Criminal Litigation-MCT suggestion

Chapter 1: Introduction

Magistrates’ court:        – has no inherent jurisdiction, only statutory.

– has some civil jurisdiction, eg. in family and domestic proceedings, and to grant licences in connection with sale of alcohol

In family proceedings, magistrates sit as ‘family proceedings court’, which must be constituted in similar way to youth courts.

Chapter 2: Preliminaries

Right to prosecute

The DPP is head of the CPS.  The main duty of CPS is to take over and conduct all criminal proceedings commenced by police, which includes power to discontinue proceedings or to change or amend any charges originally preferred.

Individuals and certain statutory bodies still have rights to institute and conduct criminal prosecutions.  However, DPP has unfettered discretion to intervene in any proceedings and conduct them on his behalf.

2.2 Arrest and Charge

Two methods or commencing prosecutions: arrest and charge, and issue of process.

Most police powers of arrest, interviewing and charging are contained in Police and Criminal Evidence Act 1984 (PACE 1984) and the Codes of Practice.

Codes of Practice

  • contain detailed regulations on exercise of police powers
  • also contain ‘notes for guidance’, which are not provisions of the codes.  There are five codes:

Code A: Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search

Code B: Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons and Premises.

Code C: Code of Practice for the Detention, Treatment and Questioning of Persons by Prison Officers.

Code D: Code of Practice for the Identification of Persons by Police Officers.

Code E: Code of Practice on Tape Recording.

  • apply to police officers and to persons other than police officers who are charged with the duty of investigating offences or charging offenders, including store detectives, customs officers

Powers of arrest without warrant

Police officer has a number of powers of arrest, the most important of which are:

  1. if the offence is designated by PACE 1984, s 24, as an ‘arrestable offence’.  These are:

i.      where sentence for the offence is fixed by law (eg. murder)

ii.      where offence carries at least 5 years’ imprisonment

iii.      specified offences (eg. taking a motor vehicle without authority)

  1. under PACE 1984, s 25, if police officer has reasonable grounds for suspecting that an offence, not included with s 24, has been committed or attempted, he may arrest the person he suspects of committing the offence, if one of the following ‘general arrest conditions’ is satisfied:

i.      that it is impossible to ascertain accurately the suspect’s name and address.

ii.      that officer has reasonable grounds for believing that arrest is necessary to prevent the suspect:

–         causing physical injury to himself or another; or

–         suffering physical injury; or

–         causing loss or damage to property; or committing offence against public decency; or

–         causing unlawful obstruction of highway.

iii.      that officer has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the suspect.

  1. under preserved pre-existing powers of arrest created under earlier statutes, such as where suspect fails to provide breath test
  1. to arrest any person who, having been bailed by police subject to a duty to attend at a police station, fails to do so
  1. specific powers of arrest relating to offences of fear or provocation of violence, and harassment, alarm or distress
  1. constable in uniform has power to remove trespassers from land, to seize and remove any vehicle after a request to remove has been refused, and powers re raves.

Effecting arrest

  • person is arrested by being informed by police officer that he is under arrest, or being physically seized by police officer, and then being informed that he is under arrest as soon as practicable
  • arrested person must be told reason for arrest, even if obvious
  • if reason given renders arrest unlawful, irrelevant that there was a valid reason for the arrest that was not communicated to arrested person at that time
  • not necessary that arresting officer supply reason, provided that as soon as practicable thereafter reason is given
  • if officer arrests person because has reasonable cause to suspect that person has committed an arrestable offence, but knows that there is no possibility of a charge being made, arrest is unlawful
  • arrested person must be taken immediately to a police station, unless it is reasonable to carry out other investigations first
  • if it is anticipated that detention will exceed 6 hours, arrested person must be detailed in a designated police station
  • nothing improper in arresting suspect on holding charge provided there are reasonable grounds for arresting on that charge; makes no difference, if arrest is proper, that motive is to investigate other and more serious offences.  BUT, again, if arresting officer knows no possibility of initial charge being brought, arrest will be improper even if there are reasonable grounds for suspecting that offence has been committed.

Serious arrestable offences

Certain offences as defined as serious arrestable offences:

(a)     treason

(b)     murder

(c)     manslaughter

(d)     rape

(e)     kidnapping

(f)      incest with girl under 13

(g)     buggery with boy under 16 who has not consented

(h)     indecent assault which constitutes act of gross indecency

(i)       causing explosions likely to endanger life or property

(j)       intercourse with girl under 13

(k)     possession of firearms with intent to injury

(l)       use of firearms and imitations to resist arrest

(m)    carrying firearms with criminal intent

(n)     causing death by dangerous driving

(o)     hostage-taking

(p)     hijacking

(q)     terrorist offences

(r) any arrestable offence if its commission has led to or is intended to or is likely to or consists of making a threat which if carried out would lead to:

i.      serious harm to the security of the State or to public order

ii.      serious interference with the administration of justice or with the investigation of offences or of a particular offence

iii.      death of any person

iv.      serious injury to any person

v.      substantial financial gain to any person

vi.      serious financial loss to any person

With serious arrestable offences, no greater power of arrest, but wider powers of detention.

At the police station

A person who attends at a police station voluntarily is entitled to leave at any time, unless arrested so as to prevent leaving.

A person who has been released may not be re-arrested without warrant for the original offence unless new evidence justifying a further arrest has come to light

Timetable for detention of arrested person (‘suspect’):

STAGE 1: at police station, suspect is taken to custody officer, who is not involved in the investigation.  Custody officer has several duties re suspect:

(a)         to inform suspect of rights to consult solicitor, to have someone informed and to examine Codes of Practice

(b)        to maintain custody record – complete records of suspect’s detention, including times of meals, interviews, the charge

(c)         to oversee whole of suspect’s detention

(d)        to order release of suspect, or his charge, unless continued detention without charge is necessary:

i.      to secure or preserve evidence relating to the offence; or

ii.      to obtain such evidence by questioning him.

STAGE 2: if custody officer authorises detention, periodic reviews of detention must be made by a review officer.  If suspect not yet charged, review officer must be not directly involved in the investigation, and at least at rank of inspector.  First review must be held within 6 hours of original decision to detain.

STAGE 3: second review of detention must be held within 9 hours of first review.  Reviews must be held thereafter within intervals of 9 hours.  Failure to review renders previously lawful detention unlawful and amounts to tort of unlawful imprisonment.

STAGE 4: after maximum of 24 hours after arrival at police station, suspect must be released or charged, unless all of following are satisfied:

(a)    continued detention is authorised by an officer, ‘authorising officer’ of at least rank of superintendent; AND

(b)   suspect is under arrest in connection with a serious arrestable offence; AND

(c)    the authorising officer has reasonable grounds for believing that the suspect’s continued detention is necessary to:

i.      secure or preserve evidence relating to the offence; or

ii.      obtain such evidence by questioning the suspect; AND

(d)   the authorising officer has reasonable grounds for believing that the investigation is being conducted diligently and expeditiously.

STAGE 5: after maximum of 36 hours after arrival at police station, suspect must be released unless a warrant of further detention is issued by magistrates’ court.  Court may authorise detention for further 36 hours if:

(a)    court comprises at least two magistrates; AND

(b)   application for the warrant of further detention is made on oath and supported by written information which is also supplied to the suspect; AND

(c)    the suspect is present in court; AND

(d)   the suspect is detained in connection with a serious arrestable offence; AND

(e)    the court is satisfied that the authorising officer has reasonable grounds for believing that the suspect’s continued detention is necessary to:

i.      secure or preserve evidence relating to the offence; or

ii.      obtain such evidence by questioning the suspect; AND

(f)     the court is satisfied that the authorising officer has reasonable grounds for believing that the investigation is being conducted diligently and expeditiously.

STAGE 6: after maximum of 72 hours, the court may authorise further detention of all the conditions of STAGE 5 are satisfied.  This further detention is for a maximum of 36 hours, and in any event, the court may not authorise detention for a period of more than 96 hours.

STAGE 7: no detention without charge is permitted after 96 hours.  Suspect must be charged and/or released.

The caution

Caution: You do not have to say anything.  But it may harm your defence if you do not mention, when questioned, something which you later rely on in court.  Anything you do say may be given in evidence.

‘Suspect/accused’ must be cautioned at each of:

–         arrest

–         questioning

–         charge

Person who has fallen under suspicion must be cautioned before any questions about offence are put for purpose of obtaining evidence which may be given to a court at trial.  If answers to questions already put give grounds for that suspicion, should be cautioned at that stage.

Since caution only required where there are ‘grounds to suspect’, need not be given where questions are merely general, such as to establish identity or ownership, or in furtherance of a proper and effective search, or to obtain verification of any written record of comments made outside context of an interview.

Caution must be given on arrest unless suspect cautioned immediately prior to arrest, or impracticable to administer caution by reason of suspect’s behaviour.

Caution should be re-administered after break in questioning.

Right to silence: now, legislation provides that court may draw such inferences from failure to answer questions as appear proper, if evidence is given that suspect/accused:

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be.

The interview

Interview is defined: the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences which … is required to be carried out under caution.

Once arrested, person must not be interviewed until at police station, unless delay would be likely to lead to interference with evidence, harm to persons, alerting suspects or hindering recovery of property.

An exchange goes beyond a mere request for information and amounts to an ‘interview’ where the suspect is, in effect, questioned about his involvement in the offence.  Once questioning becomes an interview, D is immediately protected by provisions of Code.  Breaches will be taken into account by court at subsequent trial in determining reliability of any confession.

At beginning of interview, interviewing officer must identify himself and any other officer present.

All interviews with persons cautioned in respect of an indictable offence or where questions are put to, or a statement of another person is shown to, a person who has been charged should be tape-recorded.

Tapes need not be made if it is not reasonably practicable to do so for reasons such as failure of equipment and custody officer considers that interview should not be delayed.

Persons at risk

Special rules apply to ‘persons at risk’, ie. juveniles, mentally ill and mentally handicapped.  Though capable of giving reliable evidence, such persons may be unknowingly or without wishing to do so be prone to providing information which is unreliable, misleading or self-incriminating.

Investigating officers should seek corroboration of any facts admitted wherever possible.

Persons at risk should normally be interviewed in presence of an appropriate adult.  This is someone capable of understanding what is happening and not someone estranged from the subject.  This person is not simply to act an observer.  Has duties to:

i.         advise person being question and observe whether interview is being conducted fairly; and

ii.       to facilitate communication with person at risk

The appropriate adult must be informed of these duties.

In an emergency, person at risk may be question in absence of appropriate adult if:

  • the interview is authorised by an officer of at least rank of superintendent; and
  • the officer considers that delay will involve an immediate risk of harm to persons or serious loss of or damage to property.

The rights of the suspect

1. the right to consult a solicitor

  • person who has been arrested and is being held in custody is entitled, upon request, to consult privately with solicitor at any time
  • must be informed of this right by custody officer on arrival at police station
  • must sign custody record indicating whether or not a request was made
  • request must be complied with as soon as is practicable
  • if solicitor is available at time of the interview, the suspect must be allowed to have the solicitor present during it.
  • the right may not be denied, but may be delayed for up to 36 hours after suspect’s arrival at police station if:

i.                     suspect is detailed in connection with a serious arrestable offence; AND

ii.                   delay is authorised by officer of at least superintendent rank; AND

iii.                  the authorising officer has reasonable grounds for believing that immediate consultation will lead to:

a.       interference with or harm to evidence connected with a serious arrestable offence or interference with or physical injury to other persons; or

b.      the alerting of other persons suspected of having committed the offence but not yet arrested for it; or

c.       the hindrance of the recovery of any property obtained as a result of such an offence.

  • the suspect must be told why access to solicitor has been delayed, and reason must be entered on custody record
  • wrongful denial of access to solicitor may lead to any confession being excluded at trial

2. the right to have someone informed

  • suspect has right to have some person known to him or likely to take an interest in his welfare, told of the arrest
  • no right to make personal contract, it being the duty of police to pass on the information
  • request must be complied with as soon as practicable
  • may be delayed in same circumstances as right to consult a solicitor

3. the right to consult the Codes

  • suspect as right to consult all the Codes of Practice
  • does not entitle him to delay unreasonably any investigation or administrative action

The charge

When investigating officer considers that there is sufficient evidence upon which to prosecute, must take suspect before custody officer who will decide whether he should be charged.  If charged, he should first be cautioned and any answers made will be recorded.

Once charged, suspect may not be asked any further questions except where necessary:

(a)    to prevent or minimise harm or loss to some other person or to the public; or

(b)   to deal with points made in a statement or interview with another person, in which case the contents of such statement or interview should be handed to the suspect without comment;

(c)    under special rules relating to Serious Fraud Office.

Before further questions put, suspect should first be cautioned.

Decision to release

After charge, custody officer must order suspect’s release from custody unless:

(a)    suspect’s name or address cannot be ascertained

(b)   custody officer has reasonable grounds for doubting whether name and address supplied are genuine

(c)    custody officer has reasonable grounds for believing that:

i.      suspect will not surrender to bail; or

ii.      (imprisonable offences) detention is necessary to prevent him from committing an offence; or

iii.      (non-imprisonable offences) detention is necessary to prevent him from causing physical injury to any other person or loss or damage to property; or

iv.      detention is necessary to prevent him from interfering with administration of justice or with investigation of any offence; or

v.      detention is necessary for his own protection.

If suspect is to be released after charge, likely to be bailed to attend at appropriate magistrates’ court to answer to the charge on a specified day.

The bail decision is taken by the custody officer, who may not impose conditions on the grant of bail unless it appears necessary to do so for the purposes of preventing the bailed person from:

(a)    failing to surrender to custody; or

(b)   committing an offence while on bail; or

(c)    interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person

Main difference between conditions imposed by police and those imposed by court are:

(a)    court, but not police, has power to order reports be complied on bailed person;

(b)   court, but not police, may require bailed person to reside in bail hostel;

(c)    where custody officer has granted bail, he may vary conditions of bail at request of bailed person.  Or, bailed person may apply to magistrates’ court to have conditions of bail varied

Person who is subject to investigation but not yet been charged may be bailed, with or without conditions, to attend at police station on specified date.

Decision to detain

If suspect is detained after charge, must be brought before magistrates’ court as soon as is practicable, and in any event not later than the first sitting after he has been charged with offence.  If no suitable court is sitting, clerk must be informed and a special sitting will be arranged.

If release is authorised, the suspect is bailed to appear before the magistrates’ court on a specified day to answer the charge.

2.3 Issue of Process

Laying of information and subsequent issue of summons (together called ‘issue of process’ is appropriate where offence involved is not particularly serious, although nothing to prevent all prosecutions beginning in this manner.

The information

Is a formal accusation that a certain individual has committed an offence.  Will contain:

(a)    name and address of the accused;

(b)   the statement of the offence.

(c)    place of the offence;

(d)   date of the offence;

(e)    signature of the prosecutor.

Statement of the offence need not be in technical language, so long as all elements of the offence are included and it gives clear information as to the nature of the charge.  If offence is statutory, the relevant Act and section must be quoted.

Each information must charge only one offence.

Signature may be of individual officer or rubber-stamp signature of senior officer.

The information must be laid in the name of an individual, not by an unincorporated body corporate.

Date of offence

  • magistrates may only proceed to trial of purely summary offence if information laid within 6 months of offence (unless statute creating the offence provides otherwise)
  • where information laid through computer link between police station and magistrates’ court, information is treated as being laid when it is fed into computer, regardless of when information is printed by court

Where defendant informed, within 6 month time limit, that he faced prosecution for road traffic offence, but police had previously written to him saying they after careful consideration no action would be taken, issue of summons was stayed on ground that it was an abuse of process.

  • where information laid within 6 months but summons not served promptly, due to either inefficiency or deliberate abuse of process, magistrates have discretion to dismiss information and acquit accused without hearing any evidence

NB: this is the only situation where magistrates have such discretion.  Other than this, may not dismiss an information without trial

Laying the information

Most informations laid in writing, but also possible to be laid orally.

Issuing the summons

Summons is document issuing from the court telling accused that an allegation has been made and instructing him to attend court to meet that allegation.  Must contain:

(a)    name and address of accused;

(b)   address of court to be attended;

(c)    date and time of hearing;

(d)   contents of the information laid;

(e)    name and address of the informant.

When deciding whether or not to issue summons, magistrate or clerk is exercising a judicial discretion.  In theory, magistrate has discretion not to issue summons if appears that prosecution is frivolous or vexatious, where charge not supported by the evidence.  In practice, issue of summons is usually automatic.

Once summons has been signed, everything is returned to informant.  Police will serve summons, usually by posting to accused’s last known or usual address.

Jurisdiction to issue process

Court has power to issue process subject to territorial limitations:

(a)    where offence is purely summary, court may issue process if:

i.      offence occurred within county; or

ii.      accused is already being tried for an offence by that court (whether indictable or summary)

(b)   where offence is indictable, court may issue process if offence was committed within the county, or accused is believed to be or lives in the county

(c)    in either case, court may issue process if it is necessary or expeditious in the better administration of justice that accused should be tried jointly with another person who is being proceeded against in that county.

Trying 2 or more information

  • where several accused are jointly charged with offence, almost always be automatically tried together, despite any objection they will make
  • where one accused charged with several matters, or several accused charged with related offences, may be tried together so long as no objection is made.  If objection is made, magistrates will order separate trials unless of opinion that offences are so connected that interests of justice would best be served by a single trial

If magistrates decide against single trial, those magistrates should be debarred from hearing the case since they are supposed to be unaware of any charges outstanding against accused.


Court has wide powers to amend information (or summons or warrant).  Defects in the information, or any variations between the information and the evidence subsequently adduced, are not grounds upon which objection may be taken.

  • if defect or variation trivial, and accused not misled, any subsequent conviction will be upheld
  • if defect or variation substantial, prosecution should seek to amend information
  • magistrates will consider whether accused has been misled by the defect, and if so, offer adjournment so that he can prepare for and meet new case
  • failure either to amend to adjourn is likely to lead to quashing of any subsequent conviction

An information may be amended, even to allege different offence, including purely summary offence, more than 6 months after it was laid, provided offence arose from same incident as offence originally charged and amendment was in interests of justice.

Late amendments cannot cure an information which discloses no offence known to law.


An information is duplicitous when two offences are charged within it.  Prosecution may elect which charge to proceed with.

2.4 Issue of a Warrant

Instead of issuing summons, magistrate may issue warrant for arrest.  Must contain:

(a)    name of the court;

(b)   name and address of accused;

(c)    the offence alleged;

(d)   signature of magistrate (not clerk!)

(e)    if warrant is to be backed for bail, any conditions of bail imposed


Before a warrant can be issued, the following conditions must be met:

(a)    the information must be in writing and supported by sworn evidence

(b)   the offence must be imprisonable (or accused is juvenile or resides at unknown address)

(c)    proceedings must take place before magistrate, not clerk

Warrants ‘backed for bail’

Warrants will be most likely used where accused fails to appeal in answer to summons or fails to surrender to bail.  Such warrants are often called ‘bench warrants’.

If magistrate thinks accused’s absence is due to error, may order that warrant be backed for bail, ie. conditions of bail upon which accused may be released once arrested are endorsed on back of warrant.  After arrest, accused must be released once conditions are complied with.

2.5 Jurisdiction to Try Offences

Similar to jurisdiction to issue process:

(a)    where offence triable either way, magistrates have power to try wherever offence committed, so long as accused has consented to summary trial

(b)   where offence triable summarily only, magistrates have power to try where:

i.      offence committed within county for which they act;

ii.      offence committed outside county, but court already trying accused for another offence’

iii.      offence committed outside county, but necessary or expedient in the better administration of justice that accused should be tried jointly with another person who is being proceeded against in county

Offence committed within 500 yards of county border may be dealt with by courts in either county.

2.6 Criminal Defence Service

Created ‘for purpose of securing that individuals involved in criminal investigations and proceedings have access to such advice, assistance and representation as the interests of justice require’.

‘Criminal proceedings’ means:

  • proceedings before any court for dealing with an individual accused of an offence,
  • proceedings before any court for dealing with an individual convicted to an offence (including proceedings in respect of a sentence or order)
  • proceedings for dealing with an individual re extradition
  • proceedings for binding an individual over to keep the peace or to be of good behaviour
  • proceedings on appeal
  • proceedings for contempt in the face of the court
  • such other proceedings concerning an individual, before any such court or other body, as may be prescribed.

A. Advice and assistance

The Legal Services Commission (LSC) (which runs the Criminal Defence Service) funds advice and assistance as it considers appropriate:

  • for individuals who are arrested and held in custody at a police station or other premises, and
  • for individuals involved in criminal investigations in such other circumstances as may be prescribed,
  • and for this purpose, ‘criminal proceedings’ means investigations relating to offences or to individuals convicted of an offence.

Advice and assistance also cover help from a solicitor including giving general advice, writing letters, negotiating, obtaining counsel’s opinion and preparing a written case.

In order to receive advice and assistance, applicant must pass the merits test.  To pass merits test, solicitor must be satisfied that advice required involves a legal issue concerning English law and there is sufficient benefit to the client, having regard to the matter and to the client’s circumstances, to justify the work being carried out.

The sufficient benefit test will be satisfied automatically for the purposes of initial advice given in a police station.

No means test for advice and assistance given to a person who is questioned by the police whether or not he has been arrested, and whether or not he is questioned at a police station.  LSC will only fund other advice and assistance if individual’s capital and income are within prescribed limits.  Individual will not be asked to pay a contribution.

Advice and assistance does not cover representation in court, except in limited circumstances.

B. Advocacy Assistance

Defined as ‘advice and assistance by way of advocacy before a court or tribunal together with any necessary preparatory work’.  Covers:

  • costs of solicitor preparing the case
  • costs of initial representation in certain proceedings in both magistrates’ court and Crown Court
  • also representation for those who fail to pay a fine or obey a magistrates’ court order and are at risk of imprisonment

In deciding whether client is entitled to Advocacy Assistance, solicitor must ask himself whether conditions of third bullet point above are satisfied.

  • if answer is no, or a duty solicitor is available and could deal with the case, Advocacy Assistance should re refused
  • if case not suitable for duty solicitor, next question is whether it is in the interest of justice that Advocacy Assistance be granted.  This involves considering:

(a)    whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation;

(b)   whether determination of any matter arising in the proceedings may involve consideration of a substantial question of law;

(c)    whether the individual may be unable to understand the proceedings or to state his own case;

(d)   whether the proceedings may involve the tracing interviewing or expert XX of witnesses on behalf of the individual; and

(e)    whether it is in the interests of another person that the individual be represented

(f)     whether there is a real risk of an order being made which if breached could deprive an individual of his liberty

(g)    whether it is reasonable in the circumstances for Advocacy Assistance to be granted.

If it is in the interests of justice for Advocacy Assistance to be granted, then it will almost always be reasonable.

If Advocacy Assistance is granted, application should be made for a Representation Order at earliest opportunity, and all word done under that order.

If Representation Order refused, Advocacy Assistance ceases unless client continues to meet the qualifying criteria.

There is no means test for advice and assistance for a person who is granted Advocacy Assistance.

C. Representation

LSC funds individuals who have a ‘right to representation’.  This right may be granted to an individual who is before the court for a ‘criminal proceeding’ (see above) and to enable him to resist an appeal to the Crown Court.

The court before which any proceedings take place, or are about to take place, has power to grant right to representation.  Where granted, it includes right to representation for related bail proceedings and other preliminary or incidental proceedings.

Right to representation is granted ‘according to the interests of justice’.  The court will take into account what the interests of justice consist of in relation to any individual:

(a)    whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation;

(b)   whether determination of any matter arising in the proceedings may involve consideration of a substantial question of law;

(c)    whether the individual may be unable to understand the proceedings or to state his own case;

(d)   whether the proceedings may involve the tracing interviewing or expert XX of witnesses on behalf of the individual; and

(e)    whether it is in the interests of another person that the individual be represented,

A ‘case’ means work carried out in criminal proceedings in respect of one offence or more than one offence, where one or more charges or informations are preferred or laid at the same time, or where the offences are allegedly founded on the same facts or form part of a series of offences.

Duty Solicitor Schemes

Two schemes, one for police stations and one for magistrates courts.  Not means tested.

Appeals against refusal of advice, assistance or representation

If D refused Advice and Assistance other then on ground of means, further application may be made to another court.

If Right to Representation refused, court will write giving reasons for refusal.  If refusal on grounds of means, no appeal.  If on ground of interests of justice, application may be made to another court to review the case.

Appeals against conviction or sentence

Representation Order, if granted, covers obtaining evidence on appeal and preparation of any application for leave or giving notice of appeal against conviction or sentence.  No separate Advice and Assistance required.

If no Representation Order granted, applicant may apply for Advice and Assistance.

Use of Counsel

Solicitors may generally instruct counsel to undertake contract work on their behalf.

General Criminal Contract

Solicitors in private practice only able to carry out LSC-funded criminal defence work if have a General Criminal Contract.  Relevant code of conduct sets out duties:

  • duty to act with integrity and independence
  • duty to act impartially and to avoid discrimination
  • duty to protect interests of client
  • duty of confidentiality

2.7 Costs

Court finally disposing of a case has power to make orders as to costs.

Defendant’s costs order

  • D who has been acquitted may have order made in his favour for payment of sums out of central funds for expenses properly incurred in the proceedings (may not be full amount claimed)
  • same applies where prosecution:

–         decides not to proceed with an information

–         offers no evidence

–         ask that counts remain on file market not to proceed with without leave of court

and where D is discharged at committal or successfully appeals.

Where D is legally aided and acquitted, a defendant’s costs order will not be made in his favour, except insofar as D has incurred costs which are not covered by the legal aid order.

Prosecution costs

Where offence is indictable, a private prosecution may be awarded, out of central funds, an amount which court thinks reasonably sufficient to compensate for expenses properly incurred.  The prosecution does not have to be successful for such an order to be made.

Costs against defendant

If D is convicted, he may be ordered to pay to prosecution such sum as is just and reasonable.  Account should be taken of D’s means.

Making the order

  • making of costs order is discretionary
  • court will normally make order in D’s favour, unless there are positive reasons for not doing so, eg. where D’s own conduct has brought suspicion on himself and has misled prosecution into thinking case against him is stronger than it was
  • order may be made where a person:

(a)    is not tried on an indictment for which he has been indicted or committed for trial; or

(b)   has been acquitted on any count in the indictment

  • the order may be made where court is satisfied that D or appellant has means and ability to pay.  Should be able to pay amount within a reasonable period of about a year.  But for fines, reasonable amount should be payable in a matter of weeks
  • there are guidelines for the court in making an order for costs:

(a)    D’s means and any other financial order should be ascertained so that the costs order does not exceed a reasonable sum that D is able to pay;

(b)   sum should never be more than the costs actually incurred;

(c)    the policy is to compensate the prosecutor and not to further penalise D;

(d)   a costs order should be proportionate to the level of the fine and where the total of fine and costs are excessive, costs should be reduced accordingly;

(e)    onus is on D to provide details of means; in default, magistrates are entitled to deduce financial circumstances from available evidence;

(f)     D must be allowed opportunity to produce information as to means and should be given notice of any unusual application for costs.

  • Courts will also take into consideration:

(a)    the choice of court of trial: D should not be ‘punished’ for electing trial on indictment by an excessive order for costs.  On other hand, nor should D be punished for an election made by prosecution

(b)   the plea: if D pleads guilty, an order for costs may still be made, although court may be persuaded it should be less.  If D pleads not guilty in face of overwhelmingly strong case when he must have known he was guilty, costs order would be appropriate

(c)    the rest of the sentence: if D is sentenced to custody, order for costs is unusual, but may still be made if court considers D has sufficient means

(d)   if sentence is non-custodial, D is responsible for own costs

(e)    if more than one D, amount of costs should be apportioned between them

Reducing delay in the criminal process

Powers of magistrates’ courts may be exercisable by a single justice of the peace, re extending or varying bail and dismissing information where no evidence adduced.

Also, there may be Early Administrative Hearings for the purpose of dealing with legal aid issues.

Powers of a single justice may be exercised by a justice’s clerk, except for power to remand the accused in custody or remand the accused on bail on conditions other than any previously imposed.

Chapter 3: Remands and Bail

3.2 What is a Remand

Whether an adjournment is a remand depend on whether it falls within one or several statutory situations.  When an adjournment is a remand, the court is under a duty to decide whether D should be released on bail or kept in custody.  If not a remand, D is put on trust to return to court at place and time told to.

If D is remanded, he will be either kept in custody or freed on bail.  Bail imposes duty on D to return to court at appointed date, place and time, ie. D must surrender to custody.  D surrenders to custody by turning up at the court, on the due date, at the appointed time and reporting to the appropriate person.

3.3 When will a Case be Remanded

Whenever magistrates adjourn a case, they may remand D.

Several situations where statutes provide, on adjournment, that magistrates’ court must remand D and then consider bail or custody:

1.      When D first appeared in the court, was he on bail or in custody?

If YES – he must now be remanded (on bail or in custody).

If NO –

2.      Has D been remanded at any time during the proceedings for this offence?

If YES – he must now be remanded (on bail or in custody).

If NO –

3.      The magistrates have a choice to remand or simply adjourn.

Situations where remand is required

i. magistrates dealing with an offence triable either way: if before, during or after summary trial of such offence, an adjournment is needed, then usually D must be remanded

ii. magistrates determining which court will try an ‘either way’ offence: if magistrates adjourn while determining whether D will be tried by magistrates or jury, usually D must be remanded

iii. magistrates committed an accused to the Crown Court for trial: following decision to send accused to Crown Court for trial, if accused is currently remanded in custody the magistrates may either order that he be kept in custody pending trial or released on bail with direction that he appeal before Crown Court for trial

iv. magistrates dealing with a summary offence: prior to deciding whether D is guilty or innocent in respect of summary offence, magistrates may have to adjourn proceedings.  If so, have a choice between remanding or simply adjourning.  If D fails to appeal on next appointed date, magistrates may proceed to try case in absence of D or issue warrant for arrest

v. magistrates deferring sentence: where magistrates’ court defers sentence on convicted D, this is not a remand and D, although released subject to a duty to return, is not on bail.

3.4 Who can Remand a Case?

Simple adjournments never seem to arise in the Crown Court.  A D who is committed to Crown Court (for trial or sentence) will be remanded either on bail or in custody.  Once there, Crown Court judge has power to grant bail for the period before the matter is dealt with.  Once Crown Court trial started, judge will remand accused either in custody or on bail during any breaks.

3.5 Duration of Remands

Various maximum periods for remand by magistrates in different situations:

Before conviction

  • 3 clear days in policy custody
  • 8 clear days in prison custody (exception: if an either way offence is to be tried by magistrates but they cannot convene in time, remand to whenever they can convene)
  • 28 clear days in prison custody if D legally represented in court, aged 17+ and consents to being remanded for this length of time
  • 28 clear days in prison custody if D has at least that long still to serve on a current custodial sentence
  • any period to which both prosecution and defence agree on bail

After conviction

  • 3 weeks in custody for inquiries or reports for sentencing
  • 4 weeks on bail for inquiries, etc.

Each of these periods is the maximum duration for a single remand.  At its conclusion, D will be produced and, subject to custody time limits, may again be remanded for a further period.

Once D is sent to Crown Court, either for trial or sentence to be passed, he is remanded on bail or in custody until such time as case is listed for hearing (subject to custody time limits).

Now, magistrates may remand an accused person for up to 28 clear days, without consent of D and without need for a defence lawyer, provided that:

  • accused has been remanded in custody already in the case; AND
  • accused is present in court when the extended remand is ordered; AND
  • court has fixed a date when next stage in the proceedings will take place.

3.6 Alternatives to Remand

1. try the case anyway

If case is ready for summary trial and accused does not appeal, magistrates may go ahead and try case in accused’s absence, having entered a formal plea of not guilty.  The power to try absent D’s does not exist in the Crown Court – the accused must be present at the start of a jury trial to enter a plea to the indictment personally.

Note, the ‘statutory declaration’: convicted person has ability to declare that he did not know of the proceedings or summons which resulted in his conviction.  Once declaration is made and served on clerk to the justices, then the summons and all subsequent proceedings (such as summary trial and guilty verdict) are void.

2. adjourn to another date

No penal sanction exists in this situation to compel attendance on the adjourned hearing.

3. adjourn indefinitely and issue warrant for arrest

If accused does not appear, result will usually be issue of warrant for his arrest.

When D is arrested on a bench warrant, will usually stay in custody until a court hearing can be arranged.  However, magistrates can issue warrant and release D on bail without requiring a court hearing upon arrest.

Crown Court judges can also issue bench warrants if D absent from court without permission.  Warrant may be issued once court is satisfied that the information against the accused has been supported on oath, that the accused is aware of the hearing and the offence is imprisonable.

Warrants may be issued for non-imprisonable offences of first two criteria are satisfied and court proposes to impose a disqualification on D.

4. dismiss the case

If prosecution not ready to proceed with summary trial, possible that magistrates will dismiss the charge if there has been a long delay between commission of the alleged offence and the court hearing.

3.7 Bail – Practice and Procedure

If D is granted bail, means that he is released from court subject to a primary duty, the duty to surrender, to attend next court hearing in the case.  Failure to surrender at appointed place, time and date is itself a criminal offence.  D who is released on bail subject only to the primary duty to surrender is often said to be released on ‘unconditional’ bail.  The primary duty may be accompanied by secondary duties, eg. to keep a curfew, to report to local police station, to surrender passport.  Secondary conditions are often called ‘conditions of bail’.

Right to bail

Section 4(1), Bail Act 1976, provides that a person to whom s4 applies shall be granted bail except as provided by Sch 1 of that Act.  Ie. s4 gives a ‘general right to bail’ for Ds in criminal litigation.  However, s4 does not apply to all Ds and not at all stages in litigation.  Also, even those Ds to whom s4 applies cannot demand to be released on bail automatically.  There is only a presumption that such a D will be released on bail if case remanded.

Bail Act, 1976, s4

(1)    A person to whom this section applies shall be granted bail except as provided in Sch 1 to this Act.

(2)    This section applies to a person who is accused of an offence when-

(a)    he appears or is brought before a magistrates’ court or the Crown Court in the course of or in connection with proceedings for the offence, or

(b)    he applies to a court for bail in connection with the proceedings.

This subs does not apply as respect proceedings on or against a person’s conviction of the offence or proceedings against a fugitive offence for the offence.

(3)    This section also applies to a person who, having been convicted of an offence