hearing is fair to [the child] by using simple language, by taking breaks, by taking any and all such steps as are necessary. Experienced justices sitting in Youth Courts are well able to ensure the fairness of the proceedings.

Chapter 6.12.1.11: Sentencing juveniles after Crown Court trial (p 344)

Dealing with the Crown Court‘s obligation to remit a young offender to the youth court for sentence, paragraph 12.19 of the Sentencing Guidelines Council publication Overarching Principles – Sentencing Youths says that ‗In considering whether remittal is ―undesirable‖, a court should balance the need for expertise in the sentencing of young offenders with the benefits of sentence being imposed by the court which had determined guilt‘. Paragraph 12.20 says that ‗Particular attention should be given to the presumption where a young person appears before the Crown Court only because he or she is jointly charged with an adult offender‘. Chapter 6.15.1: Juveniles – international obligations (pp 355-373)

R v F [2008] EWCA Crim 1558 (per MacKay J at para 14):

We do not accept that the expanded descriptions of the problem that sentencing [young offenders] poses to any criminal court, contained in the UN Convention and the Beijing Rules , are in any way at odds with or add to what the courts of England have always seen as their duty when sentencing such persons to have regard to the welfare of the child or young person.

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Chapter 6.16: Youth justice – what happens next? (pp 373-375)

A Youth Crime Action Plan 2008 was published by the Ministry of Justice in July 2008. It describes itself as ‗a comprehensive, cross-government analysis of what further we need to do to tackle youth crime. It sets out a ‗triple track‘ approach of enforcement and punishment where behaviour is unacceptable, non-negotiable support and challenge where it is most needed, and better and earlier prevention. It makes clear that we will not tolerate the behaviour of the minority which causes misery and suffering to others, especially their victims who, more often than not are other young people‘. The ministerial foreword to the Plan says:

On enforcement and punishment we will set clear boundaries of acceptable behaviour – with clear consequences for those who over-step them. This means no tolerance for carrying weapons, no tolerance for underage drinking in public, and the expansion of police action to take vulnerable kids off the streets. We will protect the public and reduce reoffending through a combination of targeted enforcement action, new sentencing framework and the development of a comprehensive package of ongoing support for those coming to the end of their sentences. While continuing to ensure custody for the most persistent serious and violent young offenders we will expand opportunities for communities to have a say in the sentencing and punishment young people receive. On prevention we will address the root causes of crime – not just by tackling unemployment, increasing opportunities, and transforming early years services as we have done over the last ten years – but also in a much more targeted and individual way: spotting problems early and intervening to stop them getting out of control. We know that the vast majority of young people are well behaved and that it is a minority we really need to focus on – around 5 per cent who commit half of all youth crime. Increasingly we know how to identify these young people early on – in particular how they tend to come from a small number of vulnerable families with complex problems. On support, we will offer non-negotiable intervention to the families at greatest risk of serious offending. These are the families whose children are disrupting our classrooms – or worse, roaming the streets committing crime. This Action Plan sets out a comprehensive package of measures backed by £100 million of extra funding to tackle this problem – transforming our ability to prevent young people from getting involved in crime. The Government alone cannot tackle youth crime effectively; parents, citizens and communities must play their part. We will improve the support we offer to young people and parents to deal with problems – setting clear boundaries but offering help to those who stay on the right side of the line and make the effort to turn things around. In particular we will respond to the consequences of youth offending by supporting young people who are victims of crime. We will also listen to the views of young people themselves, ensuring that they can contribute to developing solutions not just feeling that they are seen as the problem.

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Chapter 7: Appeals from magistrates’ courts and youth courts

Chapter 7.2.1-7.2.3: Appeals from the magistrates’ court to the Crown Court (pp. 378-379)

A revised version of Part 63 of the Rules came into force on 6 October 2008. Under rule 63.2(1), an appellant must serve an appeal notice on the magistrates' court officer and every other party. Rule 63.2(2) stipulates that, if the appeal is against conviction, the appellant must serve the appeal notice not more than 21 days after sentence or the date sentence is deferred, whichever is earlier; if the appeal is against sentence, the notice must be served not more than 21 days after sentence. Where the appeal is against an order (or refusal to make an order) that can be appealed under rule 63, the time limit is 21 days from the making (or refusal) of the order. It is possible to seek an extension of time, but under rule 63.2(3), in such a case the appellant must serve with the appeal notice an application for an extension of the time limit and must explain why the appeal notice is late.

Rule 63.3 requires that the appeal notice must be in writing and must:

(a) specify— (i) the conviction or finding of guilt, (ii) the sentence, or (iii) the order, or the failure to make an order about which the appellant wants to appeal;

(b) summarise the issues; (c) in an appeal against conviction—

(i) identify the prosecution witnesses whom the appellant will want to question if they are called to give oral evidence, and

(ii) say how long the trial lasted in the magistrates' court and how long the appeal is likely to last in the Crown Court;

(d) … (e) say whether the appellant has asked the magistrates' court to reconsider the

case; and (f) include a list of those on whom the appellant has served the appeal notice.

Under rule 63.4, the magistrates' court officer must pass the paperwork on to the Crown Court officer as soon as practicable. Rule 63.7(1) provides that the Crown Court must, as a general rule, hear appeals in public but goes on to stipulate that the court may order any hearing to be in private. Moreover, where a hearing is about a public interest ruling, the court must hold that

hearing in private. Rule 63.8 enables an appeal to be abandoned. The appellant may abandon an appeal before the hearing of the appeal begins, without the Crown Court‘s permission, by serving a notice of abandonment on the magistrates' court officer, the Crown Court officer, and every other party. However, after the hearing of the appeal begins, he may only abandon the appeal with the Crown Court‘s permission. Under rule 63.8(3), where

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an appellant who is on bail pending appeal abandons an appeal, he must surrender to custody as directed by the magistrates' court officer. Any conditions of bail continue to apply until then. Rule 63.9 empowers the Crown Court to shorten or extend a time limit (even after it has expired) and to allow an appellant to vary an appeal notice that that appellant has served. The constitution of the Crown Court when hearing appeals from magistrates‘ courts is governed by rule 63.10. This provides that:

On the hearing of an appeal— (a) the general rule is that the Crown Court must comprise—

(i) a judge of the High Court, a Circuit judge or a Recorder, and (ii) no less than two and no more than four justices of the peace, none of

whom took part in the decision under appeal; and (b) if the appeal is from a youth court—

(i) each justice of the peace must be qualified to sit as a member of a youth court, and

(ii) the Crown Court must include a man and a woman; but (c) the Crown Court may include only one justice of the peace and need not include

both a man and a woman if— (i) the presiding judge decides that otherwise the start of the appeal hearing

will be delayed unreasonably, or (ii) one or more of the justices of the peace who started hearing the appeal

is absent. Chapter 7.3: Appeals from magistrates’ courts by way of case stated (pp 385-392) In M v DPP [2009] EWHC 752; [2009] 2 Cr App R 12, Leveson LJ (following the approach taken in Skipaway Ltd v Environment Agency [2006] EWHC 983 (Admin)) said that an appeal by way of case stated ‗is freestanding and depends only upon the facts found by the court‘ (para 2). His Lordship referred (at para 5) to DSG Retail Ltd v Stockton on Tees Borough Council [2006] EWHC 3138 (Admin), where Lloyd Jones J (at para 21) had said:

I consider it impermissible on an appeal by way of case stated for reference to be made to such further material outside the record provided by the case stated. The parties to the proceedings below are given an opportunity to make representations on the draft of the case stated … This is the opportunity afforded to the parties to ensure that all relevant facts are included.

Leveson LJ went on to say: ‗That is not, of course, to say that agreed errors cannot be corrected‘. In Brett v DPP [2009] EWHC 440 (Admin); [2009] 1 WLR 2530, Leveson LJ (at para 17)

discouraged the use of appeal by way of case stated:

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… it was open to the appellant to appeal this conviction to the Crown Court at which time the question [in issue] would have fallen to be considered afresh: an answer would have been forthcoming very much more quickly than these proceedings have taken …If the purpose of appealing by way of case stated is to improve the prospect of the case not being tried at all …, the sooner that those advising defendants are disabused of the merit of such an approach the better. The default position in almost every case should be to remit any prosecution that remains viable back to the originating court for re-trial before a differently constituted bench. Once those advising defendants have understood this approach, it would be incumbent upon them to ensure that their clients were very aware of that risk so that, even if successful, they did not assume or even believe that the case would come to an end. If, in relation to Magistrates‘ Court cases, the result is greater use of the appeal by way of re-hearing in the Crown Court rather than appeal to this court by way of case stated, for my part, I would consider that outcome desirable.

Chapter 7.6: Appeals from magistrates’ courts – case stated or judicial review (pp 399-401) In B v Carlisle Crown Court [2009] EWHC 3540 (Admin), Langstaff J (at para 11) said:

It has to be noted that in R (P) v Liverpool City Magistrates' Court [2006] 170 JP 453, Collins J stated that the normal route for an appeal against the decision of Justices, where it has been alleged that there has been an error of law, is by way of case stated. He also noted that judicial review may be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the Justices, although where it is alleged there has been a misdirection or an error of law case stated is the appropriate remedy.

At paras 14-18, his Lordship continued:

Again, in the case of Chester v Gloucester Crown Court CO/368397, Lord Bingham CJ and Thomas J considered an application for judicial review arising out of appeal proceedings before the Crown Court. That was a case in which what was in issue was the quality and sufficiency of the evidence before the court for establishing a conviction. What Lord Bingham CJ said was this...:

"It would not be a fatal objection to the application for judicial review that the matters would be more appropriately pursued by way of case stated, but the unsatisfactory procedural situation is exacerbated by the fact that we have absolutely nothing whatever from the Crown Court to indicate the basis upon which it reached its decision or even to indicate that it proposes to play no part in resisting this application, although we understand that notice has been given to it of the pending application and that informal indications have been given that it seeks to play no part. It is very highly desirable, when a magistrates' court or a Crown Court is the subject of an application for judicial review, that it should make its position clear, if only by a letter indicating that it does not propose to resist the application. In this case however we do have a note from the case worker who was in court representing the Crown Prosecution Service, which appears to substantiate Mr Chester's version of events."

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It is plain from the observations of the Lord Chief Justice in that case, first, that judicial review is not necessarily inappropriate, though, second, that appeal by case stated would normally be the preferable way of proceeding, particularly where matters of evidence are concerned; and, third, that the procedural advantages of the case-stated procedure are such as to make it undoubtedly more appropriate in most cases where an applicant has been dissatisfied by the result of an appeal from the Magistrates' court to the Crown court. I conclude upon the basis of these authorities that this court does have power to consider an application brought by way of judicial review in circumstances such as those I have described, but I have concluded that it is necessary for this court to exercise any power which it possesses sparingly. It should not become the position that applications for judicial review are regarded as an alternative to a proper route of appeal which would ordinarily be by case stated, in particular if a question as to a matter of law or matter of evidence, or sufficiency of evidence, arose. It would be a sad day if appellants generally felt that they could appeal indirectly, by judicial review, a decision of the Crown Court, which, after all, is provided as the route of appeal from the Magistrates' Court and has no onward appeal to the Court of Appeal. It must therefore be in exceptional circumstances, in general terms, that judicial review is appropriate at all; and indeed it will usually be the case that applications which ought to be brought (if at all) by case stated, and are brought by way of judicial review, may find that permission is refused at the permission stage.. However, I accept that it is not possible to lay down any prescriptive rule for every case. The jurisdiction, though exercised sparingly, must be approached on a case-by-case basis. In those cases where there is said to be a material irregularity in the procedure adopted in the court hearing the appeal, judicial review may well be an appropriate route. It is my view that that route is appropriate in this case.

Chapter 7.8: Appeals from magistrates’ courts (pp 402-404) Appeals to the Crown Court

The Judicial Statistics for 2010 show that 45% appellants in the Crown Court dealt with in 2010 had their appeals allowed or their sentence varied, 30% were dismissed, and 25% were abandoned or otherwise disposed. Appeals to the Divisional Court

During 2010, there were 73 appeals from magistrates‘ courts, of which 31 were allowed and 41 dismissed.

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Chapter 8: Disclosure under the Criminal Procedure and Investigations Act 1996

Chapter 8: Disclosure under the Criminal Procedure and Investigations Act 1996 (pp 405 ff)

Part 22 in the Criminal Procedure Rules governs disclosure. It provides as follows: 22.1. This Part applies—

(a) in a magistrates‘ court and in the Crown Court; (b) where Parts I and II of the Criminal Procedure and Investigations Act 1996( )

apply. 22.2. (1) This rule applies in the Crown Court where, under section 3 of the Criminal Procedure

and Investigations Act 1996( ), the prosecutor— (a) discloses prosecution material to the defendant; or (b) serves on the defendant a written statement that there is no such material to

disclose. (2) The prosecutor must at the same time so inform the court officer. 22.3. (1) This rule applies where—

(a) without a court order, the prosecutor would have to disclose material; and (b) the prosecutor wants the court to decide whether it would be in the public interest

to disclose it. (2) The prosecutor must—

(a) apply in writing for such a decision; and (b) serve the application on—

(i) the court officer, (ii) any person who the prosecutor thinks would be directly affected by

disclosure of the material, and (iii) the defendant, but only to the extent that serving it on the defendant

would not disclose what the prosecutor thinks ought not be disclosed. (3) The application must—

(a) describe the material, and explain why the prosecutor thinks that— (i) it is material that the prosecutor would have to disclose, (ii) it would not be in the public interest to disclose that material, and (iii) no measure such as the prosecutor‘s admission of any fact, or disclosure

by summary, extract or edited copy, adequately would protect both the public interest and the defendant‘s right to a fair trial;

(b) omit from any part of the application that is served on the defendant anything that would disclose what the prosecutor thinks ought not be disclosed (in which case, paragraph (4) of this rule applies); and

(c) explain why, if no part of the application is served on the defendant. (4) Where the prosecutor serves only part of the application on the defendant, the prosecutor

must— (a) mark the other part, to show that it is only for the court; and (b) in that other part, explain why the prosecutor has withheld it from the defendant.

(5) Unless already done, the court may direct the prosecutor to serve an application on— (a) the defendant; (b) any other person who the court considers would be directly affected by the

disclosure of the material. (6) The court must determine the application at a hearing which—

(a) will be in private, unless the court otherwise directs; and

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(b) if the court so directs, may take place, wholly or in part, in the defendant‘s absence.

(7) At a hearing at which the defendant is present— (a) the general rule is that the court will receive, in the following sequence—

(i) representations first by the prosecutor and any other person served with the application, and then by the defendant, in the presence of them all, and then

(ii) further representations by the prosecutor and any such other person in the defendant‘s absence; but

(b) the court may direct other arrangements for the hearing. (8) The court may only determine the application if satisfied that it has been able to take

adequate account of— (a) such rights of confidentiality as apply to the material; and (b) the defendant‘s right to a fair trial.

(9) Unless the court otherwise directs, the court officer— (a) must not give notice to anyone other than the prosecutor—

(i) of the hearing of an application under this rule, unless the prosecutor served the application on that person, or

(ii) of the court‘s decision on the application; (b) may—

(i) keep a written application or representations, or (ii) arrange for the whole or any part to be kept by some other appropriate

person, subject to any conditions that the court may impose. 22.4. (1) This rule applies where—

(a) under section 5( ) or 6 of the Criminal Procedure and Investigations Act 1996( ), the defendant gives a defence statement;

(b) under section 6C of the 1996 Act( ), the defendant gives a defence witness notice.

(2) The defendant must serve such a statement or notice on— (a) the court officer; and (b) the prosecutor.

22.5. (1) This rule applies where the defendant—

(a) has served a defence statement given under the Criminal Procedure and Investigations Act 1996; and

(b) wants the court to require the prosecutor to disclose material. (2) The defendant must serve an application on—

(a) the court officer; and (b) the prosecutor.

(3) The application must— (a) describe the material that the defendant wants the prosecutor to disclose; (b) explain why the defendant thinks there is reasonable cause to believe that—

(i) the prosecutor has that material, and (ii) it is material that the Criminal Procedure and Investigations Act 1996 r

equires the prosecutor to disclose; and (c) ask for a hearing, if the defendant wants one, and explain why it is needed.

(4) The court may determine an application under this rule— (a) at a hearing, in public or in private; or (b) without a hearing.

(5) The court must not require the prosecutor to disclose material unless the prosecutor— (a) is present; or (b) has had at least 14 days in which to make representations.

22.6.

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(1) This rule applies where the court has ordered that it is not in the public interest to disclose material that the prosecutor otherwise would have to disclose, and— (a) the defendant wants the court to review that decision; or (b) the Crown Court reviews that decision on its own initiative.

(2) Where the defendant wants the court to review that decision, the defendant must— (a) serve an application on—

(i) the court officer, and (ii) the prosecutor; and

(b) in the application— (i) describe the material that the defendant wants the prosecutor to

disclose, and (ii) explain why the defendant thinks it is no longer in the public interest for

the prosecutor not to disclose it. (3) The prosecutor must serve any such application on any person who the prosecutor thinks

would be directly affected if that material were disclosed. (4) The prosecutor, and any such person, must serve any representations on—

(a) the court officer; and (b) the defendant, unless to do so would in effect reveal something that either thinks

ought not be disclosed. (5) The court may direct—

(a) the prosecutor to serve any such application on any person who the court considers would be directly affected if that material were disclosed;

(b) the prosecutor and any such person to serve any representations on the defendant.

(6) The court must review a decision to which this rule applies at a hearing which— (a) will be in private, unless the court otherwise directs; and (b) if the court so directs, may take place, wholly or in part, in the defendant‘s

absence. (7) At a hearing at which the defendant is present—

(a) the general rule is that the court will receive, in the following sequence— (i) representations first by the defendant, and then by the prosecutor and

any other person served with the application, in the presence of them all, and then

(ii) further representations by the prosecutor and any such other person in the defendant‘s absence; but

(b) the court may direct other arrangements for the hearing. (8) The court may only conclude a review if satisfied that it has been able to take adequate

account of— (a) such rights of confidentiality as apply to the material; and (b) the defendant‘s right to a fair trial.

22.7. (1) This rule applies where a defendant wants the court‘s permission to use disclosed

prosecution material— (a) otherwise than in connection with the case in which it was disclosed; or (b) beyond the extent to which it was displayed or communicated publicly at a

hearing. (2) The defendant must serve an application on—

(a) the court officer; and (b) the prosecutor.

(3) The application must— (a) specify what the defendant wants to use or disclose; and (b) explain why.

(4) The court may determine an application under this rule— (a) at a hearing, in public or in private; or (b) without a hearing.

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(5) The court must not permit the use of such material unless— (a) the prosecutor has had at least 28 days in which to make representations; and (b) the court is satisfied that it has been able to take adequate account of any rights

of confidentiality that may apply to the material. ... 22.9. The court may—

(a) shorten or extend (even after it has expired) a time limit under this Part; (b) allow a defence statement, or a defence witness notice, to be in a different

written form to one set out in the Practice Direction, as long as it contains what the Criminal Procedure and Investigations Act 1996 requires;

(c) allow an application under this Part to be in a different form to one set out in the Practice Direction, or to be presented orally; and

(d) specify the period within which— (i) any application under this Part must be made, or (ii) any material must be disclosed, on an application to which rule 22.5

applies (defendant‘s application for prosecution disclosure). Chapter 8.1.3: The scope of the prosecution disclosure obligations (pp 409-411) Her Majesty's Advocate v Murtagh [2009] UKPC 36; [2011] 1 AC 731 deals with

disclosure of previous convictions of prosecution witnesses. It is a Scottish case but the rules on disclosure are very similar to those in England and Wales. Lord Hope of Craighead noted (at para 28) that ‗information about a witness's previous convictions … falls within the scope of the witness's private life‘ (this is so even though it relates to proceedings that took place in public). It follows that release of that information to the accused or his solicitor will therefore engage the rights of the witness under Article 8(1) of the ECHR. Moreover, release of that information will be incompatible with those rights unless the interference can be justified under Article 8(2). His Lordship went on (at para 30), to say that, ‗Materiality in this context must depend on whether the information could have any possible bearing on the witnesses's credibility or character … Previous convictions which would be relevant to a legitimate attack on their character or to their credibility would plainly be relevant to the accused's defence‘. At para 32, his Lordship said that ‗a conviction for an offence many years ago which was, on any view, of a trivial nature only and was not repeated would fall well outside the threshold of what was relevant. Other cases where care will need to be taken are where the conviction that might not be material was for an offence of a sensitive nature, disclosure of which could seriously affect the witness's relationship with others such as his neighbours, employer or members of his family‘. Chapter 8.1.4: Disclosure by the defence (pp 411-419) The Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011 (SI 2011/209) come into force on 28 February 2011 (replacing the Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 1997 and the Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010).

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Under regulation 2(1), the ‗relevant period‘ for s 5 (compulsory disclosure in Crown Court cases), s 6 (voluntary disclosure in magistrates‘ court cases) and s 6C (notification of intention to call defence witnesses) begins with the day on which the prosecutor complies (or purports to comply) with s 3 (the initial duty of the prosecutor to disclose relevant material to the defence). In the case of proceedings in a magistrates‘ court, the defence statement (if any) and the notification under s 6C must be served before the expiry of the end of a period of 14 days beginning with the first day of the ‗relevant period‘ (reg 2(2)). In Crown Court cases, the period for compliance is 28 days beginning with the first day of the relevant period (reg 2(3)). Where the relevant period would otherwise expire on a Saturday, Sunday, Christmas Day, Good Friday or any bank holiday, the relevant period is treated as expiring on the next working day (reg 2(4)). Under reg 3, the court may extend (or further extend) the relevant period by as many days as it specifies in the order. The court may only make such an order on an application by the accused and must be satisfied that it would be ‗unreasonable‘ to require the accused to give a defence statement under s 5 or s 6 (as the case may be), or to give notice under s 6C, within the relevant period. The application for an extension must be made within the relevant period (i.e. before the relevant period has expired), and must specify the grounds on which it is made and the number of days by which the accused wishes the relevant period to be extended. There is no limit on the number of applications that may be made for extensions of time. Defence statements

Guidance on preparation of defence statements by barristers was issued by the Bar Standards Board in January 2011:

Guidance on the Duties of Counsel

1. It is becoming increasingly common for solicitors to instruct counsel to draft or settle

Defence Statements, required under section 5 of the Criminal Procedure and

Investigations Act 1996. Often these instructions are given to counsel with no or little

previous involvement in the case shortly before the expiry of the time limit.

2. ...

(ii) The contents of the Defence Statement are obviously of great

importance to the defendant. An inaccurate or inadequate statement of

the defence could have serious repercussions for the defendant, if the

trial judge permits ―appropriate‖ comment;

(iii) Whilst it will be the natural instinct of most defence counsel to keep the

Defence Statement short, a short and anodyne statement may be

insufficient to trigger any obligation on the prosecution to give further

disclosure under section 7A of prosecution material.

3. Normally it will be more appropriate for instructing solicitors to draft the Defence

Statement, since typically counsel will have had little involvement at this stage.

However, there is nothing unprofessional about counsel drafting or settling a Defence

Statement, although it must be appreciated that there is no provision in the current

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regulations for graduated fees allowing for counsel to be paid a separate fee for his work.

A barrister has no obligation to accept work for which he will not be paid. The absence of

a fee will justify refusal of the instructions of counsel who are not to be retained for the

trial and are simply asked to do no more than draft or settle the Defence Statement.

Where counsel is retained for the trial, Rule 604(b) of the Code of Conduct deems

instructions in a legally aided matter to be at a proper professional fee. Where counsel

accepts the trial brief, his fee will include all necessary preparation, including (if so

instructed) drafting or settling the Defence Statement.

Many members of the Bar will nevertheless feel that, in the interests of their lay client and

or of good relations with instructing solicitors, they cannot refuse work, even where they

would otherwise be entitled to do so. Those who do so need to recognise the crucial

importance of:

(i) Obtaining all prosecution statements and documentary exhibits;

(ii) Getting instructions from the lay client, from a properly signed proof and

preferably a conference. Those instructions need to explain the general

nature of the defence, to indicate the matters on which issue is taken

with the prosecution and to give an explanation of the reason for taking

issue. They must also give details of any alibi defence, sufficient to give

the information required by Section 6A(2) of the 1996 Act;

(iii) Getting statements from other material witnesses;

(ix) Ensuring that the client realises the importance of the Defence

Statement and the potential adverse consequences of an inaccurate or

inadequate statement;

(v) Getting proper informed approval for the draft from the client. This is

particularly important, given the risks of professional embarrassment if

the client seeks to disown the statement during the course of the trial,

perhaps when the trial is not going well or when under severe pressure

in cross-examination. Counsel ought to insist on getting written

acknowledgement from the lay client that:

(a) he understands the importance of the accuracy and adequacy of

the Defence Statement for his case;

(b) he has had the opportunity of considering the contents of the

statement carefully and approves it.

This may often mean having a conference with the lay client to explain

the Defence Statement and to get informed approval, although in

straightforward cases where counsel has confidence in the instructing

solicitor, this could be left to the solicitor. Where the latter course is

taken, a short written advice (which can be in a standard form) as to the

importance of obtaining the written acknowledgement before service of

the statement should accompany the draft Defence Statement. A careful

record should be kept of work done and advice given.

(vi) If there is inadequate time, counsel should ask the instructing solicitor to

apply for an extension of time. This needs to be considered at a very

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early stage, since the application must be made before the expiry of the

time limit.

4. It follows that counsel ought not to accept any instructions to draft or settle a Defence

Statement unless given the opportunity and adequate time to gain proper familiarity with the case and to comply with the fundamental requirements set out above. In short, there is no halfway house. If instructions are accepted, then the professional obligations on counsel are considerable.

In R v Rochford [2010] EWCA Crim 1928; [2011] 1 WLR 534, the Court considered the

extent of the duty imposed by the s 6A. Hughes LJ, at para 18, said that:

The second question which we need to address is if it is plain that there is a breach of section 6A, either because there is no defence statement or because it has not got in it what it ought to have, can the court by ordering compliance then vest itself with the power to punish as a contempt of court disobedience to the order? The answer to that is "No". Any order such as a judge might make would be no more than an emphatic articulation of the statutory obligation created by section 5(5) and 6A. The sanction for non-compliance is explicit in the statute in section 11. It is not open to the court to add an additional extra statutory sanction of punishment for contempt of court.

His Lordship went on to address a professional conduct issue, at para 22, namely:

Can the lawyer properly advise a defendant not to file a defence statement? The answer to that is "No". The obligation to file a defence statement is a statutory obligation on the defendant. It is not open to a lawyer to advise his client to disobey the client's statutory obligation. It is as simple as that.

Hughes LJ continued, at paras 24 and 25:

... What is the duty of the lawyer if the defendant has no positive case to advance at trial but declines to plead guilty? That is a realistic (if rare) practical possibility. It may occur. It may occur in at least two situations. It might happen that a defendant within the cloak of privilege confides in his lawyer that he is in fact guilty of the offence charged but refuses to plead guilty. He cannot be prevented from taking that course and his instructions to his lawyer are covered by privilege. He is entitled in those circumstances to sit through the trial and to see whether the Crown can prove the case or not. What he is not entitled to do is to conduct the trial by the putting in issue of specific matters and advancing either evidence or argument towards them without giving notice in his defence statement that he is going to do it. A less extreme but equally possible example is the defendant who refuses to give instructions either at all or on specific points. That too can occur. In neither of those situations can it possibly be the obligation of the defendant to put into his defence statement an admission of guilt or a refusal to give instructions. What are the lawyers to do? It seems to us that we can give an answer only in general terms because it would be unhelpful for us to attempt the impossible task of foreseeing every factual scenario that might occur in future. They will have to be dealt with as they arise, case by case. But in general terms our answer is this. The defence statement must say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it. But it must also say that he advances no positive case because if he is going to advance a positive case that must appear in the defence statement and notice of it must be given. Unless the requirement is that the statement is made but no positive case is advanced it would be open to defendants simply to ignore

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section 5(5) and 6A. Once again, we understood Mr Ryder to accept that that is the correct analysis of the situation. Accordingly, in all those circumstances the lawyer's duty is first of all never to advise either the absence of a defence statement or the omission from it of something which section 6A requires to be there because of the way the trial is going to be conducted. The lawyer's duty is not to give the defendant advice on what to do. The lawyer's duty is to explain the statutory obligation that he has and to explain the consequences which follow from disobedience of it.

Sanctions for non-compliance

In R (Tinnion) v Reading Crown Court [2009] EWHC 2930 (Admin); (2010) 174 JP 36, the defendant was being tried in the Crown Court (by way of an appeal from the youth court). The judge refused to allow the defendant to call two alibi witnesses because no notice had been given to the Crown of the intention to call those two witnesses as alibi witnesses (and they had not been named by the defendant when he was interviewed by the police). Given that the trial was an appeal from a summary trial, the provision of a defence statement would have been voluntary (under s 6 of the 1996 Act). However, David Clarke J (at para 8) said that:

Even if the Recorder had been right to hold that the claimant was under a requirement to provide a defence statement, either in the Youth Court or in the Crown Court on appeal, with details of his alibi witnesses, it does not follow that the failure to comply with this requirement rendered the evidence inadmissible. The sanction against a defendant who fails to give such notice is not that a witness cannot be called, but that adverse comment can be made and cross-examination can be conducted, and that the court or jury may draw such inference as is proper from the failure to give such notice (see s 11 of the Criminal Procedure and Investigations Act 1996 as now in force). It may be that the Recorder was thinking back to the time when leave of the court was required before a defendant in the Crown Court could call an alibi witness where no notice had been served.

It followed that the Crown Court had no power to prevent the witnesses being called, and so the Divisional Court directed the appeal be reheard before a different judge and justices. There is now a Case Management form to be completed as part of the preparation for a trial in a magistrates‘ court (supporting the case management provisions in Part 3 of the Criminal Procedure Rules). Where the accused intends to plead not guilty, the defence must normally complete the relevant parts of the form before (or, with the court‘s permission, during) the first hearing. The form requires the parties (in particular, the defence) to identify, with a significant level of detail, the issues in the case. The contents of such forms may be relied upon by the prosecution if they contain admissions by the accused. In R (Firth) v Epping Magistrates Court [2011] EWHC 388

(Admin); [2011] 1 WLR 1818, the case management form (which had been completed by counsel on behalf of the accused), in a case involving an alleged assault, contained an assertion that the accused had been acting in self-defence. None of the prosecution

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witnesses had in fact identified the accused as the assailant. However, the Divisional Court ruled, in the context of committal proceedings with consideration of the evidence under s 6(1) of the Magistrates‘ Courts Act 1980, that the magistrates were entitled to treat the assertion of self-defence in the case management form as an admission by the defence that the accused was present, and so the committal for trial to the Crown Court was upheld. It is likely that the same view would be taken (subject to the power to exclude evidence under s 78 of the Police and Criminal Evidence Act 1984) if the prosecution were to seek to adduce the contents of such a form at trial. Chapter 8.1.4.4: Defence disclosure – notification of intention to call defence witnesses (pp 415-417)

Section 6C of the Criminal Procedure and Investigations Act 1996 (inserted by s.34 of the Criminal Justice Act 2003) came into force on May 1, 2010. It requires the accused to give to the prosecution and to the court, details (name, address, and date of birth) of any witnesses the defence intend to call at trial. This requirement is mandatory both in the Crown Court and in magistrates' courts. Section 6C is accompanied by a Code of Practice, issued pursuant to s 21A of the 1996 Act. The sanction where the accused gives a witness notice late, or calls a witness at the trial who was not included (or not adequately identified) in a witness notice, is the drawing of adverse inferences (under s 11(4) of the 1996 Act); adverse comment may also be made by another party (i.e. the prosecution or a co-accused), but only with the leave of the court (s 11(7)). These provisions make it possible for the police, if they wish, to interview the defence witnesses in order to question them about the evidence they intend to give. The requirement to issue a Code of Practice was inserted into the legislation because of concerns about the risks inherent in the police interviewing defence witnesses whose details are supplied to the prosecution, for example that an investigator might bring pressure to bear on a witness to change their evidence or not to testify. Safeguards in the Code include requirements that the witness must be asked whether he consents to being interviewed, that he must be informed that he is not obliged to attend the interview, and that he is entitled to be accompanied by a solicitor. There may be issues about the availability of public funding for such representation. The Code is silent as to what information about the case will be disclosed to the solicitor in order to enable him to determine the relevance of the questions being asked by the police. In any event, there is also the important question of inconvenience to defence witnesses: they already have to take part in an interview with the defence solicitor so that a proof of evidence can be drawn up and, of course, have to attend court to testify; a potential witness may be even less likely to co-operate if they know their details will have to be passed on to the prosecution and that they might also have to attend a police interview (or else have to risk conflict with the police by refusing to attend). Paragraph 4.1 of the Code requires the investigator to inform the accused (or his legal representative, if he has one) if an interview has been requested and whether the witness has agreed to be interviewed. Under para.6, if the witness has consented to the

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presence of the accused's solicitor, the solicitor must be notified that the interview is taking place. A witness who consents to being interviewed must be asked whether he consents to a solicitor attending the interview on behalf of the accused (the solicitor may only attend the interview if the witness has consented to his presence), and the witness can, at any time, withdraw consent to the presence of the accused's solicitor. Moreover, the role of the accused's solicitor (if present at all) is limited to that of an observer. Paragraph 8.2 of the Code says that the accused's solicitor may attend only as an observer. This suggests that the solicitor would not be entitled to intervene if, for example, the police put inappropriate questions to the witness. Under para.3.2 of the Code, a witness who consents to being interviewed must be asked whether he consents to a copy of the record of the interview being sent to the accused. So, it seems that the witness can prevent a record of the interview being sent to the accused. An issue which may arise at trial is whether the prosecution will be allowed to draw to the attention of the jury or magistrates the fact that the accused has not called one or more witnesses whose names were on the list of intended defence witnesses. See Peter Hungerford-Welch, Prosecution interviews of defence witnesses [2010] Crim LR 690-701. This article concludes that:

It is ... questionable how much use will in fact be made by the police of the details of defence witnesses. [I]t is open to witnesses to decline the offer of an interview. Moreover, the limited resources available to the police may well mean that defence witnesses will not be interviewed in run-of-the-mill cases. That will, however, be of little comfort to an accused charged with a more serious offence (and so one where it is more likely that the police would avail themselves of the chance to question defence witnesses)--and it is in such cases that the stakes are highest for the accused... Section 6C may be regarded as diluting the burden of proof and the fundamental principle that it is for the prosecution to prove the defendant's guilt, not for the defendant to prove his innocence. It is for this reason that the Code of Practice must be designed to reduce to an absolute minimum the risk of any unfairness or prejudice to the defence. It is submitted that the current Code falls a long way short of achieving this objective.

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Chapter 9: Transferring cases to the Crown Court for trial

Chapter 9.3.1.2 Reporting restrictions (pp 448-450)

The Court of Appeal gave further guidance on s 4(2) of the Contempt of Court Act 1981 in Re MGN Ltd [2011] EWCA Crim 100; [2011] 1 Cr App R 31, Lord Judge CJ (at para 14) referred to R v Sherwood, ex parte the Telegraph Group Plc [2001] 1 WLR 1983,

and said that:

The first question is whether the reporting would give rise to a not insubstantial risk of prejudice to the administration of justice. The second question is whether an order under s 4(2) would eliminate that risk. If not, there would be no necessity to impose such a ban. Again, that would be the end of the matter. If, on the other hand, an order would achieve the objective, the court still has to consider whether the risk could satisfactorily be overcome by less restrictive measures. Third, even if there is no other way of eliminating the perceived risk of prejudice, it still does not follow necessarily that an order has to be made. This requires a value judgment. The … court's approach should be that, unless it is necessary to impose an order, it is necessary not to impose one; and if it is necessary to impose an order at all, it must go no further than necessary. In summary, an order under s 4(2) of the 1981 Act should be regarded as a last resort.

The order in that case had been made to protect witnesses in a murder trial. Lord Judge went on to say (at para 22) that the use of s 4(2) ‗for the purposes of alleviating the difficulties of giving evidence, even if evidence has to be given in more than one trial, is rarely appropriate‘. If the conditions for an order under s 4(2) are established in the case of a particular witness, so that the order is ‗justified in accordance with principle, then the order should be made‘. However, the protection of witnesses is ‗more appropriately secured by statutory measures designed for the purpose‘, such as the reporting restrictions under the s 39 of the Children and Young Persons Act 1933, or special measures under ss 23-30 of the Youth Justice and Criminal Evidence Act 1999, ‗designed to enable witnesses to give of their best‘.

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Chapter 10: Indictments

Chapter 10.2: Amending the indictment (pp 483-485)

In R v Leeks [2009] EWCA Crim 1612; [2010] 1 Cr App R 5, the Court of Appeal held that, where an indictment is to be amended under s 5(1) of the Indictments Act 1915, the court must make an order to that effect or else the purported amendment is a nullity. Chapter 10.3: Drafting the indictment (pp 463-464) In Clarke and McDaid: a technical triumph [2008] Crim LR 612, PJT Fields identifies a number of flaws in the decision of the House of Lords in R v Clarke [2008] UKHL 8,

pointing out that none of their Lordships were able to identify any prejudice suffered by the appellants as a result of the failure to sign the bill of indictment, and argues that:

The absence of a signature on a piece of paper made not the slightest difference to the way in which the parties conducted proceedings at the original trial or to the way in which the jury deliberated before deciding that it was sure of guilt.

Fields concludes that:

Those favouring substance over formality will be disappointed with a decision which appears to have allowed an appeal without merit even though their Lordships had the apparent opportunity to do otherwise.

In any event, the effect of the decision of the House of Lords in R v Clarke [2008] UKHL 8 is reversed by s 116(1)(a) and (b) of the Coroners and Justice Act 2009, which amends s 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 by removing the requirement that a bill of indictment (draft indictment) must be signed by the proper officer of the court. The result is that the bill becomes an indictment on being preferred (i.e. sent to the Crown Court). After amendment, s 2(1) reads as follows:

Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence and it shall thereupon become an indictment and be proceeded with accordingly.

Section 116(1)(c) inserts into s 2 of the 1933 Act three new subsections (subs (6ZA)-(6ZC)) which provide that objections to an indictment based on an alleged failure to observe procedural rules may not be taken after the start of the trial (i.e. when the jury has been sworn); for this purpose a preparatory hearing does not mark the start of trial. Paragraph 26 of Schedule 22 to the 2009 Act provides that, for the purposes of any proceedings before a court after the Act is passed, the amendments are deemed always to have had effect. They therefore apply even to proceedings (including appeals) which began before the Act was passed.

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Chapter 10.8: Indictments – joinder (pp 469-473)

In R v Roberts [2008] EWCA Crim 1304; [2009] 1 Cr App R 20, police officers searched

the defendant's home. A bag containing drugs was found in the kitchen. Two firearms were found in the bedroom. The defendant was charged with unlawful possession of drugs and with firearms offences. He argued that the drugs counts and firearms counts should not appear on the same indictment. The Court of Appeal held that the phrase 'founded on the same facts' in r 14.2 of the Criminal Procedure Rules does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. In the present case, joinder was proper. At paras 12 and 13, Latham LJ said:

… the facts upon which each of the counts was based was (sic) the finding in the one premises at the same time of the drugs and the firearms. In our judgment, that … falls into the category of case where the factual connection is established by the coincidence of time and place, in other words it meets the concept of being "virtually contemporaneous"… The counts on the indictment all alleged offences of being in illicit possession of prohibited items. These were continuing offences. As it turned out, it was to be the Appellant's case … that different people, who had access to his premises, had secreted these items in the wardrobe without his knowledge on earlier and separate occasions. If it had been his case that he came into possession of all the items in the same way and on the same occasion, there could have been no argument that the counts were improperly joined. The question whether counts have been properly joined cannot, in our judgment, depend upon the explanation given by the Defendant. It is not for the Crown to try and predict what the defence is likely to be at the time that the indictment is drawn. The propriety of the indictment must be judged when it is drawn.

In R v Ferrell [2010] UKPC 20; [2011] 1 All ER 95, the defendant had been convicted of two counts of possession of a controlled drug (counts 1 and 3), two counts of possession of a controlled drug with intent to supply (counts 2 and 4), and nine counts of concealing or transferring the proceeds of drug trafficking (counts 7 to 15). One of the issues raised on appeal was whether counts 7 to 15 were properly joined with counts 1 to 4. At para 9, Lord Clarke noted that the question was ―whether, in the circumstances of this case there is a sufficient nexus between the offences charged in the money laundering counts and in the drugs counts‖. His Lordship went to say that the Privy Council accepted that there was both a legal and factual nexus between the two sets of counts. Counts 1 to 4 all dealt with the supply of drugs; the drugs would have been sold for money, which would then require to be banked and, in all likelihood, laundered. The prosecution would have to show that, in the case of each of the money laundering counts, some at least of the money derived from drug dealing. On facts, it was open to the jury to infer that the money was indeed the proceeds of drug dealing. This was so even though all the money laundering counts related to transactions that pre-dated the possession of the drugs in the drugs counts; in the absence of a credible explanation to the contrary, it was open to the jury to infer that the defendant had had a system of selling drugs and laundering the money over an extended period (paras 10 and 11). It was open to the jury

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to reject the defendant‘s explanation (that the money derived from smuggling tobacco, not drugs) and to conclude that there was no reasonable doubt that the money came from earlier dealing in drugs (para 12). The Privy Council was therefore satisfied that the two sets of counts charged a series of offences of a similar character which could and should be tried together, and so were properly joined (para 14). This decision may appear somewhat surprising, but in Marsh (1985) 83 Cr App R 165,

Mustill LJ said, at p. 171, that:

‗It is noteworthy that Lord Pearson [in Ludlow] did not suggest that two separate hurdles had to be surmounted, but simply that both the law and the facts should be taken into account in considering whether the offences are similar or dissimilar. Obviously, if the offences do not have any similar legal characteristics, then strong similarities of fact will have to exist to permit joinder under the rule. But we do not understand Lord Pearson to be suggesting that the absence of legal similarity as opposed to factual similarity necessarily means that the offences cannot be described as similar in character.

In this connection it is noteworthy that Lord Pearson quoted with approval from the judgment of this Court in Kray (1969) 53 Cr App R 569, to the effect that: ‗All that is necessary to satisfy the rule is that the offences should exhibit such similar features as to establish a prima facie case that they can properly and conveniently be tried together‘.

The decision on joinder necessarily has to be taken by the judge before the start of the trial, and before the jury will have had a chance to consider any explanation put forward by the accused. It is submitted that prosecutors should err on the side of caution and draft separate indictments where there is any uncertainty as to whether the counts could be properly joined in the same indictment. Chapter 10.9: Indictments – discretion to order separate trials (pp 473-477) In R v Miah [2011] EWCA Crim 945, the Court of Appeal proceeded on the basis that it

is only in ‗very exceptional‘ cases that a judge should exercise his judgment in favour of ordering a separate trial for one or more defendants pursuant to s 5(3) of the Indictment Act 1915. At para 59, Aikens LJ said that:

the fact that a co-defendant is running a ―cut throat‖ defence is common and is very seldom a successful ground, standing alone, for severance. Nor is the fact that one co-defendant has implicated another in the offences charged in the course of a police interview, which is denied by that second co-defendant and which is not admissible as evidence against him. Further, there is always the possibility that a co-defendant who has made an exculpatory statement in interview but at the same time has implicated co-defendants will decide not to give evidence at the trial and rely on just his police interview. Those factors are commonplace.

Chapter 10.12: Amending the indictment: re-trials (pp 483-485)

In R v Booker [2011] EWCA Crim 7; [2011] 3 All ER 905, the Court of Appeal considered

amendments to an indictment which had been drawn up following an order for re-trial

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under s 7 of the Criminal Appeal Act 1968. In this case, the amendment was to add a co-defendant. At para 24, Pill LJ said that a ban on adding a defendant to the indictment does not appear in the wording of s 7(2) of the 1968 Act, and s 5(1) of the Indictments Act 1915 Act should not be applied as if it did. His Lordship said that there is no general principle that previously absent co-conspirators cannot be tried with a conspirator who is subject to a retrial. However, there may be circumstances in which an application to join a defendant at a retrial could amount to an abuse of the process of the court (see Chapter 1.3): if a court found that the prosecution were manipulating the process of the

court, and hence the fairness of the retrial, by attempting to add a defendant, then the court would not permit it.

Chapter 10.13: Quashing the indictment (pp 485-486)

In R v FB [2010] EWCA Crim 1857; [2011] 1 WLR 844, it was held that a Crown Court judge has no power to quash an indictment simply because he does not believe that the proceedings should have been brought. Moreover, the case management provisions of the Criminal Procedure Rules cannot be regarded as conferring such a power.

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Chapter 11: Crown Court trial - preliminaries

Chapter 11.4: Securing the attendance of witnesses (pp 491-492)

In R v Popat [2008] EWCA Crim 1921; (2009) 172 JP 24, Hughes LJ considered the power to issue an arrest warrant under the Criminal Procedure (Attendance of Witnesses) Act 1965 where a witness fails to attend. He said (at para 14):

We should add that it is the common experience of judges sitting in the Crown Court that where a witness is reluctant and has failed to appear in response to a summons, very often the mere issue of a warrant for arrest is enough to achieve attendance. Knowing that, it is very common for Crown Court judges to give a direction at the time of issuing a warrant for arrest which is designed in the interests of the witness to avoid the witness having to be locked up overnight or perhaps for longer. We do not wish to discourage that humane exercise of the Crown Court's jurisdiction, but we do point out that, as this case demonstrates, a direction not to execute a warrant except at the Crown Court means that if the witness chooses not to come the warrant can never be executed. Accordingly, a different form of humane direction is required. We have no doubt that there are several possibilities. One which is sometimes adopted is to direct that the police officer need not execute the warrant if satisfied that the witness is going to attend voluntarily, or need not execute it if the witness agrees to come with the officer. Another may be in some circumstances to issue a warrant backed for bail …

Chapter 11.5.1: Preparatory hearings (pp 493-495)

In R v I [2009] EWCA Crim 1793; [2010] 1 Cr App R 10, the Court of Appeal gave guidance on preparatory hearings and endeavoured to restrict their use. At para 21, Hughes LJ said:

It is emphatically not the case that most heavy fraud or similar cases will nowadays call for a preparatory hearing. Virtually the only reason for directing such a hearing nowadays is if the judge is going to have to give a ruling which ought to be the subject of an interlocutory appeal. Such rulings are few and far between and do not extend to most rulings of law. An interlocutory appeal can be a most beneficial process in a few, very limited, circumstances. If a discrete point of law arises, its resolution in this court can if necessary be accomplished within a very short time-frame and this can avoid the risk of many weeks of wasted trial time. On the other hand, many points of law decided in the Crown Court turn out to be fact-sensitive and to appear differently, or for that matter to go away, by the time the evidence has been heard. Making a decision on one part of a case only and on necessarily hypothetical facts is normally very undesirable; whereas a ruling in the Crown Court can be varied from time to time if the case proceeds differently from what was expected, a ruling of this court cannot normally be treated similarly. An interlocutory appeal is apt to cause serious disruption to a carefully planned trial timetable, which may involve multiple defendants and their lawyers and large numbers of witnesses. If the timetable of one case is disrupted, it very often has a knock-on effect on the timetables of others. Moreover, if the tendency of an interlocutory appeal to have this consequence is to be minimised, it is essential for this court to give it priority over other waiting appeals. This is not only potentially unfair to those who are in custody following conviction; it is also impossible unless interlocutory appeals are very exceptional. The present case did, as we have indicated, present a good example of a justified

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interlocutory appeal. The point was discrete, novel, certain to arise rather than hypothetical or contingent, involved no factual dispute and needed authoritatively to be determined lest the trial proceed on what might turn out to be a false footing, with consequent risk of the necessity of re-trial. By contrast, rulings where the judge has applied well understood principles to the case will not be suitable for interlocutory appeal even if they may properly be described as questions of law; rulings upon severance are amongst those likely to fall into this category. Nor will those where the ruling is to any extent provisional or dependent upon the way the evidence emerges. It is important to remember that the decision to declare a preparatory hearing is for the judge alone; it cannot be made by agreement between the parties. Nor is it a reason for making an order for a preparatory hearing that one or other party would like the opportunity of testing some ruling by way of interlocutory appeal, unless the point is one of the few which is genuinely suitable for such procedure.

Hughes LJ went on, at para 22, summarised what ought to be the practice for such hearings:

(i) Given the co-extensive powers of case management outside the preparatory hearing regime, courts ought to be very cautious about directing a preparatory hearing under section 29 CPIA or section 7 CJA 1987; in particular, the desire of one party to test a ruling by interlocutory appeal is not a good enough reason for doing so, unless the point is one of the few which is genuinely suitable for that procedure (see para 21 above) and there is a real prospect of such appeal being both capable of resolution in the absence of evidence and avoiding significant wastage of time at the trial. (ii) A decision that a judge who has conducted a preparatory hearing should not conduct the trial is one which must be made by the judge concerned. It must not be made administratively, for example by the listing officer. (iii) Such a decision must be made only after a hearing at which all parties have had the opportunity to make representations. (iv) The ordinary rule is that the judge who has had conduct of the preparatory hearing should also conduct the trial. (v) That rule may not be departed from without compelling reason. (vi) Before departing from it, the judge, if not himself the court's resident judge, ought to consult that judge, and all judges should consult one of the circuit's presiding judges; they will of course respect any directions or advice given. (vii) Active steps must be taken in the planning of court business and judicial commitments to avoid wherever possible the necessity for a judge to find himself having to consider leaving any complex case between case management/preparatory hearing and trial; if, unusually, that necessity should arise in a preparatory hearing case (as it did here) the question to be resolved is not a matter of law but of judgment for the judge; this court could interfere only if his decision were one which no reasonable judge could arrive at.

Chapter 11.6.1: Trial on indictment – defendant absconding (pp 499-502) In R v Pomfrett [2009] EWCA Crim 1939; [2010] 2 All ER 481, it was held that it was

held that defence counsel may rely on fresh instructions provided by the defendant after he has absconded. In that case, such instructions had been communicated to his solicitors by e-mail. Richards LJ said (at para 80) that:

no principled distinction can be drawn between instructions received before and instructions received after the date of absconding. If counsel were not permitted to take

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into account fresh instructions received from the absent defendant, it would increase unnecessarily the possibility of error or oversight against which, as Lord Bingham said in Jones at paragraph [15], representation by counsel provides a valuable safeguard. It could lead to counsel having to advance a case wholly at odds with the defendant's true case … It could also prevent counsel from being able to deal effectively with new evidence or new issues, even where the absent defendant had valid points to make in relation to them: the possibility of taking instructions on any new matter that might arise in the course of the trial … If it is generally desirable that a defendant be represented even if he has voluntarily absconded, it is equally desirable in our judgment not to impair the effectiveness of that representation by laying down an artificial restriction on the instructions upon which counsel can act. The public interest does not require a cut-off point at the date of absconding.

Chapter 11.7.1: Who can serve on a jury (pp 505-512) R v Abdroikov [2007] UKHL 37 and R v Khan [2008] EWCA Crim 531 were considered in R v Yemoh [2009] EWCA Crim 930, which involved a challenge to a conviction on the

basis that a police officer was serving on the jury. Hooper LJ (at para 111) said that:

Unlike in the United States, jurors are only rarely questioned in this country. Jurors are often told the names of witnesses in case they know them and are usually questioned before being empanelled on long complex trials, such as terrorism and fraud cases, but not otherwise. The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.

The Court of Appeal rejected the argument that a trial in which there was evidence that the appellant had been abusive to the police in an interview became unfair owing to the presence of a serving police officer on the jury. The officer was not otherwise connected with the case or with any of the witnesses involved. At para 112, Hooper LJ said that:

it is submitted to us on behalf of [the defendant] that the introduction of what was said by [him] at the time of being charged adds additional weight to the submission that the appellant did not have a fair trial because of the presence on the jury of a police officer … We agree with the judge that the introduction of evidence abusing the police should not lead to the discharge of a policeman from the jury. In this respect a policeman is in no different position than a black juror trying a case in which there is evidence of abuse of black people. We would not expect the black juror to be discharged on the grounds of apparent bias.

In R v J [2009] EWCA Crim 1638, a serving police officer had been a member of the jury (indeed she acted as forewoman). In advance of the trial she had informed the jury summoning officer of her occupation but this had not been passed on to the judge and was not known to any of the participants in the trial. The information did not become known until after the jury had reached their verdicts and had been discharged. Richards LJ noted (at para 25), that it was clear from R v Abdroikov and R v Khan that ‗the

relevant test of whether a jury is independent and impartial is an objective one, namely whether the fair-minded and informed observer, having considered the facts, would

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consider that there was a real possibility that the tribunal was biased‘. At para 26, his Lordship summarized the effect of Khan as follows:

[T]he court drew a distinction between partiality towards the case of one of the parties and partiality towards a witness, stating that a conviction will not necessarily be quashed because a juror is shown to have had reason to favour a particular witness; this will happen only if it has rendered the trial unfair or given an appearance of unfairness. To decide that, it is necessary to consider two questions: (i) would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? and (ii) would the fair minded observer consider that this may have affected the outcome of the trial?

At para 27, his Lordship goes on to say that, in the light of Khan: ‗One principle was

clear, however, namely that the fact that a juror is a police officer will not, of itself, disqualify the juror on the ground of want of impartiality‘. In R v LL [2011] EWCA Crim 65; [2011] 1 Cr App R 27, the impartiality of the jury which convicted the defendant was challenged on the basis that one juror was an employee of the Crown Prosecution Service, another was a serving police officer, and a third was a retired police officer. Lord Judge CJ noted (at para 21) the information contained in Her Majesty's Courts Service Guidance for summoning officers when considering deferral and excusal applications, paragraph 18 of which provides that potential jurors who are:

(1) employees of the prosecuting authority; (2) serving police officers summoned to a court which receives work from their police station or who are likely to have a shared local service background with police witnesses in a trial; (3) serving prison officers summoned to a court, who are employed at a prison linked to that court or who are likely to have special knowledge of any person involved in a trial ... should be excused from jury service unless there is a suitable alternative court/trial to which they can be transferred. For example an employee of the Crown Prosecution Service should not serve on a trial prosecuted by the CPS. However, they can serve on a trial prosecuted by another prosecuting authority. Similarly, a serving police officer can serve where there is no particular link between the court and the station where the police juror serves.

Moreover, the form for jury summons now includes the following question:

If you are, or have been in the last five years, employed by any Police Force, Her Majesty's Prison Service or any prosecuting authority, please state your occupation, your employer and work place location.

In the present case, the former police office has not served in the Metropolitan Police (whose officers were involved in the case) and he had been retired since 2003. The serving officer was in the Metropolitan Police but his role was non-operational, he was not linked to any particular station, and there was no connection between his work and the work of the officers involved in the trial. On this basis, the Court could see no reason why the position of either of these two jurors should cause any concern. Turning to the position of the CPS employee, Lord Judge said (at para 30) that ‗it would be inconsistent with the current legislative arrangements for every employee of the CPS

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to be or to be regarded as excused or disqualified from service on a jury in a trial prosecuted by the CPS. In principle the position of an individual employee of the CPS is fact and employment-specific, rather than subject to an all-embracing embargo‘. In the present case, the juror had worked full-time for the CPS for nine years. However, her role was an administrative one and was not connected with the Crown Court where the present trial took place. Nonetheless, the Court ruled (at para 31) that her service was ‗long enough and of sufficient importance‘ to lead to the conclusion that she fell within the ambit of the prohibition of being a member of the jury. Moreover, it appeared that her presence on the jury was not drawn to the attention of counsel for the defence before the trial so that her position within the CPS could be examined and properly informed submissions made to the trial judge, and for the judge to be able to make a fully informed decision. The conviction was therefore quashed and a re-trial ordered. In R v Cornwall [2009] EWCA Crim 2458, Leveson LJ (at para 26) said that:

a journalist or other writer, if called to serve on a jury which will have to examine issues upon which he or she has expressed strong opinions about the state of the law (rather than detection, sentence or the system generally) will be well advised to alert the judge of that fact so that an informed decision can be taken about the juror's ability faithfully to apply the judge's directions as to the approach to be adopted to the case being tried. We emphasise that this observation is not an implied determination of the issue: it is simply a question of pragmatic good sense and permits a sensible analysis at the earliest opportunity.

Chapter 11.8.3: Discharge of jurors during trial (p 522)

In R v Carter [2010] EWCA Crim 201; [2010] 1 WLR 1577, the Court of Appeal ruled that, when a juror is discharged during the course of the jury's deliberations, and there was no misconduct or impropriety, the judge is not required to direct the remaining jurors to ignore the views expressed by the juror who has departed. At para 19, Lord Judge CJ said:

We are not here concerned with the discharge of a juror on the grounds of misconduct, impropriety or irregularity. As it seems to us, whether one or two jurors are suddenly and for good reason discharged, and at whatever stage in the trial, the question whether the judge should direct the remaining members to ignore any views expressed by the discharged juror (or jurors) is identical. As a matter of first principle the verdict of the jury is the verdict which the members returning it conscientiously believe to be right. Before reaching their decision, they will have reflected on the arguments they have heard advanced by both, and in a multi-handed case by all the parties at trial, and then, in the privacy of their retiring room, the opinions and views expressed by each member of the jury. This is ... a "dynamic" process. Of course the jurors who have been discharged cannot be, and are not responsible for the eventual verdict. But until their discharge they are entitled to express their views, favourable or adverse to the prosecution or to some parts of the prosecution case, or favourable or adverse to the defendant or some part of the defence case. As the discussions proceed, the views expressed at an earlier stage may well develop and change. It is a continuing process. But while jurors are properly empanelled, the views of each and every one of them are entitled to the same careful

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analysis and respect as those expressed by any juror, including jurors who are later discharged. On discharge they cease to have any responsibility for the verdict, but there is no reason to imagine that the views expressed at a time when they believed that they would be responsible for the verdict were expressed any less conscientiously and responsibly than those of any other juror. Those views become part of the fabric of opinions under consideration, impossible to isolate and compartmentalise. It would therefore be wholly unrealistic for a direction to be given to the remaining members of the jury to ignore the views expressed on any subject by the departed jurors. What matters is that the discussion between the remaining jurors will continue to ebb and flow and, on refection, the views expressed by the departing juror (or jurors) would have been examined and either accepted wholly or in part, or rejected wholly or in part, or treated as irrelevant by the remaining jurors in the course of reaching the decisions to which their conscience impels them. The eventual verdict, however, is no more than that of the jurors who have been party to it as a result of the process of discussion in the privacy of the jury room. The views expressed by the departed jurors will only be relevant to the extent that the remaining jurors will have adopted or assimilated those views as their own.

Chapter 11.8.4: Discharge of entire jury (pp 522-524) In Sookram v R [2011] UKPC 5, one of the defendants changed his plea to guilty during

the course of the trial. The issue arose whether the trial of the remaining defendant should start again with a fresh jury. Lord Brown, at paras 19 and 20, said:

There are, of course, cases where, upon a co-accused (B) changing his plea, justice requires the jury to be discharged and the accused (A) to be tried afresh by a new jury. Wherever an appeal has succeeded on that basis, however, it has been possible to point to a particular unfairness which could be seen to result from A continuing to be tried by the same jury. It may be, for example, that the trial having begun with A and B both steadfastly maintaining their innocence, B's subsequent acceptance of his guilt necessarily carries with it the inference that A too is guilty – as in R v O'Connor (1986) 85 Cr App R 298 where A and B were jointly charged with having conspired together (and with no one else) to obtain property by deception (although in the event the proviso was applied); or as in R v Fedrick [1990] Crim. L.R 403 where the prosecution had opened the case on the basis that A and B were "in cahoots" (although no conspiracy charge was laid); or, indeed, because A and B had been seen (or had admitted being) together at or near the time and place of the crime. Or it may be that, before B's change of plea, evidence had been led against him which was not admissible against A but nevertheless highly prejudicial to him. Unless in such cases as these the Court could in any event properly hold B's plea of guilty to be admissible in evidence against A, or can by appropriate directions to the jury substantially nullify its prejudicial effect on A's case or there is other good reason not to discharge the jury ... a failure to do so may well ... result in a successful appeal.

In the present case, the appellant had suffered no prejudice and, it would be ‗not merely unnecessary but would involve a great waste of time and money and great inconvenience to witnesses who had already given their evidence to start [his] trial all over again‘.

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Chapter 11.8.4: Discharge of the jury (pp 522-524)

In R v Lawson [2005] EWCA Crim 84; [2007] 1 Cr App R 20, Auld LJ, at para 65 (cited with approval in R v Mills [2008] EWCA Crim 3001, per Beatson J, at para 24) said:

Whether or not to discharge the jury is a matter for evaluation by the trial judge on the particular facts and circumstances of the case, and this court will not lightly interfere with his decision. It follows that every case depends on its own facts and circumstances, including: 1) the important issue or issues in the case; 2) the nature and impact of improperly admitted material on that issue or issues, having regard, inter alia to the respective strengths of the prosecution and defence cases; 3) the manner and circumstances of its admission and whether and to what extent it is potentially unfairly prejudicial to a defendant; 4) the extent to and manner in which it is remediable by judicial direction or otherwise, so as to permit the trial to proceed … [A]ll these matters and their combined effect are very much an evaluative exercise for the trial judge in all the circumstances of the case. The starting point is not that the jury should be discharged whenever something of this nature is put in evidence through inadvertence. Equally, there is no sliding scale so as to increase the persuasive onus on a defendant seeking a discharge of a jury on this account according to the weight or length of the case or the stage it has reached when the point arises for determination. The test is always the same, whether to continue with the trial would or could, by reason of the admission of the unfairly prejudicial material, result in an unsafe conviction.

Chapter 11.9: Special measures directions (pp 524-529)

Section 98 and 100 of the Coroners and Justice Act 2009 extend special measures to people aged 18 or under (rather than 17 or under). Thus, all witnesses under the age of 18 are made eligible for special measures. Section 100 also adds new subsections to s 21 of the Youth Justice and Criminal Evidence 1999: ss (4)(ba) and (4A) to (4C) enable a child witness (i.e. a witness under 18) to opt out of special measures where 'the court is satisfied that not complying with the rule [that special measures should be ordered] would not diminish the quality of the witness's evidence' and specify the factors which the court must take into account in such circumstances. Section 100 of the 2009 Act also amends s 22 of the 1999 Act so that the same provisions apply where a witness is over the age of 18. Section 99 of the 2009 Act amends s 17 of the Youth Justice and Criminal Evidence 1999 in order to provide for automatic eligibility for special measures for witnesses in proceedings for a ‗relevant offence‘ (i.e. an offence specified in a new sch. 1A to the 1999 Act, which specifies a wide range of offences involving the use of guns and knives). Section 101 of the 2009 Act inserts a new section, s 22A, into the 1999 Act. This makes special provision for complainants in respect of sexual offences tried in the Crown Court, requiring the admission of the complainant‘s video-recorded statement under s 27 of the 1999 Act, unless that requirement would not maximise the quality of the complainant‘s evidence.

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Section 104 of the 2009 Act inserts new sections, ss 33BA and 33BB, into the 1999 Act. Under s 33BA, the court may give a direction that provides for any examination of the defendant to be conducted through an intermediary where he is under the age of 18 and his ability to participate effectively as a witness is compromised by his level of intellectual ability or social functioning, or where he is over 18 but suffering from a mental disorder or otherwise has a significant impairment of intelligence and social function which prevents his effective participation. However, it should be noted that the court has the power to adopt such measures independently of the 1999 Act (see R (C) v Sevenoaks Youth Court [2009] EWHC 3088

(Admin); [2010] 1 All ER 735, where the Divisional Court confirmed that courts have an ‗inherent power to take such steps as would enable the young defendant to participate effectively in the trial‘, per Openshaw J, at para 15). Section 111 of the Coroners and Justice Act 2009 repeals s 138(1) of the Criminal Justice act 2003 (which prohibits a witness whose evidence has been given by way of a video recording under s 137 from giving evidence in any other manner). The procedure for seeking (or opposing) an order for ‗special measures‘ is to be found in Part 29 of the Criminal Procedure Rules. Witness anonymity orders In R v Davis [2008] UKHL 36; [2008] 1 AC 1128, Lord Carswell (at para 59) said:

(a) There is a presumption in favour of open justice and confrontation of a defendant by his accuser; (b) It is possible in principle to allow departures from the basic rule of open justice, but a clear case of necessity has to be made out; (c) The court should be sufficiently satisfied that the witness's reluctance to give evidence in the ordinary manner is genuine and that the extent of his fear justifies a degree of anonymity; (d) Anonymising expedients may include the withholding of the witness's name and address, screening of the witness from the defendant and the public, screening from the defendant's legal advisers, disguising of the witness's voice from the defendant and the public and disguising of the voice from the legal advisers; (e) The more of these expedients the court might consider adopting, the stronger the case must be for invading the principle of open justice. Determination of the question depends upon balancing to ensure that the trial continues to be fair; (f) An important consideration is the relative importance of the witness's testimony in the prosecution case. If it constitutes the sole or decisive evidence against the defendant, anonymising which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly. It is a question of fact in any given case what, if any, measures would be compatible with the fairness of the trial. Courts trying criminal cases should not be over-ready to resort to such measures. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention. As a general rule it is unlikely that the trial will be fair if a very substantial degree of anonymising of evidence is permitted where the testimony of the witnesses concerned constitutes the sole or decisive evidence implicating the defendant.

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The effect of Davis was reversed by the Criminal Evidence (Witness Anonymity) Act

2008. The provisions of that Act were re-enacted (with some amendments) in the Coroners and Justice Act 2009. The 2008 Act is repealed by the 2009 Act. Section 86 of the Coroners and Justice Act 2009 defines a 'witness anonymity order' as an order 'requiring such specified measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings'. Under subs (2) such measures include ordering:

(a) that the witness‘s name and other identifying details may be— (i) withheld; (ii) removed from materials disclosed to any party to the proceedings;

(b) that the witness may use a pseudonym; (c) that the witness is not asked questions of any specified description that might

lead to the identification of the witness; (d) that the witness is screened to any specified extent; (e) that the witness‘s voice is subjected to modulation to any specified extent.

However, by virtue of subs (4), the court cannot require:

(a) the witness to be screened to such an extent that the witness cannot be seen by— (i) the judge or other members of the court (if any), or (ii) the jury (if there is one);

(b) the witness‘s voice to be modulated to such an extent that the witness‘s natural voice cannot be heard by any persons within paragraph (a)(i) or (ii).

Under s 87(1), an application for a witness anonymity order may be made by the prosecutor or the defendant. Under subs (2), where the application is made by the prosecutor, the prosecutor

(a) must (unless the court directs otherwise) inform the court of the identity of the witness, but

(b) is not required to disclose in connection with the application— (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other party to the proceedings or his or her legal representatives.

Under subs (3), where the application is made by the defendant, he:

(a) must inform the court and the prosecutor of the identity of the witness, but (b) (if there is more than one defendant) is not required to disclose in connection

with the application— (i) the identity of the witness, or (ii) any information that might enable the witness to be identified, to any other defendant or his or her legal representatives.

Under subs(4), where the prosecutor or the defendant proposes to make an application for a witness anonymity order,

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any relevant material which is disclosed by or on behalf of that party before the determination of the application may be disclosed in such a way as to prevent— (a) the identity of the witness, or (b) any information that might enable the witness to be identified, from being disclosed except as required by subs (2)(a) or (3)(a).

Under subs (5), ‗relevant material‘ means ‗any document or other material which falls to be disclosed, or is sought to be relied on, by or on behalf of the party concerned in connection with the proceedings or proceedings preliminary to them‘. Subs (6) requires the court to ‗give every party to the proceedings the opportunity to be heard on an application under this section‘. However, by virtue of subs (7), ‗subs (6) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case‘. Section 88(2) provides that the court may make a witness anonymity order only if 'satisfied that Conditions A to C below are met'. Those conditions are set out in subs (3)-(5):

(3) Condition A is that the proposed order is necessary— (a) in order to protect the safety of the witness or another person or to

prevent any serious damage to property, or (b) in order to prevent real harm to the public interest (whether affecting the

carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

(4) Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial.

(5) Condition C is that the importance of the witness‘s testimony is such that in the interests of justice the witness ought to testify and— (a) the witness would not testify if the proposed order were not made, or (b) there would be real harm to the public interest if the witness were to

testify without the proposed order being made.

Subs (3) is supplemented by subs (6):

In determining whether the proposed order is necessary for the purpose mentioned in subs (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness— (a) that the witness or another person would suffer death or injury, or (b) that there would be serious damage to property,

if the witness were to be identified.

Section 89(1) provides that, when deciding whether Conditions A to C in s 88 are met, the court must have regard to the considerations set out in subs (2), and to such other matters as the court considers relevant. The considerations set out in subs (2) are:

(a) the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings;

(b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;

(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;

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(d) whether the witness‘s evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;

(e) whether there is any reason to believe that the witness— (i) has a tendency to be dishonest, or (ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;

(f) whether it would be reasonably practicable to protect the witness by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.

In an attempt to preserve the fairness of the trial process, s 90 provides that where, on a trial on indictment with a jury, any evidence has been given by a witness at a time when a witness anonymity order applied to that witness, 'the judge must give the jury such warning as the judge considers appropriate to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant'. Section 91(1) makes provision for a witness anonymity order to be discharged or varied if it appears to the court to be appropriate to do so in view of the provisions of ss 88 and 89. Under subs (2), the court may do so:

(a) on an application made by a party to the proceedings if there has been a material change of circumstances since the relevant time, or

(b) on its own initiative.

By virtue of subs (5), the ‗relevant time‘ for this purpose means the time when the order was made or, if a previous application has been made under subs (2), the time when the application (or the last application) was made. Under s 91(3), the court must give every party to the proceedings the opportunity to be heard before determining an application made under subs (2) or before discharging or varying the order on its own initiative. However, under subs (4), subs (3) ‗does not prevent the court hearing one or more of the parties to the proceedings in the absence of a defendant in the proceedings and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case‘. Under s 92, where a court has made a witness anonymity order and those proceedings (‗the old proceedings‘) have come to an end, the court that made the order may discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of the provisions of ss 88 and 89 and such other matters as the court considers relevant (subs (2)). The court may exercise this power on an application made by a party to the old proceedings if there has been a material change of circumstances since the relevant time, or on an application made by the witness if there has been a material change of circumstances since the relevant time (subs (3)). For these purposes, the ‗relevant time‘ means the time when the old proceedings came to an end or, if a previous application has been made under subs (3), the time when the application (or the last application) was made. Under subs (4), the court may not determine an application made to it under subs (3) unless, in the case of each of the parties to the old proceedings and the witness, it has given the person the opportunity to be heard, or it is satisfied that it is not reasonably practicable to communicate with the person. Subs (5) provides that subs (4) ‗does not prevent the court hearing one or more of the persons

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mentioned in that subsection in the absence of a person who was a defendant in the old proceedings and that person‘s legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case‘. Section 93 applies if a court has made a witness anonymity order and a defendant has, in those proceedings (‗the trial proceedings‘), been convicted, or has been found not guilty by reason of insanity, or has been found to be under a disability and to have done the act charged in respect of an offence. Under subs (2), the appeal court may in proceedings on or in connection with an appeal by the defendant from the trial proceedings discharge or vary (or further vary) the order if it appears to the court to be appropriate to do so in view of the provisions of ss 88 and 89 and such other matters as the court considers relevant. Under subs (3), the appeal court may not discharge or vary the order unless, in the case of each party to the trial proceedings, it has given the person the opportunity to be heard, or it is satisfied that it is not reasonably practicable to communicate with the person. However, by virtue of subs (4), subs (3) ‗does not prevent the appeal court hearing one or more of the parties to the trial proceedings in the absence of a person who was a defendant in the trial proceedings and that person‘s legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case‘. Section 95 makes it clear that these provisions do not affect the common law rules as to the withholding of information on the grounds of public interest immunity. In R v Mayers [2008] EWCA Crim 2989; [2009] 1 WLR 1915, the Court of Appeal

considered witness anonymity orders (under the 2008 Act). At para 13, the Court noted that

Nothing in the Act diminishes the overriding responsibility of the trial judge to ensure that the proceedings are conducted fairly. Well understood principles relating not only to the admission of evidence (including the powers of the court under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence) are unchanged. Beyond that, the judge is entitled and normally should reflect both at the close of the prosecution case, and indeed if the defendant has given evidence, when the defence evidence is concluded, whether properly directed, notwithstanding that crucial incriminating evidence was given by an anonymous witness or witnesses, and in the light of the evidence as a whole, the case can safely be left to the jury …

The Court added, at para 14, that

… when considering an appeal against conviction on the broad ground that witnesses anonymity orders should not have been made, and that the subsequent conviction is unsafe, this court should stand back and make its own objective assessment whether the trial was fair, even if, at the time when the judge made the order, it was reasonable and appropriate.

The Court went on to emphasise (at para 17) that all three conditions (A, B and C) must be met before the jurisdiction to make a witness anonymity order arises. The jurisdiction to make a witness anonymity order arises only when all three conditions are met. The Court added, at para 37, that

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The use of the word "necessary" requires that the court must be satisfied to the highest standard. "Probably" necessary will not do. Even if the "necessity" foundations for conditions A and C are established, the order cannot be made unless the court is also satisfied that the forthcoming trial, or the current trial, would be, or continues to be fair.

In R v C [2008] EWCA Crim 3228, Latham LJ said (at paras 16-18) that

... witness anonymity orders – unless it is quite apparent that they are orders which should not have been made – should not be the subject matter of interlocutory appeals. The problem is that until the trial is under way and it can be seen what the real issues are, and the way in which the Defendants are affected in their ability to deal with evidence by the anonymity orders, there is no proper way in which that assessment can be made. ... the fundamental question ... is the fairness of the trial. That is something which the judge will have to evaluate as the trial proceeds. He will have ample powers if, ultimately, he concludes that there is such unfairness that he should intervene; he can do so either by stopping the trial or by revoking the anonymity orders, whichever is the more appropriate step to take in all the circumstances of the case. If, after the trial, there is a conviction and there is an appeal against that conviction this court can then be in a position itself to evaluate the extent to which a fair trial has been possible. To be asked to pre-empt the process of trial and appeal is, in our judgment, an inappropriate way of dealing with this sort of case unless it is quite apparent from the circumstances that a witness anonymity order was wrongly made.

In R v Taylor [2010] EWCA Crim 830, Stanley Burnton LJ (at para 58) said:

in a case in which an anonymity order is made on the basis that it is necessary "in order to protect the safety of the witness or another person or to prevent any serious damage to property", and there is no evidence that that Condition is not, or is no longer, satisfied, it is difficult to conceive of circumstances in which the Court could properly revoke an anonymity order after the witness has testified. To do so would be to expose the witness to the very danger that the order was intended to avoid, and it would be grossly unfair and improper to expose him or her to that danger after he or she had been told that he or she would be protected by the order. It is evident that an application for revocation of an anonymity order in circumstances such as the present, if successful, would lead to the abandonment of the trial. It follows that in such a case it must be shown that the continuance in force of the anonymity order is inconsistent with a fair trial.

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Chapter 12: Crown Court trial – the course of the trial

Chapter 12.2.3 : Reading witness statements with the consent of the defence (pp 533-534)

Part 27 of the Criminal Procedure Rules governs the use of witness statements under s 9 of the Criminal Justice Act 1967. It provides as follows:

27.2 The statement must contain—

(a) at the beginning— (i) the witness' name, and (ii) the witness' age, if under 18;

(b) a declaration by the witness that— (i) it is true to the best of the witness' knowledge and belief, and (ii) the witness knows that if it is introduced in evidence, then it

would be an offence wilfully to have stated in it anything that the witness knew to be false or did not believe to be true;

(c) if the witness cannot read the statement, a signed declaration by someone else that that person read it to the witness; and

(d) the witness' signature. 27.3 Where the statement refers to a document or object as an exhibit—

(a) the statement must contain such a description of that exhibit as to identify it clearly; and

(b) the exhibit must be labelled or marked correspondingly, and the label or mark signed by the maker of the statement.

27.4 (1) A party who wants to introduce in evidence a written statement must—

(a) before the hearing at which that party wants to do so, serve a copy of the statement on— (i) the court officer, and (ii) each other party; and

(b) at or before that hearing, serve the statement itself on the court officer. (2) If that party relies on only part of the statement, that party must mark the copy in

such a way as to make that clear. (3) A prosecutor must serve on a defendant, with the copy of the statement, a

notice— (a) of the right within 7 days of service to object to the introduction of the

statement in evidence instead of the witness giving evidence in person; and

(b) that if the defendant does not object in time, the court— (i) can nonetheless require the witness to give evidence in person,

but (ii) may decide not to do so.

(4) The court may exercise its power to require the witness to give evidence in person— (a) on application by any party; or (b) on its own initiative.

(5) A party entitled to receive a copy of a statement may waive that entitlement by so informing— (a) the party who would have served it; and (b) the court.

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Expert witness

The use of expert witnesses is now governed by Part 33 of the Criminal Procedure Rules, which applies to both prosecution and defence experts. It provides as follows:

33.2 (1) An expert must help the court to achieve the overriding objective by giving

objective, unbiased opinion on matters within his expertise. (2) This duty overrides any obligation to the person from whom he receives

instructions or by whom he is paid. (3) This duty includes an obligation to inform all parties and the court if the expert‘s

opinion changes from that contained in a report served as evidence or given in a statement.

33.3 (1) An expert‘s report must—

(a) give details of the expert‘s qualifications, relevant experience and accreditation;

(b) give details of any literature or other information which the expert has relied on in making the report;

(c) contain a statement setting out the substance of all facts given to the expert which are material to the opinions expressed in the report, or upon which those opinions are based;

(d) make clear which of the facts stated in the report are within the expert‘s own knowledge;

(e) say who carried out any examination, measurement, test or experiment which the expert has used for the report and— (i) give the qualifications, relevant experience and accreditation of

that person, (ii) say whether or not the examination, measurement, test or

experiment was carried out under the expert‘s supervision, and (iii) summarise the findings on which the expert relies;

(f) where there is a range of opinion on the matters dealt with in the report— (i) summarise the range of opinion, and (ii) give reasons for his own opinion;

(g) if the expert is not able to give his opinion without qualification, state the qualification;

(h) contain a summary of the conclusions reached; (i) contain a statement that the expert understands his duty to the court,

and has complied and will continue to comply with that duty; and (j) contain the same declaration of truth as a witness statement.

(2) Only sub-paragraphs (i) and (j) of rule 33.3(1) apply to a summary by an expert of his conclusions served in advance of that expert‘s report.

33.4 (1) A party who wants to introduce expert evidence must—

(a) serve it on— (i) the court officer, and (ii) each other party;

(b) serve it— (i) as soon as practicable, and in any event (ii) with any application in support of which that party relies on that

evidence; and

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(c) if another party so requires, give that party a copy of, or a reasonable opportunity to inspect— (i) a record of any examination, measurement, test or experiment

on which the expert‘s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and

(ii) anything on which any such examination, measurement, test or experiment was carried out.

(2) A party may not introduce expert evidence if that party has not complied with this rule, unless (a) every other party agrees; or (b) the court gives permission.

33.5 A party who serves on another party or on the court a report by an expert must, at once, inform that expert of that fact. 33.6 (1) This rule applies where more than one party wants to introduce expert evidence. (2) The court may direct the experts to—

(a) discuss the expert issues in the proceedings; and (b) prepare a statement for the court of the matters on which they agree and

disagree, giving their reasons. (3) Except for that statement, the content of that discussion must not be referred to

without the court‘s permission. (4) A party may not introduce expert evidence without the court‘s permission if the

expert has not complied with a direction under this rule. 33.7 (1) Where more than one defendant wants to introduce expert evidence on an issue

at trial, the court may direct that the evidence on that issue is to be given by one expert only.

(2) Where the co-defendants cannot agree who should be the expert, the court may— (a) select the expert from a list prepared or identified by them; or (b) direct that the expert be selected in another way.

33.8 (1) Where the court gives a direction under rule 33.7 for a single joint expert to be

used, each of the co-defendants may give instructions to the expert. (2) When a co-defendant gives instructions to the expert he must, at the same time,

send a copy of the instructions to the other co-defendant(s). (3) The court may give directions about—

(a) the payment of the expert‘s fees and expenses; and (b) any examination, measurement, test or experiment which the expert

wishes to carry out. (4) The court may, before an expert is instructed, limit the amount that can be paid

by way of fees and expenses to the expert. (5) Unless the court otherwise directs, the instructing co-defendants are jointly and

severally liable for the payment of the expert‘s fees and expenses. 33.9 (1) The court may—

(a) extend (even after it has expired) a time limit under this Part; (b) allow the introduction of expert evidence which omits a detail required by

this Part. (2) A party who wants an extension of time must—

(a) apply when serving the expert evidence for which it is required; and (b) explain the delay.

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Chapter 12.2.4: Reading witness statements without the consent of the defence (pp 534-537)

In Al-Khawaja v United Kingdom (App. Nos. 26766/05 and 22228/06) (2009) 49 EHRR

1, the European Court ruled (at para 34) that Art, 6.3(d) is an aspect of the right to fair trial guaranteed by Article 6.1, which ‗in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument‘. This ‗is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence‘ and so cannot be read, as it was by the Court of Appeal in R v Sellick [2005] EWCA Crim 651, as merely illustrative of a matter to be taken into

account when considering whether a fair trial has been held. The Court added that the reading out of statements of witnesses without the witness being heard in a public hearing could not be regarded as being inconsistent with Arts 6.1 and 6.3(d), but emphasised that the accused must be given a proper and adequate opportunity to challenge and question a witness against him either when the witness made the statement or at a later stage. The European Court referred to its earlier decision in Lucà v Italy (Application no. 33354/96), where it had ruled (at para 40) that

where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 …

The Court in Al-Khawaja went on to hold that, in the absence of special circumstances

(such as the judge allowing the witness statement to be read to the jury because he was satisfied that the witness was being kept from giving evidence through fear induced by the defendant), it was doubtful whether any counterbalancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant. In R v Horncastle [2009] UKSC 14; [2010] 2 AC 373, however, the Supreme Court declined to follow the judgement of the European Court of Human Rights in Al-Khawaja. Lord Bingham P said, at para 108:

... I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg Court may also take account of the reasons that have led me not to apply the sole or decisive test in this case.

On the common law concept of the fairness of the trial, Lord Bingham said (at para 18):

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There are two principal objectives of a fair criminal trial. The first is that a defendant who is innocent should be acquitted. The second is that a defendant who is guilty should be convicted. The first objective is in the interests of the individual; the second is in the interests of the victim in particular and society in general. The two objectives are sometimes in tension and, where they are, the first carries more weight than the second.

Chapter 12.5: Crown Court trial – submissions of no case to answer (pp 540-545) The test to be applied on a submission of no case to answer was considered in R v Goring [2011] EWCA Crim 2. The Court of Appeal (at para 35) referred with approval to a decision of the Supreme Court of South Australia, Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, in which King CJ had said:

[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

The Court of Appeal went on (at para 36) to cite the judgement of Moses LJ in R v Jabber [2006] EWCA Crim 2694 (at para 21):

The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.

Leveson LJ, in Goring, added (at para 37):

It has long been a principle that, absent good reason (such as the witness being unworthy of belief), the prosecution is obliged to call all witnesses who give direct

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evidence of the primary facts and which the prosecution, when serving statements, consider to be material, even if there are inconsistencies between one witness and another: see R v Russell-Jones [1995] 1 Cr App R 538. Further, although taking the prosecution at its highest does not mean "picking out all the plums and leaving the duff behind" (see per Turner J in R v Shippey [1988] Crim LR 767), it is necessary to make an assessment of the evidence as a whole and not simply consider the credibility of individual witnesses or evidential inconsistencies between witnesses. It is for the jury to decide what evidence to accept and what evidence to reject and the fact that a witness called by the Crown gives evidence in some respects inconsistent with the inferential case being advanced by the Crown cannot, by itself, be determinative of a submission of no case to answer: it is obviously, however, a factor to be taken into account.

In Prosecution Appeal (No 32 of 2007); R v N Ltd [2008] EWCA Crim 1223; [2008] 1

WLR 2684, it was held that there is no jurisdiction for a judge to find, before the close of the prosecution case, that there is no case to answer. Hughes LJ (at para 26) said:

There is sound reason for the jurisdiction to entertain a submission that there is no case to answer to be exercised at the close of the Crown case. It is then that it is known for certain what the evidence actually is. Until then, the most that can be known is what it is expected to be.

The importance of the defence raising issues at an early stage, and not leaving it until the close of the prosecution case, was reiterated in R v Penner [2010] EWCA Crim 1155. Thomas LJ (at paras 16-19) said

... [T] he issues in this case should have been identified at the PCMH ... [I]t is essential that counsel at the PCMH stage carefully examine and identify the issues. As counsel in this case failed to do so, when the point, as he tells us, occurred to him in the course of cross-examination, it was then his duty to have identified it to the judge, before going any further with his cross-examination. He should not have left the matter for half time. He should have told the judge that there was a new issue and asked the judge how this matter should be dealt with ... It is no longer possible to have cases conducted in the way in which this case was conducted by counsel for the appellant, where points occur to someone and then an attempt is made to ambush the prosecution by a submission of no case to answer. The Divisional Court made clear in the Chorley Justices case [2006] EWHC 1795 (Admin) that trial by ambush was no longer permissible ... [I]f counsel had identified the issue, even if it occurred to him late (in a proper manner and not by means of submission at half time) then the Crown would have had an opportunity, if there had been any evidence in this case, to correct and bring before the trial court proper evidence. It is no longer permissible for the ambush of the type that it might be suggested happened in this case, to be performed in the future.

Chapter 12.5.3: Power of jury to acquit after close of prosecution case (pp 546-547)

The practice of inviting a jury to acquit a defendant before the conclusion of the trial was criticised in R v Speechley [2004] EWCA Crim 3067 and R v C [2007] EWCA Crim 854,

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and was further disapproved in R v H [2010] EWCA Crim 1931; [2011] 1 Cr App R 14,

where Leveson LJ, at para 50 and 51, said:

Although arguments have always been articulated as on the basis that fairness must be visited both on the defence and the prosecution, fairness to the prosecution is now well recognised as requiring a proper focus upon the legitimate rights and interests of victims and witnesses. Once there is a case to answer, they are entitled to know that the jury has heard the case through to its conclusion culminating in a fair analysis of the issues from the judge ... ... [I]t would be to fall into serious error to invite the jury to take such a step because of a perception that the case was not worthy of the expense of jury trial notwithstanding that Parliament has legislated for just such a course. To do so would only serve to encourage those charged with the least serious either way offences to elect trial in the hope of such a favourable outcome.

Chapter 12.5.4: Judge-directed acquittals (pp 547-550)

The CPS Annual Report for 2010 reveals that, judge-directed acquittals accounted for 13% of acquittals (compared with 15% in the two previous years; in earlier years the figures were: 18% in 2007-08 and 2006-07, and 20% in 2005-06). The Judicial Statistics for 2010, which cover all cases (not just CPS cases), show that of those who were acquitted after a not guilty plea, 8% per cent were acquitted on the direction of the judge. Chapter 12.5.4: Pre-trial interviews with prosecution witnesses (pp 549-50) Laura McGowan, Prosecution Interviews of Witnesses: What More Will Be Sacrificed to 'Narrow the Justice Gap'? (2006) 70 Journal of Criminal Law 351, commented:

It seems that prosecutors will be entitled to interview complainants and other prosecution witnesses in criminal cases. How these interviews will be conducted and at what stage of proceedings is not clear. This article considers what effect prosecution interviews may have on various stages of a criminal investigation and prosecution. It concludes that interviews for the purpose of screening out weak charges may be welcome, but great caution should be exercised when interviewing witnesses later in prosecution proceedings and that the objectivity of prosecutors and prosecution counsel should not be sacrificed in an attempt to 'narrow the justice gap'.

Paul Roberts and Candida Saunders discuss the results of their evaluation of the pilot of pre-trial interviews with potential prosecution witnesses, in Introducing pre-trial witness interviews: a flexible new fixture in the Crown Prosecutor's toolkit [2008] Crim LR 831. They conclude as follows:

Overall, our empirical findings reiterate the need for a balanced appraisal of the potential strengths, limitations and pitfalls of pre-trial witness interviewing, in the first instance by policy-makers developing and managing the initiative and, subsequently, in front-line

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practice, by individual prosecutors empowered to conduct PTWI interviews. The prospects for successful implementation will be greatly enhanced, it seems to us, by candid recognition of PTWI's inherent risks and limitations, which can then be weighed even-handedly against its tangible attractions in a sophisticated, holistic, ―cost-benefit analysis‖. The impact of PTWI on final case disposition (which anyway, is difficult to assess) is only one dimension of this complex equation. We identified a number of practical steps that could be taken to increase the chances of successful implementation of PTWI nationwide. These include provision for on-going prosecutor training, adjustments to CPS office rotas, initiatives to promote more effective inter-agency co-operation, improved witness liaison and accommodation, and rolling evaluation of pre-trial witness interviewing as the initiative is progressively developed and adapted through prosecutors' hands-on experience. Although these measures may seem mundane when set against the lofty ideals of criminal justice, attention to detail can be the difference between success and failure in the practical business of institutional and procedural reform of criminal process. There are also a number of important matters on which PTWI policy is yet to be fully clarified. We highlighted four such issues requiring further consideration: (i) prosecutor selection; (ii) tape-recording; (iii) pre-trial disclosure; and (iv) the definition of ―new evidence‖ requiring supplementary witness statements. Criminal procedure reform cannot sensibly be evaluated in isolation from other parts of the criminal justice process. Although first and foremost a CPS initiative, PTWI also affects the work of police, prosecution counsel, defence lawyers and trial judges. Pilot cases and research interviews provide ample confirmation of the capacity of the police, counsel and judges to contribute to the successful implementation of PTWI. But they also reveal pervasive ignorance of the Pilot and its objectives amongst fellow criminal justice professionals. Unless prosecutors and other criminal justice professionals and agencies are won over to the culturally unfamiliar idea of PTWI interviewing, and selected prosecutors are furnished with adequate training, ongoing support and scheduled office time to conduct witness interviews, there is a genuine risk that following ostensibly ―successful‖ national roll-out PTWI interviews will effectively wither on the vine. The campaign indubitably begins at home, but just as surely must be prosecuted beyond the thresholds of CPS offices.

Chapter 12.10: Crown Court trial - the judge’s summing up (pp 556-7)

In R v Maguire [2008] EWCA Crim 1028; (2008) 172 JP 417, Hughes LJ (at para 11) said that the Court wished to discourage

anything which over-formalises commonsense. We would caution advocates against making submissions which seek such unnecessary formalism from judges in their directions, and equally judges against employing it, unless it becomes essential.

Judicial Studies Board Specimen directions In R v Ramchurn [2010] EWCA Crim 194, Lord Judge CJ, giving the judgment of the

court, considered (at para 29) the significance of the JSB's specimen directions:

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For many years now, and in different forms, the Judicial Studies Board has offered assistance to trial judges which takes the form of a collection of specimen directions. They are invaluable. They are frequently repeated, directly and verbatim, by trial judges when summing up. Generations of judges are indebted to the Judicial Studies Board for accepting the huge burden of producing the specimen directions and regularly updating them in the light of legal developments. However eminent and distinguished those who have prepared the specimen directions over the years, the Judicial Studies Board has never asserted, and would have been wrong if it had chosen to assert, that these specimen directions constituted authority binding on trial judges. On occasions this court has approved or adopted a specimen direction or part of a specimen direction. When that happens, it is vested with the authority of the court. But until then, helpful, valuable, indeed indispensable as the Judicial Studies Board specimen directions may be in practice, and however likely it is that if the question arose for decision the court would approve a particular direction, the situation is unchanged. The specimen directions provide guidance for trial judges, not authority binding them or for that matter binding this court.

Moreover, in March 2010, the JSB Specimen Directions were superseded by the new JSB Criminal Benchbook. In his Foreword, the Lord Chief Justice writes:

This new Judicial Studies Board Crown Court Benchbook was prepared by Mr Justice Pitchford (as he then was) after he considered what was needed to bring the vast array of valuable JSB training materials for use in the Crown Court up to date, and arranged in a format that accommodates both the recent deluge of primary legislation, and the many appellate decisions in which the legislation has been interpreted. ... We are all familiar with the so-called ―specimen directions‖ for juries ... But the great value of the specimen direction has also the potential to be a weakness. What was intended to provide guidance and assistance to judges has, on many occasions, to all intents and purposes, operated as if judges were bound by them when they were preparing their summing up and sometimes the specimen directions have been incanted mechanistically and without any sufficient link with the case being tried. In this Benchbook, the objective has been to move away from the perceived rigidity of specimen directions towards a fresh emphasis on the responsibility of the individual judge, in an individual case, to craft directions appropriate to that case. In the absence of specimen directions, one could be forgiven for asking the question what, then, is the role of the Benchbook? The answer to that question is simple: the role of the Benchbook is integral to the role of the modern judge. Through its thorough exposition of the summary of the relevant law, bullet pointed ingredients for directions, some essential, most calling for a judgment as to relevance,, and illustrative examples, it guides the judge in the crafting of directions, and should be a useful starting point of reference on the Bench. Save where the Court of Appeal (Criminal Division) has so ruled, the contents of the Benchbook have no legal authority. Too often it has been submitted in the Court of Appeal that a judge‘s failure to follow a specimen direction has rendered the conviction unsafe, and we have had to emphasise that the directions are not binding. Contrary to good practice, advocates‘ closing speeches often include words to the effect of ―His Honour the judge will tell you this…‖ or ―Her Honour will say that…‖ followed by a pre-emptory reference to the contents of one or more specimen directions. The caution

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induced by such inappropriate practices is fuelled by a too-ready propensity to argue before the Court of Appeal that the specimen directions should have been given in full, or that an unmerited departure from the specimen text took place. That culture must change and I hope that this Benchbook will go a significant way towards achieving that aim."

The Judicial Studies Board is now known as the Judicial College. Chapter 12.10.4.3: Summing up – adverse inferences from silence (pp 561-568)

In R v Essa [2009] EWCA Crim 43, Hughes LJ (at para 15) said that:

… It is important to remember that the significance of s 34 of the Criminal Justice and Public Order Act 1994 does not lie in silence in interview, it lies in reliance at trial on something that should have been said in interview. Secondly, it is important to remember that the acid question in any section 34 case is not: was it reasonable to rely on the solicitor's advice? Rather it is: could the appellant reasonably have been expected to say what he now relies upon at trial? The first question must be answered en route to the second, but the second is the one that matters.

In R v Seaton [2010] EWCA Crim 1980; [2011] 1 WLR 623, Hughes LJ (at para 43) confirmed that:

If a defendant says that he gave his solicitor the account now offered at trial, that will ordinarily mean that he can be cross examined about exactly what he told the solicitor on that topic, and if the comment is fair another party can comment upon the fact that the solicitor has not been called to confirm something which, if it is true, he easily could confirm. If it is intended to pursue cross examination beyond what is evidently opened up, the proper extent of it can be discussed and the judge invited to rule. A defendant who adduces evidence that he was advised by his lawyer not to answer questions but goes no further than that does not thereby waive privilege ... After all, the mere fact of the advice can equally well be made evident by the solicitor announcing at the interview that he gives it then and there, and there is then no revelation whatever of any private conversation between him and the defendant. But a defendant who adduces evidence of the content of, or reasons for, such advice, beyond the mere fact of it, does waive privilege at least to the extent of opening up questions which properly go to whether such reason can be the true explanation for his silence: Bowden. That will ordinarily include questions relating to recent fabrication, and thus to what he told his solicitor of the facts now relied upon at trial ...

Chapter 12.11.2: Trial on indictment – no further evidence after retirement (pp 575-576)

In R v Cadman [2008] EWCA Crim 1418, the defendant was charged with fraud involving cheques. At the trial, the jury were shown a number of cheques but there was no expert handwriting evidence comparing the defendant's handwriting to the handwritten details on the cheques. The defendant denied any part in the fraud. After the jury had retired, they requested a sample of cheques which the defendant had allegedly

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written, the foreman of the jury indicating that they wanted to compare the handwriting on those cheques with samples of the defendant‘s handwriting in other documents. The Court of Appeal held that for the jury to use the samples of further cheques provided after their retirement, in order to compare handwriting to decide whether the appellant had written out the cheques in question, necessarily meant using that extraneous material as evidence in an exercise that would enable the jury to reach their own conclusion in relation to the appellant's evidence to the contrary. It was ‗wholly impermissible for the jury to make use of the extraneous material for such an evidential exercise‘. Nicola Haralambous, Juries and Extraneous Material: A Question of Integrity - Juries and Extraneous Material (2007) 71 Journal of Criminal Law 520, concludes:

Relying upon specialised knowledge in the jury room is indistinguishable from conducting and using the fruits of external research. Both violate the principle that no further evidence can be called after the retirement of the jury and are contrary to the oath taken by jurors to reach a verdict according to the evidence. The use of extraneous material by jurors raises issues in relation to the integrity of the jury. Although it is evident that the judiciary places considerable faith in the jury, case law clearly demonstrates that extraneous material and other influences occasionally play a part in deliberations, contrary to the directions given by the trial judge. The fact that such behaviour occurs is certain, only the extent to which it does is unclear. Nevertheless, there is sufficient evidence in the authorities cited to raise doubt over the degree of judicial confidence placed in our juries. Such doubt must be given serious consideration if the criminal justice system is to protect accused individuals from miscarriages of justice. The Court of Appeal in R v Karakaya was keen to note that the Judicial Studies Board was considering whether:

it would be helpful to prepare broad guidance to assist in the formulation of appropriate judicial directions. These might usefully include an explanation to the jury … why they should not endeavour to do their own research during the course of the trial, for example, by researching the internet, or elsewhere.

It is conceivable that, if such a direction does become common practice, consideration might also be given to the development of a similar judicial warning for the benefit of expert jurors with specialised knowledge. However, it is submitted that such directions far from resolve the problem and in fact may inadvertently create one: there is a very high risk that a direction or warning against conducting internet research would sow the seeds of curiosity and actually encourage jurors to explore the internet, when such thoughts had not previously crossed their minds. This is a dangerous prospect when one considers how easy it is to access inaccurate and unregulated information on the internet. In any event, the fundamental question as to the integrity of the jury in following judicial directions still remains, and will do so for at least as long as the secrecy laws exist. The formulation of further judicial directions is futile if there is no trust in jurors following them.

Chapter 12.12.3.9: Re-trials after acquittal (CJA 2003, pt 10) (pp 694-698)

In R v Dobson [2011] EWCA Crim 1256; [2011] 2 Cr App R 8, Lord Judge CJ said (at paras 7 and 8):

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... "compelling evidence" for the purposes of s 78 ... does not mean that the evidence must be irresistible, or that absolute proof of guilt is required. In other words, the court should not and is certainly not required to usurp the function of the jury, or, if a new trial is ordered, to indicate to the jury what the verdict should be... However the legislative structure does not suggest that availability of a realistic defence argument which may serve to undermine the reliability or probative value of the new evidence must, of itself, preclude an order quashing the acquittal. It must, of course, be carefully analysed, and given its proper weight. If the argument, or indeed any defence evidence, leads the court to conclude that the new evidence is not, after all, as reliable or substantial as it was thought to be, or that it no longer appears to be highly probative of guilt, then the court cannot be satisfied that the statutory test has been met. That is a fact specific decision. In the end, there are three defined elements: provided the new evidence is reliable, substantial, and appears to be highly probative, for the purposes of s 78 it is compelling: otherwise it is not.

At para 15, Lord Judge emphasised that, at the re-trial, the presumption of innocence continues to apply. Chapter 12.13: What happens if the jury is unable to reach a verdict? Re-trials where jury cannot agree on a verdict In R v Byrne [2002] EWCA Crim 632; [2002] 2 Cr App R 21, Aikens J (at para 14) said

that: There is a convention that if a jury disagrees on the first trial and then a second jury also disagrees, the prosecution will then formally offer no evidence … However this is no more than a convention. There is no rule of law that forbids a prosecutor from seeking a second retrial after a jury has disagreed. This view of English criminal procedure was affirmed by the Privy Council in Forrester Bowe v The Queen [2001] UKPC 19 ...

In Forrester Bowe v The Queen, Lord Bingham had said (at paras 37-39):

It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree ... But that is no more than a convention ... It may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further retrial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second retrial ... There may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust... Whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant's interests, particularly where there has been long delay or he has spent long periods under sentence of death or if his defence may be prejudiced in any significant way by the lapse of time. Account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system.

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In R v Bell [2010] EWCA Crim 3; [2010] 1 Cr App R 27, Lord Judge CJ said (at para 46):

… the jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred ... and in which the evidence that the defendant committed the crime ...., on any fair minded objective judgment remains very powerful.

Chapter 12.14: Majority verdicts (pp 580-583)

The Judicial Statistics for 2010, published by the Ministry of Justice, show that of the defendants who were convicted after a not guilty plea, 81% were convicted by a unanimous verdict and 19% by a majority verdict. Chapter 12.16: Alternative verdicts (pp 584-592) R v Coutts [2006] 4 All ER 353 and R v Foster [2008] 1 WLR 1615 were applied in R v Hodson [2009] EWCA Crim 1590. Keene LJ said, at paras 10 and 11:

... There is no automatic requirement on a judge to leave an alternative verdict if such a verdict would not properly reflect the facts of the case, when judged realistically, or would not do justice to the gravity of the case. This court stressed that whether it is necessary to leave such a verdict, even when legally available as an alternative, will depend on the facts of the individual case. But if it is a realistically available verdict on the evidence, as an interpretation properly open to the jury, without trivialising the offending conduct, then it should be left. It is, in our view, particularly important that this is done where the offence charged requires proof of a specific intent and the alternative offence does not. Even then there may be circumstances where the issue of specific intent does not truly arise. For example, if a man is shot at point-blank range in the head and the defence is simply that the defendant was not present, there is no requirement on the judge then to leave the alternative of manslaughter by way of killing without the necessary intent for murder. However, there will be cases, as Coutts recognised, where it is necessary to leave the lesser offence as an alternative to avoid the dangerous situation where the jury is faced with the stark choice of convicting for the serious offence or acquitting altogether. That may give rise to a miscarriage of justice.

At para 16, his Lordship noted the duty on counsel to ‗ensure that they raise with the judge, if he has not raised it of his own volition, the need at least to consider the propriety and necessity of leaving an alternative verdict ... to the jury if it is available on the facts‘.

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Chapter 12.18.3 : Plea-bargaining in fraud cases (pp 595-596)

The Attorney General's Guidelines on Plea Discussions in Cases of Serious or Complex Fraud and Foreign Bribery were issued in May 2009:

A5. The purpose of plea discussions is to narrow the issues in the case with a view to reaching a just outcome at the earliest possible time, including the possibility of reaching an agreement about acceptable pleas of guilty and preparing a joint submission as to sentence. A6. The potential benefits of plea discussions are that:

Early resolution of the case may reduce the anxiety and uncertainty for victims and witnesses, and provide earlier clarity for accused persons who admit their guilt (subject to the court‘s power to reject the agreement);

The issues in dispute may be narrowed so that even if the case proceeds to trial, it can be managed more efficiently in accordance with Rule 3.2 of the Criminal Procedure Rules 2005. If pleas are agreed, litigation can be kept to a minimum.

A7. Where plea discussions take place prior to the commencement of proceedings, the charges brought by the prosecutor will reflect those agreed, rather than those that the prosecutor would necessarily have preferred if no agreement had been reached. Also, any criminal investigation may not be complete when these discussions take place. For these reasons it is important that the procedures followed should command public and judicial confidence; that any agreement reached is reasonable, fair and just; that there are safeguards to ensure that defendants are not under improper pressure to make admissions; and that there are proper records of discussions that have taken place. … A9. Where a plea agreement is reached, it remains entirely a matter for the court to decide how to deal with the case.

B GENERAL PRINCIPLES B1. In conducting plea discussions and presenting a plea agreement to the court, the prosecutor must act openly, fairly and in the interests of justice. B2. Acting in the interests of justice means ensuring that the plea agreement reflects the seriousness and extent of the offending, gives the court adequate sentencing powers, and enables the court, the public and the victims to have confidence in the outcome. The prosecutor must consider carefully the impact of a proposed plea or basis of plea on the community and the victim, and on the prospects of successfully prosecuting any other person implicated in the offending. The prosecutor must not agree to a reduced basis of plea which is misleading, untrue or illogical. B3. Acting fairly means respecting the rights of the defendant and of any other person who is being or may be prosecuted in relation to the offending. The prosecutor must not put improper pressure on a defendant in the course of plea discussions, for example by exaggerating the strength of the case in order to persuade the defendant to plead guilty, or to plead guilty on a particular basis. B4. Acting openly means being transparent with the defendant, the victim and the court. The prosecutor must:

Ensure that a full and accurate record of the plea discussions is prepared and retained;

Ensure that the defendant has sufficient information to enable him or her to play an informed part in the plea discussions;

Communicate with the victim before accepting a reduced basis of plea, wherever it is practicable to do so, so that the position can be explained; and

Ensure that the plea agreement placed before the court fully and fairly reflects the matters agreed. The prosecutor must not agree additional matters with the defendant which are not recorded in the plea agreement and made known to the court.

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C. INITIATING PLEA DISCUSSIONS When and with whom discussions should be initiated and conducted C1. Where he or she believes it advantageous to do so, the prosecutor may initiate plea discussions with any person who is being prosecuted or investigated with a view to prosecution in connection with a serious or complex fraud, and who is legally represented. The prosecutor will not initiate plea discussions with a defendant who is not legally represented. If the prosecutor receives an approach from such a defendant, he or she may enter into discussions if satisfied that it is appropriate to do so. C2. Where proceedings have not yet been instituted, the prosecutor should not initiate plea discussions until he or she and the investigating officer are satisfied that the suspect‘s criminality is known. This will not usually be the case until after the suspect has been interviewed under caution. C3. The prosecutor should be alert to any attempt by the defendant to use plea discussions as a means of delaying the investigation or prosecution, and should not initiate or continue discussions where the defendant‘s commitment to the process is in doubt. The prosecutor should ensure that the position is preserved during plea discussions by, for example, restraining assets in anticipation of the making of a confiscation order. Where a defendant declines to take part in plea discussions, the prosecutor should not make a second approach unless there is a material change in circumstances. … Confidentiality and use of information C6. In relation to confidentiality, the prosecutor will indicate that he or she intends to provide an undertaking to the effect that the fact that the defendant has taken part in the plea discussions, and any information provided by the defence in the course of the plea discussions will be treated as confidential and will not be disclosed to any other party other than for the purposes of the plea discussions and plea agreement (applying these Guidelines), or as required by law. The undertaking will make it clear that the law in relation to the disclosure of unused material may require the prosecutor to provide information about the plea discussions to another defendant in criminal proceedings. C7. The prosecutor will require the defendant‘s legal representative to provide an undertaking to the effect that information provided by the prosecutor in the course of the plea discussions will be treated as confidential and will not be disclosed to any other party, other than for the purposes of the plea discussion and plea agreement or as required by law. C8. In relation to the use of information, the prosecutor will indicate that he or she intends to undertake not to rely upon the fact that the defendant has taken part in the plea discussions, or any information provided by the defendant in the course of the discussions, as evidence in any prosecution of that defendant for the offences under investigation, should the discussions fail. However, this undertaking will make it clear that the prosecutor is not prevented from:

Relying upon a concluded and signed plea agreement as confession evidence or as admissions;

Relying upon any evidence obtained from enquiries made as a result of the provision of information by the defendant;

Relying upon information provided by the defendant as evidence against him or her in any prosecution for an offence other than the fraud which is the subject of the plea discussion and any offence which is consequent upon it, such as money laundering; and

Relying upon information provided by the defendant in a prosecution of any other person for any offence (so far as the rules of evidence allow).

C9. In exceptional circumstances the prosecutor may agree to different terms regarding the confidentiality and use of information. However, the prosecutor must not surrender the ability to rely upon a concluded and signed plea agreement as evidence against the defendant. The prosecutor may reserve the right to bring other charges (additional to those to which the defendant has indicated a willingness to plead guilty) in specific circumstances, for example if substantial new information comes to light at a later stage, the plea agreement is rejected by the court, or the defendant fails to honour the agreement.

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C10. Until the issues of confidentiality and use of information have been agreed to the satisfaction of both parties, and the agreement reflected in signed undertakings, the prosecutor must not continue with the substantive plea discussions.

D. CONDUCTING PLEA DISCUSSIONS Statement of case D1. Where plea discussions take place prior to proceedings being instituted, the prosecutor will provide a statement of case to the defence. This is a written summary of the nature of the allegation against the suspect and the evidence which has been obtained, or is expected to be obtained, to support it. The statement of case should include a list of the proposed charges. Material in support of the statement of case may also be provided, whether or not in the form of admissible evidence. However, the prosecutor is not obliged to reveal to the suspect all of the information or evidence supporting his case, provided that this does not mislead the suspect to his or her prejudice. D2. Where plea discussions are initiated after proceedings have been commenced, but before the prosecutor has provided the defence with a case summary or opening note, the prosecutor may provide a statement of case to assist the defendant in understanding the evidence and identifying the issues. Unused material D3. These Guidelines do not affect the prosecutor‘s existing duties in relation to the disclosure of unused material. Where plea discussions take place prior to the institution of proceedings, the prosecutor should ensure that the suspect is not misled as to the strength of the prosecution case. It will not usually be necessary to provide copies of unused material in order to do this. Conducting and recording the discussions D4. Having provided the defence with the statement of case and supporting material, the parties will then be in a position to conduct the plea discussion proper. Whether this is done by correspondence, by face-to-face meetings or by a combination of the two is a matter for the parties to decide in the individual case. D5. It is essential that a full written record is kept of every key action and event in the discussion process, including details of every offer or concession made by each party, and the reasons for every decision taken by the prosecutor. Meetings between the parties should be minuted and the minutes agreed and signed. Particular care should be taken where the defendant is not legally represented. The prosecutor should only meet with a defendant who is not legally represented if the defendant agrees to the meeting being recorded, or to the presence of an independent third party. Queen’s Evidence D6. If the defendant offers at any stage to provide information, or to give evidence about the criminal activities of others, any such offer will be dealt with in accordance with sections 71 to 75 of the Serious Organised Crime and Police Act 2005 (―SOCPA‖)... Discussion of pleas D7. … The prosecutor should ensure that:

The charges reflect the seriousness and extent of the offending;

They give the court adequate powers to sentence and impose appropriate post-conviction orders;

They enable the case to be presented in a clear and simple way (bearing in mind that many cases of fraud are necessarily complex);

The basis of plea enables the court to pass a sentence that matches the seriousness of the offending, particularly if there are aggravating features;

The interests of the victim, and where possible any views expressed by the victim, are taken into account when deciding whether it is in the public interest to accept the plea; and

The investigating officer is fully appraised of developments in the plea discussions and his or her views are taken into account.

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D8. In reaching an agreement on pleas, the parties should resolve any factual issues necessary to allow the court to sentence the defendant on a clear, fair and accurate basis... Discussion of sentence D9. Where agreement is reached as to pleas, the parties should discuss the appropriate sentence with a view to presenting a joint written submission to the court. This document should list the aggravating and mitigating features arising from the agreed facts, set out any personal mitigation available to the defendant, and refer to any relevant sentencing guidelines or authorities. In the light of all of these factors, it should make submissions as to the applicable sentencing range in the relevant guideline. The prosecutor must ensure that the submissions are realistic, taking full account of all relevant material and considerations. D10. The prosecutor should bear in mind all of the powers of the court, and seek to include in the joint submission any relevant ancillary orders. It is particularly desirable that measures should be included that achieve redress for victims (such as compensation orders) and protection for the public (such as directors‘ disqualification orders, serious crime prevention orders or financial reporting orders). D11. Due regard should be had to the court‘s asset recovery powers and the desirability of using these powers both as a deterrent to others and as a means of preventing the defendant from benefiting from the proceeds of crime or funding future offending ...

E. THE WRITTEN PLEA AGREEMENT E1. All matters agreed between the prosecutor and the defence must be reduced to writing as a plea agreement and signed by both parties. The plea agreement will include:

A list of the charges;

A statement of the facts; and

A declaration, signed by the defendant personally, to the effect that he or she accepts the stated facts and admits he or she is guilty of the agreed charges.

… E4. In advance of the defendant‘s first appearance in the Crown Court, the prosecutor

should send the court sufficient material to allow the judge to understand the facts of the case and the history of the plea discussions, to assess whether the plea agreement is fair and in the interests of justice, and to decide the appropriate sentence. This will include:

The signed plea agreement;

A joint submission as to sentence and sentencing considerations;

Any relevant sentencing guidelines or authorities;

All of the material provided by the prosecution to the defendant in the course of the plea discussions;

Any material provided by the defendant to the prosecution, such as documents relating to personal mitigation; and

The minutes of any meetings between the parties and any correspondence generated in the plea discussions.

E5. It will then be for the court to decide how to deal with the plea agreement. In particular, the court retains an absolute discretion as to whether or not it sentences in accordance with the joint submission from the parties.

F. FAILURE OF PLEA DISCUSSIONS … F3. Where plea discussions have broken down for any reason, it will be rare that the prosecutor will wish to re-open them, but he or she may do so if there is a material change in circumstances which warrants it.

See also Nick Vamos, Please don't call it "plea bargaining" [2009] Crim LR 617. He

concludes that

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The question remains open … at what point pragmatism and the pursuit of efficiency should give way to fundamental principles of fairness, integrity, transparency and equality of arms. In practice the more interesting questions concern how much bargaining power should lie with the prosecutor and how that power should be exercised and scrutinised. Resolving criminal charges through plea bargaining appears to hold out huge practical benefits to the criminal justice system. Issues that would otherwise be fully litigated are resolved through negotiation and everyone - the police, prosecutors, courts - saves time and money. These benefits are very attractive, particularly in serious and complex fraud cases where there are vast costs involved in proceeding all the way to trial. But unrestricted plea bargaining is open to powerful criticisms that it sacrifices basic notions of criminal justice for crude efficiency. This arises from the interplay of several features of the US system - unfettered prosecutorial charging discretion; overlapping charges; severe and mandatory sentences; narrow judicial sentencing discretion; and limited defence rights to disclosure - which do not arise to anything like the same extent in England and Wales. Accordingly those powerful criticisms lose much of their force. The introduction of the Framework is an attempt to achieve some of the practical benefits of plea bargaining without compromising the integrity of our criminal justice system …

He goes on to identify a number of lessons to be learned from the US system, including:

setting clear and transparent guidelines on prosecutorial discretion; ensuring compliance with the guidelines through internal review procedures within prosecution offices; and the robust, independent scrutiny by the court of the terms of the bargain and the underlying facts.

He goes on to point out that defendants already have an incentive to plead guilty because of the one-third discount in sentence that is given in accordance with Sentencing Guidelines Council guidance and concludes that:

Empowering prosecutors to negotiate over charges, facts and sentence recommendations is simply an extension of the same principles, aims to achieve the same goals, and in order to do so will inevitably need to offer similar incentives. In aiming for pragmatic goals it is not possible to avoid pragmatic decisions in order to achieve them …

Duncan Watson also discusses the Attorney-General's Guidelines on Plea Bargaining in Serious Fraud in ‗The Attorney General's Guidelines on Plea Bargaining in Serious Fraud: Obtaining Guilty Pleas Fairly?‘ (2010) 74 JoCL 77. He notes that, ―it remains to be seen whether the unsuitable disclosure provisions will serve to undermine the fairness that it is hoped to achieve, and thus undermine the defendant's ability to make a completely free and informed choice as to the plea he will enter‖. Chapter 12.19.1: Seeing the judge in his chambers: indications as to sentence (pp 597-603)

In Attorney-General's Reference No 80 of 2005: R v Wedlock-Ward [2005] EWCA Crim

3367, Rose LJ said (at para 29):

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Lest the Court's decision in Goodyear be misunderstood … we wish to make three matters about that decision plain. First, its purposes was not to encourage a return to the practice disapproved of in R v Turner [1970] 2 QB 321 at 326H of counsel seeing the judge about sentence, privately in his room. On the contrary, … hearings involving an indication of sentence ―should normally take place in open court‖. There are, of course, exceptions to this principle, for example, where a defendant is unaware that he is terminally ill. Secondly, the principal feature of the new approach to indications of sentence prescribed in Goodyear is that advance indications of sentence should be sought by the defence not promulgated by the judge ... Thirdly, if an indication in such a context is to be made, it is not appropriate … for [the judge] to identify, by reference to a trial, the much longer sentence which he would impose compared with the sentence which he proposes if the defendant pleads guilty … such a course is likely to apply pressure to a defendant which the judgment in Goodyear sought to avoid.

Part IV.45 of the Consolidated Criminal Practice Direction has been amended as follows:

IV.45 Pleas of Guilty in the Crown Court

IV.45. I. Advocates must be free to perform their duty namely to give the accused the best advice possible and, if need be, in strong terms. It will often include advice that, in accordance with the relevant authorities and sentencing guidelines, a court will normally reduce a sentence as a result of a guilty plea and that the level of reduction will reflect the stage in the proceedings at which willingness to admit guilt was indicated. The advocate will, of course, emphasise that the defendant must not plead guilty unless he or she is guilty of the offence(s) charged.

IV.45.2. The defendant, having considered the advocate's advice, must have complete freedom of choice whether to plead guilty or not guilty.

IV.45.3. There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If an advocate is instructed by a solicitor who is in court, he or she, too, should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in the client's interest, mention them in open court, e.g. the advocate, by way of mitigation, may wish to tell the judge that reliable medical evidence shows that the defendant is suffering from a terminal illness and may not have long to live. It is imperative that, so far as possible, justice must be administered in open court. Advocates should, therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in the interests of justice, this is necessary. Where any such discussion takes place it should be recorded either by a tape recorder or a shorthand writer.

Pleas of Guilty in the Crown Court: Procedure

IV.45.4. This direction outlines the three routes by which a defendant may put forward a plea of guilty in the Crown Court, which are as follows:

a. a plea of guilty to all or some of the charges on the basis of the prosecution case set

out in the papers; b. a plea of guilty upon a basis of plea agreed by the prosecution and defence, or upon

a basis of plea put forward by the defence but not contested by the prosecution; and c. in cases involving serious or complex fraud conducted in accordance with paragraphs IV.45.16 to IV.45.28, below, a plea of guilty upon a basis of plea agreed by the prosecution and defence accompanied by joint submissions as to sentence.

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(a) A plea of guilty to all or some of the charges on the basis of the prosecution case set out in the papers

IV.45.5. In many cases, defendants wishing to plead guilty will simply plead guilty to all charges on the basis of the facts as alleged and opened by the prosecution, with no dispute as to the factual basis and extent of offending alleged by the prosecution. Alternatively a defendant may plead guilty to some of the charges brought. When a defendant pleads guilty as set out above, the judge will consider whether that plea represents a proper plea on the basis of the facts set out by the papers. Where the judge is satisfied that the plea is properly grounded, sentencing may take place.

IV.45.6. Where the prosecution advocate is considering whether to accept a plea to a lesser charge, the advocate may invite the judge to approve the proposed course of action. In such circumstances, the advocate must abide by the decision of the judge.

IV.45.7. If the prosecution advocate does not invite the judge to approve the acceptance by the prosecution of a lesser charge, it is open to the judge to express his or her dissent with the course proposed and invite the advocate to reconsider the matter with those instructing him or her.

IV.45.8. In any proceedings, where the judge is of the opinion that the course proposed by the advocate may lead to serious injustice, the proceedings may be adjourned to allow the following procedure to be followed:

a. as a preliminary step, the prosecution advocate must discuss the judge's

observations with the Chief Crown Prosecutor or the senior prosecutor of the relevant prosecuting authority as appropriate, in an attempt to resolve the issue;

b. where the issue remains unresolved, the Director of Public Prosecutions or the Director of the relevant prosecuting authority should be consulted;

c. in extreme circumstances the judge may decline to proceed with the case until the prosecuting authority has consulted with the Attorney General as may be appropriate.

IV.45.9. Prior to entering a plea of guilty, a defendant may seek an indication of sentence under the procedure set out in R v Goodyear [2005] 2 Cr.App.R 20; see paragraphs IV.45.29 to IV.45.33, below.

(b) A plea of guilty upon a basis of plea agreed by the prosecution and defence

IV.45.10. The prosecution may reach an agreement with the defendant as to the factual basis on which the defendant will plead guilty, often known as an ―agreed basis of plea‖. It is always subject to the approval of the court, which will consider whether it is fair and in the interests of justice.

IV.45.11. R v Underwood [2004] EWCA Crim 2256 [2005] 1 Cr App R (S) 90 outlines the principles to be applied where the defendant admits that he or she is guilty, but disputes the basis of offending alleged by the prosecution:

a. The prosecution may accept and agree the defendant's account of the disputed facts

or reject it in its entirety. If the prosecution accepts the defendant's basis of plea, it must ensure that the basis of plea is factually accurate and enables the sentencing judge to impose a sentence appropriate to reflect the justice of the case;

b. In resolving any disputed factual matters, the prosecution must consider its primary duty to the court and must not agree with or acquiesce in an agreement which contains material factual disputes;

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c. If the prosecution does accept the defendant's basis of plea, it must be reduced to writing, be signed by advocates for both sides, and made available to the judge prior to the prosecution's opening;

d. An agreed basis of plea that has been reached between the parties must not contain any matters which are in dispute;

e. On occasion the prosecution may lack the evidence positively to dispute the defendant's account, for example, where the defendant asserts a matter outside the knowledge of the prosecution. Simply because the prosecution does not have evidence to contradict the defendant's assertions does not mean those assertions should be agreed. In such a case, the prosecution should test the defendant's evidence and submissions by requesting a Newton hearing (R v Newton (1982) 4 Cr App R(S) 388, (1982) 77 Cr App Rep 13), following the procedure set out in paragraph IV.45.13, below.

f. If it is not possible for the parties to resolve a factual dispute when attempting to reach a plea agreement under this part, it is the responsibility of the prosecution to consider whether the matter should proceed to trial, or to invite the court to hold a Newton hearing as necessary.

g. Subject to paragraph IV.45.12, where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it.

IV.45.12. R v Underwood emphasises that whether or not pleas have been ―agreed‖ the judge is not bound by any such agreement and is entitled of his or her own motion to insist that any evidence relevant to the facts in dispute (or upon which the judge requires further evidence for whatever reason) should be called. Any view formed by the prosecution on a proposed basis of plea is deemed to be conditional on the judge's acceptance of the basis of plea.

IV.45.13. Where the defendant pleads guilty, but disputes the basis of offending alleged by the prosecution, the following procedure should be followed:

a. The defendant's basis of plea must be set out in writing, identifying what is in dispute; b. The court may invite the parties to make representations about whether the dispute is

material to sentence; and c. If the court decides that it is a material dispute, the court will invite such further

representations or evidence as it may require and decide the dispute in accordance with the principles set out in R v Newton.

IV.45.14. Where the disputed issue arises from facts which are within the exclusive knowledge of the defendant and the defendant is willing to give evidence in support of his case, the defence advocate should be prepared to call the defendant. If the defendant is not willing to testify, and subject to any explanation which may be given, the judge may draw such inferences as appear appropriate. Paragraphs 6 to 10 of Underwood provide additional guidance regarding the Newton hearing procedure.

IV.45.15. The Attorney-General has issued guidance for prosecutors regarding their duties when accepting pleas and during the sentencing exercise titled Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise.

(c) Cases involving serious fraud — a plea of guilty upon a basis of plea agreed by the prosecution and defence accompanied by joint submissions as to sentence

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IV.45.16. This section applies when the prosecution and the defendant(s) to a matter before the Crown Court involving allegations of serious or complex fraud have agreed a basis of plea and seek to make submissions to the court regarding sentence.

IV.45.17. Guidance for prosecutors regarding the operation of this procedure is set out in the Attorney General's Guidelines on Plea Discussions in Cases of Serious or Complex Fraud, published on 18 March 2009, referred to in this direction as the ―Attorney General's Plea Discussion Guidelines‖.

IV.45.18. In this part —

a. ―a plea agreement‖ means a written basis of plea agreed between the prosecution and

defendant(s) in accordance with the principles set out in R v Underwood, supported by admissible documentary evidence or admissions under section 10 of the Criminal Justice Act 1967;

b. ―a sentencing submission‖ means sentencing submissions made jointly by the prosecution and defence as to the appropriate sentencing authorities and applicable sentencing range in the relevant sentencing guideline relating to the plea agreement;

c. ―serious or complex fraud‖ includes, but is not limited to, allegations of fraud where two or more of the following are present:

i. the amount obtained or intended to be obtained exceeded £500,000; ii. there is a significant international dimension;

iii. the case requires specialised knowledge of financial. commercial, fiscal or regulatory matters such as the operation of markets, banking systems. trusts or tax regimes;

iv. the case involves allegations of fraudulent activity against numerous victims; v. the case involves an allegation of substantial and significant fraud on a public

body; vi. the case is likely to be of widespread public concern; vii. the alleged misconduct endangered the economic well-being of the United

Kingdom, for example by undermining confidence in financial markets.

Procedure

IV.45.19. The procedure regarding agreed bases of plea outlined in paragraphs IV.45.10 to IV.45.12, above, applies with equal rigour to the acceptance of pleas under this procedure. However, because under this procedure the parties will have been discussing the plea agreement and the charges from a much earlier stage, it is vital that the judge is fully informed of all relevant background to the discussions, charges and the eventual basis of plea.

IV.45.20. Where the defendant has not yet appeared before the Crown Court, the prosecutor must send full details of the plea agreement and sentencing submission(s) to the court, at least 7 days in advance of the defendant's first appearance. Where the defendant has already appeared before the Crown Court, the prosecutor must notify the court as soon as is reasonably practicable that a plea agreement and sentencing submissions under the Attorney General's Plea Discussion Guidelines are to be submitted. The Court should set a date for the matter to be heard, and the prosecutor must send full details of the plea agreement and sentencing submission(s) to the court as soon as practicable, or in accordance with the directions of the court.

IV.45.21. The provision to the judge of full details of the plea agreement requires sufficient information to be provided to allow the judge to understand the facts of the case and the history of the plea discussions, to assess whether the plea agreement is fair and in the interests of justice, and to decide the appropriate sentence. This will include, but is

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not limited to: (i) the plea agreement; (ii) the sentencing submission(s); (iii) all of the material provided by the prosecution to the defendant in the course of the plea discussions; (iv) relevant material provided by the defendant, for example documents relating to personal mitigation; and (v) the minutes of any meetings between the parties and any correspondence generated in the plea discussions. The parties should be prepared to provide additional material at the request of the court.

IV.45.22. The court should at all times have regard to the length of time that has elapsed since the date of the occurrence of the events giving rise to the plea discussions, the time taken to interview the defendant, the date of charge and the prospective trial date (if the matter were to proceed to trial) so as to ensure that its consideration of the plea agreement and sentencing submissions does not cause any unnecessary further delay.

Status of plea agreement and joint sentencing submissions

IV.45.23. Where a plea agreement and joint sentencing submissions are submitted, it remains entirely a matter for the court to decide how to deal with the case. The judge retains the absolute discretion to refuse to accept the plea agreement and to sentence otherwise than in accordance with the sentencing submissions made under the Attorney General's Plea Discussion Guidelines.

IV.45.24. Sentencing submissions should draw the court's attention to any applicable range in any relevant guideline, and to any ancillary orders that may be applicable. Sentencing submissions should not include a specific sentence or agreed range other than the ranges set out in sentencing guidelines or authorities.

IV.45.25. Prior to pleading guilty in accordance with the plea agreement, the defendant(s) may apply to the court for an indication of the likely maximum sentence under the procedure set out in paragraphs IV.45.29 and following, below.

IV.45.26. In the event that the judge indicates a sentence or passes a sentence which is not within the submissions made on sentencing, the plea agreement remains binding.

IV.45.27. If the defendant does not plead guilty in accordance with the plea agreement or if a defendant who has pleaded guilty in accordance with a plea agreement successfully applies to withdraw his plea under Rule 39.3 of the Criminal Procedure Rules, the signed plea agreement may be treated as confession evidence, and may be used against the defendant at a later stage in these or any other proceedings. Any credit for a timely guilty plea may be lost. The court may exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude any such evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

IV.45.28. Where a defendant has failed to plead guilty in accordance with a plea agreement, for example in the circumstances set out in paragraph IV.45.27, above, the case is unlikely to be ready for trial immediately. The prosecution may have been commenced earlier than it otherwise would have been, in reliance upon the defendant's agreement to plead guilty. This is likely to be a relevant consideration for the court in deciding whether or not to grant an application to adjourn or stay the proceedings to allow the matter to be prepared for trial in accordance with the protocol on the Control and Management of Heavy Fraud and other Complex Criminal Cases, or as required

Indications of sentence

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IV.45.29. Prior to pleading Guilty by any of the above routes, it is open to a defendant in the Crown Court to request from the judge an indication of the maximum sentence likely to be imposed if a guilty plea is tendered at that stage in the proceedings, in accordance with the guidance in R v Goodyear.

IV.45.30. Attention is drawn to the guidance set out in paragraphs 53 and following of R v Goodyear. During the sentence indication process and during the actual sentencing hearing, the prosecution advocate is expected to assist the court in sentencing by providing, where appropriate, references to the relevant statutory powers of the court, relevant sentencing guidelines and authorities, and such assistance as the court is likely to require.

IV.45.31. Whether to give such an indication is a matter for the discretion of the judge, to be exercised in accordance with the principles outlined by the Court of Appeal in Goodyear. Such indications should normally not be given if there is a dispute as to the basis of plea unless the judge concludes that he or she can properly deal with the case without the need for a Newton hearing. In cases where a dispute arises, the procedure in R v Underwood should be followed prior to the court considering a sentencing indication further, as set out in paragraphs IV.45.11 to IV.45.13, above. Following an indication of sentence, if a defendant does not plead guilty, the indication will not bind the court.

IV.45.32. Attention is drawn to paragraph 70(d) of Goodyear which emphasises that the prosecution ―should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.‖ This prohibition against the Crown indicating its approval of a particular sentence applies in all circumstances when a defendant is being sentenced, including when joint sentencing submissions are made in accordance with the procedure set out in paragraphs IV.45.16 to IV.45.28, above.

IV.45.33. A Goodyear indication should be given in open court in the presence of the defendant but any reference to the hearing is not admissible in any subsequent trial; and reporting restrictions should normally be imposed (see paragraphs 76-77 of Goodyear).

Chapter 12.23: Crown Court: variation of sentence (pp 608-609)

In R v Gordon [2007] EWCA Crim 165; [2007] 1 WLR 2117, Sir Igor Judge P said, at

para 34, that:

It is well established that s 155 [of the Powers of Criminal Courts (Sentencing) Act 2000] permits significant alterations in sentence, for example, changing a suspended sentence into an immediately effective one ... or ordering that the term of an immediate custodial sentence should be longer... The discretion to vary sentence of course may also produce a sentence of reduced severity. The power must always be exercised with great caution, not least because (subject to any appeal or reference by the Attorney General) the administration of criminal justice is hindered by doubt or hesitation whether the order pronounced by the court as its sentencing decision is final. Everyone with an interest in the sentence (in particular the defendant and the victim) wants what is sometimes described as closure, and by long hallowed tradition the sentence of the court is effectively the culmination of the criminal process. The area in which the exercise of the power under s 155 is of particular value is where there is a need to cure what would otherwise be an unlawful sentence.

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Once the 56-day period (increased from 28 days by the Criminal Justice and Immigration Act 2008) has expired, the power to vary or rescind a sentence imposed in the Crown Court expires. At para 49, his Lordship said that ‗save in very limited circumstances an extension to [this] period is impermissible‘. In R v Hudson [2011] EWCA Crim 906, the Court of Appeal said that, in light of Gordon, a sentence could be amended outside the

time period allotted but only where the amendment would have no effect on the overall sentence passed. Chapter 12.24.3: Fitness to plead (pp 609-611)

In R v Norman [2008] EWCA Crim 1810; [2009] 1 Cr App R 13, Thomas LJ (at para 34)

gave detailed guidance on the approach to be taken where fitness to plead is an issue in the case:

(i) Once it is clear that there is an issue, such cases need very careful case management to ensure that full information is provided to the court without the delay so evident in this case. (ii) When full information is available, the court will need carefully to consider whether to postpone the issue of trial of fitness to plead under s 4(2), given the consequences that a finding of unfitness has for the defendant … (iii) If the court determines that the appellant is unfit to plead, then it is the court's duty under s 4A(2) of the Criminal Procedure (Insanity) Act 1964 carefully to consider who is the best person to be appointed by the court to put the case for the defence … The duty under s 4A(2) is a duty personal to the court which must consider afresh the person who is to be appointed; it should not necessarily be the same person who has represented the defendant to date, as it is the responsibility of the court to be satisfied that the person appointed is the right person for this difficult task … The responsibility placed on the person so appointed is quite different to the responsibility placed on an advocate where he or she can take instructions from a client … (iv) Under present legislation, this court cannot order a retrial … save in very limited circumstances … [T]here could well be cases where it would not be and serious public concern could arise where this court considered a verdict unsafe and was compelled to enter an acquittal, but nothing further could be done. We would hope that Parliament might give consideration to this lacuna in the statutory provisions and consider granting this court power to order a re-trial of the issue as to whether the defendant did the act with which he is charged.

The Court also referred to research on fitness to plead carried out by Professor RD MacKay and others set out in their paper Continued upturn in unfitness to plead - more disability in relation to the trial under the 1991 Act [2007] Crim LR 530.

In R v Erskine [2009] EWCA Crim 1425; [2009] 2 Cr App R 29, Lord Judge CJ said that

‗provided the defendant can understand the proceedings, he will be deemed fit to plead‘ (para 88). His Lordship added that ‗a defendant is not to be deemed unfit to plead merely because he will not accept what appears to be eminently sensible advice from his legal advisers‘. In R v Moyle [2008] EWCA Crim 3059, Pill LJ rejected the suggestion that a person suffering from delusions is thereby necessarily unfit to plead. In R v Ghulam [2009] EWCA Crim 2285; [2010] 1 WLR 891, the defendant, at a late stage in the trial, produced a doctor‘s letter which stated that the accused was not fit to

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plead. The judge ruled that he was fit to plead, since he was able to give instructions to his legal representatives and give evidence. The issue on appeal was whether the judge was entitled to make that determination. The Court of Appeal held that s 4(6) of the Criminal Procedure (Insanity) Act 1964 requires the evidence of two medical practitioners before ruling that a defendant is unfit to plead; however, s 4(6) does not extend to a determination that the defendant is fit to plead. The judge was entitled to rule as he did because he had had the opportunity to observe the defendant‘s conduct during the trial, including while giving evidence. This is, of course, highly unusual, since fitness to plead will normally be raised (and determined) before the start of the trial. Chapter 12.24.4: Autrefois acquit (p 611-614)

In DPP v Alexander [2010] EWHC 2266 (Admin); [2011] 1 WLR 653, the court considered the effect of cautions in the context of the autrefois doctrine. Stanley Burnton LJ said, at para 6, that:

the defence of autrefois convict, or indeed autrefois acquit, has no application where what has occurred is a caution. A caution is not a conviction for the purposes of those defences, notwithstanding that a caution will only be administered if the accused person admits his guilt. The principles of autrefois convict and autrefois acquit are applicable only where there has been a finding by a court of guilt or innocence. They have no application to an extra-judicial procedure, such as the administration of a simple caution.

However, his Lordship went on to say (at para 9) that, where criminal conduct has been the subject of an agreed caution, ‗in the absence of good reason for it to be the subject of a subsequent prosecution, such a prosecution will generally constitute an abuse of the process of the court‘. Examples of cases where a prosecution might be justified despite the earlier administration of caution include cases where information or evidence is obtained subsequent to the caution (e.g. details of injury to a victim significantly exceeding what had previously been known). Chapter 12.25: Trials on indictment without a jury because of risk of jury tampering (pp 614-617) In R v T [2009] EWCA Crim 1035; [2009] 3 All ER 1002, Lord Judge CJ said (at para 16)

that the judge has to be satisfied that the conditions in s 44(4) and 44(5) of the CJA 2003 are fulfilled to the criminal standard (i.e. beyond reasonable doubt). At para 18, his Lordship said:

It … does not follow from the hallowed principle of trial by jury that trial by judge alone, when ordered, would be unfair or improperly prejudicial to the defendant. The trial would take place before an independent tribunal, and as it seems to us, for the purposes of article 6 of the European Convention of Human Rights, it is irrelevant whether the tribunal is judge and jury or judge alone.

At para 19, his Lordship considered the fact that the taking of measures to protect the jury might compromise their objectivity (i.e. might prejudice them against the accused);

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the likely impact of such measures on the lives of the jurors; and the fact that the measures, however intensive, might not be sufficient to prevent the improper exercise of pressure on jurors (and their families). At para 25, his Lordship observed that, ‗Experience suggests that the seriousness of jury tampering problems is usually proportionate to the seriousness of the alleged criminality. There will be cases where the evidence to demonstrate the risk of jury tampering will be so sensitive that it can only be addressed under PII [public interest immunity] principles‘. At para 26, he concluded:

[W]e reject the submission that the evidence relied on by the Crown, or the bulk of it, must always be disclosed [to the defendant] … We agree that the evidence should be disclosed to the fullest extent possible, but it would be contrary to the legislative purpose to make an order for disclosure which would, in effect, bring the prosecution to an end, and enable those who had been involved in jury tampering to derail the trial and avoid the consequences prescribed by statute, trial by judge alone.

At para 27, his Lordship considered the use of special counsel, concluding that:

We do not rule out the possibility, in an appropriate case, that the court might seek assistance from counsel. However, this is not a situation in which evidence relating to the defence to the charges is under consideration, nor indeed the fairness of any future trial. What is in issue is the method of trial. We think it unlikely that special counsel will be able to provide any more assistance than counsel for the prosecution, in accordance with his responsibilities, can be expected to provide.

In R v J [2010] EWCA Crim 1755; [2011] 1 Cr App R 5, the Court of Appeal allowed an

appeal against an order for judge-only trial. Lord Judge CJ, at paras 7-9 said:

The critical feature of the present application for trial by judge alone is that the jury will be a protected jury, subject to probably even more stringent security arrangements than those which were envisaged for the fraud trial. They will be trying a case in which they will inevitably appreciate that the defendants are alleged to have been involved in the tampering of or arrangements for tampering. That undoubtedly creates problems for the judge's management of the jury, and his obligation to ensure that, notwithstanding the protective measures, the trial is fair. We are fully alert to the difficulties faced by juries performing their public responsibilities, particularly in sensitive cases where very heavy protection is deemed necessary. However, given that the estimated length of the trial is 2 weeks we disagree with the judge that the necessary protective measures would either impose an unacceptable burden on the jurors by intruding for a prolonged period on their ordinary lives, or that the jury, properly managed and directed, would be inhibited from giving the case proper attention and whether, convicting or acquitting, returning a true verdict in accordance with the jury's collective conscience. We must emphasise as unequivocally as we can that, notwithstanding the statutory arrangements introduced in the 2003 Act which permit the court to order the trial of a serious criminal offence without a jury, this remains and must remain the decision of last resort, only to be ordered when the court is sure (not that it entertains doubts, suspicions or reservations) that the statutory conditions are fulfilled. Save in extreme cases, where the necessary protective measures constitute an unreasonable intrusion into the lives of the jurors, for example, a constant police presence in or near their homes, day and night

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and at the weekends, or police protection, which means that at all times when they are out of their homes, they are accompanied or overseen by police officers, again day and night and at the weekend, with its consequent impact on the availability of police officers to carry out their ordinary duties, the confident expectation must be that the jury will perform its duties with its customary determination to do justice. There is this further, and final, consideration. If during the course of this, or indeed any trial, attempts are made to tamper with the jury to the extent that the judge feels it necessary to discharge the entire jury, it should be clearly understood that the judge may continue with the trial and deliver a judgment and verdict on his own. The principle of trial by jury is precious, but in the end any defendant who is responsible for abusing this principle by attempting to subvert the process has no justified complaint that he has been deprived of a right which, by his own actions, he himself has spurned.

Another such appeal was allowed in R v KS [2010] EWCA Crim 1756; [2011] 1 Cr App R 6, where Lord Judge CJ (at para 7) said:

... we are unable to agree that the requirements of s 44(5) of the 2003 Act have been established. Major Crown Courts, dealing with heavy criminal cases, are quite accustomed to dealing with levels of threat far higher than that posed in this case. In our judgment a fairly limited level of jury protection could reasonably be provided which would sufficiently outweigh the potential threat of jury tampering. The necessary decisions will, of course, be made by the trial judge, but on the material we have seen, appropriate protection for this jury would be likely to be established at a fairly low level. Seven options were drawn to our attention at the PII hearing, the first at the lowest level, and the seventh at the most serious. We emphasise the link between the nature of the threat and danger of jury contamination, and the steps reasonably available to be taken to reduce the risk to manageable proportions and caution against any unduly alarmist proposals, alarmist, both in the sense of the likely adverse impact on the members of the jury themselves, and on the drains on precious police resources of providing them. The new statutory arrangements do not undermine, but rather confirm, the need for the issues of jury protection to be handled in a realistic and proportionate way.

The fairness of trial by judge alone in accordance with s 44 of the CJA 2003 was considered again in R v Twomey [2011] EWCA Crim 8; [2011] 1 WLR 1681. At para 45,

Lord Judge CJ said that the question to be addressed was whether the defendant‘s

convictions were safely reached by a properly constituted tribunal, vested with jurisdiction to try the allegations against them. The trial before judge alone was securely based on statutory provisions designed to protect the jury system from the danger of subversion, and the disapplication of the principle of trial by jury in accordance with statute produced no diminution in the fairness of the trial or indeed the safety of the convictions.

Chapter 12.25.2: Judge-only trials (p 617)

In R v Guthrie [2011] EWCA Crim 1338; [2011] 2 Cr App R 20, Lord Judge CJ (at paras 4 and 5) said:

... the jurisdiction now available to be exercised under section 46 of the 2003 Act adds to rather than replaces the court's existing powers to deal with what we can describe as jury

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difficulties ... the common law power of the judge to discharge the jury as a whole or to discharge an individual juror or jurors remains undiminished by the statutory provisions relating to the circumstances in which a trial on indictment may take place without a jury, and s 16 of the Juries Act 1974, which enables the court to discharge any member of the jury for incapacity or for "any other reasons" remains in force. [Section 46 of the CJA 3002] is directed to problems arising from jury tampering during the course of a trial. Where it appears to have taken place and the judge forms the preliminary view that the jury should be discharged, the judge must consider whether the steps required by subs (2) must follow. Thereafter, in the light of representations the judge must terminate the trial if that is necessary in the interests of justice. If so a new trial with a new jury may be ordered. Alternatively the jury may be discharged, and provided the judge is satisfied to the criminal standard that jury tampering has taken place and that it would be fair to the defendant or defendants to continue the trial without a jury that order may be made. Nothing in s 46 suggests that the judge is prohibited from discharging the jury on the basis of jury tampering and subsequently addressing the question whether to terminate the trial or order that it should continue on separate occasions.

Chapter 12.25.6: Are jurors competent to try fraud cases? (pp 619-621) Robert F Julian was given permission to interview judges who had presided in trials in a randomly selected year of cases brought by the Serious Fraud Office. He sets out the results in Judicial perspectives in serious fraud cases - the present status of and problems posed by case management practices, jury selection rules, juror expertise, plea bargaining and choice of mode of trial [2008] Crim LR 764. He concludes that

… Managerial activism on the part of judges assigned serious fraud cases is viewed by the judges interviewed as a success in improving the cases presented to juries by paring indictments, and streamlining proof. The interviewed judges also represented that the managerial approach has shortened the length of serious fraud trials. The Government's proposal to permit the judge to impose a non-jury trial is regarded as unnecessary in light of the success of the managerial regime presently in effect. The judges were unanimous that the present regime of rules and directives has both significantly shortened jury trials, and probably helped to make complex proof more readily understandable to the jury. Likewise the judges did not view pruning the indictments during case management as significantly reducing the culpability of accused fraudsters. The overwhelming view is that indictment pruning and pre-trial management hearings in which agreed facts are stipulated, core documents identified, disputes on evidentiary issues resolved and expert testimony vetted are all consistent with the essentials of modern trial practice in any case, putting before the trier of fact a cogent provable case with clarity and precision. There is support for the present random jury selection system but concern among many judges about the service of jurors such as police officers and judges. The judges favour plea bargaining, but some of them are sceptical about whether or not it will ultimately achieve fewer serious fraud trials as predicted by the Fraud Review. Plea bargaining is of great interest to the judges interviewed. It is seen by most of the judges as a potentially useful tool for resolving complex cases. It is quite obvious that an Americanised form of plea bargaining would create a cultural shift in the relationship between judge and advocate that would provoke discomfort. The Goodyear guidelines

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could be modified to allow a complete on-the-record discussion between judge and advocates that replicates the American system with the distinction that all plea bargaining exchanges would be on the record. The judges … recognise that the imposition of trial by judge in serious fraud cases could undermine the appearance of impartiality provided by the trial by jury. The judges also appreciate that without careful attention to the rules of evidence, judge-only trials could be quite different from a jury trial. Managerialism has given the English judge an even more significant role in complex cases but the presence of the jury diminished any substantive step toward a continental system. The combination of managerialism and state-imposed judge-only trials would be a serious step toward converting England and Wales judges into civil law judges.

Chapter 12.25.8: Research into juries (pp 622-627)

Mark Coen and Liz Heffernan, in Juror comprehension of expert evidence: a reform agenda [2010] Crim LR 195, discuss the need for research relating to juries and expert

evidence and go on to ‗examine certain innovations which have been introduced and tested in other common law jurisdictions with a view to enhancing juror involvement in court proceedings in general, and juror comprehension of expert evidence in particular‘. A major research project into juries was carried out by Professor Cheryl Thomas: Are Juries Fair? (Ministry of Justice Research Series 1/10, February 2010). The main research questions were:

Do all-White juries discriminate against BME defendants?

Do jurors racially stereotype defendants?

Do juries at certain courts rarely convict?

Do juries rarely convict on certain offences?

Do jurors understand legal directions?

Do jurors know what to do about improper conduct in the jury room?

Are jurors aware of media coverage of their cases?

How is the internet affecting jury trials? The research was carried out using case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries), large-scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts), and post-verdict survey of jurors (668 jurors in 62 cases). The main conclusions were: All-White juries and BME defendants: Verdicts of all-White juries did not discriminate

against BME defendants. However, local population dynamics may play a role in jury decision-making. White jurors in a racially diverse area appeared sensitive to cases involving inter-racial conflict. White jurors serving on all-White juries did not racially stereotype defendants as more or less likely to commit certain offences based on race. The same result was found with both White and BME jurors serving on racially mixed juries. The only other personal characteristic that appeared to affect juror decision-

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making was gender: female jurors were more open to persuasion to change their vote in deliberations than male jurors, whereas male jurors rarely changed their mind. Disproportionality for BME defendants in Crown Court trials: BME defendants are

consistently more likely than White defendants to plead not guilty; they are three and half times more likely to face a jury verdict in the Crown Court relative to their representation in the general population. The proportion of BME defendants is greater than the proportion of BME groups in the local population or BME jurors at each court. However, jury verdicts showed only small differences based on defendant ethnicity. White and Asian defendants both had a 63% jury conviction rate; Black defendants had a 67% jury conviction rate. Scope and effectiveness of jury trials: Most charges brought against defendants in the

Crown Court are not decided by a jury (only 12% of all charges are decided by jury deliberation; 59% of all charges result in a guilty plea by a defendant; of the remaining charges where a defendant pleads not guilty and therefore gives rise to a potential jury trial, 36% are decided by jury deliberation). Juries overall appear efficient and effective (once a jury is sworn it reaches a verdict by deliberation on 89% of all charges (judges direct jury verdicts on 11% of charges); once juries deliberate they reach verdicts on virtually all charges (only 0.6% of all verdicts are hung juries); juries convict on almost two-thirds (64%) of all charges presented to them; juries are rarely discharged (less than 1% of sworn juries). Jury conviction rates: offence type had an impact on the probability of a jury reaching a

guilty verdict (falsification, deception, drugs and theft offences are the general offence types most likely to produce a guilty jury verdict; non-fatal offences against the person are least likely to result in a jury conviction, although juries still reach guilty verdicts more often than not here (52% conviction rate). However, conviction rates for specific offences within general offence types can vary substantially (suggesting that juries try defendants on the evidence and the law). Offences where the strongest direct evidence is likely to exist against a defendant appear to have the highest conviction rates (making indecent photographs of a child 89%, drugs possession with intent to supply 84%, death by dangerous driving 85%). Cases where juries must be sure of the state of mind of a defendant or complainant in order to convict appear to have the lowest conviction rates (threatening to kill 36%, attempted murder 47%, GBH 48%).

Misconceptions about jury verdicts in rape cases: Contrary to popular belief and

previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate); other serious offences (attempted murder, manslaughter, GBH) have lower jury conviction rates than rape. Jury conviction rates for rape vary according to the gender and age of the complainant, with high conviction rates for some female complainants and low conviction rates for some male complainants (challenging the view that juries‘ failure to convict in rape cases is due to juror bias against female complainants). Misconceptions about jury verdicts in certain courts: There are variations in jury conviction rates between Crown Courts. The conviction rate ranged from 69% to 53%. There were no courts with a higher jury acquittal than conviction rate dispelling the myth that there are courts where juries rarely convict). Variations in court conviction rates

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could be due to differences in the types of offences presented to juries at different courts; differences in public attitudes to crime and justice in different communities; or variations in police evidence gathering or prosecution or judicial handling of jury trials. Multiple charges: The number of charges against a defendant affected the likelihood of

the jury returning at least one guilty verdict. The probability of a guilty jury verdict increased with the number of charges, rising steeply from 40% with one charge to 80% with five charges. Juror comprehension of judicial directions: There was no a consistent view among jurors

about their ability to understand judicial directions. Over half of the jurors perceived the judge‘s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased. A written summary of the judge‘s directions on the law given to jurors at the time of the judge‘s oral instructions improved juror comprehension of the law (the proportion of jurors who fully understood the legal questions in the case in the terms used by the judge increased from 31% to 48% with written instructions). Jury deliberations and impropriety: Despite receiving instructions from the judge on

improper conduct, almost half (48%) of all jurors said they either did not know or were uncertain what to do if something improper occurred in the jury deliberating room. Media reporting of jury trials: Most jurors who recalled media reports of their case saw or

heard reports only during the time their trial was going on (suggesting that the further away media reports are from a trial the more likely they are to fade from jurors‘ memories). But a third of jurors (35%) on high profile cases remembered pre-trial coverage. In high profile cases, 20% of jurors who recalled media reports of their case said they found it difficult to put these reports out of their mind while serving as a juror. Juror use of the internet: All jurors who looked for information about their case during the

trial looked on the internet. In high profile cases 26% said they saw information on the internet; in standard cases 13% said they saw information. The Report recommended that a ‗ concerted effort should be made by those responsible for the criminal justice system to identify the most effective means of ensuring the highest levels of juror understanding in criminal jury trials‘. For example, written guidelines clearly outlining the requirements for serving on a trial and a fuller direction from the judge to jurors on why they should not use the internet to look for information or discuss their case.

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Chapter 13: Appeals to the Court of Appeal

Chapter 13: Appeal to the Court of Appeal (p 631 ff)

A new edition of ‗A Guide to Commencing Proceedings in the Court of Appeal (Criminal Division)‘ has been published. Important parts of the guidance include the following:

A2-2 Grounds [of appeal] must be settled with sufficient particularity to enable the Registrar, and subsequently the Court, to identify clearly the matters relied upon. A mere formula such as ‗the conviction is unsafe‘ or ‗the sentence is in all the circumstances too severe‘ will be ineffective as grounds and time will continue to run against the defendant. A2-3 … [The notice of appeal] must … (b) identify each ground of appeal on which the appellant relies, numbering them consecutively (if there is more than one) and concisely outlining each argument in support; … (f) summarise the relevant facts; (g) identify any relevant authorities; … A2-4 There is now a requirement for the grounds of appeal to set out the relevant facts and nature of the proceedings concisely in one all encompassing document, not separate grounds and advice. The intended readership of this document is the Court and not the lay or professional client. Its purpose is to enable the single Judge to grasp quickly the facts and issues in the case. In appropriate cases, draft grounds of appeal may be perfected before submission to the single Judge … A2-6 Counsel should not settle or sign grounds unless they are reasonable, have some real prospect of success and are such that he is prepared to argue them before the Court. Counsel should not settle grounds he cannot support because he is ‗instructed‘ to do so by a defendant. A4-1 In conviction cases, transcripts of the summing up and proceedings up to and including verdict are obtained as a matter of course. Similarly, the transcript of the prosecution opening of facts on a guilty plea and the judge‘s observations on passing sentence are usually obtained in sentence cases … Whether or not any further transcript is required is a matter for the judgment of the Registrar or his staff. A4-2 Transcript should only be requested if it is essential for the proper conduct of the appeal in the light of the grounds. If the Registrar and counsel are unable to agree the extent of the transcript to be obtained, the Registrar may refer that matter to a Judge. In some cases the Registrar may propose that counsel agree a note in place of transcript. … A5-1 The purpose of perfection is (a) to save valuable judicial time by enabling the Court to identify at once the relevant parts of the transcript and (b) to give counsel the opportunity to reconsider his original grounds in the light of the transcript. Perfected grounds should consist of a fresh document which supersedes the original grounds of appeal and contains inter alia references by page number and letter (or paragraph number) to all relevant passages in the transcript. … A13-1 Section 29 of the Criminal Appeal Act 1968 empowers the Court to direct that time spent in custody as an appellant shall not count as part of the term of any sentence to which the appellant is for the time being subject. The Court will do so where it considers that an application is wholly without merit. Such an order may not be made

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where leave to appeal or a trial judge‘s certificate has been granted, on a reference by the C.C.R.C or where an appeal has been abandoned. A13-2 The mere fact that counsel has advised that there are grounds of appeal will not be a sufficient answer to the question as to whether or not an application has indeed been brought which was wholly without merit.

In R v Erskine [2009] EWCA Crim 1425; [2009] 2 Cr App R 29, the Court of Appeal

expressed concern at the number of authorities being cited in criminal appeals. Lord Judge CJ, at para 75, said that, in any appeal against conviction or sentence, ‗if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.‘ At para 76, his

Lordship went on to say that it follows that, ‗when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it‘. Thus, advocates must expect to be required to justify the citation of any authority. In the case of sentencing appeals, ‗where a definitive Sentencing Guidelines Council guideline is available there will rarely be any advantage in citing an authority reached before the issue of the guideline, and authorities after its issue which do not refer to it will rarely be of assistance‘ (para 80). Chapter 13.2: Appeals to the Court of Appeal (pp 631-632)

The Judicial Statistics for 2010, published by the Ministry of Justice, show that, during 2010, there were approximately 1,500 applications for leave to appeal against conviction and approximately 5,500 applications for leave to appeal against sentence. Of the 4,807 applications for leave to appeal which were considered by a single judge, 242 of those seeking to appeal against conviction were granted (and 773 refused), as were 1,184 against sentence (2,608 refused). Of the appeals heard by the Court, 187 appeals against conviction were allowed (309 were dismissed) and 1,456 appeals against sentence were allowed 625 were dismissed). Chapter 13.3.11: Powers of the Registrar of Criminal Appeals (p 639)

Section 110 of the Coroners and Justice Act 2009 amends the Criminal Appeal Act 1968 by adding a new subsection, s 31A(2)(aa), which empowers the Registrar to give a ‗live link‘ direction. Chapter 13.6.1(e): Appeals to the Court of Appeal – the judge’s conduct of the trial (pp 646-647)

In R v Harirbafan [2008] EWCA Crim 1967, Toulson LJ (at para 3) noted that:

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Interruptions by a judge which are excessive or which demonstrate a lack or apparent lack of impartiality, by taking on the role of a prosecutor, may prejudice a fair trial and jeopardise the safety of a conviction in two particular ways, which may be cumulative. First, they may disrupt the process by which the defence advocate seeks to adduce evidence, whether by examination in-chief or cross- examination, in such a way that the defendant is prejudiced by the jury being deprived of the opportunity of hearing that evidence given and challenged in an orderly and coherent way. Secondly, such interruptions, if they are excessive and take on the substance of cross-examination, may have the potential to poison the minds of the jury against the defendant, by causing the jury to perceive that the judge, who is supposedly an independent figure and likely to carry respect in the eyes of the jury, clearly thinks that the defendant is trying to fool the jury.

In R v Perren [2009] EWCA Crim 348, the appellant complained at the number of interventions by the trial judge. Toulson LJ, at para 24, said that:

if the court is driven to the conclusion that the defendant has not had a fair trial, when the matter is looked at in the round, the natural conclusion will be that the verdict is unsafe because our system of criminal justice is dependent upon the fundamental principle of the provision of a fair trial. To allow an appeal in such circumstances, even though the evidence for the prosecution may have been exceedingly strong, is not to allow an appeal on a technicality, but to allow it upon a fundamental principle which underlines our criminal justice system.

R v Perren was followed in Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879.

The appeal in that case was based on the number and character of the judge's interventions in the course of the trial. Lord Brown (at para 34) said that the judge

… can clear up ambiguities [and] clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.

The Privy Council based their decision partly on the decision of the Court of Appeal in R v Hulusi (1973) 58 Cr App R 378 (at p 382), where Lawton LJ adopted Lord Parker CJ's statement of principle in R v Hamilton (unreported, 9 June 1969):

Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate … Whether his interventions in any case give ground for quashing a conviction is not only a matter of degree, but depends to what the interventions are directed and what their effect may be. Interventions to clear up ambiguities, interventions to enable the judge to make certain that he is making an accurate note, are of course perfectly justified. But the interventions which give rise to a quashing of a conviction are really threefold; those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured by the common formula that the facts are for the jury and you, the members of the jury, must disregard anything that I, the judge, may have said with which you disagree. The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, cases where the interventions have had the effect of

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preventing the prisoner himself from doing himself justice and telling the story in his own way..

The evidence against the defendant in Michel was described as ‗overwhelming‘. However, at para 27, Lord Brown said

There is … a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. This wider principle is not in doubt. Perhaps its clearest enunciation is to be found in the opinion of Lord Bingham of Cornhill speaking for the Board in Randall v R [2002] 2 Crim App R, 267, 284 where, after remarking that "it is not every departure from good practice which renders a trial unfair" and that public confidence in the administration of criminal justice would be undermined "if a standard of perfection were imposed that was incapable of attainment in practice," Lord Bingham continued:

But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

Chapter 13.6.4: Appeals relating to the jury (pp 655-667)

In R v Hambleton [2009] EWCA Crim 13, after the defendant‘s conviction, a juror

reported that one of the jurors in the case had been overheard telling another juror that the defendant had been in trouble before (inferring that he had previous convictions), a matter which had not been put in evidence by the prosecution. The Court of Appeal held that the test to be applied was whether a fair-minded and informed observer would conclude that there was a real possibility of bias by the jury being infected by material which was not part of the evidence and which was damaging to the defendant and ought not to have been taken into consideration. The Court ruled that such a possibility did indeed exist, and the conviction was quashed. In Tibbetts v Attorney General of the Cayman Islands [2010] UKPC 8; [2010] 3 All ER

95, the sole ground of appeal was that the verdict had been infected by apparent bias on the part of one of the jurors. Lord Clarke noted (at para 3) that ―the question to ask is whether the fair-minded and informed observer ('the putative observer'), having considered the facts, would conclude that there was a real possibility that the juror was biased, such that he might have accepted the evidence of that witness as a result. It is accepted on behalf of the respondent that, if the answer to that question is yes, the putative observer would also conclude that there is a real possibility that the jury would have done the same‖. In the present case, it was alleged that a juror's connection with a prosecution witness was such that any judge aware of the true facts would have discharged him; however, it did not follow that the guilty verdict returned by the jury was

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unsafe. The evidence of the prosecution witness had not been challenged by the defence, and that (rather than any bias) was the obvious reason for the jury accepting it. In R v Thompson [2010] EWCA Crim 1623; [2011] 1 WLR 200, the Court of Appeal

considered again the approach to be taken in cases of alleged jury irregularity. The Court gave detailed guidance on a number of issued relating to misconduct by jurors. The Court started by pointing out that, if such problems become apparent during the course of the trial itself, they must be dealt with by the trial judge (e.g. by giving further directions to the jury, discharging an individual juror or even the entire jury). However, where the irregularity comes to light after the verdict has been returned, it is then beyond the jurisdiction of the trial judge to intervene. At para 2, Lord Judge CJ pointed out that the Court of Appeal

is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are "forbidden territory" (per Gage LJ in R v Adams [2007] 1 Cr App R 449). If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry.

Lord Judge then addressed the two ‗narrow exceptions‘ to the rule about the confidentiality of jury deliberations. His Lordship set out those exceptions, at paras 4 and 5:

The first arises if it emerges that there may have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence ... If there are serious grounds for believing that such a repudiation may have taken place, this court will inquire into it, and may hear, de bene esse, evidence, including the evidence of jurors themselves, in order to decide whether it has happened. If it has, the verdict will inevitably be unsafe, and any resulting conviction will be quashed. The second exception arises in cases where extraneous material has been introduced into the jury deliberations. The verdict must be reached, according to the jury oath, in accordance with the evidence ... [T]he introduction of extraneous material, that is non-evidential material, constitutes an irregularity ... Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts. If extraneous material has been introduced into the decision making process, the conviction may be quashed.

Lord Judge went on, at para 6, to address the ‗collective responsibility‘ of the jury:

The verdict of the jury, whatever it is, is delivered in open court in their presence. It is the verdict of them all (or where appropriate, the statutory majority). They have collective responsibility for the verdict. What has perhaps not been sufficiently emphasised thus far is that the collective responsibility of the jury is not confined to the verdict. It begins as soon as the members of the jury have been sworn. From that moment onwards, there is a collective responsibility for ensuring that the conduct of each member is consistent with the jury oath and that the directions of the trial judge about the discharge of their responsibilities are followed. Where it appears that a member of the jury may be

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misconducting himself or herself, this must immediately be drawn to the attention of the trial judge by another, or the other members of the jury. So, if for example, an individual juror were to be heard saying that he proposed to decide the case in a particular way regardless of his oath to try it on the evidence, or he were demonstrating a bias based on racism or some other improper prejudice, whether against a witness or the defendant, these things must be reported to the trial judge. So must outside interference, such as imparting information or views apparently gathered from family or friends, or using a mobile telephone during deliberations, or conducting research on the internet. The collective responsibility of the jury for its own conduct must be regarded as an integral part of the trial itself.

His Lordship went on to consider the directions given to juries about what they should do if they are concerned that something improper or irregular has occurred or is occurring amongst them. His Lordship said, at para 8, that

The directions given by trial judges should underline unequivocally the collective responsibility of jurors for their own conduct. We do not attempt to lay down a standard form of words. We anticipate that an appropriate explanation of this responsibility can usually be combined with the kind of general introduction to the duties of the jury which judges deliver immediately after the jury is sworn. This fits naturally with the explanation of the basic rule, that they have just taken an oath to try the case on the evidence heard in court. It fits equally comfortably with the explanation to jurors that their discussions will always be respected as confidential, but must be confined to themselves, and not extended to include family and friends. The direction to report any concern or possible irregularity among their own number can be combined readily with a similar direction to report any approach made to them by any third party, and the anxieties that such directions are capable of generating can be allayed, if the judge thinks it helpful, by explaining that such occurrences are rarely encountered. Jurors should readily understand that any irregularity, if unusually it should it occur must be brought to the attention of the trial judge immediately, since precisely because of confidentiality and collective responsibility for the verdict, it will be too late to do so after the end of the trial. There is useful guidance which can be adapted to the needs of any individual case in the recent new edition of the JSB Bench book.

Concerning the deliberations of the jury, and the guidance that should be given to the jury on the process of deliberation, Lord Judge went on to say (at paras 9 and 10):

... Our confidence in the jury system ultimately depends on the belief that, whatever the difficulties involved in the process, after reflecting on the views expressed by the other members of the jury, each juror will be faithful to the dictates of his or her conscience based on examination and analysis of the evidence, so that those who cannot agree with the views of their colleagues stand firm by their consciences... ... What is needed is guidance from the judge which reminds the jury that each member has an equal responsibility for the verdict, that it is inevitable that different views will be expressed about different features of the case, and there must be reasonable give and take between the members of the jury, with an opportunity for each to be heard and his or her opinions considered. No formula can be prescribed.

Lord Judge then went on to address the specific issue of use of the internet. So far as appeals are concerned, his Lordship said (at para 11):

Just as it would in any other instance where it was satisfied that extraneous material had been introduced, the approach of this court is to make inquiries into the material. If, on

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examination, this material strikes at the fairness of the trial, because the jury has considered material adverse to the defendant with which he has had no or no proper opportunity to deal, the conviction is likely to be unsafe ... If the material does not affect the safety of the conviction, the appeal will fail.

His Lordship went on to say (at para 12) that it was apparent that ‗use of the internet is so common that some specific guidance must now be given to jurors‘. On the guidance that should be given, Lord Judge said:

Jurors need to understand that although the internet is part of their daily lives, the case must not be researched there, or discussed there (for example, on social networking sites), any more than it can be researched with, or discussed amongst friends or family, and for the same reason. The reason is easy for jurors to understand. Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time, neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it. This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court. Again, we do not purport to lay down a standard form of words; the sense of the message is familiar to all judges. What matters is that it should be explicitly related to the use of the internet. We recommend a direction in which the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial. Such a direction will naturally fall to be given at the outset of the trial, in the same way as the direction as to collective responsibility addressed earlier in this judgment.

Finally, Lord Judge considered the desirability of providing written material for jurors. His Lordship said (at para 13):

The trial judge must decide whether to reduce his directions of law, or some of them, into writing, or whether written steps to verdict which may be particularly useful if there are several possible basis for conviction, or several possible offences, or defences to consider, may be of assistance to the jury. It has become much more common for a written extract of the central or critical part of the directions of law, or written steps to verdict, to be provided. Whether either practice will be helpful to a jury in a particular case must remain for the judgment of the judge. In a single issue case he may conclude that no document is needed. In others, he may be concerned that reducing directions to writing would either burden the jury with over-long material or would isolate, potentially unfairly, and give prominence to, some parts of the directions rather than others. In others, it will be apparent that either the central parts of the legal direction will be helpful if reduced to writing, or, more often perhaps, that a one-page "steps to verdict" written analysis will enable the jury to remember the more discursive legal directions and apply them systematically. If the former practice is adopted, the judge will make it clear to the jury that the written document does not cover every area of law and that the directions given orally are equally binding on them. All such written documents will of course be discussed with counsel before they are finalised, and the court associate must ensure that a copy of the final version handed to the jury is preserved on the court file.

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Chapter 13.7: Appeals to the Court of Appeal: fresh evidence (pp 667-672)

In R v Meachen [2009] EWCA Crim 1701, the Court of Appeal confirmed that s 23 of the

Criminal Appeal Act 1968 can apply to expert evidence. Sir Anthony May P said, at para 1:

As Lord Bingham CJ said in R v Steven Jones [1997] 1 Cr App R 86 at 93, the provisions for admitting fresh evidence on an appeal in section 23 of the Criminal Appeal Act 1968 were not framed with expert evidence prominently in mind. But it is accepted that section 23 may apply to expert evidence and the court did not wish to circumscribe the operation of a statutory rule enacted to protect defendants against the risk of wrongful conviction. As is well known, the section gives the Court of Appeal a discretion, if they think it necessary and expedient in the interests of justice, to receive evidence which was not adduced in the proceedings from which the appeal lies. Of the matters in section 23(2) to which the court is required to have regard, as Lord Bingham said, the requirement in subsection (2)(a) that the evidence should appear to the court to be capable of belief applies more aptly to factual evidence than to expert opinion, which may or may not be acceptable or persuasive, but which is unlikely to be thought to be incapable of belief in the ordinary sense. The reference in subsection (2)(d) to a reasonable explanation for the failure to adduce the evidence before the jury in the original proceedings again applies more aptly to factual evidence of which a party is unaware, or could not adduce, than to expert evidence, since, if one expert is unavailable to testify at a trial, a party would ordinarily be expected to call another unless circumstances prevented this. Expert witnesses, although inevitably varying in standing and experience, are interchangeable in a way in which factual witnesses are not. But, said Lord Bingham, it would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury.

His Lordship concluded, at para 23:

Just as it would subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury, so it would subvert the trial process, and in substance add nothing, if the defendant were generally free to mount on appeal the same expert case as was advanced at trial with a different and additional expert. The Commission's idea that it is appropriate to revisit on an appeal an issue upon which experts disagreed at trial, but which the jury by their verdict resolved, with the aid of a third expert is, in our judgment, erroneous. If it were regarded as necessary to bolster an expert opinion by that of a second supporting expert, that should be done at trial, although in this context we are bound to say that a case of this kind is not made intrinsically more persuasive because two experts express the same opinion. We do not encourage parties to expect that public money should be spent on duplicating experts.

The leading authority on fresh evidence, R v Pendleton [2002] 1 WLR 72, was considered by the Court of Appeal in R v Ahmed [2010] EWCA Crim 2899. Hughes LJ

said (at para 24)

...[W]e do not ... agree with [the] submission that it is sufficient to render a conviction unsafe that there now exists material which the jury did not have and which might have affected their decision. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it

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can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypoethesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty.

In R v Malook [2011] EWCA Crim 254; [2011] 3 All ER 373, Thomas LJ (at paras 59 and 60), said that where a Newton hearing has taken place in the Crown Court, the Court of Appeal has power to hold a Newton hearing (see R v Guppy & Marsh (1995) 16 Cr App

R(S) 25). There is, however, no power for the Court of Appeal to remit the matter to the Crown Court. Chapter 13.8.2.5: Court of Appeal - directions for loss of time (pp 676-678) In R v Fortean [2009] EWCA Crim 437, Hughes LJ (at para 10) said:

This court is coping, with considerable effort, with over 6,000 applications each year for leave to appeal. It is anxious to deal promptly with those which raise properly arguable grounds of appeal, whether in the end they are successful or not. It is an important feature of this jurisdiction, unlike some others, that the trial process is concluded with sentence. An appeal is not built into the trial process but must be justified on properly arguable grounds. This also means that the sentence is operative pending appeal. That reinforces the need to attend promptly to those who have appeals of arguable substance. The court's ability to do that is significantly hampered by meritless applications such as the present.

His Lordship went on to say (at para 15) that the Court of Appeal ‗will exercise this power in order to ensure that applications by those who have some proper basis for making them can be dealt with fully and promptly‘, and went on conclude that:

This power may be exercised in any meritless application which should never have been pursued after due warning. That counsel or solicitors have associated themselves with such a renewal will be relevant, but it will not necessarily avoid such an order if there was no justification for continuing the case.

Chapter 13.11: Appeal against sentence to the Court of Appeal (pp 682-683)

In R v Waters and Young [2008] EWCA Crim 2538, the Court of Appeal considered the

effect of s 11(3) of the Criminal Appeal Act 1968, holding that, when exercising its power to impose a different sentence from that imposed by the Crown Court must so exercise the power that ‗taking the case as a whole the appellant is not more severely dealt with on appeal than he was dealt with by the court below‖; however, the Court of Appeal can substitute immediate custody in place of a suspended sentence if the term imposed means that the defendant is entitled to immediate release.

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Chapter 13.12.2: Attorney-General’s references – unduly lenient sentences (pp 684-686)

In R v Hughes [2009] EWCA Crim 841; [2010] 1 Cr App R (S) 25, the question at issue

was whether the Court of Appeal had the power to entertain an appeal against sentence where the sentence had already been reviewed by the court upon a reference by the Attorney-General under s 36 of the Criminal Justice Act 1988. Hughes LJ (at para 6) said that ‗the words of s 9(1) [of the 1968 Act] do not explicitly restrict the appellant or the court to a single appeal. That is, however, their plain effect‘. His Lordship cited with approval the words of Lord Lane CJ in R v Pinfold (1998) 87 Cr App R 15 at 17

(construing s 1(1) of the Act): ‗one must read those provisions against the background that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings‘. At para 8, Hughes LJ said that ‗there does exist an extremely limited power in this court not to hear a second appeal but to re-list and re-hear a first appeal where a previous hearing can properly be described as having been in effect a nullity‘. At para 19, his Lordship went on to say ‗the court's power to entertain an appeal against sentence is not, as a matter purely of jurisdiction, removed by the fact that there has been an earlier reference of the sentence by the Attorney General under s 36‘. However, his Lordship qualified this (at para 20), saying that ‗it ought clearly to be understood that it by no means follows that the court will in fact entertain such an appeal‘. Where an extension of time is required, such an extension ‗is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. In the very small number of instances in which there has been an earlier reference by the Attorney General, it will be a highly significant factor that it was then open to the defendant to mount any argument that he wished to the effect that his sentence was too long or otherwise wrong in principle. Leave is likely to be refused in any case in which what he now seeks to argue could and should have been argued then … In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General is … as much an end of the sentencing process as is its decision upon an application by the defendant under s 9‘. When the Court of Appeal is asked to decide whether a sentence referred to it by the Attorney-General was unduly lenient, it must have regard only to matters that were available to the sentencing judge; material adverse to the offender which was not available to the sentencing judge should be ignored. However, in Attorney-General’s Reference (No 74 of 2010); R v Pearson [2011] EWCA Crim 873, it was held that, once

the Court of Appeal had concluded that the original sentence was unduly lenient, it could take into account new material (i.e. material which was not before the original judge) whether favourable or adverse to the defendant, when determining a fresh sentence. Chapter 13.12.3.3: Prosecution appeals to the Court of Appeal against ‘terminating rulings’ (pp 690-691) R v Al-Ali [2008] EWCA Crim 2186; [2009] 1 Cr App R 21, Scott Baker LJ (at para 8) said that, whether the law applicable under s 61(5) of the Criminal Justice Act 2003 is

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the old version or the new version (substituted by the Criminal Justice and Immigration Act 2008):

it is necessary to look rather more widely at the interests of justice than simply to ask ourselves the question whether an appeal has a realistic prospect of success, or some other test directed solely at the merits of the appeal.

Thus, the Court of Appeal should not simply consider whether the appeal has a realistic prospect of success. This is because, even if the judge's ruling was wrong, the trial should be resumed or started afresh if it is in the interests of justice to do so. In R v B [2008] EWCA Crim 1144, Sir Igor Judge P (at para 19) said:

When the judge has exercised his discretion or made his judgment for the purposes of and in the course of a criminal trial, the very fact that he has had carefully to balance conflicting considerations will almost inevitably mean that he might reasonably have reached a different, or the opposite conclusion to the one he did reach. Leave to appeal under s 67 of the 2003 Act will not be given by this court unless it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was. No trial judge should exercise his discretion in a way which he personally believes may be unreasonable. That is not to say that he will necessarily find every such decision easy. But the mere fact that the judge could reasonably have reached the opposite conclusion to the one he reached, and that he acknowledges that there were valid arguments which might have caused him to do so, does not begin to provide a basis for a successful appeal, whether, as in the circumstances here, by the prosecution or, when it arises, by the defendant. Accordingly, this appeal will be dismissed.

In R v LSA [2008] EWCA Crim 1034; [2008] 1 WLR 2881, Hughes LJ (at paras 26 and 27) considered the effect of s 58(8) and said that:

… there is no right of appeal unless the undertaking is given to the court of trial at the time of the announcement of the intention to appeal … The words 'may not….unless, at or before that time' must be given their effect. They require the giving of the undertaking in open court at the time of invocation of the right of appeal and they say that the prosecution "may not" inform the court it intends to appeal, unless this is done. The object is clearly to require the Crown to commit itself from the outset … Prosecutors who wish to launch appeals against rulings must give the … s 58(8) undertaking in open court at the time of invoking the right of appeal … that must happen at or before the time of invoking the right of appeal.

In Prosecution Appeal (No. 11 of 2009); R v C [2009] EWCA Crim 2614, the Court of

Appeal warned that, where the prosecution launch an appeal against a terminating ruling, failure to give a s 58(8) undertaking in open court at the time is necessarily fatal to that appeal. In R v F [2009] EWCA Crim 1639, the Court of Appeal held that s 57 gives both the Crown Court judge and the Court of Appeal power to give leave to appeal. Neither the

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Act, nor the Criminal Procedure Rules, specify that leave must be sought from the judge before the Court of Appeal is approached for leave, and so there is no requirement that an application for permission to appeal should be made to the Crown Court judge who made the ruling. However, the usual good practice should be to apply first to the judge (per Pill LJ at paras 79 and 80). The ability of the prosecution to appeal against ‗terminating‘ rulings is discussed by David Ormerod et al, in Prosecution appeals - too much of a good thing? [2010] Crim LR 169. The authors conclude that the ‗cautious and sparing use of interlocutory prosecution appeal powers is substantially unobjectionable when the aim is to promote justice by endeavouring to secure accurate verdicts, subject to adequate safeguards, and procedural ―brakes‖ on their use, being installed. The powers must be exercised without infringing the double jeopardy principle or affecting the process of the trial to an extent that unfairly prejudices the accused‘. They also note that ‗the powers may have the additional benefit of deterring any undue haste in trial judges when considering halting a trial‘. Chapter 13.12.3.9: Retrials under Pt 10 of the CJA 2003 - double jeopardy (pp 694-698) The statutory re-trial provisions were considered by the Court of Appeal in R v A [2008]

EWCA Crim 2908; [2009] 1 WLR 1947. Lord Judge CJ said:

25. The objective of the criminal justice process is that after a fair trial there should be a true verdict. So far as humanly possible, there should be no wrongful convictions, and where they occur, or if new evidence emerges which undermines the safety of a conviction, they will be quashed and re-trials may be ordered … 28. ... The application requires the written consent of the Director of Public Prosecutions, a non-delegable responsibility ... He has published detailed guidance about the exercise of his powers under s 76. In relation to public interest the Director will grant his consent, so long as the other conditions are satisfied

‗unless there are public interest factors tending against an application which clearly outweigh those factors tending in favour. [The Director] acts on behalf of the public and not just in the interests of a particular individual. However, [the Director] should take into account the consequences for the victim of whether or not to make an application …‘

The Director has indicated that he would only proceed in cases where, as a result of new evidence, a conviction is highly probable and any acquittal by a jury at a subsequent trial would appear to be perverse. We believe that this guidance is entirely appropriate, and consistent with the relevant legislative framework, and reflects a proper appreciation of the continuing (but not absolute) importance of finality in the criminal justice process. We add, however, that the view of the Director that it is in the public interest for the application to proceed, while a pre-requisite to the application, is not conclusive of it (R v Miell [2008] 1 WLR 627). The court must form its own view whether the statutory requirements are met, independently of him. … 31. ‗New‘ for [these] purposes … is evidence not adduced in the previous proceedings. It is conceded for present purposes that the evidence of the complainants reflected in the seventeen counts of the present indictment is indeed ‗new‘.

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32. ‗Compelling‘ … means evidence which is reliable, substantial and highly probative of the case against the acquitted person in the context of the outstanding issues, that is the issues which were in dispute in the first trial … 36. … It is inconceivable that new and compelling but inadmissible evidence could cause or contribute to the quashing of an acquittal and an order for re-trial. Evidence which would not be admissible against the respondent at a second trial falls outwith the ambit of these provisions. Indeed s 78(2)(b) requires not only that the evidence should be ‗probative‘ (i.e. relevant and admissible) but ‗highly probative‘ of the respondent's guilt of the qualifying offence. The stark question therefore is not the form or type or nature of the evidence said to be new and compelling, but whether it is indeed new and compelling and highly probative of the qualifying offence of which the respondent was acquitted… 40. Section 79 (2) identified four specific features to which regard must be had when the interest of justice are considered. The first two concern the fairness of any re-trial, namely the extent of adverse publicity, or the delay since the alleged offence was committed, while the other two address the need to ensure that these applications do not provide a cover for or encourage sloppy inefficient investigation and prosecution of offences. However this provision does not provide an exhaustive list of the considerations to be taken into account when the question whether the interests of justice require an order to be made is addressed. The court, after taking into account such of the matters specified in s 79(2) and any other matters which are relevant, is required to make a judgment of the interests of justice. 41. There was some discussion in argument whether, when making this judgment, the court could or might reflect any of the considerations advanced in opposition to the abolition of the double jeopardy rule, and in particular, the desirability of finality to litigation. Our conclusion is that the principle of finality in litigation does not, as a principle, provide a relevant consideration bearing on the interests of justice. Double jeopardy as a prohibition against a second trial following an acquittal was abolished by the Act. No doubt, from time to time, individual features of a specific case will give rise to matters of potential significance which could be said to reflect one or other of the general considerations advanced in argument against the abolition of the common law principle, but to the extent that these may be relevant at all, they would be fact specific. It is perhaps noteworthy that the public interest consideration is expressly vested in the Director, not the court. No doubt the public interest and the interests of justice will normally coincide, but this part of the legislative framework lends emphasis to the proposition that the double jeopardy principle cannot be resuscitated under the guise of the interests of justice. 42. … we recognise that it would be open to the court to reflect on the problems posed by the complainant's evidence during the course of the earlier trial, and indeed any apparent weaknesses in the prosecution case. There may be situations where it would be contrary to the interests of justice for a re-trial to be held in the light of the serious short-comings at the first trial. It would be inappropriate to seek to lay down any specific test, although the situations we have in mind are where, to use the description in argument, the evidence at the first trial was ‗shot to pieces‘. It is ultimately for the court to examine the interests of justice, and the interests of justice cannot be served by a re-trial of an acquitted defendant unless the prospects of conviction at the re-trial are very good. That is not resuscitating the rule against double jeopardy. It simply represents the practical application of the statutory requirements that an individual who has been acquitted should not be unduly harassed by a second set of proceedings, with all the complications and difficulty and interference with his ordinary life which this would inevitably entail, when the proposed case for the prosecution is nevertheless already irremediably flawed.

In R v G [2009] EWCA Crim 1207, Hughes LJ (at para 5) observed that:

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... it is not enough that the new evidence presents the defendant with a case to answer. The time to present him with a case to answer is at the time of his trial. There are very powerful reasons why there ought normally to be a single trial, at which all the evidence on either side is assembled and assessed, and which produces an outcome which, whether conviction or acquittal, is, subject to any error of law or principle exposed on appeal, final. It is only where there is compelling new evidence of guilt, of the kind which cannot realistically be disputed, that the exceptional step of quashing an acquittal will be justified.

David Hamer, in The expectation of incorrect acquittals and the "new and compelling evidence" exception to double jeopardy [2009] Crim LR 63, concludes:

The double jeopardy exception appears to have far greater scope than the two applications, one unsuccessful, would suggest. The high criminal standard of proof gives rise to an expectation of a large number of incorrect acquittals. Even for the most serious offences to which the exceptions apply, it is likely that there are hundreds of mistaken acquittals a year in England. Nor does it appear likely that these errors are undetectable. Mistaken convictions should be far less common than mistaken acquittals, and yet these are identified and corrected at a considerable rate. No doubt, the requirement of ―new and compelling‖ evidence of guilt limits prosecution attempts to correct erroneous acquittals. However, this requirement is not as strict as might appear. Developments in forensic science and post-acquittal confessions are two obvious candidates. And it appears the prosecution could also rely on the cumulative effect of a number of items of less incriminating evidence, including, perhaps, slightly stale evidence that is recently discovered or has recently been made admissible by a relaxation of exclusionary rules. There is likely to be a substantial and growing backlog of mistaken acquittals that are susceptible of correction. At the moment these are being left untouched; acquittals seem as final as they ever were. But the double jeopardy exception has much untapped potential. Rather than being left as a symbolic statutory statement, it could be remedying significant numbers of incorrect acquittals and achieving a genuine improvement in the accuracy of criminal justice.

Chapter 13.13: Appeal from the Court of Appeal to the Supreme Court (formerly the House of Lords) (pp 698-699) In R v Dunn [2010] EWCA Crim 1823; [2011] 1 WLR 958, the Court of Appeal held that

(under s 33(2) of the Criminal Appeal Act 1968) the fact that an appeal from the Court of Appeal lies to the Supreme Court only if the Court of Appeal certifies that a point of law of general public importance is involved is not incompatible the European Convention on Human Rights. The Court (at para 29) adopted the summary of the relevant principles set out in the submissions of counsel:

(i) Article 6(1) does not itself guarantee a right of appeal. (ii) Where there is a right of appeal, the application of Article 6 to the proceedings

before the appeal courts depends on the special feature of the proceedings in the domestic legal order.

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(iii) Any limitation on the right of appeal must pursue a legitimate legal aim and not infringe the very essence of the right of access to a court.

(iv) In this context, the fair administration of justice is a legitimate aim. (v) Access to the final court of appeal may be more limited than is the case with a

first tier court of appeal.

The Court went on to say (at para 31) that s 33(2):

... pursues a legitimate aim. The business of the Supreme Court should be limited to those rare cases which involve points of general public importance. A filtering mechanism is essential. Otherwise the workload of the Supreme Court would soon become clogged by hopeless cases. The deserving cases would not be heard speedily. Section 33(2) is a provision which properly regulates second appeals. It serves that legitimate purpose. The context of its application in this case is a trial and a first appeal, both of which were Article 6 compliant. In our view, for this court, which, as we have concluded, is an independent and impartial tribunal when it does so, to play a part in filtering those cases which may go to the Supreme Court, serves that legitimate purpose. That other jurisdictions may do it differently is not to the point. There is nothing objectionable in the way it is done in this jurisdiction. Section 33(2) reflects a coherent and proportionate approach to second appeals.

The Court (at para 32) went on to reject the argument that a refusal to certify amounts to a denial of the essence of the appellant's right of access to the Supreme Court:

The appellant has the right to have his access to the second-tier appeal court decided by an independent and impartial tribunal properly applying legal principles. If such a decision goes against the appellant that has not denied him the essence of his right to access to the Supreme Court. It means that on proper application of legal principles by an independent and impartial court he is not entitled to have his case considered by the Supreme Court in circumstances where it is legitimate for there to be a filtering of the cases before that court.

Chapter 13.14: The role of the Divisional Court in appeals from the Crown Court (pp 699-701) In R (B) v X Crown Court [2009] EWHC 1149 (Admin), the trial judge, when deciding a

wasted costs order against a barrister, had refused to recuse himself (i.e. to step down). Hickinbottom J ruled (at para 30) that the refusal to recuse is susceptible to judicial review: the wasted costs jurisdiction under Section 19A of the Prosecution of Offences Act 1985 is a separate collateral jurisdiction from the Crown Court's primary jurisdiction to try indictments; the decision sought to be challenged does not involve an issue between the defendant and the Crown formulated in the indictment; the decision concerning recusal does not in any sensible way affect the conduct of the trial on indictment; given that the issue of wasted costs is entirely post-trial, there is no possibility of it delaying the trial to which they might relate. However, his Lordship added (at para 49(i)) that successful judicial reviews in the wasted costs jurisdiction will be very rare. It is a summary jurisdiction with a simple and relatively short procedure and, in most cases, the proper course will be an appeal of the substantive order to the Court of Appeal: the appellate route will be the usual route for any challenge.

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Chapter 13.15: The Criminal Cases Review Commission (pp 701-704)

L. H. Leigh, Injustice Perpetuated? The Contribution of the Court of Appeal (2008) 72 Journal of Criminal Law 40, examines the decision in R v Cottrell [2007] EWCA Crim 2016. In Appeals, referrals and substantial injustice [2009] Crim LR 152, Simon Cooper comments on s 16C of the Criminal Appeal Act 1995 (inserted by the Criminal Justice and Immigration Act 2008) and notes that the ‗key issue‘ is whether or not the Court of Appeal would have granted an extension rather than whether the conviction is unsafe. He concludes that the Court of Appeal ‗has often argued that there is a continuing public imperative that so far as possible, there should be finality and certainty in the administration of criminal justice. But justice should not only be done, but be seen to be done, and be administered in accordance with the law. Where there is error in the courts' understanding of the law, potential injustice results. The [Court of Appeal‘s] function in dealing with criminal appeals should be to rectify past injustices by quashing convictions which are unsafe and, in the process, to avoid future injustices by correcting misconceptions and misunderstandings of the substantive criminal law … Finality of litigation and administrative efficiency should not be the pre-eminent values underpinning a legal system, particularly where the final decision in a particular case can be shown by reason of subsequent developments in case law to have been patently wrong‘. Chapter 13.16: Compensation for miscarriages of justice under CJA 1988, s 133 (pp 704-707) In R (Harris) v Secretary of State for Justice [2008] EWCA Civ 808; [2009] 1 Cr App R 2,

it was held that the common case in which a conviction is quashed because there exists some doubt about its safety is excluded from the definition of ‗miscarriage of justice‘ for the purposes of s 133 of the Criminal Justice Act 1988. The right to compensation under s 133 arises only in cases where an appeal succeeds on the basis of a new or newly discovered fact, and where the miscarriage of justice is established by such new fact 'conclusively' or 'beyond reasonable doubt'. In R (Adams) v Secretary of State for Justice [2009] EWCA Civ 1291; [2010] 3 WLR 63, Dyson LJ said (at para 12) that, for the purposes of s 133(1) of the Criminal Justice Act 1988, a ‗new or newly discovered fact‘

is a fact that was unknown at what I shall call "the relevant time" i.e. during the trial process or an in-time appeal. The paradigm example of a new or newly discovered fact is evidence which could have been adduced at the trial and was unknown at the relevant time, either because it did not exist or because, although it existed, it had not then been discovered.

In R (Bhatt Murphy (a firm)) v Independent Assessor; R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, it was held that the mere existence of a

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discretionary scheme for compensation to the victims of miscarriages of justice did not create the conditions necessary to establish a legitimate expectation that the scheme would be continued. It followed that the Secretary of State was entitled to withdraw it without notice or consultation. Compensation for miscarriages of justice was considered by the Supreme Court in R (Adams) v Secretary of State for Justice [2011] UKSC 18; [2011] 2 WLR 1180. Section

133(1) of the Criminal Justice Act 1988 provides that:

when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction…

This is based on article 14(6) of the International Covenant on Civil and Political Rights 1966, which the UK ratified in May 1976:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law…

The Supreme Court held (by a majority) that the term ‗miscarriage of justice‘ in s 133 is not restricted to circumstances where there is conclusive proof of innocence but includes cases where a new or newly discovered fact showed that the evidence against the defendant had been so undermined that no conviction could possibly be based on it (and so it could be shown to be beyond reasonable doubt that the defendant had no case to answer and the prosecution should not have been brought). However, the term ‗miscarriage of justice‘ in s 133 does not include circumstances where new evidence renders a conviction unsafe in that, had it been available at the time of trial, a reasonable jury might or might not have convicted the defendant, or where something went seriously wrong with the investigation of the offence or the conduct of the trial, resulting in the conviction of a person who should not have been convicted). The Court made the point that the test for determining whether there had been a miscarriage of justice, so as to entitle a claimant to seek compensation under s 133, is different from the test by which a court would quash a conviction as being unsafe, and it is for the Secretary of State to form his or her own conclusions as to whether a new or newly discovered fact had led to the quashing of the conviction and, if so, whether that fact showed beyond reasonable doubt that a miscarriage of justice had occurred and compensation was payable. The Court also held that the refusal of compensation on the basis that the claimant had not proved beyond reasonable doubt that a miscarriage of justice had occurred would not infringe article 6.2 of the ECHR. It was also said that a ‗newly discovered fact‘, for the purposes of s 133, connotes its discovery by the defendant who either did not know of its existence or failed to appreciate its significance at the time of trial or the in-time appeal; it is not necessary that the particular facts were unknown to his legal advisers.

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Additional Material

This is the author‘s response to a consultation paper on changing the ‗safety‘ test for criminal appeals. The consultation was launched in 2006 because of the Government's concern that some convictions are overturned because the Court of Appeal is dissatisfied with some procedural matter at the original trial, even in the event of a guilty plea, or if the Court is in no doubt that the person committed the offence. The consultation paper sought views on what form amending legislation might take to ensure original convictions are upheld where the Court are satisfied that the defendant committed the offence in question.

Quashing Convictions – Response to Consultation Paper (Peter Hungerford-Welch) 1. Introduction The foreword by the Home Secretary makes it clear that the consultation is not about whether the law on the Court of Appeal‘s jurisdiction to quash convictions should be changed but on how. Para 33 of the Consultation Paper identifies three possible options: the enactment of a proviso to the duty to quash a conviction that is found to be unsafe (either based on the concept of ‗miscarriage of justice‘ or adopting some other formula) or the re-casting of the test applied by the Court of Appeal in deciding whether a conviction is unsafe 'so as to require a substantial re-examination of the evidence'. 2. Unsafe convictions Prior to its amendment by the Criminal Appeal Act 1995, s 2(1) of the Criminal Appeal Act 1968 identified three grounds for quashing a conviction, namely that (a) the conviction was unsafe or unsatisfactory, or (b) the judge had made a wrong decision on any question of law (for example, on the admissibility of evidence), or (c) there was a material irregularity in the course of the trial. There was a proviso to the effect that a conviction could nonetheless be upheld if no ‗miscarriage of justice‘ had actually occurred. It is generally accepted that the simpler formulation in the amended s 2(1) was not intended to change the practice of the Court of Appeal. 3. The role of the Court of Appeal To consider the circumstances (if any) in which the Court of Appeal should quash a conviction, not on the basis of a concern that the appellant might be innocent, but because of an abuse of process before the trial or during the evidence-gathering process, or because the trial itself was vitiated by unfairness to the accused, it is necessary to consider the role of the Court of Appeal within the criminal justice system and the aims of that system within a liberal democracy such as our own. The consultation paper discusses a number of relevant cases, demonstrating the current view of the Court of Appeal that a conviction may be quashed even if (to quote from Mullen [2000] QB 520) there is ‗no challenge to the propriety of the outcome of the trial‘. In that case, the Court reasoned that ‗for a conviction to be safe, it must be lawful; and if it results from a trial which should never have taken place, it can hardly be regarded as safe‘. This approach had been approved by the House of Lords in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42. In that case, Lord Griffiths observed that there was no suggestion that the appellant could not have a fair trial. However, the court nonetheless had jurisdiction to stay the proceedings. His Lordship said: "If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance

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behaviour that threatens either basic human rights or the rule of law ... I have no doubt that the judiciary should accept this responsibility in the field of criminal law". Both these cases concerned defendants whose presence before the court had been procured by unlawful means and are good examples of cases where the convictions were quashed not because of doubt in the appellant‘s guilt but because the appellant ought not to have been before the court in the first place. It is submitted that it is legitimate for the Court of Appeal to uphold the Rule of Law (in the manner set out, for example, in Bennett) by ensuring that the process of the courts has not been abused and by upholding the right to a fair trial. Indeed, any alteration to the jurisdiction of the Court of Appeal to quash convictions must be seen in the light of the 'overriding objective' set out in the Criminal Procedure Rules. This requires that criminal cases be dealt with 'justly'. Rule 1.1(2) says that dealing with a criminal case justly includes not only (a) acquitting the innocent and convicting the guilty, but also (b) dealing with the prosecution and the defence fairly, and (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights‘. 4. Fair trials Lord Justice Auld, in his Review of the Criminal Courts of England and Wales, notes the potential tension between safety of conviction and fairness of trial. Recommendation 301 is that, ―Consideration should be given to amendment of the statutory test of ‗unsafety‘ as the ground for quashing a conviction so as to clarify whether and to what extent it is to apply to convictions that would be regarded as safe in the ordinary sense, but that follow want of due process before or during trial‖. The present reconsideration of s 2 of the Criminal Appeal Act offers an ideal opportunity to accept that invitation. In Condron v UK (2001) 31 EHRR 1, the European Court of Human Rights said (at para 65): ―The question whether or not the rights of the defence guaranteed to an accused under Article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness‖. It is submitted that this is significant, as it suggests that the European Court was concerned that the two tests – the safety of the conviction and the fairness of the trial – might not necessarily lead to the same result. In R v Francom [2001] 1 Cr App R 237, the Court of Appeal agreed that the tests are different but said that this does not mean that the results of applying the two tests should be different. Lord Woolf CJ said (at para 47) that the Court of Appeal should approach the issue of lack of safety in the same way that the European Court of Human Rights approaches lack of fairness. Similarly, in R v Togher [2001] 1 Cr App R 33, the Court of Appeal said that it would be extremely rare for there to be room for a different result before the Court of Appeal and before the European Court of Human Rights. Lord Woolf CJ said that if the defendant has been denied a fair trial, it is almost inevitable that his conviction will be regarded as unsafe. However, in R v Davies, Rowe and Johnson [2001] 1 Cr App R 115, the Court of Appeal held that even if there has been a finding by the European Court of Human Rights that Art. 6(1) of the Convention has been violated, that would not necessarily lead to the quashing of a conviction, since it is for the domestic court to examine the safety of the conviction in accordance with s 2 of the Criminal Appeal Act 1968. Mantell LJ said that a conviction can never be safe if there is doubt about the appellant‘s guilt. However, his Lordship said that the converse is not true: a conviction might be unsafe even where there is no doubt about guilt but the trial process was vitiated by serious unfairness or significant legal misdirection. It follows that if a trial is found to be unfair, that could have an impact on the safety of the conviction even in the face of overwhelming evidence against the defendant. However, a finding of a breach of Art 6.1 of the Convention would not lead ‗inexorably‘ to the quashing of a conviction. The effect of any unfairness upon the safety of a conviction would vary according to its nature and degree. In R v Williams [2001]

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EWCA Crim 932 and R v Lewis [2005] EWCA Crim 859, the Court reiterated that a conviction following a trial which involved a breach of Article 6 of the European Convention on Human Rights is not necessarily unsafe. On the other hand, in Sinclair v Her Majesty’s Advocate [2005] UKPC D2, the Privy Council held that the right to a fair trial is an absolute right which cannot be compromised. If the accused has not had a fair trial, the verdict cannot stand and the conviction should be quashed. Similarly, in R v A (No. 2) [2001] 2 Cr App R 21, Lord Steyn said (at para 38), ―It is well established that the guarantee of a fair trial under Article 6 is absolute: a conviction obtained in breach of it cannot stand … The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society‖. It is submitted that this approach may offer one way of resolving the uncertainty in the case law: a breach of the right to a fair trial should necessarily result in the conviction being held unsafe; but not every error in the course of a trial is of sufficient gravity to result in a finding of unfairness within the meaning of Art. 6. Nevertheless, it is submitted that any amendment of s 2 of the Criminal Appeal Act which does not allow a conviction to be quashed where the accused did not receive a fair trial would be contrary Article 6 of the European Convention on Human Rights, enshrined in our law by the Human Rights Act 1998. 5. Abuse of process It is submitted that no discussion of amending the powers of the Court of Appeal under s 2 of the 1968 Act can be complete without careful consideration of the doctrine of ‗abuse of process‘. There is no definitive list of complaints that are capable of amounting to abuse of process, but it is possible to derive some broad categories of abuse from the case law, including:

Delay

Failing to obtain, losing, or destroying evidence

Going back on a promise

Manipulation of procedure

Entrapment

Abuse of executive power

Bringing justice into disrepute These categories can be divided into two broad types of case. The first is where a fair trial may no longer be possible (for example because the cogency of the evidence has been reduced by delay or by the loss or destruction of potentially relevant evidence); the second is where the issue is not the fairness of the trial process itself but whether it is just for the accused to be tried at all. An example of the latter is Grant [2005] EWCA Crim 1089; [2006] QB 60, where the police unlawfully intercepted and recorded privileged conversations between the suspect and his legal advisor. No useful evidence was gathered in this way, and so there was nothing to exclude under s 78 of PACE. The Court of Appeal said that such unlawful acts, amounting as they did to a deliberate violation of the suspect‘s right to legal professional privilege, were ―so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the court‖, despite the absence of any actual prejudice to the accused (Laws LJ at para 54). This case is a good example of jurisdiction of the courts to safeguard the integrity of the criminal justice system in cases where executive power is abused. In all of these cases, an application may be made to the court of trial for the prosecution to be stayed as an abuse of process. Generally, the test for determining whether to accede to such an

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application is whether or not the accused would have a fair trial if the proceedings were to go ahead. The court is not, at that stage, concerned with the guilt or innocence of the accused, but only with the likely fairness or otherwise of the trial that will take place unless the proceedings are stopped (or, in those cases where executive power has been abused, whether the abuse is so serious that there should be no trial). It is submitted that it should remain open to an appellant to appeal against conviction on the basis that the trial court should have stayed the proceedings as an abuse of process. 6. Interlocutory appeals in abuse of process cases In Claydon [2001] EWCA Crim 1359; [2004] 1 WLR 1575, the Court of Appeal held that a judge had power to determine, at a preparatory hearing under s 29 of the Criminal Procedure and Investigations Act 1996, questions of admissibility of evidence under s 78 of the Police and Criminal Evidence Act 1984. Rulings on these matters were therefore subject to appeal under s 35 of the CPIA 1996. However, rulings as to abuse of process would not be subject to appeal. Three important points emerge from this: (a) the possibility of an interlocutory appeal to the Court of Appeal applies only to cases that

are subject to the preparatory hearing regime established by the CPIA (i.e. ‗lengthy‘ or ‗complex‘ cases);

(b) interlocutory appeals in such cases are available where the ruling concerns the (non-)exclusion of evidence under s 78 of PACE, but not abuse of process;

(c) in all other cases, the accused‘s only remedy – in the event of conviction – is to appeal against that conviction. Extension of interlocutory appeals to a wider range of pre-trial rulings would help to allay concerns that any amendment of s 2 of the 1968 Act might enable convictions to be upheld even if an unconscionable abuse of process has taken place, but would also (a) add significantly to the workload of the Court of Appeal, and (b) increase delays in the Crown Court (given the need for trials to be adjourned pending the hearing of any interlocutory appeal). This would, of course, have significant resource implications. However, if the right of appeal against conviction is to be amended in a way that effectively excludes an appeal against conviction where the judge declined to stay the proceedings, some other way of enabling appellate scrutiny of that decision would be required in order to safeguard the integrity of the criminal justice system. If s 2 of the 1968 Act is to be amended without a concomitant extension of the right of the defendant to make an interlocutory appeal against a decision not to stay the proceedings as an abuse of process, it is submitted that the concept of abuse of process would have to be built into the concept of ‗safety‘ in s 2 of the Act. 7. Procedure for hearing appeals in the Court of Appeal In considering any reformulation of s 2 of the 1968 Act, it is submitted that account must also be taken of the procedure whereby the Court of Appeal hears appeals. Unlike the Crown Court hearing appeals from magistrates‘ courts, the Court of Appeal disposes of appeals based on submissions (not on the basis of re-hearing the evidence). The Court of Appeal has a discretion to hear evidence in cases where the appeal is based on the emergence of fresh evidence casting doubt on the correctness of the appellant‘s conviction, but even in such cases the Court of Appeal will hear only the fresh evidence (together with information as to why that evidence was not adduced at trial). It is therefore only in rare cases that the Court of Appeal will have heard evidence, and even then will not re-hear evidence that was put before the jury. There will therefore be comparatively few cases where the Court of Appeal will be able to ‗know‘ that the defendant is guilty.

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Requiring the Court of Appeal to review in detail the evidence that was placed before the jury would result in appeals taking much longer than they currently do, adding significantly to delay and cost in the appellate system. The resource implications of such a change would be highly significant. On this basis, it is submitted that the third option identified in para 33 of the consultation paper – that there should be ‗a substantial re-examination of the evidence' by the Court of Appeal is simply not practicable. It has to be borne in mind that, if the Court of Appeal find a conviction to be unsafe (and so quashes the conviction), the Court already has a broad discretion to order a re-trial (in the Crown Court) whenever it is in the interests of justice to do so (under s 7 of the Criminal Appeal Act 1968, as amended). It is submitted that the power to order a re-trial is an adequate safeguard against a defendant escaping conviction where there is strong evidence of guilt but the trial was vitiated by an error (for example, the wrongful admission of certain evidence). 8. Submissions of no case to answer In R v Smith [1999] 2 Cr App R 238, the Court of Appeal (following a well-established line of authority) held that where the trial judge wrongly rejects a submission of no case to answer, the defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the end of the prosecution case would, said the Court, be an abuse of process and fundamentally unfair. Therefore, even if the accused admits his guilt when under cross-examination, the conviction should be regarded as unsafe. It is submitted that whilst the decision in this case was required by earlier authority that was binding on the court, it was inappropriate to regard the issue as one of abuse of process (since the implication is that the court, through the trial judge, was abusing its own process). Rather, the justification for the decision is that, in such a case, if the judge had made the correct decision on the submission of no case to answer, the defendant would not have been placed in the position of having to put forward his case. Whilst this is, in many ways, a logical conclusion, it does seem to be somewhat artificial to require the Court of Appeal to ignore information that is highly relevant. It is submitted that, given the existence of relevant Court of Appeal authority, in the absence of intervention from the House of Lords in its judicial capacity, the only way of reversing the effect of cases such as Smith would be to deal specifically with submissions of no case to answer in s 2 of the 1968 Act. 9. Conclusions Where proceedings amount to an abuse of process, or where the fairness of the trial is in issue, it is submitted that the guilt or innocence of the accused are not relevant. However, the strength of the case against the accused is relevant to the ‗safety‘ of the conviction in all other cases (for example, where the appeal is based on an erroneous decision by the trial judge to admit disputed evidence, or on a judicial misdirection to the jury). To ensure that the Court of Appeal remains able to quash a conviction where there has been a significant abuse of the judicial process, s 2 could be amended so that it requires the Court of Appeal to quash a conviction if either it is unsafe or if the proceedings were an abuse of process or the accused did not receive a fair trial. This could be achieved by amending s 2 as follows (new words in italics):

(1) Subject to the provisions of this Act, the Court of Appeal— (a) shall allow an appeal against conviction if they think

(i) that the conviction is unsafe, or (ii) that the prosecution amounted to an abuse of the process of the court, or (iii) that the accused was not accorded a fair trial; and

(b) shall dismiss such an appeal in any other case. (1A) In deciding whether a conviction is unsafe for the purposes of s 2(2)(1)(a)(i) above, the Court of Appeal shall have regard to the strength of the prosecution evidence against the appellant. (1B) Where the appellant argues that the conviction is unsafe on the ground that the trial judge ought to have upheld a submission of no case to answer, the Court of Appeal

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shall, when determining whether the conviction is unsafe on that ground, have regard to any evidence adduced following the ruling of the judge that there was a case to answer against the appellant.

It is submitted that if s 2 of the Criminal Appeal Act 1968 is amended to require the Court of Appeal to have regard to whether or not the appellant appears to have committed the offence of which he was convicted but without the addition of abuse of process and fairness of trial as specific grounds for appeal, provision would at least have to be made for interlocutory appeals in cases where an application for proceedings to be stayed as an abuse of process has been rejected by the Crown Court judge.

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Chapter 14: Public funding of criminal litigation

Chapter 14.2.2: Grant of legal aid: the merits test (pp 715-716)

In R (GKR Law Solicitors) v Liverpool Magistrates Court [2008] EWHC 2974 (Admin), the accused sought to call her 12-year-old son as a witness. It was held that she should have been granted legal aid, since she lacked the necessary skills and resources to make appropriate arrangements for the special measures that were required to improve the quality of the child‘s evidence. Chapter 14.2.1.2: Legal aid – ‘advice and assistance’ (pp 713-714)

The Audit Commission, in its report ‗The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission‘ (November 2009) noted as follows (at paras 2.2-2.4):

Although legal advice at the police station is free, the Commission estimates only around 50 per cent of those entitled take it up. The Commission has researched the reasons for low take-up. It found this is not necessarily because people do not know their rights, but suspects do not always choose to take advice, because, for example, they may already know the criminal justice system well. 206 of 212 detainees asked if they recalled being told about their right to legal aid said that they did, although only 31 per cent perceived they had been advised they had the right to free legal assistance. Thirty-three respondents said they ―had not got any idea what was going on‖ at the police station. Our survey asked solicitors why they considered suspects did not take up legal aid at police stations (Figure 9 overleaf). Thirty-five per cent of respondents stated this was because suspects were pressurised by the police, and 33 per cent said it was because people were concerned about the time it would take to receive legal advice. Data also indicates solicitors can experience barriers to accessing their clients when trying to telephone police stations. For example, between April and October 2008, 29 per cent of calls from the Commission‘s Criminal Defence Service Direct advisers to police stations went unanswered.

Chapter 14.2.1.3: Legal aid - representation orders (p 714)

As result of the re-introduction of means testing in Crown Court cases (as well as magistrates‘ court cases), the Criminal Defence Service (General) (No.2) (Amendment No.4) Regulations 2009 (SI 2009/2876) amend the Criminal Defence Service (General) (No.2) Regulations 2001. In particular, reg 9 of the 2001 Regulations is amended to read:

(1) An application for a representation order in respect of proceedings in a magistrates‘ court or the Crown Court must be made in writing to the representation authority at the relevant magistrates‘ court.

(2) Where an application for a representation order in respect of proceedings in a magistrates‘ court is refused, the appropriate officer shall provide the applicant with written reasons for the refusal and details of the appeal process.

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(3) In this regulation the relevant magistrates‘ court is— (a) the court in which the proceedings are to be, or are being, heard; (b) in the case of a court inquiring into the offence as examining justices or

sending for trial under section 51 of the Crime and Disorder Act 1998, that court;

(c) the court from which the applicant has been committed or sent for trial at the Crown Court or from which the proceedings have been transferred for trial at the Crown Court;

(d) in the case of a voluntary bill of indictment, the magistrates‘ court in which the proceedings had been heard or a magistrates‘ court in which the proceedings would have been heard;

(e) in the case of an appeal to the Crown Court from a magistrates‘ court, that court;

(f) in the case of a re-trial ordered by the Court of Appeal, a magistrates‘ court sitting in the local justice area of Camden and Islington.

Thus, representation orders will be granted (save in limited circumstances) only by a magistrates' court. Chapter 14.2.2: Legal aid – the merits test (pp 715-716)

Reg 2 of the Criminal Defence Service (Interests of Justice) Regulations 2009 (SI 2009/2875) provides that it is deemed to be in the interests of justice for an individual who is the subject of a trial on indictment in, or committal for sentence to, the Crown Court to be granted a publicly funded right to representation. Chapter 14.2.2.1: Legal aid – appeals against refusal (pp 716-717)

Regulation 4 of the Criminal Defence Service (Representation Orders: Appeals etc.) Regulations 2006 now reads:

(1) In this regulation ―court‖ means the magistrates‘ court in which the proceedings in respect of which the individual is seeking a representation order are being or are to be heard and includes a single justice and a District Judge (Magistrates‘ Courts). (2) Where the representation authority refuses to grant a representation order to an individual on the grounds that the interests of justice do not require such an order to be granted, the individual may renew the application for a representation order to that authority. (3) The representation authority must grant the representation order or refuse the application. (4) Where the representation authority refuses the application, the individual may appeal to the court against the refusal. (5) The court must either— (a) decide that it would be in the interests of justice for a representation order to be granted; or (b) dismiss the appeal. (6) Where the court makes a decision under paragraph (5)(a), the individual may apply to the representation authority for a representation order; and—

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(a) if the individual states in writing, verified by a statement of truth, that the individual‘s financial resources have not changed since the date of the original application so as to make the individual financially ineligible for a representation order, the authority must grant such an order; or (b) if the resources may have so changed, the representation authority must determine whether the individual is financially eligible to be granted a representation order in accordance with the Criminal Defence Service (Financial Eligibility) Regulations 2006 and, if the individual is so eligible, must grant such an order.

Thus, in magistrates‘ courts‘ cases the individual may make a renewed application to the authority responsible for granting representation orders in magistrates‘ courts, after which there is an appeal to the court. Chapter 14.2.3: Legal Aid – the means test (pp 717-720)

The Criminal Defence Service (Financial Eligibility) (Amendment) Regulations 2009 (S.I. 2009/2878) extend the cases in which an individual must be financially eligible to receive publicly funded representation in criminal proceedings to proceedings in which the individual is committed for sentence from a magistrates‘ court to the Crown Court. Chapter 14.3: Legal aid – recovery of costs The Criminal Defence Service (Recovery of Defence Costs Orders) (Amendment) Regulations 2008 (SI 2008 No. 2430) amend the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001. Regulation 4 of the 2001 Regulations is amended so that the judge hearing the case shall make a Recovery of Defence Costs Order unless (a) the defendant has appeared in the magistrates' court only, or else is committed for sentence to the Crown Court (reg 4(2)); or (b) the defendant (i) has been acquitted (other than in exceptional circumstances), (ii) is in receipt of certain means-tested state benefits including income support and income-based jobseeker's allowance; or (c) the defendant does not have capital over £3,000, equity in their principal residence over £100,000, a gross annual income over £22,235; or (d) the defendant is under the age of 18. Moreover, under reg 4(4), an RDCO shall not be made where the judge hearing the case is satisfied that (a) it would not be reasonable to make such an order, on the basis of the information and evidence available, or (b) the payment of an RDCO would, owing to the exceptional circumstances of the case, involve undue financial hardship. Regulation 9(2) is amended so that, unless there are exceptional circumstances, the following assets of the funded defendant shall be taken into account by the judge when considering the terms of the order: (a) capital over £3,000, (b) equity in the defendant's principal residence over £100,000, and (c) gross annual income over £22,235.

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Chapter 15: Costs in criminal cases

Chapter 15.1: The power to award costs (p 723)

Rule 76.2 of the Criminal Procedure Rules now provides as follows:

(1) The court must not make an order about costs unless each party and any other person directly affected— (a) is present; or (b) has had an opportunity—

(i) to attend, or (ii) to make representations.

(2) The court may make an order about costs— (a) at a hearing in public or in private; or (b) without a hearing.

(3) In deciding what order, if any, to make about costs, the court must have regard to all the circumstances, including— (a) the conduct of all the parties; and (b) any costs order already made.

(4) If the court makes an order about costs, it must— (a) specify who must, or must not, pay what, to whom; and (b) identify the legislation under which the order is made, where there is a

choice of powers. (5) The court must give reasons if it—

(a) refuses an application for a costs order; or (b) rejects representations opposing a costs order.

(6) If the court makes an order for the payment of costs—

(a) the general rule is that it will be for an amount that is sufficient reasonably to compensate the recipient for costs— (i) actually, reasonably and properly incurred, and (ii) reasonable in amount; but

(b) the court may order the payment of— (i) a proportion of that amount, (ii) a stated amount less than that amount, (iii) costs from or until a certain date only, (iv) costs relating only to particular steps taken, or (v) costs relating only to a distinct part of the case.

(7) On an assessment of the amount of costs, relevant factors include— (a) the conduct of all the parties; (b) the particular complexity of the matter or the difficulty or novelty of the

questions raised; (c) the skill, effort, specialised knowledge and responsibility involved; (d) the time spent on the case; (e) the place where and the circumstances in which work or any part of it

was done; and (f) any direction or observations by the court that made the costs order.

(8) If the court orders a party to pay costs to be assessed under rule 76.11, it may order that party to pay an amount on account.

(9) An order for the payment of costs takes effect when the amount is assessed, unless the court exercises any power it has to order otherwise.

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Chapter 15.2: Defendant’s costs order (pp 723-726) Rule 76.4 of the Criminal Procedure Rules now provides as follows:

(2) In this rule, costs— (a) include—

(i) on an appeal, costs incurred in the court that made the decision under appeal, and

(ii) at a retrial, costs incurred at the initial trial and on any appeal; but (b) do not include costs funded by the Legal Services Commission.

(3) The court may make an order (a) on application by the person who incurred the costs; or (b) on its own initiative.

(4) Where a person wants the court to make an order that person must— (a) apply as soon as practicable; and (b) outline the type of costs and the amount claimed, if that person wants the

court to direct an assessment; or (c) specify the amount claimed, if that person wants the court to assess the

amount itself. (5) The general rule is that the court will make an order, but

(a) the court may decline to make a defendant‘s costs order if, for example— (i) the defendant is convicted of at least one offence, or (ii) the defendant‘s conduct led the prosecutor reasonably to think

the prosecution case stronger than it was; and (b) the court may decline to make a prosecutor‘s costs order if, for example,

the prosecution was started or continued unreasonably. (6) If the court makes an order—

(a) it may direct an assessment …; (b) it may assess the amount itself, if the recipient agrees; (c) it must assess the amount itself, in a case in which it decides not to allow

an amount that is reasonably sufficient to compensate the recipient for expenses properly incurred in the proceedings.

Paragraphs 2.1.1 and 2.2.1 of the Practice Direction on Costs in Criminal Cases provide

that, in both the magistrates‘ court and the Crown Court, a defendant‘s costs order should normally be made where the accused has been acquitted, ‗unless there are positive reasons for not doing so. For example, where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was, the defendant can be left to pay his own costs‘. Under para 1.3.1, the order will be for ‗such amount as the court considers sufficient reasonably to compensate the party for expenses incurred by him in the proceedings‘ but it ‗cannot include expenses incurred which do not directly relate to the proceedings themselves, such as loss of earnings. Where the party in whose favour the costs order is made is CDS funded, he will only recover his personal costs‘. In Ashendon v United Kingdom (35730/07), the European Court of Human Rights held

that the refusal by trial courts to grant defence costs in favour of defendants who were

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acquitted of criminal charges did not amount to a violation of the presumption of innocence, as guaranteed by Art. 6(2) of the European Convention on Human Rights. However, even if an acquitted defendant's conduct brings suspicion on himself, it will only be appropriate to refuse a costs order if he also misled the prosecution into thinking that the case against him was stronger than it was: R (Spiteri) v Basildon Crown Court [2009] EWHC 665 (Admin); (2009) 173 JP 327 and Dowler v Merseyrail [2009] EWHC

558 (Admin); (2009) 173 JP 332. One reason that an appellate court might properly refuse an application for costs by a successful appellant is where the court allows an appeal against sentence as an ‗act of mercy‘ to the appellant: R (Pluckrose) v Snaresbrook Crown Court [2009] EWHC 1506 (Admin); (2009) 173 JP 492. In Brewer v Secretary of State for Justice [2009] EWHC 987 (QB); [2009] 3 All ER 861, it was held that there may be circumstances in which a successful defendant should receive reimbursement from central funds of expenses incurred by him in relation to legal professional services during a period when a representation order was in force. Whether such costs are in fact allowed will depend on whether, in the circumstances of the particular case, the expenses in question were properly incurred and relate to work which was actually and reasonably done and/or disbursements which had actually and reasonably been incurred. In Budgens Stores Ltd v Hastings Magistrates' Court [2009] EWHC 1646 (Admin); (2009) 173 JP 417, Richards LJ (at para 20) said that where particular items are disallowed on the basis that the work in question was not reasonably done for the purposes of the defence or the disbursement was not reasonably incurred for that purpose, some explanation of that decision, however brief, must be given. In 2009, the Lord Chancellor amended the scheme for the award of costs out of central funds to defendants who have faced, and successfully resisted, criminal proceedings. The new scheme was implemented by the Costs in Criminal Cases (General) (Amendment) Regulations 2009, with effect from 31 October 2009 (amending the Costs in Criminal Cases (General) Regulations 1986). The effect of the new scheme was that DCOs would allow successful defendants to recover their costs only at legal aid rates. The Law Society mounted a successful challenge of this scheme in R (The Law Society of England and Wales) v The Lord Chancellor [2010] EWHC 1406 (Admin); [2011] 1

WLR 234. As Elias LJ said (at para 7), it was not disputed that the new scheme would ‗result in payments which are in general considerably smaller than those made under the 1986 Regulations, and that the payments will necessarily fall short, and sometimes well short, of the costs actually incurred by the successful defendant‘. The central issue in the case was whether the new scheme was ‗consistent with the principles of compensation reflected in s 16‘. The Court held that the new scheme was unlawful. Elias LJ, at para 47, emphasised that

the issue before the court is not whether it is a legitimate objective to make successful defendants in criminal cases bear a greater proportion of the costs of their defence, nor

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whether it is desirable that the Government should seek to harbour resources, or to adopt a policy with the object of affecting the market for legal services in criminal cases. The only issue is whether those objectives can properly be achieved by the Lord Chancellor exercising the particular rule-making powers conferred upon him.

Addressing that issue, his Lordship ruled, at para 56, that:

The new regulations involve a decisive departure from past principles. They jettison the notion that a defendant ought not to have to pay towards the cost of defending himself against what might in some cases be wholly false accusations, provided he incurs no greater expenditure than is reasonable and proper to secure his defence. Any change in that principle is one of some constitutional moment. It means that a defendant falsely accused by the state will have to pay from his own pocket to establish his innocence. Whatever the merits of that principle, I would be surprised if Parliament had intended that it could properly be achieved by sub-delegated legislation which is not even the subject of Parliamentary scrutiny.

His Lordship went on say (at para 57) that:

the focus should be on whether what has been spent is reasonable rather than whether cheaper adequate representation could be achieved; and they also show that the level of fees should reflect the market for services of the relevant kind and not seek to change it.

Chapter 15.3: Prosecution costs from central funds (p 726)

Para graph 2.6.3 of the Practice Direction on Costs in Criminal Cases provides that, for

the purposes of an order under s 17, the costs of the prosecutor are taken to include the expense of compensating any witness for the expenses, travel and loss of time properly incurred in or incidental to his attendance. Chapter 15.4: Defendant to pay prosecution costs (pp 727-729)

Rule 76.5 of the Criminal Procedure Rules now provides as follows:

(1) This rule applies where the court can order a defendant to pay the prosecutor‘s costs if the defendant is—

(a) convicted or found guilty; (b) dealt with in the Crown Court after committal for sentence there; or (c) dealt with for breach of a sentence.

(2) The court may make an order— (a) on application by the prosecutor; or (b) on its own initiative.

(3) Where the prosecutor wants the court to make an order— (a) the prosecutor must—

(i) apply as soon as practicable, and (ii) specify the amount claimed; and

(b) the general rule is that the court will make an order if it is satisfied that the defendant can pay; but

(c) the court may decline to do so.

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(4) A defendant who wants to oppose an order must make representations as soon as practicable.

(5) If the court makes an order, it must assess the amount itself.

Costs on appeal are covered by rule 76.6 of the Criminal Procedure Rules. Paragraphs 3.4 and 3.5 of the Practice Direction on Costs in Criminal Cases provide that:

An order should be made where the court is satisfied that the defendant or appellant has the means and the ability to pay. The order is not intended to be in the nature of a penalty which can only be satisfied on the defendant‘s release from prison. An order should not be made on the assumption that a third party might pay. Whilst the court should take into account any debt of the appellant or defendant, where the greater part of those debts relates to the offence itself, the court may still make an order for costs. Where co-defendants are husband and wife, the couple‘s means should not be taken together. Where there are multiple defendants the court may make joint and several orders, but the costs ordered to be paid by an individual should be related to the costs in or about the prosecution of that individual. In a multi handed case where some defendants have insufficient means to pay their share of the costs, it is not right for that share to be divided among the other defenders.

Para 3.7 of the Practice Direction notes ‗any sum ordered to be paid by way of costs should not ordinarily be greatly at variance with any fine imposed‘. In Balshaw v Crown Prosecution Service [2009] EWCA Crim 470; [2009] 1 WLR 2301,

Moses LJ considered the effect of s 18 of the Prosecution of Offences Act 1985 (defendant to pay prosecution costs) and said (at paras 12 and 13):

… the mere fact that the costs relate to investigation and not to the conduct of the prosecution does not preclude a court from ordering an accused to pay them. But … to order an accused to pay costs to a prosecutor for which it is not liable is neither just nor reasonable. But the proposition must not be taken too far. [Counsel] suggested that unless the prosecutor had incurred a contractual liability for the sums it claimed as costs it would not be just and reasonable to make an order against an accused. We do not agree. Provided that the order does not lead to a windfall in favour of the prosecutor or to a disguised fine or penalty we see no reason why it would not be just and reasonable to make an order to the prosecutor in respect of sums which the court is satisfied are part of those costs of investigation which the prosecutor will itself satisfy. There is no principle that an order is proscribed where the costs are designed to compensate a third party. The CPS's disbursements to professionals such as a barrister or a pathologist are recoverable. Nor is there any principle that the CPS may only recover those costs which it has directly incurred. The statute does not necessarily prevent the recovery by a prosecutor of fees which it will pay to another body which has itself incurred liability to pay those fees. In such a case the court need only be satisfied that it is just and reasonable for the prosecutor to meet those fees.

It followed that an order to pay prosecution costs might properly include an order to pay for the cost of an accountancy report commissioned by the police when investigating the accused's business affairs. The costs incurred by the police were costs relevant not only to the investigation but also to the presentation of the case at trial.

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Chapter 15.6.1: Costs in respect of unnecessary or improper acts or omissions (pp 729-730)

Para 4.4.1 of the Practice Direction on costs suggests that:

The court may find it helpful to adopt a three stage approach (a) Has there been an unnecessary or improper, act or omission? (b) As a result have any costs been incurred by another party? (c) If the answers to (a) and (b) are ―yes‖, should the court exercise its discretion to order the party responsible to meet the whole or any part of the relevant costs, and if so what specific sum is involved?

Chapter 15.6.2: Wasted costs orders against representatives (pp 730-731)

Paragraph 4.2.1 of the Practice Direction on Costs describes ‗wasted costs‘ as ‗costs incurred by a party (which includes an LSC funded party) as a result of any improper, unreasonable or negligent act or omission on the part of any representative or his employee, or which, in the light of any such act or omission occurring after they were incurred, the court considers it unreasonable to expect that party to pay‘. Para 4.2.4 sets out the guidance given by the Court of Appeal in Re A Barrister (Wasted Costs Order) (No 1 of 1991) [1993] QB 293; para 4.2.5 sets out the additional guidance from the Court of Appeal in Re P (A Barrister) [2001] EWCA Crim 1728; [2002] 1 Cr App

R 207. The final paragraph of that guidance reads as follows:

The normal civil standard of proof applies but if the allegation is one of serious misconduct or crime clear evidence will be required to meet that standard.

Para 4.2.7 says that:

The court may postpone the making of a wasted costs order to the end of the case if it appears more appropriate to do so, for example, because the likely amount is not readily available, there is a possibility of conflict between the legal representatives as to the apportionment of blame, or the legal representative concerned is unable to make full representations because of a possible conflict with the duty to the client.

Chapter 15.8: Award of costs against third parties (pp 732-733) Paragraph 4.7.2 of the Practice Direction on Costs provides that the ‗court may make a

third party costs order at any time during or after the criminal proceedings, but should only make such an order during the proceedings if it decides that there are good reasons to do so‘.

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Chapter 16: Sentencing procedure and principles

Chapter 16.3 and 16.4: Sentencing procedure (pp 740ff)

Under s 57D of the Crime and Disorder Act 1998, where a live link direction is already in force for a preliminary hearing and the defendant pleads guilty to the offence in the course of that live link hearing, the court may continue the hearing as a sentencing hearing in relation to that offence. Similarly, under s 57E of the 1998 Act, where the defendant is convicted of an offence and it appears to the court that it is likely that he will be held in custody during any sentencing hearing for that offence, the court may give a live link direction in relation to that hearing (so that the defendant attends the hearing through a live link from the place at which he is being held). The defendant‘s consent was originally required, but s 106 of the Coroners and Justice Act 2009 amends ss 57D and 57E so as to remove the requirement for the defendant's consent to attendance (or continued attendance) via live link and to giving oral evidence through the live link. Chapter 16.3.1: Newton hearings (pp 740-747)

In R v Lucien [2009] EWCA Crim 2004, the Court of Appeal held that, where a judge does not accept the basis of a defendant‘s plea of guilty, he is obliged to inform the defendant of that fact before proceeding to sentence, so that the defendant can decide how to proceed (e.g. to make submissions or to call evidence on the matter). Chapter 16.6.6: Keeping sentencing options open (pp 753-754) In Nicholas v Chester Magistrates’ Court [2009] EWHC 1504 (Admin); (2009) 173 JP 542, Wilkie J (at para 10) referred to R (White) v Barking Magistrates’ Court [2004] EWHC 417 (Admin) and R (Sumner) v Wirral Borough Magistrates Court [2005] EWHC 3166 (Admin), which dealt with the situation where one bench gave a certain indication (an indication of willingness to accept jurisdiction as to sentence rather than commit to the Crown Court) which was subsequently superseded by a different bench which committed the cases to the Crown Court. His Lordship summarised (at para 10) the effect of those cases as deciding that:

no judicial review would lie on the basis of legitimate expectation if the legitimate expectation was founded on a decision of a bench which was so unreasonable as to be perverse or such that no reasonable bench properly directing itself could have reached.

In Thornton v CPS [2010] EWHC 346 (Admin); (2010) 174 JP 121, the court again considered the question of legitimate expectation. Aikens LJ cited the case of R v Nottingham Magistrates' Court, ex p Davidson [2001] Cr App R(S) 167, where Lord

Bingham CJ (at p 169), set out the following principle:

If a court at a preliminary stage of the sentencing process gives to a defendant any indication as to the sentence which will or will not be thereafter passed upon him, in terms sufficiently unqualified to found a legitimate expectation in the mind of the

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defendant that any court which later passes sentence upon him will act in accordance with the indication given, and if on a later occasion a court, without reasons which justify departure from the earlier indication, and whether or not it is aware of that indication, passes a sentence inconsistent with, and more severe than, the sentence indicated, the court will ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with that indicated.

At para 48, Aikens LJ endorsed what Wilkie J said in para 13 of his judgment in Nicholas v Chester Magistrates' Court:

We thoroughly deprecate the practice, if such it be, of one bench to adjourn sentencing for reports and in so doing giving an indication as to the type of sentence which it would be appropriate to pass where that bench is not reserving sentence to itself. By so doing, as is indicated in the authorities, and save in an exceptional case, the effect of that is to fetter the discretion of the sentencing court. In our judgment, that should only be done where the bench reserves to itself the sentence, or in a case where it is absolutely obvious that a certain type of sentence should be considered or should not be considered.

At para 49, his Lordship added that:

... it is imperative that magistrates do not put themselves in a position which binds the hands of another bench on the question of sentence unless they are absolutely certain that it is the right course to take. Forms can be used, and forms of words used, to ensure that no expectation about sentence, legitimate or otherwise, is engendered in the mind of defendants or their advisers. If those forms and words are used correctly, then unnecessary and expensive expeditions to this court will be avoided.

Chapter 16.8.1.1: Sentencing – moves towards a structured sentencing framework (pp 757-760)

Sentencing Commission Working Group Report, Sentencing Guidelines in England and Wales: an evolutionary approach, was published in July 2008.

The Sentencing Commission Working Group had been set up by the Lord Chancellor and Lord Chief Justice in December 2007. It was chaired by Lord Justice Gage and made up of 15 members including lawyers, academics, judges, criminal justice professionals and others with experience in the field. It was asked to consider the advantages, disadvantages and feasibility of a structured sentencing framework and sentencing commission. The Working Group recommendations include:

the creation of an enhanced Sentencing Guidelines Council (SGC) combining the current SGC and the Sentencing Advisory Panel in one body

the collection of more data on sentencing practice including undertaking a national sentencing survey

placing a duty on the SGC to estimate the effect of its guidelines in terms of the prison population and other correctional resources and provide an overview of all the factors that impact on the prison population and alert the government to significant developments

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obliging the government, when introducing a Bill or launching a new policy, to invite the SGC to assess its impact on correctional resources.

Sentencing Council for England and Wales 118(1) of the Coroners and Justice Act 2009 provides that 'there is to be a Sentencing Council for England and Wales'. The new Sentencing Council replaces the Sentencing Guidelines Council and the Sentencing Advisory Panel, both of which are abolished by s 135 of the 2009 Act. The membership of the Council is set out in Sch 15. Para 1 of that schedule provides that the Council is to consist of 8 'judicial members' (drawn from the ranks of Court of Appeal judges, High Court judges, Circuit judges, District Judges (Magistrates' Courts) and lay justices, and appointed by the Lord Chief Justice with the agreement of the Lord Chancellor, and 6 'judicial members', appointed by the Lord Chancellor with the agreement of the Lord Chief Justice. Under para 2, the Council must be chaired by a judicial member. By virtue of para 3(2), the judicial members must include at least one Circuit judge, one District Judge (Magistrates‘ Courts) and one lay justice. Under para 4, a person is eligible for appointment as a non-judicial member if he has experience of criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, the promotion of the welfare of victims of crime, academic study or research relating to criminal law or criminology, the use of statistics, or the rehabilitation of offenders. Para 5 provides that the Lord Chief Justice is to have the title of President of the Sentencing Council but is not a member of the Council. Under para 6, the Lord Chancellor may appoint a person with experience of sentencing policy to attend and speak at any meeting of the Council. Section 120 makes provision for 'sentencing guidelines', which may be 'general in nature or limited to a particular offence, particular category of offence or particular category of offender' (subs (2)). Under s 120(3), the Council is specifically required to prepare sentencing guidelines about the discharge of a court‘s duty under s 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty pleas), and sentencing guidelines about the application of any rule of law as to the totality of sentences. Under s 120(4), the Council may prepare sentencing guidelines about any other matter. Guidelines must be published in draft (subs (5)) and there must be a consultation exercise (subs (6)). Under subs (9), the Council may review the sentencing guidelines and revise them. Section 120(11) requires the Council to have regard to:

(a) the sentences imposed by courts in England and Wales for offences; (b) the need to promote consistency in sentencing; (c) the impact of sentencing decisions on victims of offences; (d) the need to promote public confidence in the criminal justice system; (e) the cost of different sentences and their relative effectiveness in preventing re-

offending; (f) the results of the monitoring carried out under s 128.

Section 121 requires the Council to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured thus:

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(2) The guidelines should, if reasonably practicable given the nature of the offence,

describe, by reference to one or more of the factors mentioned in subs (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed.

(3) Those factors are— (a) the offender‘s culpability in committing the offence; (b) the harm caused, or intended to be caused or which might foreseeably

have been caused, by the offence; (c) such other factors as the Council considers to be particularly relevant to

the seriousness of the offence in question. (4) The guidelines should—

(a) specify the range of sentences (―the offence range‖) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and

(b) if the guidelines describe different categories of case in accordance with subs (2), specify for each category the range of sentences (―the category range‖) within the offence range which, in the opinion of the Council, it may be appropriate for a court to impose on an offender in a case which falls within the category.

(5) The guidelines should also— (a) specify the sentencing starting point in the offence range, or (b) if the guidelines describe different categories of case in accordance with

subs (2), specify the sentencing starting point in the offence range for each of those categories.

(6) The guidelines should— (a) (to the extent not already taken into account by categories of case

described in accordance with subs (2)) list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration,

(b) list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the offence, and

(c) include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular significance in relation to the offence or the offender.

(7) For the purposes of subs (6)(b) the following are to be disregarded— (a) the requirements of s 144 of the Criminal Justice Act 2003 (reduction in

sentences for guilty pleas); (b) ss 73 and 74 of the Serious Organised Crime and Police Act 2005

(assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence;

(c) any rule of law as to the totality of sentences. (8) The provision made in accordance with subs (6)(c) should be framed in such

manner as the Council considers most appropriate for the purpose of assisting the court, when sentencing an offender for the offence, to determine the appropriate sentence within the offence range.

(9) The provision made in accordance with subs (2) to (8) may be different for different circumstances or cases involving the offence.

(10) The sentencing starting point in the offence range—

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(a) for a category of case described in the guidelines in accordance with subs (2), is the sentence within that range which the Council considers to be the appropriate starting point for cases within that category— (i) before taking account of the factors mentioned in subs (6), and (ii) assuming the offender has pleaded not guilty, and

(b) where the guidelines do not describe categories of case in accordance with subs (2), is the sentence within that range which the Council considers to be the appropriate starting point for the offence— (i) before taking account of the factors mentioned in subs (6), and (ii) assuming the offender has pleaded not guilty.

Section 122 makes provision for 'allocation guidelines' (relating to mode of trial decisions by magistrates‘ courts under s 19 of the Magistrates‘ Courts Act 1980 or by the Crown Court under paragraph 7(7) or 8(2)(d) of Schedule 3 to the Crime and Disorder Act 1998. Under s 122(2), the Council 'may prepare allocation guidelines'. Such guidelines must first be published in draft (subs (3). There must then be a consultation process (subs (4)). Published definitive guidelines may be revised (subs (6)). Under s 122(8), the Council must have regard to the need to promote consistency in mode of trial decisions and to the results of monitoring carried out under s 128. Section 123 applies where the Council decides to prepare or revise sentencing guidelines or allocation guidelines, and is of the opinion that the urgency of the case makes it impractical to comply with the usual procedural requirements. In such a case, the Council may prepare or revise the guidelines without publishing a draft first and consulting only with the Lord Chancellor. Under s 124(1), the Lord Chancellor may propose that the Council should prepare or revise sentencing or allocation guidelines. Section 124(3) empowers the Court of Appeal to propose that the Council should prepare or revise sentencing guidelines. If the Council receives a proposal under subs (1) or (3) to prepare or revise any guidelines, it must consider whether to do so (subs (5)). Subs (8) makes it clear that the power of the Court of Appeal to propose that the Council should consider making or revising sentencing guidelines is 'without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court'. Section 125 deals with the effect of sentencing guidelines:

(1) Every court— (a) must, in sentencing an offender, follow any sentencing guidelines which

are relevant to the offender‘s case, and (b) must, in exercising any other function relating to the sentencing of

offenders, follow any sentencing guidelines which are relevant to the exercise of the function,

unless the court is satisfied that it would be contrary to the interests of justice to do so.

(2) Subs (3) and (4) apply where— (a) a court is deciding what sentence to impose on a person (―P‖) who is

guilty of an offence, and (b) sentencing guidelines have been issued in relation to that offence which

are structured in the way described in s 121(2) to (5) (―the offence specific guidelines‖).

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(3) The duty imposed on a court by subs (1)(a) to follow any sentencing guidelines which are relevant to the offender‘s case includes— (a) in all cases, a duty to impose on P, in accordance with the offence

specific guidelines, a sentence which is within the offence range, and (b) where the offence-specific guidelines describe categories of case in

accordance with s 121(2), a duty to decide which of the categories most resembles P‘s case in order to identify the sentencing starting point in the offence range;

but nothing in this section imposes on the court a separate duty, in a case within para (b), to impose a sentence which is within the category range.

(4) Subs (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P‘s case.

(5) Subs (3)(a) is subject to— (a) s 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty

pleas), (b) s 73 and 74 of the Serious Organised Crime and Police Act 2005

(assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence, and

(c) any rule of law as to the totality of sentences. (6) The duty imposed by subs (1) is subject to the following provisions—

(a) s 148(1) and (2) of the Criminal Justice Act 2003 (restrictions on imposing community sentences);

(b) s 152 of that Act (restrictions on imposing discretionary custodial sentences);

(c) s 153 of that Act (custodial sentence must be for shortest term commensurate with seriousness of offence);

(d) s 164(2) of that Act (fine must reflect seriousness of offence); (e) s 269 of and Schedule 21 to that Act (determination of minimum term in

relation to mandatory life sentence); (f) s 51A of the Firearms Act 1968 (minimum sentence for certain offences

under s 5 etc); (g) ss 110(2) and 111(2) of the Powers of Criminal Courts (Sentencing) Act

2000 (minimum sentences for certain drug trafficking and burglary offences);

(h) s 29(4) and (6) of the Violent Crime Reduction Act 2006 (minimum sentences for certain offences involving firearms).

... Section 126 stipulates that s 125(3) is subject to the court's power to impose a sentence of imprisonment or detention for public protection under ss 225(3) or 226(3) of the Criminal Justice Act 2003, and to the power to impose and an extended sentence of imprisonment or detention under ss 227 or 228 of the 2003 Act. However, where a court determines the notional determinate term in such cases, ss 125(2)-(5) apply for the purposes of determining that notional determinate term (s 126(3)). Section 127 requires the Council to publish a 'resource assessment' in respect of the guidelines it issues. Under subs (3), a resource assessment is an assessment of the likely effect of the guidelines on:

(a) the resources required for the provision of prison places,

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(b) the resources required for probation provision, and (c) the resources required for the provision of youth justice services.

Under subs (5), the Council must keep under review any resource assessment that has been published and, if the assessment is found to be inaccurate, publish a revised resource assessment. Section 128 requires the Council to:

(a) monitor the operation and effect of its sentencing guidelines, and (b) consider what conclusions can be drawn from the information obtained by virtue of

paragraph (a).

Under s 128(2), the Council must discharge its duty to monitor with a view to drawing conclusions about

(a) the frequency with which, and extent to which, courts depart from sentencing guidelines;

(b) the factors which influence the sentences imposed by courts; (c) the effect of the guidelines on the promotion of consistency in sentencing; (d) the effect of the guidelines on the promotion of public confidence in the criminal

justice system.

Under s 129(1),

The Council must publish, at such intervals as it considers appropriate— (a) in relation to each local justice area, information regarding the sentencing

practice of the magistrates‘ courts acting in that area, and (b) in relation to each location at which the Crown Court sits, information regarding

the sentencing practice of the Crown Court when it sits at that location.

Section 129(2) empowers the Council to:

promote awareness of matters relating to the sentencing of offenders by courts in England and Wales, including, in particular— (a) the sentences imposed by courts in England and Wales; (b) the cost of different sentences and their relative effectiveness in preventing re-

offending; (c) the operation and effect of guidelines [issued under the Act].

Section 119 requires the Council to publish an annual report. One of the matters that has to be included (by virtue of s 130) is a 'sentencing factors report'. This is an assessment of

the effect which any changes in the sentencing practice of courts are having or are likely to have on each of the following— (a) the resources required for the provision of prison places; (b) the resources required for probation provision; (c) the resources required for the provision of youth justice services.

Under s 131, the annual report must also contain a 'non-sentencing factors report'. This is a report of 'any significant quantitative effect (or any significant change in quantitative

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effect) which non-sentencing factors are having or are likely to have on the resources needed or available for giving effect to sentences imposed by courts in England and Wales'. Under subs (4), non-sentencing factors are factors which do not relate to the sentencing practice of the courts, and include:

(a) the recalling of persons to prison; (b) breaches of orders within subs (5) [namely community orders, suspended sentence

orders and youth rehabilitation orders]; (c) patterns of re-offending; (d) decisions or recommendations for release made by the Parole Board; (e) the early release under discretionary powers of persons detained in prison; (f) the remanding of persons in custody.

Under s 132, the Lord Chancellor may refer to the Council any government policy proposal, or government proposal for legislation, so that the Council can assess the likely effect of the proposal on

(a) the resources required for the provision of prison places; (b) the resources required for probation provision; (c) the resources required for the provision of youth justice services.

Andrew Ashworth discusses the creation of the Sentencing Council in Coroners and Justice Act 2009: sentencing guidelines and the Sentencing Council [2010] Crim LR 389.

Chapter 16.8.2: Sentencing Guidelines: seriousness (pp 760-768) R v Height [2008] EWCA Crim 2500; [2009] 1 Cr App R (S) 117 (Judge CJ at para 29):

No scheme or guidance or statutory framework can be fully comprehensive, and any system of purported compartmentalisation or prescription has the potential to produce injustice. Even when the approach to the sentencing decision is laid down in an apparently detailed, and on the face of it, intentionally comprehensive scheme, the sentencing judge must achieve a just result.

R v Herbert [2008] EWCA Crim 2501; [2009] 2 Cr App R (S) 9, (Judge CJ at para 38):

Even a definitive sentencing guideline is not to be used or approached as if each offence can be put into fixed and inflexible compartments. The assessment of the seriousness of this offence involved a broad judgment of the overall criminality.

R v Povey [2008] EWCA Crim 1261; [2009] 1 Cr App R (S) 42, per Sir Igor Judge P (at para 4):

Offences of this kind, carrying an offensive weapon or knife ... are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and therefore in the public interest this crime must be confronted and stopped. The courts will do what they can to help reduce, and, so far as practicable, eradicate it … For the time being, whatever other considerations may arise in the individual case, sentencing courts

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must have in the forefront of their thinking that the sentences for this type of offence should focus on the reduction of crime, including its reduction by deterrence, and the protection of the public. Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence courts should bear in mind the harm which the weapon might foreseeably have caused. So the message is stark. This is a serious offence and it should be treated with the seriousness it deserves.

In R v Tongue and Doyle [2007] EWCA Crim 561, the Court noted that, once relevant

guidelines have been issued by the Sentencing Guidelines Council, it should be the exception rather than the rule for advocates to cite previous cases (i.e. cases which pre-date the Guidelines). The guidelines of the Council are generally more pertinent. Public attitudes to sentencing

The Sentencing Advisory Panel commissioned research into public attitude to sentencing. The resulting report, ‗Public Attitudes to the Principles of Sentencing‘ was published in June 2009. The results of the research are summarised by the authors of the report in Julian V Roberts et al, Public attitudes to sentencing purposes and sentencing factors: an empirical analysis [2009] Crim LR 771.

The SAP Report concludes, in Chapter 8, as follows:

The overall picture to emerge from this study is of a reasonable level of congruence between the sentencing principles applied by the SAP and SGC and those expressed or embedded in the views of our samples. At the same time, it was very evident from our focus groups that most people are angry about crime and cynical about sentencers and sentencing. We do not have to look far for some of the reasons: people are seriously misinformed about sentencing practice, and believe that the courts are much more lenient than they actually are… Perhaps the most important conclusion to be drawn from this study, therefore, is this: attempts to achieve a better alignment between the principles underpinning the SGC guidelines and public opinion will achieve very little, so long as the majority of the population believes that sentencers are too lenient. And we can be confident that the problem is one of perception rather than practice. Both this study and previous ones demonstrate that the ‗centre of gravity‘ of public sentencing preferences is not, in fact, grossly out of kilter with sentencing practice…

So far as the purposes of sentencing are concerned,

… People recognize that the different purposes of sentencing are conceptually and empirically intertwined in ways that make it difficult to rank them … [T]he findings suggest that no single sentencing objective may be singled out as attracting significantly higher levels of support than others across all offence categories. Public protection achieved the highest ranking – but this should not necessarily be taken as public support for indeterminate preventative sentencing. There is clear support, also, for rehabilitative sentencing. In our view the findings also demonstrate the need – from the perspective of the public at least – to have multiple sentencing objectives so that these may be tailored to the specific circumstances of individual cases.

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One of the aims of the research project was to determine what characteristics of an offence/ offender should generally result in imposition of a custodial sentence. The following factors would appear to be important to the public‘s determination to imprison:

Evidence of non-compliance: this takes the form of previous convictions, particularly if related to the current offence, or the offender‘s status at the time of the offence (i.e., on bail);

Evidence that the threat to victims was high;

Evidence that the offender was a professional offender, including premeditation;

Crimes committed against vulnerable victims such as the elderly and the young. The Report goes on to note, however, that ‗people clearly found it difficult – and arbitrary – to rank very different forms of harm and culpability on a single ladder … They tended to argue that the physical or psychological harm caused to individual victims is the key criterion of offence seriousness, although an emphasis on offender culpability – inferred from features of the offence – emerged in much of what was said [by the participants]‘. The conclusion goes on to discuss aggravating factors:

Overall, there are three factors that stand out as being powerfully aggravating. Two of these relate to the offence, rather than the offender: carrying a weapon, and committing a crime against a vulnerable victim. The third relates to previous convictions. The responses to the survey and comments from the focus group participants clearly demonstrated that the public regard previous convictions as an important aggravating circumstance. People were prepared to make allowances for those with ‗previous good character, but once this discount had been squandered, views hardened significantly…

On mitigating factors, the Report concluded:

In general, views on mitigation were more mixed than views on aggravation, and more weight was given to aggravating than to mitigating factors overall. However, most [participants] clearly regarded mitigation as potentially significant … In their responses to the aggravating and mitigating factors, most focus group participants displayed an attachment to individualised sentencing. This was manifest both in their willingness to take at least some personal factors into account in passing sentence, and in their frequent comments that more information was needed about the offender and circumstances of the offence in order to decide on sentence…

The research also discovered that that ‗there is strong public support for considering an appeal for leniency on behalf of the victim. If the crime victim wished to spare the offender custody this was seen as justifying a community penalty [rather than custody] by high percentages of respondents‘. The research also considered ‗the relative weight of characteristics relating to the offender or the offence‘ and concluded that ‗the public‘s model of sentencing is upon the characteristics of the offence‘:

There was considerable consensus among survey respondents about the characteristics of the case which would make the offence more serious. In comparison, there was far less agreement on factors associated with the offender that might warrant some mitigation or justify a community order rather than custody. When the public think about

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the seriousness of a particular case, they appear to mean the seriousness of the offence – the extent of injury to the victim, and any aspects of the crime which might aggravate the harm to the victim. However, … the public are highly sensitive to one offender characteristic in particular: namely, his criminal past…

The Report notes, finally, that ‗It is clear from the results that members of the public react thoughtfully to questions relating to sentencing – and not simply with thoughtless punitiveness‘. Victim impact statements (p 767) The Consolidated Practice Direction has been amended as follows:

III.28 Victim Personal Statements

III.28.1. This section draws attention to the Victim Personal Statement scheme, which started on 1 October 2001, to give victims a more formal opportunity to say how a crime has affected them. It may help to identify whether they have a particular need for information, support and protection. It will also enable the court to take the statement into account when determining sentence. In some circumstances, it may be appropriate for relatives of a victim to make a Victim Personal Statement, for example where the victim has died as a result of the relevant criminal conduct.

III.28.2. When a police officer takes a statement from a victim the victim will be told about the scheme and given the chance to make a Victim Personal Statement. The decision about whether or not to make a victim personal statement is entirely for the victim. A Victim Personal Statement may be made or updated at any time prior to the disposal of the case. It will not normally be appropriate for a Victim Personal Statement to be made after the disposal of the case; there may be rare occasions between sentence and appeal when an update to the Victim Personal Statement may be necessary, for example, when the victim was injured and the final prognosis was not available at the date of sentence. If the court is presented with a victim personal statement the following approach should be adopted:

a. The victim personal statement and any evidence in support should be considered

and taken into account by the court prior to passing sentence. b. Evidence of the effects of an offence on the victim contained in the victim personal

statement or other statement, must be in proper form, that is a witness statement made under section 9 of the Criminal Justice Act 1967 or an expert's report, and served upon the defendant's solicitor or the defendant, if he is not represented, prior to sentence. Except where inferences can properly be drawn from the nature of or circumstances surrounding the offence, a sentencer must not make assumptions unsupported by evidence about the effects of an offence on the victim.

c. The court must pass what it judges to be the appropriate sentence having regard to the circumstances of the offence and of the offender, taking into account, so far as the court considers it appropriate, the impact on the victim. The opinions of the victim or the victim's close relatives as to what the sentence should be are therefore not relevant, unlike the consequence of the offence on them. Victims should be advised of this. If, despite the advice, opinions as to sentence are included in the statement, the court should pay no attention to them.

d. The court should consider whether it is desirable in its sentencing remarks to refer to the evidence provided on behalf of the victim.

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Chapter 16.8.3: Sentencing – discount for guilty pleas (pp 768-776)

In R v Cundell [2008] EWCA Crim 1420, Burnett J (at paras 16 and 17) said:

As is well known, the maximum discount of one-third is usually available in circumstances where a defendant in criminal proceedings accepts his guilt at the earliest opportunity. That may be at the first hearing before the Magistrates' Court, but it is well recognised that the earliest reasonable opportunity may come rather sooner.

Thus there may be cases where the earliest reasonable opportunity to accept guilt may be when interviewed by the police. In the present case, the accused pleaded guilty at the PCMH in the Crown Court but had not indicated a guilty plea at the 'plea before venue' hearing in the magistrates' court. The Court held that a discount of about 25% would have been reasonable in the circumstances. Chapter 16.8.3.1: Mitigation associated with guilty pleas (pp 773-775)

Section 113 of the Coroners and Justice Act 2009 amends s 71 of the Serious Organised Crime and Police Act 2005 so as to restrict the issue of immunity notices to indictable and either-way offences. The proper approach to sentence in cases involving an agreement with the cooperating defendant under s 73 of the Serious Organised Crime and Police Act 2005 was considered by the Court of Appeal in R v Dougall [2010] EWCA Crim 1048; [2011] 1 Cr

App R (S) 37. Lord Judge CJ said (at para 19) that, ‗In this jurisdiction a plea agreement or bargain between the prosecution and the defence in which they agree what the sentence should be, or present what is in effect an agreed package for the court's acquiescence is contrary to principle... ‗. His Lordship then referred to the "Guidelines on Plea Discussions" issued by the Attorney-General in March 2009 and said (at para 20) that ―no such agreement is envisaged‖ in those Guidelines. Similarly (at para 21), it is ‗equally clear that no such agreement is in contemplation in ss 71-75 of the Serious Organised Crime and Police Act 2005, where the statutory framework which formalised the well established common law principles relating to the advantages to a defendant who turned, in the old fashioned phrase, "Queen's Evidence"‘. His Lordship also referred to R v P; R v Blackburn [2007] EWCA Crim 2290; [2008] 2 All

ER 6684, where it was noted (at para 22) that:

There never has been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they have provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major

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criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. Moreover the very existence of this process, and the risk that an individual for his own selfish motives may provide incriminating evidence, provides something of a check against the belief, deliberately fostered to increase their power, that gangs of criminals, and in particular the leaders of such gangs, are untouchable and beyond the reach of justice. The greatest disincentive to the provision of assistance to the authorities is an understandable fear of consequent reprisals. Those who do assist the prosecution are liable to violent ill-treatment by fellow prisoners generally, but quite apart from the inevitable pressures on them while they are serving their sentences, the stark reality is that those who betray major criminals face torture and execution. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law, and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.

In that case, the Court of Appeal added (at para 41):

What the defendant has earned by participating in the written agreement system is an appropriate reward for the assistance provided to the administration of justice, and to encourage others to do the same, the reward takes the form of a discount from the sentence which would otherwise be appropriate. It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed, and the normal level will continue, as before, to be a reduction of somewhere between one half and two thirds of that sentence.

In Dougall, Lord Judge CJ went on to point out (at para 22) that it ‗remains open to the defendant to seek the judge's view of sentence in accordance with R v Goodyear‘ but ‗the essential feature of that process is that the judge is expressing his view. It is also open to the parties to reach an agreement about the factual basis on which the defendant will plead guilty. This is often known as the "agreed basis of plea". However the agreed basis of plea is always subject to the approval of the court, and the judge is not bound by the agreement ... Neither of these processes involves an agreement between the parties about sentence‘. At paras 23-25, Lord Judge went on to say:

Accordingly, although the prosecution should be involved in the process by which the sentencing court is fully informed about any matters arising from the evidence which may reflect on the defendant's criminality and culpability (including, of course, matters of mitigation) and of any positive assistance given to the investigating authorities by him, this process does not involve an agreement about the level of sentence. Indeed, look where we may, in our criminal justice structure, agreements between the prosecution and the defence about the sentence to be imposed on a defendant are not countenanced. These principles were summarised in R v Innospec Limited in the sentencing remarks of Thomas LJ at Southwark Crown Court on 26 March 2010. He observed:

It is clear, therefore that the SFO cannot enter into agreement under the laws of England and Wales with an offender as to the penalty in respect of the offence charged…although the sentencing submission proceeded to put forward a specific proposal as opposed to the range as set out in the authorities, that must have been because the provisions of the consolidated criminal practice direction had not been fully appreciated (para 26) The Practice Direction reflects the constitutional principle that, save in minor matters such as motoring offences, the imposition of a sentence is a matter for

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the judiciary. Principles of transparent and open justice require a court sitting in public itself first to determine by a hearing in open court the extent of the criminal conduct on which the offender has entered the plea and then, on the basis of its determination as to the conduct, the appropriate sentence. It is in the public interest, particularly in relation to the crime of corruption, that although, in accordance with the Practice Direction, there may be discussion and agreement as to the basis of plea, the court must rigorously scrutinise in open court in the interests of transparency and good governance the basis of that plea and to see whether it reflects the public interest (para 27) This has always been the position under the law of England and Wales. Agreements and submissions of the type put forward in this case can have no effect…(para 28)

These observations accurately encapsulate the true constitutional position. Responsibility for the sentencing decision in cases of fraud or corruption is vested exclusively in the sentencing court (or on appeal, from that court, to the Court of Appeal Criminal Division). There are no circumstances in which it may be displaced.

Chapter 16.11.1: Offences taken into consideration (pp 783-785) R v Miles [2006] EWCA Crim 256 was considered in R v Lavery [2008] EWCA Crim

2499; [2009] 3 All ER 295. Owen J, giving the judgement of the Court, made the following points (at paras 14 and 16):

There is no reason in principle why an offence to be taken into consideration and which is of a more serious nature than the index offence or offences, should not result in a higher sentence than would otherwise have been the case, as the sentence will reflect the defendant's overall criminality. That said, we share the concern of the learned judge that it is highly unsatisfactory for a court to be faced with one or more offences to be taken into consideration of a substantially more serious nature than the index offence.

… It will be open to a judge to refuse to take an offence into consideration if he forms the view that to do so would be to distort the sentencing exercise and to lead to an unjust result and that the public interest requires that the offence be charged.

His Lordship added (at para 17) that it is clear from s 229 of the Criminal Justice Act 2002 that the court is entitled to take account of offences to be taken into consideration when assessing whether there is a significant risk under ss 225-228 (the dangerous offender provisions). Chapter 16.11.2: Specimen counts (pp 785-786)

In R v Hartley [2011] EWCA Crim 1299, D was charged on two counts with the sexual abuse of the daughter of a neighbour. The prosecution had alleged that the offending took place over two years in the 1980s and in two distinct phases and clearly intended the two counts to be specimen charges, but there was no evidence that D had ever assented to them being treated as such. Hughes LJ, at para 22, said:

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... the problem of which this case is an example can normally be dealt with by the framing of an indictment which does not contain an enormous number of counts but does contain sufficient to enable the judge to pass sentence on a basis which sufficiently represents what really happened ... Ordinarily we would suggest where there is simply a complaint of a course of conduct over a period of months, often years, more than a single count for each period is usually appropriate, although one per year may well suffice if the alleged period is extended. But the overall principle is simply that regard must be had in an intelligent way to the possible views of the case at which a jury might arrive and to the position of the judge in due course should there be convictions. If thought is given to those questions we have little doubt that it will normally be possible to frame an indictment in a manner which enables the sentencing to be realistic and complies with the strict rules of law as set out in R v Canavan [1998] 1 Cr App R 79.

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Chapter 17: Adult offenders – custodial sentences

Chapter 17.1.4: Dangerous offenders under the CJA 2003 (pp 802-808)

In Attorney General's Reference (No 55 of 2008); R v C [2008] EWCA Crim 2790; [2009] 1 WLR 2158, the Court of Appeal ruled (at para 11) that:

… Condition 3B requires that the notional minimum term should be at least 2 years' imprisonment (or appropriate custodial order for a young offender). That condition does not form part of condition 3A. Accordingly if condition 3A is established, an order of imprisonment for public protection may be imposed if the over-arching consideration is established, whether or not such a notional minimum term would be appropriate. However, unless condition 3A is established, an order of imprisonment for public protection may not be imposed under condition 3B unless the offence justifies the specified notional minimum term, even if there is a significant risk of serious harm.

The Court continued (at para 13) to hold that:

… the combined totality of the offending should be reflected in the assessment of the notional term for the purposes of condition 3B … [C]ondition 3B may be established notwithstanding the absence of an individual offence for which a 4 year term would be appropriate…

At para 14, the Court went on to consider the exercise of the court's ‗discretion, or more accurately, its judgment, whether a sentence of imprisonment for public protection should be passed when the necessary criteria are established‘, holding that:

the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender … If … the overall sentencing package provides appropriate protection, imprisonment for public protection should not be imposed.

At para 19, the Court considered extended sentences under s 227 of the 2003 Act and pointed out that:

The extended sentence is no longer limited to ‗specified offences‘ which are not also ‗serious‘, that is offences punishable with a maximum of less than 10 years' imprisonment. Where the offence is indeed a ‗serious specified offence‘, the options of both imprisonment for public protection and an extended sentence are now available.

At para 20, the Court said that:

… if an extended sentence, with if required the additional support of other orders, can achieve appropriate public protection against the risk posed by the individual offender, the extended sentence rather than imprisonment for public protection should be ordered. That is a fact specific decision … [A]t the opposite end of the spectrum … there will be some offenders whose persistent repetitive offending … will fall outside the new provisions … Such an offender, whatever the nuisance he represents, would not present a significant risk of serious harm to the public. The individual who does not pose such risk should be dealt with by an appropriate determinate sentence or community order to which additional protective conditions may be attached.

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In Attorney General's Reference (No. 55 of 2008) [2008] EWCA Crim 2790; [2009] 1 WLR 2158, the Court of Appeal referred to the amendments to the sentencing regime for dangerous offenders brought about by the Criminal Justice and Immigration Act 2008. Lord Judge CJ, at para 14, referring to the exercise of the court's judgment as to whether a sentence of imprisonment for public protection should be passed when the necessary criteria have been established, said that:

the court is entitled to and should have in mind all the alternative and cumulative methods of providing the necessary public protection against the risk posed by the individual offender. For example, structured around a determinate sentence, or indeed an extended sentence under s 227 of the [2003] Act ... Apart from the discretionary sentence of life imprisonment, imprisonment for public protection when the necessary conditions are fulfilled, is the most draconian sentence available to the court. If they are, we re-emphasise that the primary question is the nature and extent of the risk posed by the individual offender, and the most appropriate method of addressing that risk and providing public protection. If what we have described as the overall sentencing package provides appropriate protection, imprisonment for public protection should not be imposed.

In R v Pedley [2009] EWCA Crim 840; [2009] 1 WLR 2517, Hughes LJ said (at para 16),

that the question ‗whether the risk of serious harm is, in any individual case, significant so as to justify an IPP sentence, is highly fact-sensitive. It must remain a decision for the careful assessment of the judge before whom the case comes. He will need to consider all the information he has about the defendant … The focus is … not principally upon the facts of the instant case but upon future risk‘. His Lordship went on to say that, ‗in addressing the question whether the risk of serious harm is significant the judge is entitled to balance the probability of harm against the nature of it if it occurs. The harm under consideration must of course be serious harm before the question even arises. But … within the concept of significant risk there is built in a degree of flexibility which enables a judge to conclude that a somewhat lower probability of particularly grave harm may be significant and conversely that a somewhat greater probability of less grave harm may not be‘. His Lordship added that ‗it is wholly unhelpful to attempt to re-define 'significant risk' in terms of numerical probability … We doubt very much that the probability of future harm is capable of numerical evaluation. No attempt should be made by sentencers to attach arithmetical values to the qualitative assessment which the statute requires of them (para 19). Hughes LJ concluded that the Court was ‗quite satisfied that a sentence of IPP imposed when the judge is satisfied that the defendant poses a significant risk of serious harm to the public is wholly compatible with both article 3 and article 5(1)(a) [of the ECHR]‘ (para 22). Special considerations apply in the case of young offenders. In R v W [2009] EWCA Crim 390; [2009] 2 Cr App R (S) 94, the defendant was convicted of attempted murder and of possessing a firearm with intent to endanger life. He was aged 14 at the time of the offences. Dobbs J (at para 30) noted that ‗as a matter of general principle an offender of this applicant's age is far more susceptible to change than an adult, and thus, if influenced to the good, more likely to reform. The rationale underlying the guidance from the Youth Justice Board, is that an indeterminate sentence, such as Detention for

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Public Protection, is unnecessary save in cases of very grave risk, since the likelihood of change is inherent in youth‘ . Further guidance was given in R v Stubbings [2010] EWCA Crim 710; [2011] 1 WLR

1148, where the Court of Appeal re-examined the principles governing the setting of minimum terms in connection with sentences of imprisonment for public protection (IPP) in light of amendments made to the CJA 2003 by the CJIA 2008. Chapter 17.1.5: Imprisonment – concurrent and consecutive sentences (pp 808-810)

In R (Noone) v Governor of HMP Drake Hall [2008] EWCA Civ 1097; [2009] 1 WLR

1321, Scott Baker LJ said that it is ‗inevitable that when passing consecutive sentences the judge will identify which is the sentence to be served first – the lead sentence‘; it is ‗impossible for a judge to pass consecutive sentences without saying expressly or by clear implication the order in which the sentences are to run‘ (para 51). If the judge ‗has said no more than that one sentence is to be consecutive to another, … the second sentence starts at the point at which release from the first sentence would otherwise occur as of right, i.e. the conditional release date of the first sentence … Accordingly, the second sentence begins … at the conditional release date of the first sentence and the prisoner is to be treated as eligible for release on Home Detention Curfew and/or release on licence in accordance with the statutory provisions applicable to the second sentence (para 53). Chapter 17.1.7: Imprisonment: effect of time spent on remand (pp 810-811)

In R v Johnson [2009] EWCA Crim 468; [2009] 2 Cr App R (S) 107, Thomas LJ (at para

9(ii)) expressed the hope that:

each Judge when imposing a custodial sentence would use the formula suggested by Sir Igor Judge (as he then was) in R v Gordon [2007] EWCA Crim 165; [2007] 1 WLR 2117, along the following lines:

"The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s.240. On the information before me the total period is … days but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded."

Chapter 17.3.2: Breach of suspended sentence orders (pp 822-823)

By virtue of s 200(2) and (4) of the Criminal Justice Act 2003, the Probation Service cannot enforce an unpaid work requirement under a Suspended Sentence Order following the expiration of the operational period, unless an extension has been granted

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pursuant to para 18(1) of Schedule 12 of the Act (West Yorkshire Probation Board v Cruickshanks [2010] EWHC 615 (Admin); (2010) 174 JP 305). Chapter 17.4.2: Discretionary life sentences (pp 830-831) In R v Wilkinson [2009] EWCA Crim 1925; [2010] 1 Cr App R (S) 100, the court

considered the distinction between sentences of imprisonment for life and imprisonment for public protection in s 225 of the Criminal Justice Act 2003. Lord Judge CJ (at para 19) said that

it is clear that as a matter of principle the discretionary life sentence under section 225 should continue to be reserved for offences of the utmost gravity. Without being prescriptive, we suggest that the sentence should come into contemplation when the judgment of the court is that the seriousness is such that the life sentence would have what Lord Bingham observed in Lichniak [2003] 1 AC 903, would be a "denunciatory" value, reflective of public abhorrence of the offence, and where, because of its seriousness, the notional determinate sentence would be very long, measured in very many years.

His Lordship concluded, at para 99:

In many cases where the defendant's dangerousness is established, there nevertheless will remain room for a sensible difference between sentencing judges whether a particular offence under consideration is or is not serious enough to require the imposition of a sentence of life imprisonment, or whether an IPP will suffice. As we have emphasised, the sentence of life imprisonment remains the ultimate sentence, to be reserved for the most serious and grave cases. Where a reasonable judgment is that the sentence arguably does not reach or does not quite reach that level of seriousness, an IPP would not be unduly lenient. Where however the case is plainly so serious that a sentence of life imprisonment is indeed required, then it is in our judgment unduly lenient for any lesser sentence (including an IPP) to be imposed. Given the delicacy and difficulty of making the necessary judgment, we accept that these cases will be exceptional. Nevertheless where the only realistic conclusion is that a discretionary sentence of life imprisonment should have been imposed, then this court will interfere even with an IPP and replace it with life imprisonment. Applying the statutory criteria to this individual case, that conclusion was inevitable. Accordingly we shall quash the IPP and replace it with an order of imprisonment for life.

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Chapter 18: Adult offenders – community sentences

Chapter 18.23.1: Breach of community orders (pp 846-849)

Guidance on the procedure to be followed in the event of a breach of a community order was given in West Yorkshire Probation Board v Robinson & Tinker [2009] EWHC 2517

(Admin); (2010) 174 JP 13. Thomas LJ, at paras 13 and 14, said:

It is clear that the purpose of paragraph 5 of the schedule was to give the probation officer one and one discretion only to give a warning. The view was taken, and it is clear from the schedule that this was what Parliament embodied, that after that first warning, the probation officer was to have no discretion as to what he was to do. If there was a failure after the first warning, then an information had to be laid. It is clear that that is what paragraphs 5 and 6 respectively say. If there is a breach within the requisite period then an information must be laid before justice of the peace in respect of the failure in question. It does not mean that, when the information is laid, it can only be laid in respect of the failure in question. It is plainly open to the probation service to set out in that information both the original breach before the warning and the subsequent breach after the warning. There is no reason to construe the clear wording in any other way. … The plain purpose of the legislation is to give the probation officer a single discretion, so that he does not always have to bring the offender to court but can give a warning. But that one warning having been given, there is no discretion. But it does not say in any way (and I cannot construe the schedule as saying in any way) that the warning operates as a punishment. It is simply a warning that, if thereafter the offender complies and 12 months elapses, he may not be subject to having an information laid immediately, and the probation officer has a further discretion. In no way is the effect of the warning to expunge the initial breach. When a matter comes before the court, the court, in exercising its powers under paragraphs 8 and 9 respectively in each of the schedules, looks at the full circumstances of each breach in determining what to do, assuming, of course, that in respect of each breach it has determined that there has been a breach without reasonable excuse.

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Chapter 19: Fines, discharges and binding over to keep the peace

Chapter 19.3: Binding over to keep the peace (pp 874-877)

Generally, binding over to keep the peace is only warranted where there is evidence of likely personal danger to others involving violence or the threat of violence (see Percy v DPP (1995) 159 JP 337 and Emohare v Thames Magistrates' Court [2009] EWHC 689

(Admin); (2009) 173 JP 303).

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Chapter 20: Young offenders – custodial sentences

Chapter 20: Custodial sentences for young offenders (pp879 ff)

In November 2009, the Sentencing Guidelines Council published a document entitled Overarching Principles – Sentencing Youths. (See also the update to Chapter 21.)

Paragraph 11.5 emphasises that, under both domestic law and international convention, a custodial sentence must be imposed only as a ‗measure of last resort‘. Paragraph 11.6 says that, for a first time offender who has pleaded guilty to an imprisonable offence, in most circumstances a referral order will be the most appropriate sentence. Paragraph 11.7 points that, because the minimum length of a custodial sentence in the youth court is 4 months (significantly in excess of the minimum available in relation to an adult offender),‘ it is inevitable that the custody threshold is higher in the case of a young person than in the case of an adult – any case that warrants a detention and training order of less than four months must result in a non-custodial sentence‘. Paragraph 11.8 goes on to say:

In relation to a person under the age of 18, in determining whether an offence has crossed the custody threshold a court will need to consider whether the offence has resulted (or could reasonably have resulted) in serious harm. In determining whether a custodial sentence is unavoidable, generally, a court will need to take account both of the seriousness of the offence (particularly the extent to which it caused (or was likely to cause) serious harm) and of the risk of serious harm in the future. A custodial sentence is most likely to be unavoidable where it is necessary to protect the public from serious harm.

As with adult offenders, ‗even where the threshold is crossed, a court is not required to impose a custodial sentence‘ (para 11.10). Paragraph 11.11 summarises the statutory decision-making process thus:

Before deciding to impose a custodial sentence on a young offender, the court must ensure that all the statutory tests are satisfied – namely: i) that the offender cannot properly be dealt with by a fine alone or by a youth rehabilitation order, ii) that a youth rehabilitation order with intensive supervision and surveillance or with fostering cannot be justified, and iii) that custody is the last resort and in doing so should take account of the circumstances, age and maturity of the young offender.

Paragraph 11.12 adds that

Where the offence(s) has crossed the custody threshold, the statutory tests are likely to be satisfied only where a custodial sentence will be more effective in preventing offending by children and young persons. The obligation to have regard to the welfare of the offender will require a court to take account of a wide range of issues including those relating to mental health, capability and maturity.

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So far as length of sentence is concerned, para 11.13 makes the point that

Offence specific guidelines do not generally provide starting points or ranges for offenders aged under 18 because of the wide range of issues that are likely to arise and the marked differences in the sentencing framework depending on the age of the offender. Where they are provided, they are for offenders aged 17 with a provision that, for younger offenders, a court should consider whether a lower starting point is justified in recognition of the offender‘s age and maturity.

The Guidelines go on to consider the situation where the offence has been committed by offender(s) aged 18 or over and by offender(s) aged under 18. Paragraph 11.15 says:

Where the primary offender is under the age of 18, a court is likely to determine sentence for that offender first giving proper weight to the offender‘s age and maturity; that will provide a framework within which sentence for the offender(s) over 18 can be determined. Where the primary offender is over 18, a court is likely to determine sentence for that offender first; that will provide a framework within which sentence for the offender(s) under 18 can be determined giving proper weight to age and maturity.

Paragraph 11.16 goes on to give general guidance to be followed where an offence crosses the custodial threshold and the court determines that a custodial sentence is unavoidable:

Where the offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as chronological age. Where there is no offence specific guideline, it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender. It will be particularly important to consider maturity when the court has to sentence more than one offender. When the offenders are of different ages, including when one or more is over 18, the court will also need to have proper regard to parity between their sentences. The closer an offender was to age 18 when the offence was committed and the greater the maturity of the offender or the sophistication of the offence, the closer the starting point is likely to be to that appropriate for an adult. Some offenders will be extremely mature, more so than some offenders who are over 18, whilst others will be significantly less mature. For younger offenders, greater flexibility will be required to reflect the potentially wide range of culpability. Where an offence shows considerable planning or sophistication, a court may need to adjust the approach upwards. Where the offender is particularly immature, the court may need to adjust the approach downwards. Where the offender is aged 14 or less, sentence should normally be imposed in a youth court (except in cases of homicide or where the young person comes within the ―dangerous offender‖ criteria); the length of a custodial sentence will normally be shorter than for an offender aged 15–17 convicted of the same offence. An offender aged 14 years or less should be sentenced to long term detention only where that is necessary for the protection of the public either because of the risk of serious harm from future offending or because of the persistence of offending behaviour; exceptionally, such a sentence may be appropriate where an offender aged 14 years or less has committed a very serious offence but is not a persistent offender and there is no risk of serious harm from future offending.

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Paragraph 11.17 deals with the need, when determining the length of a detention and training order, to take account of any period for which the offender has been remanded in custody, or on bail subject to a qualifying curfew condition and electronic monitoring, and says that where a short custodial sentence is being considered, the court might conclude that a non-custodial sentence is appropriate instead. Chapter 20.1.2: Detention and Training Orders: breach of supervision requirements (pp 879-882)

In H v Doncaster Youth Court and Doncaster Youth Offending Service [2009] EWHC 343 (Admin); (2009) 173 JP 162, it was held that the words 'the remainder of the term of the detention and training order' in s 104(3) of the Powers of Criminal Courts (Sentencing) Act 2000 mean ‗the period between the occasion on which it is proved to the satisfaction of the youth court before which he is brought that he has failed to comply with the requirements under s 103(6)(b) and the expiry of the order‘.

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Chapter 21: Young offenders – non-custodial sentences Chapter 21: Non-custodial sentences for young offenders (pp 889ff)

In November 2009, the Sentencing Guidelines Council published a document entitled Overarching Principles – Sentencing Youths. This was prompted partly by the coming

into force in November 2009 of the provisions in the Criminal Justice and Immigration Act 2008 which enable the courts to impose youth rehabilitation orders on young offenders. Paragraph 1.3 notes that, in addition to the statutory requirements to have regard to the principal aim of the youth justice system, namely to prevent offending by children and young persons (Crime and Disorder Act 1998, s 37(1)) and the welfare of the offender (Children and Young Persons Act 1933, s 44(1)),

... a court sentencing a young offender must be aware of obligations under a range of international conventions which emphasise the importance of avoiding ―criminalisation‖ of young people whilst ensuring that they are held responsible for their actions and, where possible, take part in repairing the damage that they have caused. This includes recognition of the damage caused to the victims and understanding by the young person that the deed was not acceptable. Within a system that provides for both the acknowledgement of guilt and sanctions which rehabilitate, the intention is to establish responsibility and, at the same time, to promote re-integration rather than to impose retribution.

Paragraphs 2.2 – 2.4 go on to say:

The youth of the offender is widely recognised as requiring a different approach from that which would be adopted in relation to an adult. Even within the category of ―youth‖, the response to an offence is likely to be very different depending on whether the offender is at the lower end of the age bracket, in the middle or towards the top end; in many instances, the maturity of the offender will be at least as important as the chronological age. However, the sentence must remain proportionate to the seriousness of the present offence (except in the rare circumstances where the criteria for a sentence under the dangerous offender provisions are met) and should not impose greater restrictions on liberty than the seriousness of the offence justifies simply to deal with the risk of re-offending. Particular care will need to be taken where a young person has committed a relatively less serious offence but there is a high risk of re-offending. Whilst a court is required to aggravate the seriousness of an offence where there are previous convictions (if the court considers that to be reasonable taking account both of the offence and the time that had elapsed since the previous conviction), a sentence that follows re-offending does not need to be more severe than the previous sentence solely because there had been a previous conviction.

Paragraph 2.6 of the guidance observes that the principal aim of the youth justice system, to prevent offending by children and young people (s 37 of the Crime and Disorder Act 1998),

incorporates the need to demonstrate that such conduct is not acceptable in a way that makes an impact on the offender whilst also identifying and seeking to address any other factors that make offending more likely. For any victim of the offence and society as a

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whole, it incorporates the need to demonstrate that the law is being effectively enforced and to sustain confidence in the rule of law.

Para 2.7 considers the requirement, under s 44 of the Children and Young Persons Act 1933, that a court dealing with a child or young person must 'have regard to the welfare of the child or young person', and says that 'welfare' includes the obligation 'to choose the best option for the young person taking account of the circumstances of the offence'. The guidance goes on to say that:

In having regard to the ―welfare‖ of the young person, a court should ensure that it is alert to:

the high incidence of mental health problems amongst young people in the criminal justice system;

the high incidence of those with learning difficulties or learning disabilities amongst young people in the criminal justice system;

the effect that speech and language difficulties might have on the ability of the young person (or any adult with them) to communicate with the court, to understand the sanction imposed or to fulfil the obligations resulting from that sanction;

the extent to which young people anticipate that they will be discriminated against by those in authority and the effect that it has on the way that they conduct themselves during court proceedings;

the vulnerability of young people to self harm, particularly within a custodial environment;

the extent to which changes taking place during adolescence can lead to experimentation;

the effect on young people of experiences of loss or of abuse.

In light of these factors, para 2.10 says that

a court should always seek to ensure that it has access to information about how best to identify and respond to those impairments and, where necessary, that a proper assessment has taken place in order to enable the most appropriate sentence to be imposed.

Para 2.11 notes that, because the principal aim of the youth justice system is the prevention of offending by children and young people, 'the emphasis should be on approaches that seem most likely to be effective with young people'. The fact that an offender is a young person has a direct effect on the sentence they receive. Part 3 of the guidance contains the following:

3.1 In addition to the distinctive range of penalties available for youths, there is an expectation that, generally, a young person will be dealt with less severely than an adult offender, although this distinction diminishes as the offender approaches age 18 (subject to an assessment of maturity and criminal sophistication). In part, this is because young people are unlikely to have the same experience and capacity as an adult to realise the effect of their actions on other people or to appreciate the pain and distress caused and because a young person is likely to be less able to resist temptation, especially where peer pressure is exerted. 3.2 Additionally, in most cases a young person is likely to benefit from being given greater opportunity to learn from mistakes without undue penalisation or stigma, especially as a court sanction might have a significant effect on the prospects and opportunities of the young person, and, therefore, on the likelihood of effective integration into society.

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3.3 When sentencing a young offender whose offence involves sexual activity but there is no evidence of a coercive or abusive relationship or of anything other than consensual activity, a court will need to be aware that a desire to explore gender identity or sexual orientation may result in offending behaviour. Depending on the seriousness of the offending behaviour, offender mitigation may arise where that behaviour stems from sexual immaturity or confusion. 3.4 Individual sanctions are likely to have a greater impact on a youth than on an adult, especially lengths of time spent in a custodial establishment, not least because of the exposure to influences likely to entrench criminal conduct (to which a young person may be more susceptible than an adult) and the greater risk of self harm than exists in relation to an adult. 3.5 It is also important to consider whether the young offender lacks the maturity fully to appreciate the consequences of his conduct and the extent to which the offender has been acting on an impulsive basis and the offender‘s conduct has been affected by inexperience, emotional volatility or negative influences. 3.6 Factors regularly present in the background of those juveniles who commit offences include: low family income, poor housing, poor employment records, low educational attainment, early experience of offending by other family members or of violence or abuse (often accompanied by harsh and erratic discipline within the home) and the misuse of drugs. There is also evidence that those young people who are ―looked after‖ have been more at risk of being drawn into the criminal justice system than other young people acting in similar ways. 3.7 It is clear that these factors do not cause delinquency (since many who have experienced them do not commit crime); nonetheless, there is a strong association and any response to criminal activity amongst young people will need to recognise the presence of such factors if it is to be effective. The following factors have led to a different approach to the sentencing of young people who offend (compared with the approach for adult offenders) and will affect the sentence imposed in an individual case:

offending by a young person is frequently a phase which passes fairly rapidly and therefore the reaction to it needs to be kept well balanced in order to avoid alienating the young person from society;

a criminal conviction at this stage of a person‘s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society;

the impact of punishment is felt more heavily by young people in the sense that any sentence will seem to be far longer in comparison with their relative age compared with adult offenders;

young people may be more receptive to changing the way they conduct themselves and be able to respond more quickly to interventions;

young people should be given greater opportunity to learn from their mistakes;

young people will be no less vulnerable than adults to the contaminating influences that can be expected within a custodial context and probably more so.

Para 4.1 says that, in determining the sentence, the key elements are:

the age of the offender (chronological and emotional),

the seriousness of the offence,

the likelihood of further offences being committed, and

the extent of harm likely to result from those further offences. The approach to sentence will be individualistic. Proper regard should be had to the mental health and capability of the young person, and to any learning disability, learning difficulty, speech and language difficulty or other disorder, any of which is likely to affect the likelihood of those purposes being achieved.

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Part 4 of the guidance continues:

4.2 The younger an offender (taking account of maturity and not just chronological age) the more likely it is that considering the welfare of the young person will be of greater significance. Since many young people ―grow out of‖ crime, the obligation to have regard to the welfare of a young person who has offended might in some circumstances be best manifested by protecting that person from the adverse effects of intervention in his or her life rather than by providing for some positive action. 4.3 The requirement to have regard to the welfare of a young person is subject to the obligation to impose only those restrictions on liberty that are commensurate with the seriousness of the offence; accordingly, a court should not impose greater restrictions because of other factors in the young person‘s life. 4.4 In relation to custodial sentences, the reconviction rate is high and there are concerns about the effect on vulnerable young people of being in closed conditions. Risks commonly found are those of self harm and suicide and, in relation to female offenders, the additional impact on the offender herself and on the child if the offender is the primary carer of a child or is pregnant. Since a court is obliged to have regard to the welfare of the young person, it must have regard to these issues when considering sentence. 4.5 Particular care should be taken where an offender has mental health problems, learning disabilities, learning difficulties or other disabilities. Research shows that there is a high incidence of these issues in young people in the youth justice system and, in particular, in custody. 4.6 These issues are not always able to be identified at an early stage in the proceedings leading to sentence. As a result, a court needs to be alert to the possibility that the conduct of the young person (and that of any adult accompanying them in court) might be affected by issues relating to mental health, learning or communication, or some other form of disability that has not previously been identified. 4.7 In such circumstances, care needs to be taken in ensuring that the young person is able to take a proper part in the court proceedings, is able to understand what the court requires as a result of the sentence imposed and that that sentence properly takes account of difficulties in compliance that may arise from those issues. 4.8 Some young people may attend court believing that they will be discriminated against or otherwise unfairly treated; this might be for any of a wide range of reasons including ethnicity and sexuality. However unjustified that belief is, a court will need to be alert to the fact that the young person‘s behaviour in court might be affected by it. 4.9 The obligations to treat the prevention of offending by children and young persons as the principal aim of sentencing and to have regard to their welfare both require a court to consider the impairments and life experiences noted above, not only in determining the sentence to be imposed, but also in determining the length or content of that sentence. The proper approach for the Crown Court, a magistrates‘ court or a youth court when sentencing a young offender is for the court, within a sentence that is no more restrictive on liberty than is proportionate to the seriousness of the offence(s), to seek to impose a sentence that takes proper account of the matters to which the court must have regard ... by:

confronting the young offender with the consequences of the offending and helping the young offender to develop a sense of personal responsibility – these consequences may be experienced by the offender himself or herself, by the family of the offender, by the victim(s) of the offence and/or by the community;

tackling the particular factors (personal, family, social, educational or health) that put the young person at risk of offending;

strengthening those factors that reduce the risk that the young person will continue to offend;

encouraging reparation to victims;

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defining, agreeing and reinforcing the responsibilities of parents.

Part 5 of the SGC guidance deals with cases where the offender crosses a significant age threshold between the commission of an offence and the passing of sentence. This can be important because, in such cases, the maximum sentence at the date of conviction is greater than that available on the date on which the offence was committed. Para 5.2 says that, in such circumstances, the court 'should take as its starting point the sentence likely to have been imposed on the date on which the offence was committed'. Moreover, 'it will be rare for a court to have to consider passing a sentence more severe than the maximum it would have had jurisdiction to pass at the time the offence was committed even where an offender has subsequently attained the age of 18'. However, 'a sentence at or close to that maximum may be appropriate, especially where a serious offence was committed by an offender close to the age threshold'. Para 6.1 notes that certain sentences are available only where the offender is a ‗persistent offender‘, for example, a youth rehabilitation order with intensive supervision and surveillance or with fostering where the offender is aged between 10 and 14, and a detention and training order in relation to an offender aged between 12 and 14. Para 6.5 says that

In determining whether an offender is a persistent offender for these purposes, a court should consider the simple test of whether the young person is one who persists in offending: i) in most circumstances, the normal expectation is that the offender will have had some contact with authority in which the offending conduct was challenged before being classed as ―persistent‖; a finding of persistence in offending may be derived from information about previous convictions but may also arise from orders which require an admission or finding of guilt – these include reprimands, final warnings, restorative justice disposals and conditional cautions; since they do not require such an admission, penalty notices for disorder are unlikely to be sufficiently reliable; ii) a young offender is certainly likely to be found to be persistent (and, in relation to a custodial sentence, the test of being a measure of last resort is most likely to be satisfied) where the offender has been convicted of, or made subject to a pre-court disposal that involves an admission or finding of guilt in relation to, imprisonable offences on at least 3 occasions in the past 12 months.

Para 6.6 notes that 'even where a young person is found to be a persistent offender, a court is not obliged to impose a custodial sentence or youth rehabilitation order with intensive supervision and surveillance or fostering'. In particular, 'it is clear that Parliament expects custodial sentences to be imposed only rarely on those aged 14 or less'. Section 7 considers the responsibility of the parent, carer or appropriate adult. Para 7.3 emphasises the importance of the attendance of the adult, even if this produces delay. Chapter 21.2.2: Parental recognisance (p 891)

Paragraph 7.4 of Overarching Principles – Sentencing Youths considers the power of the court to bind over a parent or guardian if satisfied that such a course of action would

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be desirable in the interest of preventing the commission of further offences (such an order may not be made where the court imposes a referral order). This power has to be seen in light of the court's power to make a parenting order where it would be desirable in the interest of preventing the commission of any further offence. Where the offender is aged 16 or less and the court considers that a parenting order would be desirable, there is a presumption in favour of the order being made and reasons must be given if it is not made. However, para 7.4 says that 'In most circumstances where an order is necessary, it is more likely that a parenting order will be appropriate'. Paragraph 7.5 says that

When considering whether to impose a parenting order, the court should give careful consideration to the strength of the familial relationships and to any diversity issues that might impact on the achievement of the purposes of the order...

Chapter 21.9: Referral orders (pp 901-905) Paragraph 8.2 of Overarching Principles – Sentencing Youths notes that when a referral

order is made, the court determines the length of the order (between 3 months and 12 months) but the action taken during that order is decided by a Youth Offender Panel consisting of members of the community supported by a member of a Youth Offending Team. Paragraph 8.3 goes on to note that

When determining the length of an order, although the needs of the offender are a factor, the primary consideration in most circumstances is the relative seriousness of the offence. Given the mandatory nature of the order in many circumstances, it is less likely that the needs of the offender will be considered in a pre-sentence report. This consideration is more likely to take place once the order has been made and in preparation for the Panel meeting since, within the period of the order, the Youth Offender Panel will agree what needs to be undertaken by the young person both in the light of the nature of the offence and of the young person‘s needs.

The length of the order is considered in paragraphs 8.4 and 8.5:

A court should be prepared to use the whole range of periods allowed; in general, orders of 10–12 months should be made only for the more serious offences. Typically, the length of an order should be between 3–5 months for offences where the court assesses seriousness to be relatively low, between 5–7 months for an offence of medium level seriousness and between 7–9 months for an offence where the court considers seriousness to be relatively high.

Chapter 21.10: Youth Rehabilitation Orders (pp 905-917)

Part I of the Criminal Justice and Immigration Act 2008, which creates the new youth rehabilitation orders, came into force on 30 November 2009. However, the new regime is not applicable to any offence, or to any failure to comply with an order made in respect

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of an offence, which was committed before that date (see sch 27, para 1, of the 2008 Act). For offences committed after the commencement of Part I of the 2008 Act, supervision orders (chapter 21.3), attendance centre orders (chapter 21.4), curfew orders (chapter 21.5), exclusion orders (chapter 21.6) and action plan orders (chapter 21.7) are no longer available. The Sentencing Guidelines Council publication Overarching Principles – Sentencing Youths contains detailed guidance on the new non-custodial sentencing regime for

young offenders. Paragraph 10.3 notes that, even if an offence crosses the seriousness threshold for a youth rehabilitation order, the court is not obliged to make such an order. Where a youth rehabilitation order is made, para 10.4 says that, in determining the content and length of the order, the guiding principles are proportionality and suitability. Para 10.5 makes the point that a court may impose a youth rehabilitation order (other than one with intensive supervision and surveillance or fostering) for an offence that is not imprisonable. It should be noted that a youth rehabilitation order is not available in those cases where a referral order is mandatory (para 10.6). Paragraph 10.19 points out that it is not possible to make a youth rehabilitation order when the young person is already subject to another youth rehabilitation order or to a reparation order unless the court revokes those orders. Paragraphs 10.7 and 10.8 consider the effect of a guilty plea (and gives advice which is the same as that applicable to adult offenders):

Where a court is considering sentence for an offence for which a custodial sentence is justified, a guilty plea may be one of the factors that persuades a court that it can properly impose a youth rehabilitation order instead and no further adjustment to the sentence needs to be made to fulfil the obligation to give credit for that plea. Where the provisional sentence is already a youth rehabilitation order, the necessary reduction for a guilty plea should apply to those requirements within the order that are primarily punitive rather than to those which are primarily rehabilitative.

Para 10.9 says that, in determining the nature and extent of requirements to be included within a youth rehabilitation order and the length of the order, the key factors are ‗the assessment of the seriousness of the offence, the objective(s) the court wishes to achieve, the risk of re-offending, the ability of the offender to comply, and the availability of requirements in the local area‘. Para 10.10 goes on to say that ‗a court will be able to determine the nature and extent of the requirements within the order primarily by reference to the likelihood of the young person re-offending and to the risk of the young person causing serious harm‘. Paragraph 10.13 identifies three ‗intervention levels‘:

Standard level – for those who show a low likelihood of re-offending and a low risk of serious harm; in those circumstances, the order primarily will seek to repair the harm caused by the offence ... Enhanced level – for those who show a medium likelihood of

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reoffending or a medium risk of serious harm; in those circumstances, the order will, in addition, seek to enable help or change as appropriate ... Intensive level – for those with a high likelihood of reoffending or a high or very high risk of serious harm; in those circumstances, the order will, in addition, seek to ensure control of the young person as necessary to minimise the risk of further offending or of serious harm ...

Paragraphs 10.15 and 10.16 go on to say that:

Where a young person is assessed as presenting a high risk of re-offending or of causing serious harm despite having committed a relatively less serious offence, the emphasis is likely to be on requirements that are primarily rehabilitative or for the protection of the public. Care will need to be taken to ensure both that the requirements are ―those most suitable for the offender‖ and that the restrictions on liberty are commensurate with the seriousness of the offence. Where a young person is assessed as presenting a low risk despite having committed a relatively high seriousness offence, the emphasis is likely to be on requirements that are primarily punitive, again ensuring that restrictions on liberty are commensurate with the seriousness of the offence. In relation to young offenders, the primary purpose of punitive sanctions is to achieve acknowledgement by the young person of responsibility for his or her actions and, where possible, to take a proper part in repairing the damage caused.

So far as the length of the order is concerned, para 10.20 says that there are three main consequences:

where a supervision requirement is included, the obligation to attend appointments as directed by the responsible officer continues for the whole period;

where a young person is in breach of a youth rehabilitation order, one of the sanctions available to a court is to amend the order by including within it any requirement that it would have had power to include when the order was made; however, that new requirement must be capable of being complied with before the expiry of the overall period;

a young person is liable to re-sentence for the offence(s) for which the order was made if convicted of another offence whilst the order is in force.

On this basis, para 10.21 advises that:

In determining the length of an order, a court should allow sufficient time for the order as a whole to be complied with, recognising that the young person is at risk of further sanction throughout the whole of the period, but allowing sufficient flexibility should a sanction need to be imposed for breach of the order. Where appropriate, an application for early discharge may be made.

Paragraph 10.22 summarises the process for determining the requirements and the length of a youth rehabilitation order thus:

i) what requirements are most suitable for the offender? ii) what overall period is necessary to ensure that all requirements may be

satisfactorily completed? iii) are the restrictions on liberty that result from those requirements commensurate

with the seriousness of the offence?

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Chapter 21.10.1.17 and 21.10.1.18: Youth Rehabilitation Orders with intensive supervision and surveillance or with fostering (p 912)

Paragraph 10.23 of Overarching Principles – Sentencing Youths notes that such orders may be made only where the court is dealing with a young person for an offence punishable with imprisonment, and the offence(s) cross(es) the custody threshold, and custody would be appropriate. If the offender is under 15 at the date of the conviction, such an order may be imposed only if he or she is a ‗persistent offender‘ (as with the detention and training order). A youth rehabilitation order with intensive supervision and surveillance contains an ‗extended activity requirement‘ (which is subject to a maximum of 180 days in total). A supervision requirement and a curfew requirement have to be included and, where appropriate, the order may include additional requirements. Para 10.27 says that ‗when imposing such an order, a court must ensure that the requirements are not so onerous as to make the likelihood of breach almost inevitable‘. If the court imposes a youth rehabilitation order with fostering, the offender has to reside with a local authority foster parent for a specified period not exceeding 12 months. The court must be satisfied that the circumstances in which the young person was living were a significant factor in the offence, and that the imposition of a fostering requirement would assist in the offender‘s rehabilitation. Paragraph 10.28 notes that rights, such as those under Article 8 of the European Convention on Human Rights, will be engaged and that any interference with such rights must be proportionate. Paragraph 10.30 goes on to note that, where appropriate, a youth rehabilitation order with fostering may also include other requirements (and must include supervision). Paragraph 10.31 sounds a note of caution, saying that

It is unlikely that the statutory criteria will be met in many cases; where they are met and the court is considering making an order, care should be taken to ensure that there is a well developed plan for the care and support of the young person throughout the period of the order and following conclusion of the order...

Chapter 21.10.6: Breach of youth rehabilitation orders (pp 914-916) Paragraph 10.35 of Overarching Principles – Sentencing Youths observes that breach of

a youth rehabilitation order ‗may arise from a failure to keep an appointment or otherwise co-operate with the responsible officer or may arise from a failure to comply with one or more of the other requirements of the order‘. Paragraph 10.36 notes that, ‗even where a breach has been proved, a court is not obliged to make any order but may allow the youth rehabilitation order to continue as imposed. In contrast with the powers in relation to an adult offender, there is no obligation on the court to make an order more onerous‘. Where the court decides that a sanction is necessary, it can impose a fine (in which case the order continues in its original form), or amend the terms of the order, or revoke the order and re-sentence the offender.

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Para graph 10.39 says that

Before imposing a custodial sentence as a result of re-sentencing following breach, a court should be satisfied that the YOT and other local authority services have taken all steps necessary to ensure that the young person has been given appropriate opportunity and support necessary for compliance.

Paragraph 10.40 says that,

where the failure arises primarily from non-compliance with reporting or other similar obligations and a sanction is necessary, the most appropriate response is likely to be the inclusion of (or increase in) a primarily punitive requirement such as the curfew requirement, unpaid work, the exclusion requirement and the prohibited activity requirement or in the imposition of a fine. However, continuing failure to comply with the order is likely to lead to revocation of the order and re-sentencing for the original offence.

Paragraph 10.41 notes that, where the offender has ‗wilfully and persistently‘ failed to comply with a youth rehabilitation order, and the court re-sentences the offender for the original offence(s), the options open to the court include the making of a youth rehabilitation order with intensive supervision and surveillance even if the offence is not imprisonable or a custodial sentence would not have been imposed if the order had not been available. Breach of a youth rehabilitation order with intensive supervision and surveillance imposed following wilful and persistent breach of an order may result in the imposition of a detention and training order for 4 months even if the original offence is not imprisonable. Paragraph 10.42 says that, when considering whether a failure to comply is ‗persistent‘, the court should bear in mind that:

The primary objective when sentencing for breach of a youth rehabilitation order is to ensure that the young person completes the requirements imposed by the court. Where the failure arises primarily from non-compliance with reporting or other similar obligations, where a sanction is necessary, the most appropriate is likely to be the inclusion of (or increase in) a primarily punitive requirement. A court must ensure that it has sufficient information to enable it to understand why the order has been breached and that all steps have been taken by the YOT and other local authority services to give the young person appropriate opportunity and support. This will be particularly important if the court is considering imposing a custodial sentence as a result of the breach. Where a court is determining whether the young person has ―wilfully and persistently‖ breached an order, it should apply the same approach as when determining whether an offender is a ―persistent offender‖. In particular, almost certainly a young person will have ―persistently‖ breached a youth rehabilitation order where there have been three breaches (each resulting in an appearance before a court) demonstrating a lack of willingness to comply with the order.

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Chapter 22: Ancillary orders

Chapter 22.1: Compensation orders (pp 919-924)

In R v Bewick [2007] EWCA Crim 3297; [2008] 2 Cr App R (S) 31, it was said that a court should decline to hear applications for compensation that are unduly complex. The Court quoted from earlier cases, including R v Kneeshaw (1974) 58 Cr App R 439,

where it was said that:

It has been stressed in this court more than once recently that the machinery of a compensation order ... is intended for clear and simple cases. .... In a great majority of cases the appropriate court to deal with the issues raised by matters of this kind is in the appropriate civil proceedings. A compensation order made by the court can be extremely beneficial as long as it is confined to simple, straightforward cases and generally cases where no great amount is at stake.

Also relevant is Hyde v Emery (1984) 6 Cr App R(S) 206, where Watkins LJ said:

the process of making compensation orders should be a very simple one. Courts should not be invited, and if invited, should decline the invitation, to endeavour to proceed to make compensation orders upon evidence out of which arise questions difficult to resolve of either fact or law or both.

Chapter 22.5.1: Confiscation orders (pp 927-929)

In R v Seager [2009] EWCA Crim 1303; [2010] 1 WLR 815, Aikens LJ (at para 72) summarises the correct approach thus:

In the case of POCA 2002, the court must first decide whether the offender has a "criminal lifestyle": s 6(4)(a). If the answer is "yes", then the court must decide whether the offender has "benefited from his general criminal conduct". If the answer to the first question is "no", then the court must decide whether the offender has "benefited from his particular criminal conduct": s 6(4)(b) and (c). In each case, "benefit" is defined by s 76(4) of POCA 2002, as follows: "a person benefits from conduct if he obtains property as a result of or in connection with the conduct". Section 76(7) stipulates that "…if a person benefits from conduct his benefit is the value of the property obtained".

This systematic approach was commended in R v Whittington [2009] EWCA Crim 1641;

[2010] 1 Cr App R (S) 83. Moses LJ, at para 9, commented that:

It is vital that the questions are kept distinct and that the court conducting the hearing resolves them as part of a sequential process. Laborious though this is, it reduces the risk of losing the way in the labyrinthine provisions and ensures that at each stage the particular issue which the judge is addressing is clear. In that way confusion over who has to prove what and to which standard may be avoided or, perhaps more realistically, there is a better chance of avoiding confusion.

At para 41, his Lordship added:

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We wish to stress the importance of following the statutory process for establishing the recoverable amount for the purposes of s 6 of the 2002 Act. This process ... not only ensures that the court avoids misdirection but also that it sets out its reasons for its conclusion.

Chapter 22.5.3: Confiscation orders – recoverable amount (pp 930-931) In Grayson v UK (2009) 48 EHRR 30, the European Court of Human Rights rejected the

contention that, in confiscation proceedings, the fact that the legal burden of proof is on the defendant to show that he does not have 'realisable assets' equivalent to the 'benefit figure', is in breach of Article 6 of the ECHR. The Court held (at para 49) that it is ‗not incompatible with the notion of a fair hearing in criminal proceedings to place the onus on each applicant to give a credible account of his current financial situation‘. Chapter 22.5.6: Confiscation orders: enforcement (pp 932-933) R (Minshall) v Marylebone Magistrates' Court [2008] EWHC 2800 (Admin); [2010] 1

WLR 590, it was held that confiscation proceedings are analogous to the determination by a court of the amount of a fine and so the requirements of Article 6 of the ECHR apply ‗throughout the entirety of proceedings‘ for enforcement of the confiscation order. However, Pitchford J concluded, at para 51, that ‗While the period between imposition of the confiscation order and the enforcement proceedings was unusually long … it was not unreasonable within the meaning of Art 6. … [T]here may be some cases in which delay caused by the appeals process, for which the State is responsible, may without more be unreasonable in itself; if so, a breach of Art 6 is at risk‘. In the present case there was ‗nothing to suggest that that [the time taken in the appeals process] was unreasonable or unjustifiable‘. Moreover, the claimant had utilised the appeals process to its full extent, as well as frustrating the purpose of the restraint order by dissipating his money assets. Chapter 22.7: ASBOs (pp 936-947)

In R v Charles [2009] EWCA Crim 1570; (2009) 173 JP 481, it was hled that the burden

of disproving reasonable excuse under s 1(10) of the Crime and Disorder Act 1998 rests on the Crown where the defendant has raised the issue on the evidence before the court. Thus, the Act imposes only an evidential burden on the defendant, but leaves the legal burden on the Crown. Simon Hoffman and Stuart MacDonald, in Should ASBOs be civilized? [2010] Crim LR

457, discuss whether the ASBO procedure should be made into a wholly civil process.

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Chapter 22.8.3.1 and 22.8.3.2: Disqualification from driving (pp 949- 951)

Section 137 and sch 16 of the Coroners and Justice Act 2009 provide for the extension of driving disqualification in cases where the court also passes a custodial sentence. New provisions (s 35A of the Road Traffic Offenders Act 1988 and ss 147A and 147B of the Powers of Criminal Courts (Sentencing) Act 2000) provide that the period of disqualification is extended by the period actually spent in custody.