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Sending Indictable Only Cases to the Crown Court and Committal Proceedings

This Guidance was last updated 22nd November 2007

Principle

There are a number of ways for cases to get to the Crown Court and different considerations will apply to the handling of the case depending on which method is used

In committal proceedings and transfers for trial, a case should not be committed or transferred unless you are satisfied that the criteria for prosecution contained in the Code for Crown Prosecutors have been met.

In cases sent to the Crown Court under the provisions contained in section 51 of the Crime and Disorder Act 1998, the 'sending' is by way of an administrative act to determine whether there is an indictable only offence charged (and any "related offences") and if so, to send it or them to the Crown Court. The magistrates' court, where the first hearing takes place, is not concerned with evidential sufficiency at all. Application of the full test under the Code may not be possible until a full file is received. This will ordinarily be after the preliminary hearing at the Crown Court, but before service of the prosecution case. Prosecutors should seek to ensure, in the first instance, that the elements that would justify the charging of an indictable only offence are contained in the file, or are likely to be so in due course, and that the continuance of the prosecution as an indictable only matter is appropriate and proportionate to the circumstances as outlined in the papers.

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Guidance

Which Cases can be Tried in Which Court?

Indictable only offences may only be tried in the Crown Court.

Either way offences may be tried either in the magistrates' court (summary trial) or in the Crown Court (trial on Indictment).

In general, summary offences may only be dealt with in the magistrates' court.

However, some summary offences may be tried in the Crown Court in accordance with Section 40 Magistrates' Courts Act 1980: other summary matters may also be sent or committed to the Crown Court in certain circumstances -  refer to Summary Offences and the Crown Court:, and later in this guidance.

Also, some either way offences must be tried in the magistrates' court in accordance with section 22 Magistrates' Courts Act 1980 (e.g. criminal damage) where the value involved renders them liable to be triable as summary offences refer to Criminal Damage elsewhere in the legal guidance.

Additionally, summary offences which are related to an indictable offence must (or may) be sent to the Crown Court with the indictable only matter under the section 51 Crime and Disorder Act procedure: refer to Sending Cases to the Crown Court, below in this section.

In certain circumstances, some either way cases become triable only on Indictment, including:

  • Trafficking a class A drug where the accused has two previous convictions for such an offence (section 110 of the Powers of the Criminal Courts (Sentencing) Act 2000 - post September 1997) (Archbold 5-252);
  • Burglary of a dwelling (section 111 of the same Act - post November 1999) (Archbold 5-253);
  • An either way offence which is charged together with an offence under the Firearms Act 1968 (Schedule 6, Part II, paragraphs 3) (Archbold 24-44);
  • Burglary of a dwelling where violence was used or threatened against anyone within the house (Schedule 1, paragraph 28(c) Magistrates' Courts Act 1980) (Archbold 1-75af).

The Different Ways of Getting Cases to the Crown Court

Cases to be tried in the Crown Court proceed there in the following ways:

  • sending under section 51 of the Crime and Disorder Act 1998; refer to Committal Proceedings, below in this section or
  • transfer proceedings in accordance with Section 4 of the Criminal Justice Act 1987 (certain fraud cases).
  • a voluntary Bill of Indictment in accordance with Section 2(2) (b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 refer to Voluntary Bills of Indictment,  elsewhere in this guidance.

Note: indictable only charges that could, prior to 15 January 2001, be transferred under either the 1987or 1991 Acts are required to be sent under the section 51 procedure (Schedule 8, paragraphs 65 and 93 Crime and Disorder Act 1998).

Whichever way a case proceeds to the Crown Court a Bill of Indictment will need to be prepared refer to Crown Court Case Preparation, elsewhere in this guidance.

Sending Defendants Charged With Indictable Only Cases to the Crown Court

From 15 January 2001, committal proceedings for indictable only offences were abolished and new provisions contained in Sections 51, 52 and Schedule 3 of the Crime and Disorder Act 1998 were introduced (Archbold, 1-14)

Defendants charged with an indictable only offence and appearing before a magistrates' court for the first time on or after this date should be sent "forthwith" to the Crown Court.

There is currently no provision for sending defendants to the Crown Court in their absence.

At the hearing, the magistrates will consider whether the defendant should be granted bail.

Either-way and summary only offences charged against the defendant should be sent to the Crown Court with the indictable only offence provided they fulfill the 'requisite conditions' refer to Linking Either Way & Summary Offences, below in this section.

Where a defendant, who has been sent for trial on an indictable only offence, appears at the magistrates' court subsequently charged with an either way or summary offence which fulfils the requisite conditions, the court may send him forthwith to the Crown Court for those offences. If the court decide not to send the defendant to the Crown Court, plea before venue and mode of trial should follow as normal (Section 51(2) of the Crime and Disorder Act 1998).

The Requisite Conditions that Link Either Way and Summary Only Offences to an Indictable Only Charge

In the case of an either way offence, the requisite conditions are satisfied if it appears to the court that the either way offence is related to the indictable only offence i.e. they can be joined in the same Indictment (Section 51(11) and (12) of the Crime and Disorder Act 1998) (Archbold 1-154).

The requisite conditions for summary offences are that they must be punishable with imprisonment or involve obligatory or discretionary disqualification from driving and arise out of circumstances which are the same as or connected with those giving rise to the indictable only offence (Section 51(11) and (12) of the Crime and Disorder Act 1998).

Sending Co-Defendants in section 51 Cases

Naturally, if a co-defendant is also charged with an indictable only offence, he must be sent to the Crown Court in the normal way whenever (s)he appears in front of the court.

If a co-defendant is jointly charged with an either way offence with a defendant and the joint either way offence is related to an indictable only matter charged against the defendant, and the co-defendant appears at the magistrates' court on the same occasion as the defendant, the court must send them both for trial. Any other matter, which fulfils the requisite conditions (either way or summary), charged against the co-defendant must then also be sent (Section 51(3) and (4) of The Crime and Disorder Act 1998).

However, if a co-defendant, charged with a related (joint) either way offence, appears at a magistrates' court on a subsequent occasion to the sending to the Crown Court of the defendant charged with the indictable only and joint either way offence, the court has a discretion whether to send the co-defendant to the Crown Court or to allow plea before venue to take place. Again, if the co-defendant is sent, any other matter, which fulfils the requisite conditions (either way or summary), belonging to the co-defendant must then also be sent.

Factors that may affect the court's decision to send the case or to allow the defendant to elect summary jurisdiction will vary according to the circumstances of the case, but may include the length of time between the sending of the defendant charged with the indictable only offence and any subsequent sentence on the charge, or an indication that there will be, or not as the case may be, two separate trials on the either way charge. There will be many other factors on which you may need to make representations, one way or the other. Try and discuss the issues with the defence advocate before the hearing to see if agreement can be reached.

Section 51 and Children/Young Persons

Where the co-defendant is a child or young person who is jointly charged with an indictable offence, if the adult is sent for trial (either on that or a previous occasion), the magistrates must send the child/young person for trial, but only if it believes that a joint trial is in the interests of justice. Other matters with which the child or young person is charged and which fulfill the requisite conditions may then also be sent (Section 51(5) and (6) of the Crime and Disorder Act 1998.

There is no necessity to undertake any mode of trial so far as the cases charged against the child or young person is concerned.

NB When a youth is sent to the Crown Court under s 51, he may be remitted to the Youth Court for trial if there is no longer an indictable offence on the indictment, UNLESS the either way offence remaining is a grave crime requiring Crown Court trial, or the interests of justice no longer require a joint trial with the adult co-defendant - Schedule 3 paragraph 13(2) Crime and Disorder Act 1998

Section 51 and Dangerous Young Offenders

Section 51 was amended by the Criminal Justice Act 2003, by inserting a new section 51A into the Crime and Disorder Act 1998. Eventually, this will allow for all appropriate cases to be sent to the Crown Court, once a determination of venue has been undertaken, or if they are cases which the court must send to the Crown Court. However, at present (Nov2007) this is only partially in force in relation to young people charged with "specified offences" - the dangerous offender provisions of the Criminal Justice Act 2003 . In such cases, if the court determines that it appears to them that if the young person charged with a specified offence is convicted, the criteria for imposing a sentence of indeterminate detention for public protection ( sec 226(3)) or an extended sentence (sec 228(2)) would be met. (s. 51A (2) and (3) (d) Crime and Disorder Act 1998.), then that person must be sent for trial. In all other cases at present, committal continues to be the appropriate procedure. This provision came into force from 4 April 2005.

In the case of an adult charged jointly with a youth on an either way offence, which is a specified offence, if the youth is sent for trial for the specified offence (see above), then the adult may be sent on the same or subsequent occasion (s 51A (6) Crime and Disorder Act 1998 (as amended).

For detailed guidance on the procedure in Youth cases, especially the policy on determining venue in cases involving youth offenders, refer to Legal Guidance on Youth Offenders.

Further Guidance on Summary Only Offences

When summary only cases are sent to the Crown Court under Section 51 (not section 41 of the Criminal Justice Act 1988), as far as the magistrates' court is concerned they are to be treated as if the court had adjourned them under section 10 Magistrates' Courts Act 1980 and had not fixed the time and place for their resumption (Section 51(9)).

The effect of this adjournment sine die (an automatic process) is that if for any reason any summary case is not dealt with in the Crown Court (e.g. a not guilty plea is entered to the summary offence or there is no conviction on Indictment of the related indictable only offence) then the prosecution, unless it decides to offer no evidence at the Crown Court, should ask the magistrates' court to re-list the summary only case concerned. There is no power, as such, for the case to be remitted back by the Crown Court (and therefore no power to retain the defendant in custody on the summary matters pending its re-listing).

Appropriate summary offences sent to the Crown Court may be placed on the Indictment by virtue of Section 40 of the Criminal Justice Act 1988, as amended by paragraph 66 of Schedule 3 to the Crime and Disorder Act 1988 and refer to Power of the Crown Court to Deal with Summary Only Offences, later in this section.

Adjournments in Section 51 Cases in the Magistrates' Court

Ordinarily, defendants in section 51 cases should be sent to the Crown Court forthwith (statutory wording).

There is, however, an unfettered right to adjourn the case (Section 52(2) of the Crime and Disorder Act 1998).

The use of this sub-section should, however, be limited since the aim of the legislation is to send indictable only cases to the Crown Court without delay. The case does not have to pass the test of evidential sufficiency to be sent (unlike committal proceedings).

You may wish to seek an adjournment where, for example, it is plainly obvious that it would not - on the face of it - be appropriate to continue the case as an indictable only case, or there are very serious concerns with the current state of the evidence, and the police need to be consulted before proceeding further.

A request by the police that the defendant be remanded to police cells under Section 128(7) of the Magistrates' Courts Act 1980 may also found an appropriate application to adjourn a preliminary hearing. There is no such power available to the judge at the Crown Court.

Alternatively, you may wish to ensure that all defendants are before the court on the same occasion (where this will not avoid undue delay or unfairness) if other defendants are charged, or are shortly to be charged, with related either way offences. Although there is power in section 51 to send a co-defendant appearing subsequently, the court has a discretion at that subsequent separate hearing to allow plea before venue to take place. There is no such power when all defendants appear together at the same time.

You should also be aware that the terms of section 51 are more restrictive than the wider powers to commit cases. This is because of the necessity of always having to relate either way cases to an indictable only offence.

The defence may seek an adjournment if, for example, application for a bail hostel placement could be resolved in a day or so.

Any attempt by the defence for an adjournment for a second bail application to be made in the magistrates' court should ordinarily be resisted since any such applications can be made to the judge at the preliminary hearing at the Crown Court. Also powers are given to the magistrates' court to resolve the issue of contributions to legal aid outside the hearing and this should not be the platform therefore for an unnecessary adjournment.

"Advance or Preliminary Information"

Strictly, the Advance Information Rules 1985 do not apply to indictable only charges, but they do to either way matters. However, in order to ensure that the defendant has equality of arms and is not under an unfair disadvantage copies of the charges, any disclosable evidence and a copy of any defendant's previous convictions should be served on the defendant or his/her solicitor prior to the first hearing in the magistrates' court.

Prosecutors should also serve any material, if available, falling to be disclosed in accordance with common law disclosure under the case of R v DPP ex parte Lee [1999] 2 Cr App R 304, DC - in particular, anything which might assist the defence in applying for bail (Archbold 12-48).

This material may need to be updated for the preliminary hearing at the Crown Court and prosecutors show review the information available prior to the first Crown Court hearing.

A copy of the same material should be served in good time on the Crown Court for the use of the judge at the preliminary hearing. The more information that can be disclosed at this stage, the greater the likelihood of the defendant indicating a guilty plea at the preliminary hearing.

Constitution of the Magistrates' Court

The preliminary hearing in a case to which section 51 applies should, by virtue of Section 50 of the Crime and Disorder Act 1998, be listed before two or more justices (or a District Judge (Magistrates' Court). The hearing in front of a single magistrate is specifically excluded in the section. This restriction applies also to remand hearings.

The CPS must be represented by a Crown Prosecutor, as designated caseworkers are presently precluded by section 53 of the 1998 Act from acting in indictable only cases.

Failure to observe the formalities of these or other sending provisions may result in the sending being declared a nullity. In that event, the case would, in effect, still be within the jurisdiction of the magistrates' court and a further hearing would have to be arranged.

Cases Involving Damage

Cases involving damage (First Column of Schedule 2 of the Magistrates' Courts Act 1980) are to be treated as indictable offences unless it is clear from any representations that the value does no exceed the relevant sum (currently (2001) £5,000).

Magistrates' Court Notices

Under Sections 51(7) and (8), the magistrates' court is required to give notice to the defendant and Crown Court of the cases for which a person is sent for trial and to which Crown Court the defendant has been sent. If there is more than one indictable only offence, the court is required to specify to which of the indictable only offences each either way and summary offences relate.

It will be very helpful for the CPS to arrange to routinely receive copies of these notices to check that the details are correct. Failure by the court to link the cases correctly together may cause difficulties at the Crown Court.

A notice to the Crown Court (under Rule 12 (1) (c) Criminal Procedure Rules 2005 [UK SI 2005 No 384]) must be sent to the Crown Court by the magistrates' court as soon as practicable, and in any case within 4 days of the case being sent.

Custody Time Limits

A custody limit of 182 days commences if the defendant is remanded in custody by the magistrates' court and continues through to the start of the trial in the Crown Court, unless the defendant is granted bail. Unlike committal proceedings, the CTL is a single unified time limit and is unaffected by the sending to the Crown Court. Each charge, whether indictable only or either way attracts its own time limit. The 182 days does not include the day on which custody commenced. For full details, see The Prosecution of Offences (Custody Time Limits) (Amendment) Regulations 2000 (S.I. 2000 No.3284) (Archbold 3-60).

If the defendant is not remanded in custody until a later stage, for example when (s)he is in front of the Crown Court, the full CTL of 182 days is calculated from the date that the defendant is first remanded to the custody of the Court.

You should refer to the annually issued custody time limit ready reckoner (under the 182 days column) to determine when the time limit expires, and also to Custody Time Limits section, elsewhere in this guidance.

First Appearance at the Crown Court

Rule 12.2 Criminal Procedure Rules 2005 sets out the procedure relating to first appearance at the Crown Court.

"A Crown Court officer to whom notice has been given under section 51(7) of the Crime and Disorder Act 1998, shall list the first Crown Court appearance of the person to whom the notice relates in accordance with any directions given by the magistrates' court."

[Note: The provisions of former rule 24ZA of the Crown Court Rules 1982 regarding the listing of the first appearance within set periods of time no longer apply.]

In practice, most Crown Courts list cases on fixed days that have been notified in advance to the sending courts. The defendant must either be remanded in custody or on bail to appear at the given date and time.

Amended Rule 27(h) allows these hearings to be in open court as chambers at the Crown Court.

Action between the Sending and the Preliminary Hearing at the Crown Court

The agreed administrative arrangements will need to be undertaken immediately after the sending, including the forwarding of the papers to the Trial Unit. The custody time limit recording procedures will have to be initiated for remands in custody.

The police should be informed what matters have been sent to the Crown Court and requested to prepare a full file of evidence if they have not already begun to do so. They should also be asked if there are any further matters for disclosure at that stage. The more that can be revealed in most cases will facilitate the defendant and defence counsel to consider the papers for the preliminary hearing and possibly indicate a guilty plea.

The file should be re-reviewed in the Trials Unit and consideration given as to whether any further disclosure should be made on the defence. A copy of the same 'advance information' papers should be prepared and served on the Crown Court in good time for the use of the judge at the preliminary hearing.

If a reluctant witness application is to be made, then arrangements should be made with the magistrates' court to get an early date for hearing. It will be of assistance if a provisional date is known before the preliminary Crown Court hearing.

It will often pay the advocate to have a draft Bill of Indictment ready for the preliminary hearing if it appears a guilty plea is likely, as some judges may seek an indication of plea at that stage and, if the defence is willing, order that the defendant be arraigned.

If the case involves forensic evidence and the Forensic Science Service laboratory (or other supplier) is to be involved, the prosecutor must check what is happening as regards its submission to the laboratory and obtain a likely date for service. The Critical Dates Submission form should be checked (ask the police for a copy) so that the Judge can be fully briefed on any likely delay and extra time for service of the case sought. The MG6 (confidential information form) should be thoroughly checked to see if the police anticipate any further difficulties in gathering the evidence. It may be of considerable assistance to ask the case senior investigating officer to attend the preliminary hearing if s(he) will be able to provide additional assistance to the court with the state of the inquiry, though it is important to remember that the hearing is open to the public.

Rights of Audience, Dress etc. at Preliminary Crown Court Hearings

Any person with rights of audience at a magistrates' court may appear at a first preliminary hearing at the Crown Court and may be unrobed (but check the local practice as regards dress). Any hearing where the prosecution has not completed the service of its case is called a preliminary hearing.

These hearings are normally heard in open court as chambers, with the defendant present and the court open to the public.

These hearings are governed by the Senior Presiding Judge's Practice Direction: "Guidance on listing for preliminary hearings etc and referral of cases to the Circuit Presiding Judges" (22 December 1998).

After service of the prosecution case, rights of audience are restricted to Higher Court Advocates and Counsel.

Preliminary Crown Court Hearings

The conduct of the preliminary hearing will vary according to the particular Judge or Recorder who presides at it.

Although it may depend on the nature and circumstances of each case, many judges ascertain the likely intention of the defendant as to the charges currently facing him/her. If an indication of a guilty plea is given, the Judge may order the preparation of an Indictment and order the defendant to be arraigned. Alternatively, the judge may ask the prosecution to serve a prima facie case in an agreed period, usually as short as possible, and order the preparation of pre-sentence reports. In these circumstances, it may be possible to serve a file with considerably reduced content - always remembering that sufficient information must be available to ensure that a prima facie case is served and that the papers fully reflect the offending that has taken place.

Otherwise, the purpose of the preliminary hearing is to deal with any outstanding bail issues, to set a timetable for the service of the prosecution case and to set the date of the Review Hearing and/or the Plea and Case Management Hearing.

If the prosecution need to apply to the magistrates' court for a reluctant witness hearing, the Crown Court will need to be informed as more time for service may be required. (See Reluctant Witnesses, later in this section)

There is no statutory or regulatory vehicle for the adding or withdrawal of charges at any preliminary hearing. Discontinuance is however available in the Crown Court when a case is sent.

Reluctant Witnesses

A witness may be reluctant or unwilling to provide a statement (or produce a document or exhibit) which is required as material evidence in a case sent for trial. A magistrates' court for the relevant commission area may issue a summons to order the witness to attend before a justice for the purposes of taking a deposition (under oath) or to hand over the document or exhibit -Paragraph 4 to Schedule 3 of The Crime and Disorder Act 1998 (Archbold 1-30).

Cross-examination is by the prosecutor only. It is not an inter parties hearing and the defence have no right to attend or cross-examine.

The hearing must be listed before the date set for service of the prosecution evidence. It need not take place in open court.

The summons must be served personally with proof of service.

A warrant may be issued to enforce attendance.

The court can impose a fine and/or imprisonment if a witness refuses to testify or hand over the document or exhibit.

The clerk will need to send a copy of any deposition to the prosecution for service as part of the case papers. The clerk must send the original to the Crown Court as soon as reasonably practicable.

As the depositions are not Criminal Justice Act statements, provision is made in Paragraph 5 of Schedule 3 to The Crime and Disorder Act 1998 for their admission in evidence. The terms of the Paragraph are very similar to the Second Schedule to The Criminal Procedure and Investigations Act 1996 which governs the admissibility of all statements following committal proceedings.

The Service of the Prosecution Evidence

The service of the prosecution case is currently governed by The Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005 (SI 2005 No 902).These regulations came into force on April 4 2005 (reg 1) and previous regulations as to time for service of prosecution evidence were revoked (reg.7).

Regulations 2 - 6 provide the procedure for service of prosecution evidence in the case of a person sent for trial.

Copies of the documents containing the evidence must be served on the person sent for trial and given to the relevant Crown Court:

  • no later than 70 days after the date on which the person was sent for trial, or:
  • in the case of a person committed in custody, no later than 50 days after the date on which the person was sent for trial (reg 2).

The prosecutor may apply orally or in writing to the Crown Court for the period to be extended, or if it has already been extended, for it to be further extended (reg.3).

Where the prosecutor proposes to make oral application, he must give written notice to the appropriate officer of the Crown Court and a copy must be given to the person sent for trial at the same time (reg 4).

Written application must be sent by the prosecutor to the appropriate officer of the Crown Court setting out the grounds for the application. A copy must also be given to the person sent for trial, who may make written representations within 3 days of service of the application on him (reg.5)

If an application is determined other than by oral hearing, the appropriate officer of the Crown Court must send a notice of the outcome of the application to all parties (reg.6)

Every possible effort must be made to ensure that applications for more time are made prior to the expiry of the period. The Regulations make no express provision for retrospective applications for extension, once the time for service has passed.

Retrospective Permission for Service of Cases after Expiry of the 42 Day Period

However, the judgement in the case of Fehily v Governor of Wandsworth Prison [2003] 1 Cr App R 10 DC it was held in respect of the identically worded previous regulations, that there is a power to extend retrospectively the time limited for service of the prosecution evidence in a section 51 case, and also sets out the standard of conduct that the Court would expect from "a competent prosecutor".

The Court held that retrospective applications could be granted. The Judge explained how the Crown Court could exercise realistic management and control faced with any further failure to comply with the time limits.

Mr Justice Gibbs said "It is true that the sanction of staying proceedings is only to be invoked in serious and, one hopes, rare circumstances, but if there were to be a case where the Crown persistently and inexcusably disobeyed time limits laid down by Parliament in the interests of justice, then serious disobedience could properly be regarded as an indication that the Court's process was being abused."

Application for Appropriate Extension at Preliminary Hearing

It is clear from the judgement of Mr Justice Gibbs in the above case that prosecutors should, where appropriate, apply for an extension to the relevant period at the preliminary hearing.

He said in his judgement:

"Every day experience in the Crown Court would suggest that a competent prosecutor will assess in advance, in the light of the weight and complexity of the case and the resources available, whether or not 42 days is likely to be sufficient for the service of the evidence. If not, it will propose to the defence, at the outset, an appropriate extension. The defence will often agree; or, if not, a reasonable compromise will be arrived at and probably adopted by the court. The court will thus, at the outset, extend the limit to an appropriate date, whether effectively by consent or by its own decision. It is not, in my view, a difficult task for a competent prosecutor to give attention at the outset to the time required; not should it be difficult to monitor whether compliance with the time limit can still be achieved and to ensure compliance with it or to apply for an extension or further extension of that limit. The steps are, in my view, largely a matter of ordinary competent office management."

Proper case management and progression control should be scrupulously applied by case owners and their managers, with cases monitored and time limits complied with. In particular, in cases involving forensic evidence prosecutors and the police must liaise to ensure that full information is available for the court as to the length of the adjournment sought - with reasons.

Prosecutors should consider having the assistance of the police senior investigating officer in the case at the preliminary hearing to provide more detail and to help to obtain the time required to produce a quality prosecution. Judges have reported that they find this approach very helpful.

There is no objection to areas agreeing to serve in a shorter period, but prosecutors will need to be properly informed as to the resources available (police and CPS) to undertake the prioritisation required and other current pressures on the office concerned. The progress of the police investigation will also have to be taken into account. Prosecutors need to be prepared to fully inform the judge of all these facts.

Communications should be arranged with the police to provide early warning of difficulties with the evidence gathering and file preparation so that timely and well reasoned applications for more time can be made.

Provided a prima facie case is made out and serve, additional evidence may be service later under the usual rules (Archbold 4-279) but any such evidence cannot be the basis for an additional count on the Indictment.

Original Statements

There is no "official" role for the original statements. You will need to check on the local practice with the relevant Crown Court, as some Crown Courts like to retain control of the originals. Otherwise, they will need to be on file for a trial to deal with any queries. Any witness statement must nevertheless comply with Section 9 of the Criminal Justice Act 1967 formalities, or be covered by an exception; e.g. a deposition from a reluctant witness.

Applications to Dismiss the Prosecution's Case

The defence cannot apply to dismiss the prosecution's case before the evidence has been served following the preliminary hearing in the Crown Court (Paragraph 2 of Schedule 3 to The Crime and Disorder Act 1998). [There can be no challenge to the sending itself provided the defendant is charged with an indictable only offence.]

However, any such challenge must be made before the defendant is arraigned on the Indictment.

The procedure is now regulated by Part 13 of the Criminal Procedure Rules 2005 (SI 2005 No 384), which came in to effect on 4 April 2005.

An application to make an oral application to dismiss any or all of the cases sent must be in writing and given to the Crown Court (Rule 13.2(1), the prosecution and any co-defendants [rule 13.2(2)]. Applications must be made within 14 days of service of the case [Rule 13.2(2) (c)] though this time may be extended (on notice), before or after it expires [Rule 13.2(3) and 13.2(4)]. It must be accompanied by any material on which the applicant relies, making clear to which charge the application applies( Rule 13.2(6)(a)) The notice may also request leave of the judge to adduce oral evidence, indicating what witness(es) should be called [Rule 13.2(6)(b)].

Alternatively, the defence can make their application to dismiss in writing only (Rule 13.3).

The prosecution can apply (within 7 days of the defence's application to apply for oral dismissal) to adduce oral evidence itself, indicating what witnesses it proposes to call (Rule 13.4(1). The prosecution can also respond in similar manner to a written application to dismiss with a view to adducing oral evidence (Rule 13.4(2).

In response to an application to make an oral application to dismiss, the prosecution can serve written comments or further evidence or written statements within 14 days (Rule 13.4(5)). The times for all these notices can be extended, on notice (Rule 13.4(6).

The judge may take the initiative and decide that a witness should be called to give evidence, notwithstanding that no request has been made for that particular witness. The judge must only make a decision to allow oral evidence to be called if (s)he is satisfied that it is in the interests of justice to do so (Schedule 3, paragraph 4). The evidence of any witness who fails to attend may be disregarded (Schedule 3, paragraph 5).

Any written application will be notified to the parties in writing.

Where an application to dismiss is being made orally, the prosecution must be given an opportunity to be represented (rule 13.2(8)).

The Divisional Court held in Fehily v Governor of Wandsworth Prison [2003] 1 Cr App R 10 DC that retrospective application could be granted. The Judge explained how the Crown Court could exercise realistic management and control faced with any future failure to comply with the time limits. See the section on The Service of the Prosecution Evidence above.

Mr Justice Gibbs said "It is true that the sanction of staying proceedings is only to be invoked in serious and, one hopes, rare circumstances, but if there were to be a case where the Crown persistently and inexcusably disobeyed time limits laid down by Parliament in the interests of justice, then serious disobedience could properly be regarded as an indication that the Court's process was being abused."

Dismissal of Charges - Preferment of a Bill of Indictment

There is seemingly more flexibility if a Bill of Indictment is preferred prior to a dismissal hearing since it enables the prosecution to add additional or substituted counts based on the evidence served (Section 5(2)(iB) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (as amended). This may possibly have the effect of negating the defence application.

Dismissal of Charges and Effect

The judge may dismiss any charge (or quash a count) if it appears that the evidence against the defendant would not be sufficient for a jury to properly convict. The judge will apply the Galbraith test (Archbold 4-294) and see below in this section.

No further proceedings can then be brought on that dismissed charge except by the preferment of a Voluntary Bill of Indictment.

If the dismissal of the charge does not "relate to a trial on Indictment" (Section 29(3) of the Supreme Court Act 1981), it would be open to the prosecution to challenge the judge's ruling by means of a Judicial Review - see Judicial Review in this guidance.  Otherwise, then despite the dicta in R v Snaresbrook Crown Court ex parte Director of the SFO (1998) The Times, October 8 (a case dealing with the dismissal of a transferred case under the Criminal Justice Act 1987 and suggesting that the appropriate means of challenge was a Judicial Review), a Voluntary Bill would seem to be the only way open to pursue the case.

If the indictable only case is dismissed, any remaining either way matters must continue to be prepared for the Crown Court - see Dealing with Arraignment in the Crown Court where there is no Indictable only Case, later in this section.

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Discontinuance

Extended powers of discontinuance enable the case to be stopped at any time before the Indictment is preferred. Notice should be served on the defendant and the Crown Court. No reasons need be given in the notice to the defendant - s.23A Prosecution of Offences Act 1985 (Archbold 1-277a).

Discontinuance does not prevent the initiation of fresh proceedings on the same offence and notices should be worded accordingly.

The defendant does not have the right to require that the proceedings are continued, as (s)he does in the magistrates' court.

Effect of Discontinuance of the Indictable Only Offence on Any Remaining Either Way Cases

If the indictable only charge is discontinued after the sending, any remaining either way matters must continue to be prepared, the evidence served and a draft Bill of Indictment prepared. There is no mechanism for cases to be 'sent back' until mode of trial is considered at arraignment - see Dealing with Arraignment in the Crown Court where there is no Indictable only Case, later in this section.

Power of Crown Court to Deal with Summary Offences

Apart from any summary offences to which Section 40 of the Criminal Justice Act 1988 apply (summary offences charges as a count in the Indictment), the power of the Crown Court to deal with any summary only offence sent to the Crown Court under section 51 of the Crime and Disorder Act 1998 only arises where there is a conviction on an indictable only offence to which the summary only matter is related (Paragraph 6 to Schedule 3 of the Crime and Disorder Act 1998).

It should be noted that this is the case, even if there is a conviction on either way charges, though the indictable only is lost.

The Crown Court will make (or should be asked to make) the assessment of whether offences are related and, if so, any summary only matters should be put to the defendant. A guilty plea enables the Crown Court to deal with them, but with the same sentencing powers as a magistrates' court.

A not guilty plea or no conviction of a related indictable only matter leaves two options. The prosecution may take the view that there is no merit (public interest) in continuing with the case, in which case no evidence should be offered and the case dismissed.

If the case is to continue, there is no statutory power for the Crown Court to remit the matter back to the magistrates' court (and therefore no mechanism to retain the defendant in custody). Instead, the Crown Court will inform the magistrates' court of the outcome.

Prosecutors should remember that summary only matters stand adjourned in the magistrates' court, without a date being fixed, when the case is sent to the Crown Court (Section 51(9)). The prosecution should therefore ask the clerk of the 'sending' magistrates' court to re-list the matter for hearing. Attendance can be enforced, if necessary, by asking for a warrant if the defendant fails to respond to a court notice requiring his/her attendance.

It will therefore be good practice to endorse the file with your view on the continuation of the summary only proceedings in the event of a not guilty plea or there being no conviction on the indictable only matter.

Dealing with Arraignment in the Crown Court Where There Is No Indictable Only Case

In cases that have been sent to the Crown Court, there are two possible situations at the arraignment stage where care needs to be taken to avoid unnecessary complications:

  • the defendant is arraigned with an Indictment on which there is an indictable only count and either way matters.

In this case, pleas are taken normally and if, for example, a plea of not guilty to the indictable only matter is accepted, sentencing (or trial) takes place on any remaining admitted either way matters. There is no necessity to engage in any mode of trial considerations.

  • the defendant is arraigned on an Indictment on which there is no indictable only matter.

This may have arisen either because the prosecution has discontinued the indictable only matter or a challenge by the defence has been successful. The Crown Court will, of course, not have any power to deal with summary only matters, save those appearing on the Indictment by virtue of Section 40 of the Criminal Justice Act 1988 - see Powers of the Crown Court to deal with Summary Offences - above in this guidance.

In cases involving adults, the Crown Court will then begin mode of trial proceedings in accordance with Paragraphs 7 to 12 of Schedule 3 to the Crime and Disorder Act 1998. The defendant will be asked whether (s)he would indicate a guilty plea if the case were to proceed to trial. A guilty plea will empower the Crown Court to sentence. Sentence is at large and is not restricted to the powers of the magistrates' court.

A not guilty plea or no indication requires the court to consider the most suitable venue. The prosecution and defence may make representations, which should (Paragraph 9(3)) deal with the nature of the case, its seriousness, the limitation of powers of sentence in the magistrates' court, and any other relevant factors. Prosecutors may feel in suitable cases it appropriate to endorse their views on the file for the guidance of the Crown Court advocate.

If the Crown Court considers that trial on Indictment is appropriate, it will retain jurisdiction and proceed accordingly.

If, on the other hand, the Court considers summary trial appropriate, it should offer the defendant the alternatives of summary trial or trial by jury, with the warning that the magistrates' court may nevertheless commit him/her for sentence back to the Crown Court if they consider their powers of punishment are insufficient.

In cases involving children or young persons, where there has been no arraignment for an indictable only matter, the Crown Court must remit him/her back for trial to the sending court unless:

  • (s)he is charged with an offence to which Section 91(1) or (2) of The Powers of the Criminal Courts (Sentencing) Act 2000 applies and the Court considers that if (s)he is found guilty of the offence, it ought to be possible to sentence him/her in pursuance of that section, or
  • (s)he is charged jointly with an adult with an either way offence and it is considered necessary, in the interests of justice, that they both are tried together for the offence in the Crown Court.

Provision is made in Schedule 3 for dealing with this procedure with unruly defendants and where there is good reason for the defendant being absent.

Provision is also made for the determination of value, and therefore status for mode of trial, of such offences as criminal damage (Paragraph 14).

Committal Proceedings

Committal proceedings are required to 'commit' either way cases to the Crown Court where there is no indictable only offence to which they are "related" and where following a not guilty (or no) indication, at the mode of trial considerations:

  • The court does not permit summary trial and decides that the case should be committed to the Crown Court, or:
  • The defendant, having been offered a summary hearing, elects trial in the Crown Court, or
  • The defendant is a youth charged with an offence to which Section 24 Magistrates' Courts Act 1980 applies and the court decides that the case should be tried in the Crown Court.

Preliminary Issues

Advance information on the charges must be served in accordance with the Magistrates' Courts (Advance Information) Rules 1985 (Archbold 12-125) at or before the first hearing. You should also be careful to discharge the prosecution's duty under the case of R v DPP ex parte Lee [1999] 2 Cr App R 304, DC and ensure that the defence receive the necessary documentation which may assist with the early preparation of their case (e.g. a witnesses' previous convictions or conflicting first descriptions of the defendant.

Warning - 'Old Investigations'

The Criminal Procedure and Investigations Act 1996 made major changes to the committal proceedings. Details of this modified procedure are given below. The major modification was to remove the right of the defence in particular to call for oral evidence to be given at the committal proceedings. This procedure only applies to cases where the investigation commenced after 1 April 1997. Where the investigation began before that date, the previously unmodified system of committal proceedings will apply (Archbold 12-52).

Forms of Committal Proceedings

There are two current types of committal proceedings:

  • Under Section 6(2) of the Magistrates' Courts Act 1980, without consideration of the evidence that complies with section 5A (3).
  • Under Section 6(1) of the Magistrates' Courts Act 1980, after consideration of evidence that also complies with Section 5A (3).

Committal Proceedings under Section 6(2) Of the Magistrates' Courts Act 1980

This is the most common form of committal proceedings. The magistrates' court may commit the defendant to the Crown Court without considering the evidence if the conditions contained in Section 6(2) are complied with (Archbold 10-9).

Note: neither Section 9 (proof by written statement) nor Section 10 (proof by formal admission) of The Criminal Justice Act 1967 apply to these or any committal proceedings.

Committal Proceedings under Section 6(1) Of the Magistrates' Courts Act 1980

Committals under this section must take place if the defendant (or one of them) has no legal representative or one of them (or a legal representative) so requests. The magistrates' are required to consider whether or not there is sufficient evidence to put the defendant on trial by jury for any indictable (i.e. either way) offence (Archbold 10-9 to 11). The function of committal proceedings is to ensure that no one shall stand trial unless a prima facie case has been established (R v Epping & Harlow Jjs, ex parte Massaro, 1973, 57 Cr.App.R.499).

The prosecution has no right to call for a Section 6(1) committal.

Form of the Evidence

The evidence in committal proceedings must comply with Section 5A(3) Magistrates' Courts Act 1980. The details are contained in the remainder of Section 5.

Usually, the evidence will be in the form of witness statements under section 5B and may be admitted if adduced by the prosecutor, served on the other parties, and comply strictly with the section's other formalities (Archbold 10-16).

Section 5C allows for evidence to be taken as a deposition under Section 97A of the Magistrates' Courts Act 1980 before committal proceedings from a reluctant witness (Archbold 10-17).

Section 5D allows for the admission of first-hand hearsay, which might be admissible by virtue of sections 23 or 24 of the Criminal Justice Act 1988, provided the prosecutor notifies the court of his/her belief that the statement will be admissible (such belief being based on reasonable grounds) (Archbold 10-18).

Section 5E makes admissible in committal proceedings documents that prove themselves or are admissible by means of other legislation (Archbold 10-19).

Any of the documents admissible by virtue of Sections 5B to 5E can, by Section 5F, be proved by the original, or a copy, whether the original is still in existence. It is immaterial how many removes there are between the original and the copy. The word 'copy' is widely defined (Archbold 10-20).

Original Statements

There is no specific requirement in law for the original statements/documents to be handed to the court at committal, although in many court areas, this is and remains the established practice. It will be a matter for agreement locally as to whether the original documents are produced at the committal proceedings in the magistrates' court, or retained by the prosecution to be produced at a later stage of proceedings when required.

Whichever is the case, the original Section 5B and 5D statements/documents should be retained safely for production at the trial court. Original section 5C depositions will, of course, be with the clerk to the magistrates' court's file. You will need to ensure that the court clerk is aware of this on the day of the committal proceedings

If any of the originals is lost, or cannot be located, a photocopy prepared under 5F is permitted. Authentication may be required at the Crown Court in due course.

"Editing" Of Witness's Statements

Where this is necessary (inadmissible, irrelevant or prejudicial material or reducing two statements to one), this should be done by a Crown Prosecutor (not a police officer) in accordance with the Practice Direction (Archbold 4-283).

The Extent of the Prosecution Obligation to Call Witnesses

The Crown must ordinarily call those witnesses whose evidence was tendered at committal proceedings. Although there is a discretion not to call such a witness, it must nevertheless be exercised properly and not so as to, for example, surprise the defence. Witnesses' evidence whose evidence has never formed part of the prosecution case and which is therefore unused material is not caught by this rule. Care needs to be taken therefore, as to which witnesses should be included on the committal file. A case can, potentially, be considerably weakened by the inclusion of a witness that is incapable of belief and it is best to avoid causing possible difficulties for the prosecution advocate at trial. For guidance as to relevant law, see (Archbold 4-274,275).

Exhibits

Exhibits must be produced at Section 6(1) committal proceedings and arrangements should be made for their production, properly labeled, at court. Arrangements must also be made for appropriate security of the exhibits at all times, including at any time when the court adjourns, e.g. for lunch or at the end of a day's hearing.

Non-documentary exhibits are not required at section 6(2) committal proceedings.

Constitution of the Court

A single lay justice may conduct committal proceedings, which will ordinarily be conducted in open court.

Adjournments

The court may adjourn before or at any time during the hearing (Section 5(1) of the Magistrates' Courts Act 1980).

Presence of the Defendant

The evidence will normally be tendered in the presence of the defendant. However, the court can consider evidence in the absence of the defendant if the provisions of Section 4 of the Magistrates' Courts Act 1980 apply. The defendant may also be committed in his/her absence where the necessary conditions are fulfilled (Liverpool City Magistrates' Court, ex parte Quantrell [1999] 2 Criminal Appeal Reports 24) (but see the caution in Archbold 10-23).

If the presence of the defendant cannot be secured by means of a summons, warrant, or Home Office production order, it may be necessary to consider an application for a Voluntary Bill of Indictment - refer to Voluntary Bills of Indictment, elsewhere in the legal guidance.

Late Reduction of the Charge

It may be that in certain cases, the circumstances justify a late reduction in the charge. The mere fact that the defendant has elected trial by jury should not, of itself, justify a late reduction of a charge to a summary only offence.

Withdrawing a Charge Prior To Committal Proceedings and Subsequently Reinstating it in an Indictment

Only in exceptional circumstances will it be appropriate to withdraw a charge prior to committal proceedings and then include it as a count in the Indictment lodged after the committal proceedings. It would not be appropriate to follow such a course with a view to deflecting the defence from seeking a Section 6(1) committal.

In the case of R v Huggins, (Court of Appeal 20th October 1987 - unreported), it was stressed that the prosecution must exercise care not to mislead, or appear to mislead, the defence into thinking that a charge had been dropped and to subsequently include it as a count in the Indictment.

If, in an exceptional case, it is decided to withdraw a charge prior to committal proceedings with the possibility of it later being included in the Indictment, then the Court of Appeal (R v Huggins above) suggested that the following information should be given to the defence:

"I propose to drop [details of the offence(s)]. I understand that being so you will be satisfied with a Section 6(2) committal. Of course, it must be clearly understood that this decision does not bind us in the future and the charges which will appear in the Indictment will be the subject of further consideration after taking advice from counsel."

Corporations

When a company is committed for trial, the presiding magistrate is required to commit by an order in writing in accordance with Section 46 and Schedule 3 Magistrates' Courts Act 1980. You will need to ensure that such an order is drawn up, as without it, a company cannot be indicted (Archbold 1-242)

Witness Orders

The defence has 14 days after the committal proceedings to inform the prosecution and the Crown Court in writing which witnesses they require to attend and give oral evidence. Form 14A (Rule 27.2 Criminal Procedure Rules 2005) must be served with the committal papers reminding the defence of this (copy to the magistrates' court). The court should also tell the defendant at the hearing of this requirement. If the defence require more time, they should seek the permission of the Crown Court.

Alibi Defences

The defence is required to notify the prosecution of any proposed alibi witnesses under the defence disclosure provisions, including the name and address, or information that might help the police to locate the witness where the address is not known.

Evidence of Children

Section 103 Magistrates' Courts Act 1980 allows a statement in writing to be admissible in committal proceedings. Video evidence is not admissible under this section. This section (Section 103) may be of assistance in admitting evidence where it has not been possible to comply with the strict requirements of Section 5B. The statement is not however admissible per se in the Crown Court unless some other exception can be found or it is agreed (for example, under Section 10 of the Criminal Justice Act 1967) (Archbold 10-24).

The magistrates will be entitled to see visual evidence under Section 32A (10) Criminal Justice Act 1988 in respect of which an application is to be sought under Section 32A (2) of the same Act. [Remember that applications for video evidence/evidence by television link need to be made within 28 days of committal to the Crown Court.]

Note: Sections 42 and 43 of the Children and Young Persons Act 1933 (power to take a deposition from a child or young person where attendance at court would involve serious risk to health or life) does not apply to committal proceedings as no attendance will ever be necessary as oral evidence is not admissible.

Evidence from Persons Dangerously Ill

The previous assistance offered by Section 105 of the Magistrates' Courts Act 1980 to take depositions from dangerously ill witnesses is no longer available as the section has been abolished. Instead, the police will need to be advised to take a standard witness statement in Section 5B format signed by the maker if possible. Otherwise, preferably with the assistance of a Doctor or nurse or other independent person as a witness, the 'statement' (i.e. the spoken words of the dangerously ill person) can be noted and its admission sought under Section 5D at the committal proceedings and section 23 of the Criminal Justice Act 1988.

Section 40 and 41

Summary only offences that fulfill the requirements of Section 41 of The Criminal Justice Act 1988 may be committed to the Crown Court (Archbold 1--75am). Section 40 summary only offences may be charged as a count on the Indictment (Archbold 1-75ai). In general, these cases are treated in the same way as cases sent under Section 51 of The Crime and Disorder Act 1998, but here, the relationship is to an either way offence. See Powers of the Crown Court to deal with Summary Offences, above in this section.

Reluctant Witnesses

A witness may be reluctant or unwilling to provide a statement (or produce a document or exhibit) which is required as material evidence in a case for the purposes of proceedings before examining justices. A magistrates' court for the relevant commission area may issue a summons to order the witness to attend before a justice for the purposes of taking a deposition (under oath) or to hand over the document or exhibit - Section 97A of the Magistrates' Courts Act 1980 (Archbold 10-21).

Cross-examination is by the prosecutor only. It is not an inter partes hearing and the defence have no right to attend or cross-examine.

The hearing must be listed before the date set for committal proceedings. It need not take place in open court.

The summons must be served personally with proof of service.

A warrant may be issued to enforce attendance (Section 97(3) - (5)).

The court can impose a fine and/or imprisonment if a witness refuses to testify or hand over the document or exhibit.

The clerk will need to send a copy of any deposition to the prosecution for service as part of the case papers. The original will be sent by the court to the Crown Court on committal.

Evidence by Certificate

Various matters are by statute provable by certificate (Archbold 10-53). You will need to ensure that the time limits for service are observed (mostly 7 days).

Custody Time Limits

The remand to custody of a defendant attracts a custody time limit of 70days. The time limit commences at midnight at the end of the day the remand takes place (in other words, the day of the remand is not counted) and ends at committal (Section 6(2)) or where the magistrates' court begins to hear evidence (Section 6(1)) - see Custody Time Limits, elsewhere in legal guidance.

The nationally issued custody time limit ready reckoner should be used to help determine the expiry date.

Committal or Discharge

The defence may submit that there is insufficient evidence to put the defendant on trial by jury. The prosecutor may respond.

The magistrates may refuse to commit where the prosecution has not proved an essential element of the offence. Also, the court may refuse to commit if the evidence can be properly judged as manifestly unreliable; for example by being hopelessly contradictory or inherently unreliable. However, credibility is a matter best left for the jury who can see and assess the witnesses at first hand.

The standard is likely to be based on the test in R v Galbraith (1981) 73 Criminal Appeal Reports 124 that the submission of no case to answer should be upheld if, and only if, the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict (Archbold 4-294).

Due to the amendments made by the Criminal Procedure and Investigations Act 1996, sections 76 and 78 of the Police and Criminal Evidence Act 1984 (PACE) have been amended so that objections to the admissibility of a confession or other evidence on the grounds of fairness have been removed. On the other hand, the court cannot be compelled to receive evidence that is plainly inadmissible. If there is doubt as to whether evidence should be admitted, then the court should leave the question of admissibility to the judge.

Section 82(3) PACE preserves the right to exclude evidence, but, at common law in committal proceedings, justices have no discretion to exclude evidence. They are bound to consider all legally admissible evidence in deciding whether there is sufficient evidence.

The magistrates must commit for trial for any indictable offence on the basis of the evidence tendered to them if they are of the opinion that there is sufficient evidence to put the defendant on trial. They must discharge the defendant if they are not so satisfied.

If the magistrates decide that there is no case to answer on the offence charged, but instead find there is evidence on another either way charge, they will cause the charge to be reduced to writing and put to the defendant by way of plea before venue (Section 25(3) of the Magistrates' Courts 1980 and see R v Cambridge Justices, ex parte Fraser [1995] 1 All ER 667.

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Procedure

How to Conduct Committal Proceedings

The section 6(1) committal proceedings are to be conducted in accordance with Rule 10.3 Criminal Procedure Rules 2005 (Archbold 10-30).

The section 6(2) committal proceedings are likewise to be conducted in accordance with Rule 10.2 of the same rules (Archbold 10-29)

Guidance on How to Conduct Preliminary Hearings in Cases Sent To the Crown Court under Section 51 of the Crime and Disorder Act 1998

Preparation

Preparation is the key to successful advocacy. The following are areas to focus on:

Time for further evidence

This should be addressed by reference to the Case File Information Form (usually the MG6), the Critical Key Dates Submission Form (for FSS evidence), and by proactively obtaining any missing information from the police; e.g. information on when medical or other experts' reports can be expected.

Bail applications

The court may hear bail applications, even if no notice has been given. The judge will expect to hear a concise analysis of the strength of the evidence. You should draw attention to any aggravating features and identify the grounds on which bail is opposed.

If the offence is alleged to have been committed on bail, or during an unexpired portion of a previous sentence, the judge will want the necessary detail. Additionally, the court will want to hear the precise details of pending matters in other courts, and where appropriate, an indication of the number of days unexpired of an existing sentence for the purposes of Section 116 Powers of the Criminal Courts (Sentencing) Act 2000 (return to prison where the offence is alleged to have been committed during the original sentence).

Issues surrounding co-defendants

You will be expected to be fully versed on the progress of cases involving co-defendants. For example, if a co-defendant is awaiting committal in a magistrates' court, obtain details of the likely committal date, bail status and previous convictions. If already sentenced, find out what happened and any previous convictions.

Children and young persons

Check to see whether any Section 39 Children and Young Persons Act 1933 orders are required.

Consents to prosecute

Check if any consent required. Has it been possible to give the DPP's consent yet (i.e. is there sufficient evidence on the file for an informed consent). Check especially sexual offences. If the Attorney General's consent is required, check how long this is likely to take before the hearing and inform the court in case additional time is required. All consents must be given before the service of the prosecution case.

Preparation for guilty pleas

As part of your preparation, you need to anticipate what guilty pleas might be tendered at the preliminary hearing and what will be acceptable. Consult with the police if necessary beforehand. You might find it really helpful to take a prepared Bill of Indictment with you. This can be submitted to the court for signature by an appropriate officer (e.g. the clerk) and the defendant can then be arraigned at the earliest possible opportunity.

If this happens, you will need to ascertain what further evidence or information, if any, is required over and above the documents already served on the court and defence. In some simple cases, re-service of the existing material may suffice in a paginated form, or service of additional material may be waived altogether.

You will need to carefully establish the factual basis of the plea entered and consider whether a Newton hearing is required.

If the case is adjourned for pre-sentence reports, you will need to ensure that the Probation Service is provided with the necessary information.

If the Court proceeds to sentence, you should be familiar with the maximum penalties for any offence.

Reducing delay

The new section 51 process was designed to reduce delay. As part of this, you will need to be proactive in your decision making and be prepared to expedite guilty pleas so far as is possible. It is possible that your activities may be limited by the fact that you do not have higher rights of audience. However, some judges may waive this requirement and allow prosecutors to proceed beyond the normal limits. You need to make sure that the judge is aware of your status. Otherwise, it may be possible to obtain the assistance of Counsel who is available within the precincts of the Court.

Receipt of documentation

Check that the Crown Court has received a copy of the prosecution file (at least the charge sheet, summary, statements, and previous convictions). If not, provide another copy! Check that the defence have the same papers.

Directions form

If you have a form to complete, complete one as far as possible, including the Indictment number (obtainable from the Court List), the name of the defendant, the date, your name and the defence advocate. Then follow the sequence of information sought. Fill in with the specific dates required, and not periods of time.

You may be under pressure from the judge to agree to a shorter period of service than 42 days. Much will depend on the evidence and the state of the investigation, as well as the current workload in the office and the personnel available to process it. Be prepared to stand your ground politely and provide the reasons. Be ready with the 42-day date and, usually, two weeks after that for the Review Hearing or PCMH because the judge always asks.

Judicial Independence and Open Justice

The Attorney General has issued binding Guidelines to prosecuting authorities and prosecution advocates on the approach which should be adopted when considering the acceptance of pleas to a reduced number or less serious charges - The Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise [2005].See Judicial Independence and Open Justice, elsewhere in this guidance.

Professional ethics

The principles are set out in:

  • The Law Society's Code for Advocacy (Annex 21A - Guide to the Professional Conduct of Solicitors)
  • The Code of Conduct for the Bar of England and Wales (Archbold - Appendix B)
  • CPS Statement of Ethical Principles - which reaffirms the principle that CPS lawyers are accountable to the Government, through the DPP, as well as to their professional bodies.

Most of the ethical principles relate to work carried out by defence advocates or relate to the conduct of trials. However, the following principles may be of relevance to the prosecuting advocate at a Section 51 Preliminary Hearing:

  • There is a duty not to assert a personal opinion on the facts or the law Barristers' Code, paragraph 708(b))).
  • There is a duty to assist the court with all relevant authorities and legal provisions, whether or not favourable (Solicitors' Code, paragraph 11. 01(2). Barristers' Code, paragraph 708(c)).
  • There is a duty not to appear if there might be a conflict of interest for the advocate generally see Solicitors Code of Conduct section 3 and for example, if the victim is a personal friend ( Barristers' Code, paragraph 603).
  • Do not appear if the legality of your own decision might be in dispute (Solicitors' Code 11.01). For example, in a case where you took the decision to reinstate proceedings following discontinuance and the defence is to argue an abuse of process has occurred. The abuse argument may be raised at a preliminary hearing to assist a bail application. You should avoid appearing.

After the Hearing

You should ensure that you obtain a copy of the completed Preliminary Hearing form and leave it on the file. Sometimes, it is not copied or provided straightaway so you should ensure that it is picked up later.

Ensure that you undertake any follow up work without delay if you require further action from the police on the file and make sure that you agree with them when the full file will be delivered (action date this to make a check).

Ensure too that any directions from the court are complied with.

Make especially sure that the date for service of the papers is clearly marked on the file and that the office procedures for compliance with this date are initiated.

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