Crown Court Case Preparation

Annex A - CPS instructions for Prosecuting Advocates

These instructions are incorporated into every prosecution brief.

Any advocate prosecuting on behalf of the Crown Prosecution Service will be expected to be familiar with the material in the booklet and to apply these instructions.

1. Abuse of process and human rights (Revised June 2007)
2. Acceptance of pleas
3. Advance Sentence Indication (Revised December 2007)
4. Adverse judicial findings
5. Anti Social Behaviour Orders on conviction
6. Bail
7. Confiscation (Criminal Justice Act 1988 Part VI)
8. Confiscation (Drug Trafficking Act 1994)
9. Costs (Revised June 2007)
10. Criminal Procedure Rules and Criminal Practice Direction (Revised June 2007)
11. Custody time limits
12. Deportation recommendations (New guidance May 2006)
13. Disclosure/unused material (Revised June 2007)
1. Attorney General's Guidelines on Disclosure
14. Disqualification orders
15. DNA Guidance
16. Domestic violence
17. Fitness to be tried
18. Freedom of Information Act 2000
19. Handcuffing of prisoners
20. Homophobic and transphobic offences (Revised June 2007)
21. Media reporting (Revised June 2007)
22. Offences in prison
23. Plea and Case Management Hearing
24. Police misconduct material
25. Proceeds of Crime Act 2002
26. Prosecution rights of appeal
27. Protection from Harassment Act 1997
28. Racially and religiously aggravated offences
29. Rape and serious sexual offences (Revised June 2007)
30. Sentencing issues (Revised June 2007)
31. Sexual Offences Act 2003
32. Trials in absence (Revised June 2007)
33. Unduly lenient sentences
34. Victims (Revised December 2007)
35. Video recorded interviews with vulnerable and significant witnesses (New guidance June 2007)
36. Witness issues (Revised December 2007)
37. Work related deaths
38. Youths (Revised December 2007)

Abuse of process and human rights

1. In determining whether a defendant can receive a fair trial a Court is bound to take into account the protections guaranteed under Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Since the implementation of the Human Rights Act 1998, direct regard should be had to Article 6 of the ECHR and the related Strasbourg jurisprudence.
2. The House of Lords decision in R v DPP ex parte Kebilene and others [1999] 3 W.L.R. 972 is helpful if an application is made by the defence to stay proceedings on the grounds that they amount to an abuse of process by reason of an alleged breach of the European Convention on Human Right (the Convention).
3. In Kebilene, the House of Lords quashed the declaration of the Divisional Court that the continuing decision of the DPP to proceed with the prosecution was an unlawful act. Absent dishonesty or mala fides or some exceptional circumstance, the decision of the Director to consent to a prosecution is not amenable to judicial review.
4. The House also held that once HRA was in force, arguments that domestic legislation is incompatible with the Convention should be brought during the trial or appeal process, the defendants not being entitled to an additional remedy of judicial review.
5. There are two categories of ECHR-based challenges which the defence may make in applications to stay proceedings. The first category is where the defence allege that a statutory provision is incompatible with the Convention. The second category is where the grounds for the application are that the Convention has been breached in some other way, for example, evidence obtained in breach of Convention rights.

Incompatibility of domestic legislation

6. The prosecution might be confronted with an argument that a criminal prosecution amounts to an abuse of process on the ground that the offence-creating provision in question is incompatible with the ECHR. Whenever an abuse of process argument is brought on this basis it will be necessary to consider whether:
• on the existing principles of statutory construction the provision in question is compatible with the Convention. If so, no difficulty arises. If not,
• it is possible to read and give effect to the provision in a way which is compatible with Convention rights. If so, no difficulty arises.
7. Cases where the primary legislation in question is irretrievably incompatible with the Convention are likely to be extremely rare. Even where this situation pertains, the incompatibility does not deprive the provision of its force and validity, and therefore, it should not affect the criminal trial.
8. Where in these circumstances the defence argues that a trial should be stayed as an abuse of process because of incompatibility with the ECHR, the notice of the Court should be drawn to the following provisions of the Human Rights Act 1998:
• Section 4(5); provides a list of courts that may make a "declaration of incompatibility" where it is satisfied that the incompatibility between the legislation and ECHR cannot be resolved. The courts include the High Court, Court of Appeal and House of Lords. The list does not include the Crown Court or Magistrates' courts.
• Section 3(2)(b); provides that, as far as possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. However, where there is incompatibility between the domestic legislation and the Convention, the validity of the legislation is not affected if primary legislation prevents the removal of the incompatibility.
• Section 6(2); provides that a public authority is not acting unlawfully if, as a result of primary legislation, it could not have acted differently (i.e. the CPS cannot be held to be acting unlawfully for prosecuting in accordance with existing legislation).
9. Relying on these provisions, the prosecution can respond that a decision to stay a prosecution on the ground that the Act establishing the offence is allegedly incompatible with the ECHR is not a matter for either the Magistrates or the Crown Court to consider. Moreover, it may also be asserted that under the HRA a finding of incompatibility is no bar to trial. The removal of any incompatibility is a matter exclusively for Parliament.

Procedural and evidential breaches

10. Other alleged breaches of the Convention, (for example, obtaining evidence in breach of a Convention right or excessive delay in bringing the case to trial), should similarly not provide a basis to stay proceedings.
11. The trial process itself can deal with allegations of unfairness; Khan v UK (Application No. 35394/97); Schenk v Switzerland 1988 13 EHRR 242. The Court in Strasbourg is only concerned with the overall fairness of the proceedings, it will not rule on the admissibility of evidence in domestic trials which is deemed to be a matter for the contracting states.
12. The impetus towards abuse applications has increased since the incorporation of the ECHR into domestic law, but the appellate courts have maintained a consistently restrictive attitude towards the application of the doctrine. The clear preference remains that cases should continue to trial and that the judge should use other powers (such as the discretion to exclude unfairly obtained evidence) to regulate the conduct of the trial so as to avoid unfairness to the defendant; see e.g. R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP [2001] 2 Cr App R 23.
13. As to cases where a defendant seeks to argue that his or her ECHR right to a fair trial has been breached by delay see Attorney General's Reference (No 2 of 2001) [2004] 2 A.C. 72, HL. The majority in the House of Lords confirmed the earlier statement of the Court of Appeal on the implications of Article 6 for the question whether a prosecution should be stayed by reason of delay alone. The opinion of the House (set out in the speech of Lord Bingham) was:

"Criminal Proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 61) of the Convention only if (a) a fair hearing is no longer possible or (b) it is for any compelling reason unfair to try the defendant."

14. See also R v Dunlop [2006] EWCA Crim 1354, [2007] 1 Cr. App. R. 8: in which the Lord Chief Justice reminded trial judges that, "The passage of time is, of itself, no impediment to the fairness of a retrial."

In conclusion

15. The inherent jurisdiction of the court to stop a prosecution to prevent an abuse of process is to be exercised only in exceptional circumstances: A-G's Reference (No.1 of 1990) [1992] Q.B. 630, CA; A-G's Reference (No.2 of 2001) above. The essential focus of the doctrine is on preventing unfairness at trial through which the defendant is prejudiced in the presentation of his or her case. Courts which are asked to exercise their inherent power to stay should first consider whether other procedural measures such as the exclusion of specific evidence or directions to the jury might prevent 'trial unfairness' and allow the prosecution to continue.
16. The reviewing lawyer should include specific instructions in the brief on ECHR points which he or she has identified. If the prosecuting advocate believes that the case involves an ECHR point, which is not addressed in the instructions, the reviewing lawyer should be advised immediately. The advocate is also asked to inform the Crown Prosecution Service if any issues involving the HRA arise during the conduct of the case. The advocate is asked to make a note of the point, the arguments put forward and the judge's ruling.
17. Where the defence intend to make an application to stay a prosecution on the ground of abuse of process, on whatever basis, the advocate should ensure that the arrangements set out in The Consolidated Criminal Practice Direction at paragraph IV.36 are followed.
18. If an ECHR point is raised unexpectedly during the conduct of the case, the prosecuting advocate should make a note on the brief in red pen, setting out how the point was decided. The advocate should also follow this up with a telephone call to the reviewing lawyer so that early consideration can be given, in appropriate cases, to whether an appeal is possible and if so, whether it is necessary and also to inform those responsible for the fast tracking of appeals on two points:
• about the impact of the ruling on the criminal justice system as a whole: and
• whether the point at issue needs to be litigated speedily.

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Acceptance of pleas

1. On 21 October 2005 the Attorney General issued new guidelines that govern the acceptance of pleas and in doing so complement section 10 of the Code for Crown Prosecutors and embrace The Farquharson Guidelines The Role and Responsibilities of the Prosecution Advocate (February 2002).
2. Prosecutors must familiarise themselves with the new Guidelines "The Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise" and in doing so will note Section "C" which emphasises that:
• Prosecutors must be careful not to agree a plea on a misleading or untrue set of facts;
• Defence advocates should commit the basis of the plea to writing. Where the basis of the plea is agreed, the prosecutor should endorse the document and it should then be lodged with the court. Where the prosecutor takes issue with all or part of the written basis of the plea then what is accepted and what is rejected should be recorded and the matter placed before the court;
• Such a document should not contain personal mitigation;
• Prosecutors should not concede the point where a defendant puts forward assertions of fact which are outside the scope of the prosecutor's knowledge; a typical example is the defendants state of mind;
• Instead prosecutors should invite sentencers not to accept such mitigation without hearing from the defendant on oath and to test his or hers account in cross examination; and
• Prosecutors should always ensure that the defence advocate is aware of the basis on which the prosecution case will be opened to the court.
3. B3 of the Guidelines should always be followed:

"When a case is listed for trial and the prosecution form the view that the appropriate course is to accept a plea before the proceedings commence or continue, or to offer no evidence on the indictment or any part of it, the prosecution should whenever practicable speak to the victim or victims family, so that the position can be explained. The views of the victim or the family may assist in informing the prosecutor's decision as to whether it is in the public interest, as defined by the Code for Crown Prosecutors and embrace, to accept or reject the plea. The victim or victim's family should then be kept informed and decisions explained once they are made at court".

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Advance Sentence Indication

Procedure

Scope

1. The Advance Sentence Indication procedure is only applicable to cases before the Crown Court.
2. The principles of the judgment in R -v- Goodyear 20 April 2005 CA modify the rule of practice adopted by courts following the decision in R -v- Turner 1970 2 QB 321.
3. Section "D" of The Attorney General's Guidelines 2005 on the Acceptance of Pleas and the Prosecutor's Role in The Sentencing Exercise, provide specific guidance on the approach to the procedure and should always be followed.

Acceptable plea

4. The Advance Sentence Indication is only available to the defence where there is an acceptable plea the basis of which has been committed to writing. Prosecutors are reminded that they must ensure that Section 6 of the Farquharson Guidelines as to The Role of and Responsibilities of the Prosecution Advocate are followed and that the necessary consultation takes place both with victims or victim's family and in the case of an independent prosecution advocate, with the CPS.
5. The guidelines make clear that an indication should not be sought on a basis of hypothetical facts. Where there is a dispute about a particular fact and the defence believes the point to be effectively immaterial to the sentencing decision, the difference should be recorded so that the judge may decide.
6. The guidelines are emphatic that a Judge should not be invited to give an indication on what would be, or what would appear to be a "plea bargain".

Request for an indication

7. As the request for indication comes from the defence, the prosecutor is obliged to react, rather than initiate the process.
8. On the basis of an acceptable plea, the defence may request an advance indication of sentence at any stage of the proceedings, including in trial. However, the guidelines recommend that ordinarily the procedure will take place at the Plea and Case Management Hearing. This is usually the first opportunity for the defendant to plead guilty and take advantage of the maximum sentence discount applying the guidance set down by the Sentencing Guideline Council.
9. Whilst the Judge may remind a defendant that he may wish to take advantage of the procedure he may not insist that an indication takes place. A Judge may also decline to give an indication or decide to defer giving an indication to later in the trial process.
10. Where there are issues in the case that are considered "complicated or difficult", the defence are required to give proper notice in writing to the prosecution and the court of their intention to seek an advance sentence indication. In such cases no less than 7 days notice in writing of an intention to seek an indication should normally be given. If an application is made without notice when it should have been given, any adjournment that may flow as a consequence could result in the defendants discount for an early plea being reduced.
11. Whilst the guidelines are silent as to what defines "complicated or difficult" it is clear from the guidelines that any issues between the prosecution and defence must be resolved before the Judge will accede to a request for an indication. Prosecutors will need to be alive to the need to ensure that the court are made aware of any unresolved issues and that such hearings should not take place in such circumstances.

The hearing

12. The hearing should be conducted in open court with a full recording of the proceedings, with both sides represented and in the presence of the defendant.
13. Reporting restrictions will apply in order to safeguard a situation where the indication is not accepted and the matter moves to trial.
14. It is anticipated that the process should not take up a disproportionate amount of court time, as the procedure does not require an opening by the prosecution or a mitigation plea by the defence.
15. The role of the prosecutor described in paragraph 70 of the Judgment is reproduced in full:
1. We must expressly identify a number of specific matters for which the advocate for the prosecution is responsible.
1. If there is no final agreement about the plea to the indictment, or the basis of plea, and the defence nevertheless proceeds to seek an indication, which the judge appears minded to give, prosecuting counsel should remind him of this guidance, that normally speaking an indication of sentence should not be given until the basis of the plea has been agreed, or the judge has concluded that he can properly deal with the case without the need for a Newton hearing.
2. If an indication is sought, the prosecution should normally enquire whether the judge is in possession of or has had access to all the evidence relied on by the prosecution, including any personal impact statement from the victim of the crime, as well as any information of relevant previous convictions recorded against the defendant.
3. If the process has been properly followed, it should not normally be necessary for counsel for the prosecution, before the judge gives any indication, to do more than, first, draw the judge's attention to any minimum or mandatory statutory sentencing requirements, and where he would be expected to offer the judge assistance with relevant guideline cases, or the views of the Sentencing Guidelines Council, to invite the judge to allow him to do so, and second, where it applies, to remind the judge that the position of the Attorney General to refer any eventual sentencing decision as unduly lenient is not affected.
4. In any event, counsel should not say anything which may create the impression that the sentence indication has the support or approval of the Crown.
16. In giving an indication the judge will normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought.
17. The court rejected the suggestion that as part of the procedure the Judge should indicate the maximum level of sentence following a conviction by a jury. The rationale for adopting this approach is described at paragraph 54 of the Judgement.
18. Once an indication is given it is binding and remains binding on the judge who has given it. It also binds any other judge who may become responsible for the case.
19. It is envisaged that where a defendant accepts the indication, the court will proceed to take the plea and at that stage lift reporting restrictions. However, the guidelines allow a defendant "a reasonable opportunity" to consider his/her position but provides no indication as to what would amount to "reasonable" although this is likely to be considered on a case-by-case basis.
20. If after a "reasonable opportunity" the defendant does not plead guilty, the indication will cease to have effect.

Dangerous Offenders

21. In R v Kulah [2007] EWCA Crim 1701, the Court of Appeal (Criminal Division) made the following observations about the relationship between the "dangerous offender" provisions of the Criminal Justice Act 2003 and the procedure in cases where a Goodyear indication might be sought:
22. As a matter of general principle, the guidance set out in Goodyear holds good, notwithstanding the introduction of the dangerous offender provisions of the Criminal Justice Act 2003.
23. At the point (before plea) when a sentence indication would be sought, it would often be the case that the judge would not be in possession of the information necessary to enable him/her to make the assessment of risk required by sections 225,226,227 or 228 of the Criminal Justice Act 2003.
24. As Goodyear makes clear, the judge is under no obligation to give an indication, and has an unfettered right in this regard.
25. If the judge decides to give an indication where an assessment of future risk remains to be made, he should make the following matters clear:
1. The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act 2003, bringing into operation the "dangerous offender" provisions contained in Part 12 Chapter 5 of that Act.
2. The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that the assessment remains to be conducted.
3. If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.
4. If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.
5. If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release).
6. If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.
26. The Court pointed out the obligation on the prosecution, imposed in Goodyear, to draw to the attention of the judge any minimum or mandatory sentencing requirement. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by the relevant section of the Criminal Justice Act.
27. The Court further observed that it would be desirable, wherever possible, that the judge who had given a Goodyear indication should himself sentence the defendant. If it was unavoidable that a different judge had to pass sentence, the sentencing judge should be provided with a transcript of the Goodyear indication.
28. When prosecuting any sentencing hearing where the "dangerous offender" provisions apply, and where there has been a previous Goodyear indication made by a different judge, the prosecuting advocate should ensure that the exact terms of the indication are available to the court. In particular, it will be important to make it clear whether any indication made had addressed the issue of risk assessment, or had deferred it until the sentencing hearing.

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Adverse judicial findings

1. A duty to reveal and disclose adverse judicial findings arises pursuant to R v Guney (1998) 2 Cr. App R 242. The police and CPS have agreed that an adverse judicial finding is a finding by a court, expressly or by inevitable inference, that a police witness has knowingly, whether on oath or otherwise, misled the court. This applies to civil and criminal proceedings where a finding is made.
2. It is the duty of an advocate prosecuting on behalf of the CPS to record any potential adverse judicial finding in full.
3. If there is any room for ambiguity in interpreting the intended status of adverse comments made by the court of a witness, the advocate must seek to clarify specifically any criticism at the time it is made.
4. Where adverse comments are made that may amount to an adverse judicial finding as set out at 8.1 above, the advocate must make a note on the brief and thereafter provide a full note to the CPS Unit Head or Special Casework Lawyer.

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Anti Social Behaviour Orders on conviction

1. Under section 1C(2) of the Crime and Disorder Act 1998, as amended by the Anti-social Behaviour Act 2003, an order on conviction may be made by a court if the court considers "...
1. that the offender has acted, at any time since [2 December 2002], in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself, and
2. that an order under this section is necessary to protect persons in any place in England and Wales from further anti-social acts by him..."
2. A prosecutor should have considered, in appropriate cases, whether a section 1C order should be applied for at the time of charging or reviewing the file. In reaching that decision, the prosecutor may have had to liaise with other local agencies, such as the police or the local authority, possibly in accordance with a local protocol. The Advocate should not find that the matter is raised for the first time after conviction. A draft order should have been endorsed on the file. The defence should have been informed what evidence the prosecution intend to rely on when making the application, and should have served that evidence on the defence.
3. If an Advocate is instructed to apply for such an order, the Advocate must read the guidance issued by CPS Policy on section 1C orders which can be found on the CPS Intranet.
4. Such an order may only be made in addition to a sentence or conditional discharge (section 1C(4)). It follows that it may not be combined with an absolute discharge nor be imposed at the same time as the court defers sentence (see Blackstone's (2004) E23.10).
5. An anti-social behaviour order on conviction lasts for a minimum of 2 years (s 1(7), as applied to orders under Section 1C by Section 1C(9)).
6. If an application for a section 1C order is refused, the reasons for the court's decision should be endorsed on the brief.

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Bail

Electronic tagging

1. The advocate is informed that in October 2005, the Court Service circulated guidance that electronic tagging is available as a condition of bail and, where appropriate, remind the court that such a condition can be imposed as an alternative to custody.
2. With the possibility of electronic tagging combined with other conditions, remands in custody should only be sought when only absolutely necessary in circumstances when bail conditions cannot meet the bail objections.
3. In considering electronic tagging, prosecutors should bear in mind:
• Section 25 Criminal Justice and Public Order Act 1994 for the offences of murder, attempted murder, manslaughter, rape and attempted tape, ie bail can only be granted in exceptional circumstances if a defendant has been charged with one of these offences and has a previous conviction for one or more of these offences; and
• Paragraph 2A Schedule 1 Bail Act 1976 which provides that a defendant need not be granted bail if the offence for which the person is before the Court is an indictable only or either way offence and it appears to the Court that the defendant was on bail in criminal proceedings on the date that the current offence was allegedly committed.

Breach of bail

4. The advocate is referred to Amendment no 3 to the Consolidated Practice Direction.
5. The disposal of proceedings under s6(1) or s6(2) Bail Act 1976 should not be deferred. Defendants who breach bail should expect a custodial sentence for the breach which should be served consecutively to any custodial sentence. Courts should consider whether bail for any other offences should continue in the light of the failure to surrender, bearing in mind the guidance above.
6. If an advocate is dealing with a Bail Act offence (which may occur if the defendant commits another offence outside the jurisdiction of the bail court), then a court should be reminded of the requirements of the Practice Direction, namely:
• To deal with the Bail Act offence as soon as reasonably practicable
• Not to defer the Bail Act offence until the proceedings for the substantive offences have been concluded
• To consider whether bail should continue in the light of failure to surrender.

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Confiscation (Criminal Justice Act 1988 Part VI)

1. Under the Criminal Justice Act 1988 Part VI, the Crown Court can make a confiscation order after conviction for a relevant offence (and any T I Cs), where the offender has benefited from criminal conduct. All offences before the Crown Court except drug trafficking and terrorism offences (which have their own confiscation legislation) are relevant offences. As with the Drug Trafficking Act 1994, a confiscation order under the CJA 1988 is an order to pay a sum of money. It is not an order which transfers the title to property.
2. Advocates will be aware that the Criminal Justice Act 1988 has been amended on a number of occasions. It is important to establish what version of the Act applies by reference to the date of offence. What follows relates to offences committed from the 1st November 1995.
3. The confiscation procedures are similar but not identical to those of the Drug Trafficking Act 1994 above. When written notice is given under the CJA 1988, the prosecution advocate should seek an adjournment for service of the prosecutor's statement under section 73. The Crown Court is then under a duty to consider making a confiscation order. The confiscation hearing must be held within six months of conviction, unless there are exceptional circumstances which justify a later hearing and application to extend is made within the six-month period [CJA s72A.]. Advocates should ensure that these time limits are observed.
4. Under the DTA, the court must assume all property held by the defendant at conviction and for the previous six years was the proceeds of drug trafficking. Under the version of the CJA 1988 which applies to offences committed from 1st November 1995, assumptions about property may be made if various conditions are met. These are that:
• the prosecution's written notice claims they should apply;
• the defendant has been convicted of 2 qualifying offences in the current proceedings (or has a previous qualifying conviction in the last six years), and
• all these offences were committed after the 1st November, 1995 [ S72AA].
5. When a confiscation order is made, the prosecution advocate is instructed to ensure that the court fixes a term of imprisonment in default for non-payment.
6. If no confiscation order is made, the prosecuting advocate must ensure that CPS Central Confiscation Branch is notified immediately, so that any restraint or charging orders may be discharged.

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Confiscation (Drug Trafficking Act 1994)

1. Following conviction, the advocate is instructed to apply to the Crown Court for a confiscation order against the defendant pursuant to section 2(1)(a) Drug Trafficking Act 1994 (DTA 1994). Once this application is made, the Crown Court is under a duty to consider the making of a confiscation order and fix the matter for a confiscation hearing.
2. If the defendant offers pleas to the counts on the indictment or to offences which are not drug trafficking offences or to lesser offences which are not drug trafficking offences, the acceptance of such pleas may limit the power of the Crown Court to make a confiscation order. Accordingly, the advocate is instructed to contact the reviewing lawyer to discuss the issue of confiscation before the acceptance of pleas.
3. If the defendant pleads guilty either in the magistrates' court (plea before venue and then committed to the Crown Court for sentence) or in the Crown Court or he is convicted after trial, the advocate is instructed to apply for an adjournment of 28 days so that the prosecution can serve the prosecutor's statement required under section 11 DTA 1994 upon the defence and the Crown Court and a confiscation hearing can be held. Service of the prosecutor's statement does not arise until after conviction since the Crown Court has no power to make a confiscation order in the absence of a conviction for a drug trafficking offence, sections 2(1) and 11(3) DTA 1994.

Postponed determinations

4. If the Crown Court is not minded to delay sentence, the Crown Court is able to sentence the defendant first and postpone consideration of the making of the confiscation determination for up to 6 months from the date of conviction, section 3 DTA 1994. If the confiscation determination is postponed then the Crown Court cannot sentence the defendant to a monetary order until after the confiscation determination is made. More than one postponement can be made in the same case, but unless there are exceptional circumstances the total postponements should not be for more than six months from the date of conviction.
5. Postponements may be made on application by the defendant or the prosecutor or by the Crown Court itself. Postponement can be made by the Crown Court if it requires further information before making the determination whether the defendant has benefited from drug trafficking, or determining the amount to be recovered in his case.
6. The advocate is instructed to ensure that the confiscation hearing is fixed for a date within six months of the date of conviction.
7. The advocate is referred to the cases of Shergill [1999] 1 All E R 485, Cole (unreported) [referred to Shergill], France [1999] 1 Cr. App. R. (S.) 85, Edwards [2000] 1 Cr. App. R. (S.) 98 and to rule 34 Crown Court Rules 1982 (SI 1982 No. 1109) [Blackstone's 2000 edition Appendix 1]. The advocate should note that any application to extend the time limit above must be made before the expiry of the six month time limit and that the matter must be dealt with in open court rather than administratively. The advocate is instructed to ensure that any application to extend the time limit complies with these requirements.

Confiscation hearing - Determining benefit

8. The Crown Court must determine whether the defendant has benefited from drug trafficking. A defendant benefits from drug trafficking if he has at any time received any payment or other reward in connection with drug trafficking carried on by him or another person. This includes any benefit received by the defendant prior to the DTA 1994 coming into force (3rd February 1995), section 2(3).

Amount to be recovered

9. If the defendant has benefited from drug trafficking, the Crown Court must determine the amount to be recovered. This involves the Crown Court determining:
1. the total value of the proceeds of the defendant's drug trafficking - this amount is the total benefit from all drug trafficking carried out by the defendant, not just from the offence of which the defendant has been convicted. This is the aggregate values of the payments and other rewards. When calculating the proceeds, the Crown Court is concerned with gross receipts, not profit, Banks [1997] 2 Cr. App. R. (S.) 110. The Crown Court does not reduce the amount of the proceeds to take account of expenses incurred by the defendant; and
2. the amount that the defendant can pay (the DTA 1994 calls this "the amount that might be realised") - this is the total value of the defendant's realisable assets and the value of any "gifts" (transfers made by the defendant at an undervalue to others or for no consideration). The value of legitimately acquired assets is calculated as part of the amount that might be realised. There is no requirement on the prosecution to prove that the defendant's assets were acquired from drug trafficking under the DTA 1994. In assessing the amount that the defendant can pay the Crown Court aggregates
• the gross value to the defendant of his assets, less the value held in the property by others including secured creditors and
• the value of all transfers made by the defendant to others as "gifts" (see the requirements set out in section 8(1)(a) or 8(1)(b) as to when transfers can qualify as "gifts").
3. The defendant bears the burden of showing that the amount that might be realised is less than the proceeds of drug trafficking, section 5.

"Realisable property"

10. "Realisable property" is defined as any property held by the defendant and includes any property held by any person to whom the defendant has made a gift caught by the DTA 1994, section 6(2). Property is held by a defendant if he has any interest in the property, section 62(5)(a). Interest includes a right, section 62(3). If property falls within this definition of "realisable property", there is no discretion to leave it out of account when assessing the amount that the defendant can pay since the DTA 1994 defines the amount that might be realised as the total values of all the defendant's realisable property, section 6(1). The value to be applied to the defendant's interest in a property is the market value, section 7(1). Where there is a third party interest in that property, it is the defendant's beneficial interest in the property which is assessed as the amount that he can pay and its value is the open market value of that interest. The only deductions permitted from the amount that the defendant can pay are priority obligations as defined in section 6(4).
11. Matrimonial Home - this constitutes part of the defendant's realisable property provided that he has an interest in it. The value of the defendant's beneficial interest in the property is the open market value of the property, i.e. not one that is affected by the residency or other interest of a wife or other third party. This approach mirrors that adopted by the High Court in matrimonial cases. Also, it is consistent with the power of the High Court to order any person holding realisable property to give it to the receiver for the purpose of enforcing a confiscation order, section 29. The only deductions permitted from this value are priority obligations as defined in section 6(4).
12. The advocate is requested to ensure that the Crown Court states what property is being taken into account when assessing the amount to be recovered in respect of this defendant.

Third parties

13. The advocate will be aware that there is no locus standi for third parties to make representations to the Crown Court during the course of the confiscation proceedings, except when they are called by the defendant. If there is a dispute as to the defendant's interest in the property (such as a claim from a third party of a beneficial interest in property), it is for the Crown Court to make a determination as to the amount by which the defendant has benefited from drug trafficking and the amount that might be realised at the time the confiscation order is made as best it can on the information available to it.
14. The High Court is the appropriate forum to determine the ownership or interests of third parties in the property. Full opportunity will be given to the third parties to make representations as to their interest in the property at the enforcement stage, either of their own volition or when a receiver is appointed to sell sufficient of the defendant's assets to pay the confiscation order.

Prosecutor's statement

15. Section 11 DTA 1994 requires the prosecutor to give the Crown Court a prosecutor'statement dealing with whether the defendant has benefited from drug trafficking together with an assessment of the defendant's proceeds from drug trafficking. The prosecutor's statement should also set out the information available to the prosecutor that led him to request the Crown Court to make the assumptions (see paragraph (19) below).
16. The Crown Court may require the defendant to indicate the extent to which he accepts any allegation in the prosecutor's statement and, if he does not accept the allegation, to provide particulars of any matter upon which he wishes to rely, section 11(5).
17. The defendant may accept the allegations in the prosecutor's statement, and for the purpose of determining whether the defendant has benefited from drug trafficking, or of determining the proceeds of drug trafficking, the Crown Court may treat his acceptance as conclusive of the matters to which it relates.
18. The Crown Court can have regard to any evidence given in the trial; the contents of the prosecutor's statement and any defence statements; any evidence given in the confiscation hearing, Dickens [1990] 2 WLR 1384, in making the determinations above. Additionally, the Crown Court may require the defendant to provide information, section 12.

Assumptions

19. In addition to any direct evidence heard for the purpose of making the determinations above, the Crown Court must assume that (section 4(2) DTA 1994):
• all property in which the defendant has an interest was received as a payment or reward in connection with drug trafficking; and
• that any property transferred to the defendant in the six years before the institution of the present proceedings was received from his or her drug trafficking;
• that any expenditure of the defendant's in the six years ending with the institution of proceedings was made out of payments received from his or her drug trafficking;
• any property transferred to the defendant was free of any other interest.

NOTE: The assumptions do not apply to drug trafficking offences which are drug money laundering offences [S4 (5)].

20. Once the Crown Court has made the assumptions, the onus is on the defendant to rebut them by demonstrating to the Crown Court that he has obtained the property or made the expenditure from legitimate sources. The assumptions are cumulative in their effect. In other words, the defendant has to negative all of the assumptions in respect of each property or each item of expenditure before he can submit that it is from a legitimate source.
21. The Crown Court must not make the assumptions if the assumption is shown to be incorrect in the defendant's case or if the Crown Court is satisfied that there would be a serious risk of injustice in the defendant's case if the assumption was to be made in relation to that property or expenditure, section 4(4). The defendant bears the burden of proving the serious risk of injustice and, and in discharging that burden, the defendant must show that the injustice is something other than the intentionally harsh consequence of making a confiscation order, Dore [1997] 2 Cr. App. R. (S.) 152. Where the Crown Court does not make an assumption, it must state its reasons. The advocate is requested to note any property in respect of which the Crown Court does not make any assumptions together with the reasons given by the Crown Court.
22. These assumptions can be made both to determine whether the defendant has benefited from drug trafficking, and if he has, to assess the value of his proceeds from drug trafficking.

Confiscation order

23. The Crown Court makes a confiscation order to the full value of the defendant's proceeds of drug trafficking. However, if the defendant satisfies the court that there are insufficient assets to meet this, the court must make an order in the amount that might be realised. Where the court orders this amount to be paid (i.e. an amount lower than the defendant's proceeds of drug trafficking), it must issue a certificate setting out its findings (S5(2)). The advocate is instructed to ensure that the Crown Court issues such a certificate.
24. Additionally, the Crown Court must settle a term of imprisonment in default of payment of the confiscation order. The terms to be served are the same as those applicable to fines, as set out in section 31(3A) of the Powers of Criminal Courts Act 1973 and Paragraph 5-346 of Archbold, 2000 edition. The advocate is instructed to ensure that the Crown Court fixes a term of imprisonment in default.

Standard of proof

25. The standard of proof required to determine any question arising under the confiscation determination as to whether the defendant has benefited from any offence, or the amount he has to pay, is the civil standard, section 2(8).

Payment of the confiscation order

26. The Crown Court merely has the power to make a confiscation order in a sum of money. The Crown Court has no power to direct payment from a particular source nor can the Crown Court order confiscation of a particular asset. The Crown Court has no discretion to mitigate the confiscation order. For example, if the defendant has an interest in the family home, its value must be calculated. This is so even if the effect of the confiscation order may be to render the defendant and dependent relatives homeless.
27. The confiscation order is enforced either through the magistrates' court as though it were a fine (section 9) or by the CPS applying to the High Court for the appointment of a receiver.
28. There is no power within the DTA 1994 for the Crown Court to direct that third parties such as the banks or police should pay monies held by them over to the magistrates' court in satisfaction of the confiscation order. Any monies held by third parties can only be paid to the magistrates' court with the authority of the defendant, or by civil action taken by the magistrates' court (as a result of garnishee orders or distress warrants) or by the appointment of a receiver by the High Court.

Time to pay

29. The Crown Court may give the defendant time to pay the confiscation order. However, if the Crown Court gives the defendant a lengthy period in which to pay, the defendant effectively benefits from his crime as he has the benefit of any subsequent interest or capital appreciation that accrues on his assets. There is no provision for such interest or appreciation to be confiscated because the order has to be an order for a definite sum of money. Enforcement action cannot be taken by the magistrates' court until the time to pay has lapsed.
30. The Crown Court should be invited to consider making the confiscation order payable forthwith. Concern may be expressed that the defendant needs time to sell property. However, it is usually most practical and efficient for the CPS to apply for a receiver to be appointed by the High Court to sell property.
31. The sentence of imprisonment in default imposed by the Crown Court does not automatically come into force when the time to pay has lapsed. It is as a result of the magistrates' court taking enforcement proceedings when a warrant of commitment to prison in default of payment is issued. The magistrates' court will not take enforcement proceedings until the appeal period of 28 days has elapsed.

Confiscation and sentence

32. Where a Crown Court makes a confiscation order it must take account of that before imposing any monetary order such as a fine; forfeiture order under Section 27 of the Misuse of Drugs Act 1971; or deprivation order under section 43 of the Powers of Criminal Court Act. Additionally, the Crown Court must ignore the fact that a confiscation order has been made when it determines the appropriate sentence. See section 2(5).

Confiscation and forfeiture

33. The Crown Court cannot usually make a forfeiture order when it has made a confiscation order. This is because forfeiture falls to be considered after confiscation, see paragraph 33 above. The value of the asset is usually calculated when the confiscation order is considered. It therefore should not be forfeited, R v Stuart and Bonnett (1989) 11 Cr. App. R. (S.) 90.
34. The Crown Court may make a confiscation order and a forfeiture order only where the defendant's benefit from drug trafficking is less than the value his realisable property. In such circumstances, the remainder of the realisable property may be liable to forfeiture provided that it satisfies the criteria under section 27 of the Misuse of Drugs Act 1971. However, this is a rare occurrence. The Crown Court can make a forfeiture order where it has decided not to make a confiscation order (for example, because it has decided that the defendant has not benefited from drug trafficking).

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Costs

1. The advocate is instructed to apply for costs in all cases unless it is considered to be inappropriate, in which case the Crown Prosecution Service representative at court should be informed.
2. In the event of an acquittal, the advocate is referred to sections 16(2), 19 and 19a Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases Regulations 1986.
3. From the 1 April 2007, where a court deals with a person for one or more offences committed on or after that date, and deals with that person by requiring him to pay a fine, whether or not any other penalty is imposed, the court shall order that person to pay a surcharge. The amount of the surcharge is currently set at £15. (Criminal Justice Act (2003) (Surcharge) (No2) Order 2007 - SI 2007/1079.

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Criminal Procedure Rules and Criminal Practice Direction

1. The advocate is referred to the Criminal Procedure Rules 2005 (as amended).
2. The advocate will be expected to comply with the various rules contained therein and with the associated Consolidated Criminal Practice Direction.

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Custody time limits

1. Where defendants are remanded in custody the advocate should, at any hearing, request that the trial take place within the custody time limit. If this is not possible the advocate must apply to the court to extend the custody time limit. Whenever the court makes an order, which will result in the custody time limit expiring before the start of the trial, an application must be made to extend or further extend the time limit to a date 7 days after the start of the trial. Any refusal by the court to do so, with reasons, should be endorsed on the brief.
2. When making an application to extend a CTL, the advocate must be in possession of sufficient information to satisfy the court that the conditions set out in the Prosecution of Offences Act 1985, Section 22 (3) are met. In particular the advocate should (a) provide the court with a chronology to demonstrate that the prosecution has acted with all due diligence and expedition and (b) demonstrate that there is good and sufficient cause to justify an extension - the case of R v Manchester Crown Court ex parte McDonald refers. If the advocate does not have sufficient information to deal with (a) and (b) above then the CPS representative at court should be contacted as soon as possible.
3. The failure to extend a custody time limit may directly affect public confidence in the justice system. This is why the Director of Public Prosecutions takes a personal interest in any failure and details are sent to him for his personal attention. Please also make it a standard practice to ask the caseworker if there are any custody time limit issues in the case. S/he should be armed with a Custody Time Limit Ready Reckoner to help in the calculations of time limit date extensions and will be able to assist in the chronology of the handling of the case and provide further details of any reasons for delay.

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Deportation recommendations (New guidance May 2006)

The Immigration Act 1971

1. The Immigration Act 1971 gives the Secretary of State power to deport persons who are not 'patrial' if he considers their deportation conducive to the public good.
2. A person who is not patrial is also liable for deportation if, having attained the age of 17; he is convicted of an imprisonable offence and upon his conviction is recommended for deportation by the sentencing court.
3. A person shall be deemed to have attained the age of 17 upon conviction if on available evidence; he appears to the court to have done so.
4. Whether or not an offence is punishable with imprisonment is to be decided without regard to any restriction on the sentencing of young offenders.
5. For the purposes of deportation a person found to have committed an offence shall be regarded as having been convicted notwithstanding that the court does not proceed to conviction.
6. A recommendation for deportation may be made in respect of a person sentenced to life imprisonment.
7. A court shall not recommend deportation of a person unless he has been given not less than 7 days notice in writing of certain rights under the Act. The court may adjourn for this purpose.
8. A court may recommend the deportation of an 'EEA national' (national of an EU member state other than the UK, Norway, Iceland, Liechtenstein or Switzerland) but these persons have enhanced rights to reside in the UK. Courts should have particular regard in this respect to the Immigration (European Economic Area) Regulations 2006 and the decision of the Court of Appeal in Nelson Carmona -v- The Queen [2006] EWCA Crim 508.

The decision in Carmona -v- R

9. A recommendation for deportation is not part of the punishment. A recommendation does not therefore justify a reduction in sentence.
10. The question for the sentencing court is whether the continued presence of the offender is to the detriment of this country [as per Nazari [1980] 1 WLR 1366, (1980) 2 Cr App R (S) 84].
11. Slightly different considerations apply to 'EEA nationals' upon whom Directive 2004/38/EC confers enhanced rights.
12. Any 'rule of thumb' as to sentence used by the Secretary of State, in deciding whether or not to order deportation, should not prevent sentencing judges recommending deportation where the sentence falls short of that, provided that the court is satisfied that the continued presence of the offender would be against the public interest, but courts should be cautious when doing so.
13. There is now no need for the sentencing court to consider the ECHR rights of an offender whose offence justifies a recommendation for deportation.

The Immigration (European Economic Area) Regulations 2006 [2006 No. 1003]

14. The Regulations came into force on the 30th April 2006, implementing EU Directive 2004/38/EC.
15. A person who is entitled to reside in the UK under the Regulations may only be deported on grounds of public security [the other grounds of public health and public policy will not apply to recommendations by a court]. A person with a permanent right of residence may only be deported on 'serious' grounds. An EEA national who has resided in the UK for a continuous period of at least 10 years may only be deported on 'imperative' grounds.
16. Deportation must be proportionate, based only upon the deportee's conduct, which must present a genuine, present and sufficiently serious threat to a fundamental interest of society. General considerations and 'general prevention' do not justify deportation. A person's criminal convictions do not in themselves, justify deportation.

Procedure

17. Prosecutors should identify at the earliest opportunity cases in which deportation may be appropriate. The prospect of deportation may be a factor that a court should take into account when considering whether or not to grant bail.
18. Form IM3 should be served upon appropriate persons by the police at least 7 days before any recommendation for deportation. If the IM3 has not been served, an adjournment should be sought for this purpose in appropriate cases.
19. In order to assist the court as to the appropriate threshold for a recommendation prosecuting advocates should ideally have sufficient information as to a defendant's status in the UK.
20. If the offender's advocate does not address the question of a recommendation for deportation and the sentencing judge is considering making one, he should warn the advocate and allow him the opportunity to make submissions [Nazari].
21. If a court recommends deportation, the convicted person must be detained, regardless of his sentence, until the Secretary of State has decided whether or not to deport. If the court does not recommend deportation, it is possible that a defendant who has been remanded in custody may be released before a decision can be made by the Secretary of State. Prosecuting advocates should bring this risk to the attention of the court in appropriate cases.
22. Consistent with existing guidance on the role of the prosecuting advocate in sentencing, in particular the Attorney General's Guidelines on the acceptance of pleas and the prosecutor's role in the sentencing exercise, prosecutors should be ready to assist a sentencer by drawing the court's attention to the factors outlined in this guidance and in light of these factors, to assist the sentencer by making submissions as to the appropriateness of a recommendation for deportation.

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Disclosure/unused material

All prosecution advocates must refer to the February 2006 Disclosure Protocol ("Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court") when dealing with disclosure issues in the context of Crown Court proceedings. Advocates should in particular draw the judge's attention to the provisions of the Disclosure Protocol when:

• There has been a failure by the accused to serve a defence statement, particularly by the time of the PCMH stage of proceedings (where primary/initial disclosure has been served by at least 14 days prior to the PCMH);
• The purported defence statement fails to comply with the requisite formalities under section 5(6) and (7), or section 6A, of the Criminal Proceedings and Investigations Act 1996 ('CPIA') as appropriate;
• The defence are seeking an order for disclosure of unused material but have failed to comply with the procedure under rule 25.6 of the Criminal Procedure Rules and section 8 CPIA;
• The court is considering (at the PCMH, or later) whether any action is appropriate in respect of material in possession of third parties;
• There are PII issues.

The Disclosure Protocol stresses the need for firm compliance with the statutory provisions regulating disclosure, where these apply to the proceedings, and the need to comply with the "overarching principle" identified in paragraph 4 of the Protocol, namely:

[U]nused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question, subject to any overriding public interest considerations.

Prosecution advocates must not make disclosure (whether by provision of copy documents, or by allowing inspection of the material) otherwise than in compliance with this overarching principle.

From the 4th April 2005, the disclosure regime set out in the CPIA as amended by the operative provisions of Part 5 of the Criminal Justice Act 2003 ('CJA') applies to cases where the relevant criminal investigation started on or after that date (this will be referred to as 'the new CPIA regime'). A new Code of Practice under s23(1) of the CPIA supplements the new regime, but only applies where the new CPIA disclosure provisions apply.

If the criminal investigation began before 4th April 2005 (but on or after 1st April 1997), then the CPIA without the CJA amendments applies instead (this will be referred to as 'the old CPIA regime'), along with the 1997 version of the Code of Practice.

These instructions for the most part assume that the new CPIA regime applies to the instant case. There are some references to the old CPIA regime, in order to draw attention to specific differences where appropriate, although a general working knowledge of the old CPIA regime and the two versions of the Code of Practice is assumed. However, if further details about the old CPIA regime are required, the advocate should refer to the previous version of these instructions.

1. The following rules are set out in order that the prosecuting advocate can assist the court when considering disclosure.
2. Under the old CPIA regime, separate disclosure tests are applied at the primary and secondary disclosure stages. Where the new CPIA regime applies, the new unified s3 CPIA disclosure test (see below) must be applied at all relevant stages in the proceedings, rather than applying the separate tests required in the old CPIS regime. The procedure under the new CPIA regime is as follows:
• Initial disclosure is defined as disclosure of unused prosecution material which has not previously been disclosed to the accused and which 'might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused'.
• The advocate should therefore resist attempts to obtain disclosure of items that fall outside this statutory test, which is referred to as the disclosure test throughout these instructions.
• Initial disclosure of unused material which satisfies the disclosure test must take place as soon as reasonably practicable after:
1. the accused pleads not guilty in summary proceedings, or
2. the accused is committed for trial under s6 of the Magistrates' Courts Act 1980, or
3. proceedings are transferred to a Crown Court under s4 of the Criminal Justice Act 1987/s53 of the Criminal Justice Act 1991, or
4. case papers are served on the accused in accordance with paragraph 1, Schedule 3 the Crime and Disorder Act 1998 and regulation 2 of the Rules thereunder, or
5. the matter is added to an indictment under s40 of the Criminal Justice Act 1988, or
6. a voluntary bill of indictment is preferred.
• Following initial disclosure, the defence have 14 days to provide a defence statement or apply for an extension of time to do so.
• After making initial disclosure, the prosecutor has a continuing duty to review the unused material, applying the disclosure test, until the accused is acquitted, or is convicted, or the prosecutor decides not to continue with the case.
• The prosecutor must particularly review the unused material following service of a defence statement complying with s6A CPIA [or s5(6) and (7) CPIA if the old CPIA regime applies].
• In complying with the continuing duty to review disclosure, the prosecutor must consider whether at any given time (and in particular, following service of such defence statement) there is prosecution material which, in the light of the existing state of affairs at that time, including the case for the prosecution as it then stands, meets the test for disclosure.
• In compliance with the prosecutor's continuing duty to review disclosure, there may be further disclosure of material that satisfies the disclosure test. This should take place as soon as reasonably practicable after the prosecutor becomes aware of such material. The advocate should ensure that any defence statement fulfils the statutory criteria under s6A CPIA [or see the formalities required by s5(6) and 5(7) if the old CPIA regimes applies], namely that it must:
1. set out the nature of the defence, including any particular defences relied upon;
2. indicate the matters of fact upon which the accused takes issue with the prosecution and the reason why in relation to each;
3. identify points of law the accused intends to raise (including matters relating to admissibility of evidence and abuse of process), citing authorities in relation to same; and
4. if the defence is one of alibi, give details (including name, date of birth and address if known) of any alibi witnesses or any information of material assistance in identifying or tracing such witnesses.
• The advocate should be alert to any failure in the manner or nature of disclosure by the defendant, whether it concerns:
1. the failure to serve a defence statement if mandatory under s5(5) CPIA,
2. serving one outside the time limit for such disclosure,
3. serving one which sets out inconsistent defences, or
4. the defence departing at trial from that outlined in the defence statement including calling an alibi witness not mentioned therein,as the advocate may without leave comment upon such matters (although, if the failure concerns a point of law or an authority not mentioned in the defence statement, leave of the court is required) and the court or jury may draw appropriate inferences from such failure in determining whether the accused is guilty of an offence charged.
• If the old CPIA regime still applies, then leave is required before making comment on any failure in defence disclosure, though leave is not required in any event (irrespective of whether the old or new regime applies) for cross-examining the accused on differences between his or her testimony and anything set out in the defence statement: R v Tibbs [2002] 2 Cr. App.R. 309, CA.
• The advocate should firmly resist any application for the disclosure of additional material after initial disclosure that does not satisfy the test for disclosure in the light of (i) any relevant change of circumstances in the case, or (ii) the contents of the defence statement served on behalf of the accused.
• The advocate must also firmly resist the making by the defence of ad-hoc applications for disclosure, as such applications must be made in accordance with s8 CPIA and the formal procedure set out in the Criminal Procedure Rules, rule 25.6.
• The advocate should be alert to the possibility that further unused material to which the prosecutor's continuing duty to review disclosure applies may come to light or be generated at any point during the course of the proceedings and where this is so, it must be handled and considered in accordance with that duty.
3. The advocate will be familiar with the House of Lord's decision in R v H and C [2004]1 All ER 1269, concerning prosecution applications for withholding from the defence otherwise disclosable material on grounds that disclosure of it would cause a real risk of serious prejudice to an important public interest, such that public interest immunity (PII) applies. The Advocate is instructed to ensure that material is only put before the court for a ruling on PII grounds in accordance with the governing principles as set out in R v H and C, namely that the material in question satisfies the test for disclosure by it being reasonably considered capable of undermining the prosecution's case or assisting the case for the accused: neutral material, or material which would strengthen the prosecution's case or undermine that for the accused would not satisfy the disclosure test and should not therefore be put before the court for a PII hearing.
4. Only if the disclosure test it actually met, or if the decision as to whether the material is disclosable is truly borderline, should such an application be made, and applications must not be made simply on the basis that the defence have not provided sufficient details about the case for the accused: where the defence case is not stated with sufficient clarity, then further particulars should be sought.
5. If, following a PII application, the court orders material to be disclosed by the prosecution in a redacted form, a decision needs to be made in consultation with the police or the party who are claiming PII whether the prosecution are prepared to disclose the material in that form. If the prosecution are able to make disclosure, the advocate must exercise particular care to ensure that the material is not disclosed to the defence in an unredacted form or in an incompletely or improperly redacted form, so as to avoid the situation which arose in R v G: R v B [2004] EWCA Crim 1368.
6. Should the advocate disagree with any disclosure decisions that have been made, early consultation with the reviewing prosecutor and the disclosure officer is advised.
7. The advocate will be aware that the defence statement of one defendant may be disclosable to co-defendants in the same prosecution: (R v Cairns, [2002] All ER 344) and the prosecutor's duty to review disclosure applies in respect of such statements once they are received. A defence statement must be supplied to co-defendant if it satisfies the disclosure test, unless it will form the subject of a PII application. A defence statement which may not at first sight help a co-defendant may meet the disclosure test once the co-defendant's defence statement is received. A duty to disclose may also arise when the defendants give evidence, for example where there is a cut-throat defence and a defendant departs from his defence statement.
8. The CPS and police have agreed joint operational instructions on the disclosure of unused material. These instructions are contained in the 2005 Disclosure Manual (formerly known as the JOPI). The Disclosure Manual has been fully revised and the advocate should be sufficiently aware of the scope and contents of the new edition, which is available on the CPS website. The 2005 edition deals with the new CPIA regime. If the old CPIA regime applies, please refer to the 2002 edition of the JOPI.
9. The prosecution advocate should ensure that he or she is fully informed about any material that the prosecutor has decided might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused, the prosecutor's views on the defence statement and the prosecutor's comments on any sensitive material. The advocate must therefore request copies of all unused material schedules and any material if these are not forthcoming from the prosecutor.
10. The advocate should always consider the contents of the CPS disclosure record sheet (DRS) before any court appearance or at case conference. The DRS will not be supplied to the advocate, but will contain an up-to-date record of all disclosure actions events and decisions. It will be kept with the case papers on the CPS file and will be available at any conference or court appearance.
11. Disclosure schedules and attendant material will be security marked. The advocate must handle all material in accordance with its security marking and ensure that it is stored appropriately. Further details are found in the Disclosure Manual.
12. Where third party material is supplied to the police, the disclosure test should be applied, and only material that might reasonably be considered capable of undermining the prosecution case or reasonably assisting the case for the accused, should be disclosed. The advocate must bear in mind that (a) where material meets the disclosure test and (b) it has been provided to the police in circumstances where the third party may wish to reserve the right to argue PII, there must be appropriate consultation with the third party and the reviewing lawyer so that the PII issue may be resolved expeditiously, if necessary via an appropriate order of the court. Where third party material exists which is not supplied to the investigator or prosecutor, the advocate should consider the guidance set out in the Attorney General's Guidelines 2005, paragraphs, bearing in mind the "margin of consideration" principle enunciated by the Court of Appeal in the case of R v Alibhai and others (2004) LTL 31/3/2004.
13. The advocate should prepare a written report in any case where a court has ruled that there has been a failure on the part of the prosecution as a whole to make proper disclosure, or the advocate believes there has been such a failure. The report should be headed 'Disclosure Failure Report' and sent to the CPS Unit Head.
14. Our previous policy stated that all previous convictions and cautions of prosecution witnesses must be disclosed to the defence save for minor road traffic matters. This policy has been amended. The policy now is that the duty to disclose the previous convictions and cautions of prosecution witnesses extends only to those convictions which may fall within the disclosure test under the CPIA, namely whether the conviction may undermine the prosecution case or assists the case for the accused. Consideration must be given as to whether previous convictions for any witness should be disclosed, and if so, which previous convictions should be disclosed.

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Attorney General's Guidelines on Disclosure

1. The Attorney General's Guidelines on Disclosure were revised in 2005. The Guidelines address the roles and responsibilities of the participants in the disclosure process and in some areas address aspects not covered by the Criminal Procedure and Investigations Act 1996. The Guidelines are applicable to all investigations and prosecutions undertaken by the Crown, although specific references to provisions of the amended CPIA regime may not apply if the relevant criminal investigation was commenced prior to 4 April 2005. The prosecution advocate must adhere to these Guidelines at all times.

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Disqualification orders

1. Sections 26-30 of the Criminal Justice & Court Services Act 2000 gives the court power at conviction to disqualify certain defendants from working with children. A child is someone under 18 unless it is an offence for which a younger age is specified. Schedule 4 to the Act lists the offences to which these sections apply. These offences are mainly but not exclusively offences of a sexual or violent nature. It will be important, therefore, for the advocate to draw to the attention of the court those cases which may attract a disqualification order. The advocate is reminded that R-v- Field; R -v- Young [2003} 1 WLR 882 held that section 28 applies to a conviction where the offences were committed before the commencement of the 2000 Act on 11 January 2001.
2. Before a disqualification order can be made, a qualifying sentence (subject to amendments made by the Criminal Justice Act 2003, see paragraph 18.3 below) or relevant order must be passed. These are defined in section 30 of the Act. Suspended sentences of 12 months imprisonment or more also count as qualifying sentences.
3. Paragraph 2 of Schedule 30 of the Criminal Justice Act 2003 inserts two new sections, 29A and 29B into part II of the Act. Section 29A gives a discretion to disqualify even where the sentence does not meet the qualifying threshold. Section 29B gives a retrospective power to make an order where for any reason, a court has previously omitted to do so.
4. Both adults and youths can be disqualified. Section 28 provides that where the defendant was aged 18 or over at the time of the offence, the court must impose an order. If, however, the court believes that it is unlikely that the defendant will commit a further offence against a child then there is an option not to impose an order. The reasons for not disqualifying must be stated and recorded. There is, therefore, a presumption in favour of making an order in respect of adults.
5. Where the defendant was aged under 18 at the time of the offence, the court can impose an order where it believes that there is a likelihood of a further offence being committed against a child. If an order is imposed, the reasons for doing so must be stated and recorded.

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The DNA Guidance

1. There are three key elements to the Prosecution Team DNA Guidance (issued July 2004, updated January 2006):
1. The basis for charging has shifted from an "evidential" DNA profile match report, to an "intelligence" DNA profile match report, plus some appropriate supporting evidence. (See Annex 2 of The Guidance.) After charge, the Match Report will need to be converted into an evidentially admissible document and consideration given to Staged Reporting.
2. Staged reporting is now in place and should always be considered in reviewing the case; a first stage abbreviated statement is used to encourage early co-operation/defence identification of issues/guilty plea. Second stage full evidential report is sought only in fully contested cases where the issue is the DNA (or other forensic) evidence. (See Annex 13 of the Guidance.)
3. The Manual of Guidance for police contains dedicated forms for forensic submissions to forensic science laboratories; The Director's Guidance (Statutory Charging) makes use of the form mandatory; section 11 of the MoG forensic submission form clearly requires the Prosecution Team (investigating officer and duty prosecutor) to identify the actual forensic issues. (See Annex 10 of the Guidance.)
2. This guidance has been produced to reflect legal, scientific and process changes affecting the recording and use of DNA samples. The purpose is to provide a tool to maximise the benefits of these, whilst maintaining principles of fairness to suspects, victims and witnesses. The changes outlined in Annex 2 of the Guidance build on the CPS role as the national prosecution agency leading the way in efficient and effective case progression. The guidance also takes full account of the legal and process changes resulting from the national implementation of Statutory Charging and the Criminal Procedure Rules 2005, particularly section 3 (duty of the parties to identify the issues in the case).
3. Two-stage reporting is designed to make effective use of resources by encouraging admissions and issues as early as possible in order to focus on the actual issues in the case. Case building is targeted at the issues rather than producing extensive evidential material covering non-contentious points. These should be proactively dealt with by way of admissions where appropriate.
4. These principles and processes can apply to other Forensic areas, depending on local protocol arrangements.
5. Home Office Circulars 58/2004 and 16/1995 cover these changes.

New DNA single kit testing

6. In April 2005, the Association of Chief Police Officers (ACPO) replaced existing DNA 1 and DNA 2 kits with a new single evidential test. The new kits provide an evidential audit trail and the profiles will be loaded onto the National DNA Database. This record will appear on the PNC with a Barcode serial number commencing '96' onwards. In such cases, there is no longer a requirement to take a further DNA sample each time a suspect is arrested, although the Investigating Officer must follow the ACPO Guidance in making this decision.
1. This of course does not alter the Prosecution Team obligation to provide the relevant continuity evidence, and if necessary appropriate evidence of identity in both the previous and instant case. This may take the form of linking the fingerprint evidence, or photographic evidence obtained on arrest, or possibly the Custody Records.

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Domestic violence

1. Advocates should ensure that they are familiar with the CPS Policy Statement on Prosecuting Cases of Domestic Violence and the supporting Guidance for Prosecutors, (revised February 2005), which can be obtained from the CPS website. The Guidance is available on the CPS Intranet and hard copies from local CPS offices. Advocates are expected to prosecute cases in accordance with our published policy.
2. The CPS definition of domestic violence for the purpose of applying the policy is:

Any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member.

It should be noted that this definition applies regardless of the age of the defendant or victim. There exists a separate definition, purely for adults, for the purposes of monitoring and joint working across government departments - this need not concern the advocate.

3. The CPS recognises that domestic violence is likely to become more frequent and more serious the longer it continues and can result in death. It also recognises that victims of domestic violence - particularly those who may have suffered over a considerable period of time - have difficult decisions to make that will affect their lives and the lives of those close to them.
4. In some cases, the violence is so serious, or the previous history shows such a real and continuing danger to the victim or children or other person, that the public interest in going ahead with a prosecution has to outweigh the victim's wishes. The safety of these persons will be a prime consideration for the CPS in reaching such decisions.
5. The Code for Crown Prosecutors, at 5.9(j), lists as a public interest factor in favour of prosecution that "the offence was committed in the presence of, or in the close proximity to, a child".
6. It is sometimes suggested that certain types of behaviour are more acceptable within some communities than others. The CPS believes that cultural difference is not a reason for failing to protect minority community victims of domestic violence.
7. The advocate is instructed to: take into account any concerns expressed by the victim about the defendant being granted bail and to ensure that the CPS is informed immediately of the outcome of the case and any change in the defendant's bail or custody status; regard breaches of bail as serious, including those that involve the acquiescence of the victim, and be mindful that new offences may have been committed; ensure any existing civil court orders and bail conditions are consistent, particularly in terms of residence and of child contact; make application (in appropriate cases) for priority listing; and seek an adjournment for the police to take a formal statement where victims appear at court wishing to withdraw their complaint.

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Fitness to be tried

1. Should the question of the defendant's fitness to be tried become a live issue, the attention of the trial judge should be drawn to Section 4(2) Criminal Procedure (Insanity) Act 1964 as amended. This enables the court to postpone consideration of the question of fitness to be tried until any time up to the opening of the defence case.

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Freedom of Information Act 2000

1. On 1 January 2005, the Freedom of Information Act 2000 ("FoIA") came into force and gives individuals a statutory right to recorded information held by public authorities, such as the Crown Prosecution Service or a police force.
2. The duties imposed on public authorities are twofold, namely:
• a duty to "confirm or deny" that the information exists; and
• a duty to communicate information.
3. The right to access of information is subject to exceptions and exemptions. The exemptions are either absolute or qualified.

Absolute exemptions

4. The absolute exemptions are either concerned with secrecy, or with information made available under a more specialised disclosure regime.
5. Where information falls within a provision conferring absolute exemption that will be sufficient to disapply both the duty to confirm or deny the existence of that information and the duty to disclosure that information.

Qualified exemptions

6. The qualified exemptions are either class exemptions, or prejudice based exemptions.
7. Qualified exemptions are subject to the application of a public interest test, which is a balancing exercise that determines:
• whether the duty to confirm or deny arises; or
• whether the duty of disclosure arises.
8. The balancing exercise is defined in section 2:

" .. in all the circumstances of the case the public interest in maintaining the exclusion of the duty to confirm or deny or in maintaining the exemption outweighs the public interest in disclosing whether the public authority holds the information or in disclosing the information".

Unused material, CPIA and FoIA

9. The Criminal Procedure and Investigations Act 1996 already applies to the disclosure of unused material in criminal proceedings. However, counsel may receive a request for information under the FoIA, when the requested information is unused and properly subject to the Criminal Procedure and Investigations Act 1996 ("CPIA").
10. If faced with such a request at court, counsel should bear in mind the following points:

The FoIA application must be made in the specified manner, namely:

• in writing (including e-mail and fax);
• state the name of the applicant and a correspondence address;
• describe the information requested.
11. It must be considered by the public authority, and this power cannot be delegated to agents, such as counsel.
12. Once a FoIA request is properly made, the CPS is duty bound to consider that request and cannot dismiss it by arguing that the CPIA applies instead. However, the defence should be invited to make an application under the CPIA instead of/in addition to the FoIA request.
13. The CPS has 20 working days in which respond. This is the period of time as specified by Parliament, and cannot be varied by court order.
14. If defence argue that the CPIA should be disapplied in favour of FoIA, then counsel should bear in mind the following points:
15. The FoIA creates a general scheme for the disclosure of information held by public authorities, whereas the CPIA creates a specific disclosure reginme applicable to criminal proceedings. This raises a principle of statutory construction, namely "generalibus specialia derogant" (special provisions override general ones). Accordingly, it is presumed that such a situation was intended to be dealt with by the specific provision and not be the general enactment.
16. In the case here, it would be curious, to say the least, if having provided a detailed statutory regime for the purposes of disclosure in criminal proceedings, Parliament had rendered the statutory scheme otiose by providing for a wider entitlement to information under a general Act.
17. It is also significant to note that disclosure under the Act would circumvent the provisions of section 17 of the CPIA. Section 17 provides that material disclosed to an accused person under the provisions of the CPIA is confidential, and it may only be used or disclosed for certain specified purposes. The principal purpose for which such material may be used is in connection with the criminal proceedings in which disclosure took place. Section 17 does not apply to information communicated to the public in open court or where a court specifies that the information may be used for a particular purpose.
18. FoIA and CPIA are to be understood as operating in parallel together, as the two Acts apply in very different circumstances. The FoIA is concerned with the general right of citizens to be provided with information held by public bodies, without reference to the purpose for which the information requested is to be put. The CPIA is concerned solely with the disclosure of information in criminal proceedings, where the disclosure is essential to ensure a fair trial of a criminal charge.

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Handcuffing of prisoners

1. The Prosecution Advocate may be asked by prisoner escort staff or police officers to apply for handcuffs to restrain the defendant whilst in court. Custody Management Directions were issued by the Lord Chief Justice in January 2006, a copy of which is available at www.judiciary.gov.uk.
2. Prisoners appearing before courts may be handcuffed or otherwise restrained in the dock where there is a danger that they may escape or prevent a violent breach of the peace. These are the only two factors which may be taken into account when deciding whether or not to restrain a defendant in the courtroom. Where a defendant appears before a court, it is a matter for the court whether or not he or she should be handcuffed. In a magistrates' court, it is for the court not the police or prisoner escort, to decide whether it is necessary for a defendant to be handcuffed and in the Crown Court it is the judge.
3. It is the role of the Advocate to make representations to the court for the handcuffing of a prisoner based on information provided by the police, escort service or court security officers. It is not appropriate for anyone other than the Advocate to make a direct application to the court.
4. The Advocate should carefully examine such requests for handcuffs in court, and ensure that there are sufficient grounds for making such applications. The Advocate may decline to make an application where he or she is not satisfied that the nature or extent of information provided is sufficient to support such an application. If necessary, the Advocate may call an officer to give evidence in support of the application. Any refusal to make an application should be clearly noted with reasons.
5. The application should be made, wherever possible, before the defendant is brought into court. There is nothing, however, to prevent an application being made once the court is sitting or the suspect is in the dock.
6. A proforma [reproduced at Annex 2 of the Custody Management Directions] should be completed by the prison or escort authorities before an application is made.

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Homophobic and transphobic offences

1. Advocates should be familiar with the CPS Public Policy Statement on Prosecuting Cases of Homophobic or Transphobic Hate Crime and the accompanying Guidance, which can be obtained from the CPS website. Advocates are expected to prosecute cases in accordance with our published policy.
2. Hostility based on the sexual orientation, or presumed sexual orientation, of the victim (or on disability or presumed disability of the victim) is a factor that increases the seriousness of an offence (Section 146 of the Criminal Justice Act 2003). Whenever there is evidence of aggravation related to sexual orientation or presumed sexual orientation the advocate must bring this to the attention of the court. If the defendant disputes that the offence was aggravated in this way, the advocate must ask the court to consider a Newton hearing. The court must state openly if it finds that the offence was aggravated in this way.
3. When prosecuting cases with a homophobic or transphobic element, advocates are instructed to:
1. Use appropriate language. If uncertain, ask the person concerned rather than get it wrong.
2. Challenge inappropriate or prejudicial language if others use it in court.
3. Challenge material which is unnecessary in itself and may arouse homophobic or transphobic prejudice in the court or amongst the jury.
4. If the fact that someone is a trans person does not need to come out in evidence, then it does not need to come out in respect of (e.g.) any previous convictions: the name and gender under which they were convicted need not be mentioned.
5. Use the same points (appropriate language etc) in respect of the accused and accused's witnesses as in respect of prosecution witnesses.
6. Bear in mind that the court should be aware of the guidelines provided for judges and magistrates by the Equal Treatment Bench Book in respect of appropriate language and behaviour.
7. Challenge suggestions that being lesbian/gay/bisexual or trans is in some way linked with criminal behaviour such as child molesting, or with public sexual activity.
8. Be aware that it may have taken extreme courage for a witness or victim to come forward if the result is going to be that they are "outed" in court as being lesbian/gay/bisexual or trans.
9. Respect the individuality of each witness, and challenge casual stereotyping (eg of lesbians as "butch", or of gay men as promiscuous or effeminate).
10. Be aware that the handling of this case is likely to influence someone present in court, or someone who follows media coverage of the case, about whether or not to report a future homophobic or transphobic crime.
11. Consider whether an application under section 46 of the Youth Justice and Criminal Evidence Act 1999, for a prohibition against the reporting of certain witness details in the media, is appropriate.

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Media reporting

1. In high profile cases there may be problems which arise from the reporting of cases where part of the proceedings are heard in chambers. In order to ensure accurate press reporting, the judge should be invited in appropriate cases, to:
• consider announcing the substance of any judgement made in chambers in open court and;
• give guidance about how the matter should be reported.
2. Consideration should be given in relevant cases to making orders under Section 39 of the Children and Young Persons Act 1933. The advocate should be familiar with the Contempt of Court Act 1981.
3. To protect the integrity of trials, reporting restrictions are sometimes required.
4. However, in many cases the defence apply for reporting restrictions that prosecutors may not consider necessary. Prosecutors should oppose reporting restrictions that they do not feel are necessary for a fair trial. Prosecutors should not apply for reporting restrictions themselves unless they feel they are essential.
5. The number of complex cases where there are a number of linked trials is increasing. In complex cases where there is more than one trial, reporting restrictions may be required to protect some of the proceedings, but this may not mean a blanket ban is needed. In these cases, prosecutors should consider carefully just how comprehensive the restrictions need to be.
6. The CPS has signed a Protocol on the Release of Prosecution Material to the Media, with the Association of Chief Police Officers (ACPO) and media representatives. The overriding objective is to provide an open and accountable prosecution process, by ensuring the media have access to all relevant material wherever possible, and at the earliest appropriate opportunity. The aim is to ensure that justice is done and seen to be done - while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material. The Protocol is available on this website in our Publications section.
7. Prosecutors appearing in court on behalf of the Crown Prosecution Service are publicly representing the service and should give their full name to any media representative that asks for it.

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Offences in prison

1. In 1992 changes to the Prison Rules ended the disciplinary role of the Board of Visitors. Internal disciplinary proceedings are now reserved to prison governors. The maximum penalty, which can be imposed by the Governor is 42 additional days within a prisoner's existing sentence (not applicable to life sentence prisoners), 28 days forfeiture of privileges or stoppage of earnings, 14 days cellular confinement and other lesser sanctions.
2. The 1992 guidance was given to Governors by the Home Office in order to help them to identify those cases which would normally merit a police investigation and if appropriate, a prosecution rather than internal disciplinary action.
3. Any case which reaches court has already passed through three filters - the prison governor, the police and the Crown Prosecution Service. The public interest now requires a prosecution in a wider range of offences committed in pri