Thursday 23 November 2006.
We began with a look at the classification of offences, something with which you should already be familiar. Offences are classified as either:
Summary – tried only in a Magistrates’ Court, minor motoring matters.
Triable either way – offences which if committed by an adult are triable either on indictment or summarily, e.g. theft.
Indictable offences – triable only at a Crown Court, e.g. murder.
SUMMARY OFFENCES are created by statute which set out the relevant offence and also specify the maximum penalty which can be imposed on summary conviction.
INDICTABLE OFFENCES are the more serious offences, e.g. rape, s18 wounding, robbery, aggravated burglary etc are triable only on indictment. All common law offences are indictable (e.g. murder).
OFFENCES TRIABLE EITHER WAY: classified in one of two ways:
(1) by the statute creating the offence providing two separate penalties. one relating to summary conviction, the other to conviction upon indictment, e.g. s47 a.b.h. or
(2) by the inclusion of an indictable offence in Schedule 1 to the MAGISTRATES’ COURTS ACT 1980.
Where a defendant is charged/summoned to appear before the court with damaging or destroying property contrary to s1 CRIMINAL DAMAGE ACT 1971, if the amount of damage does not exceed £5,000 then the offence will be a summary offence and thus no mode of trial proceedings will arise. If the value exceeds £5,000, the mode of trial procedure will be used, giving the accused a right, if the magistrates are prepared to hear the case, to elect jury trial if he so wishes.
Except in the case of some minor offences , the decision to prosecute is taken not by the police but by the Crown Prosecution Service established under the provisions of the PROSECUTION OF OFFENCES ACT 1985.
Alternatives to prosecution are the administering of a formal caution or, in the case of certain road traffic offences, issuing a fixed penalty notice.
Prosecutions in Magistrates’ Courts are normally conducted by Crown Prosecutors who are qualified solicitors or barristers, or agents acting for and on behalf of the Crown Prosecution Service who are normally engaged to meet staffing shortfalls within the Crown Prosecution Service. In the Crown Court, however, no permanent employee of the Crown Prosecution Service, be he a qualified solicitor or barrister, can at the current time prosecute the matter, and the Crown Prosecution Service therefore brief counsel practising on the various circuits within England and Wales to appear on behalf of the Crown.
We now turn to an important topic, the FINANCING OF CRIMINAL LITIGATION.
When one is consulted by a client in connection with a non-contentious matter the client is usually under no illusions that anyone is going to pay his costs except himself (e.g. residential or commercial conveyancing). It is sensible at the outset of the case to discuss with one’s client the question of costs. The criteria for the granting of legal aid in criminal cases are dealt with below; however, from the outset, in some cases, it is clear that a prospective client will not be granted legal aid and is not eligible for advice under the advice and assistance scheme. It is prudent in such cases to obtain money in advance or “on account of costs”. This can either be by asking to be put in funds to an amount which will adequately cover costs, travelling expenses and VAT or alternatively to seek payment in instalments. In some cases there is a risk of a custodial penalty, when it is important to ensure that one’s firm has money “on account of costs”. Perhaps the most frequent occasions when people will not be eligible for legal aid are cases involving drinking and driving. The Magistrates’ Association’s suggested penalties are fines and disqualification’s. In relatively few Crown Court cases are people not eligible for legal aid because of the more serious category of case that is dealt with there. Where, however, a privately funded client is to go before the Crown Court then a substantial payment in advance is normally required. One should be aware of the fact that the solicitor will be liable for counsel’s fees whatever the outcome of the case. As a rule of thumb, costs at the Crown Court tend to total something in the region of £1,500 per day and thus for a two or three day Crown Court trial substantial sums are required in advance of the commencement of the proceedings.
If a defendant is acquitted, it may be possible for him to get an order reimbursing him for his legal costs, assuming of course that these were not in fact borne by the legal aid fund. Provisions as to costs orders are in ss 16-21 PROSECUTION OF OFFENCES ACT 1985. The court may make a “defendant’s costs order” under s16 if the defendant is acquitted after summary trial or if he is acquitted even on one of several counts following trial on indictment, or if he is discharged following committal proceedings where the prosecution were unable to establish a case to answer. The costs covered will be those reasonably incurred in the proceedings.
If a defendant is convicted, he may be ordered to pay “just and reasonable” prosecution costs, in respect of any kind of trial (s19).
Costs orders may cover proceedings in the court making the order, and any court below it (s21).
The making of costs orders is discretionary, but guidance given in the Practice Direction (Crime Costs in Criminal Proceedings) [1999]. An order should be made unless the defendant’s actions were such that it misled the prosecution to believe that their case was stronger than it actually was.
Publicly funded or subsidised advice and assistance is available in the following forms.
ADVICE & ASSISTANCE. The advice enables a solicitor to give a client, who qualifies on financial grounds, advice on any matter of English law. The client’s financial eligibility is worked out with the aid of a “key card”.
So far as it concerns criminal litigation, the advice will include work up to the value of two hours fees covering such things as taking the client’s first proof of evidence, a preliminary consideration of the evidence and providing assistance in completing an application form for “full” legal aid. A solicitor can apply to have the two hour limit exceeded by completing an application form indicating the grounds for seeking to do further work for the client beyond the basic amount. In urgent cases authorisation may be sought by telephone.
ADVICE UNDER THE DUTY SOLICITOR SCHEME. The Duty Solicitor Scheme originated over 20 years ago as an experiment in certain parts of the country. It involved experienced criminal lawyers being available on a rota basis to give advice to suspects who were held at police stations or to assist those appearing before the Magistrates’ Court who were unrepresented; and covered such matters as preliminary bail applications or pleas in mitigation. The Duty Solicitor Scheme covers the areas of advice and assistance at the police station and at court.
Where the client is at the police station, either in custody or attending voluntarily, he is entitled to free legal advice from either his own solicitor or some other qualified person or from the duty solicitor under the Duty Solicitor Scheme This scheme is not means tested, so even the wealthiest client is entitled to free assistance.
Once a case has been referred to a duty solicitor, he will often first make contact with the police station by telephone to ascertain the reason for the arrest, the arresting officer and any other relevant information which will assist in speaking to the suspect. The solicitor also has the right to consult privately with the suspect by telephone. In some cases the detained person will seek the duty solicitor’s attendance when he is being interviewed by police officers.
The court duty solicitor will see a defendant before he goes before the court for the first time and may represent him at the first hearing making a bail application or, where the defendant has pleaded guilty. making a plea in mitigation. If the case proceeds after the first hearing. the defendant must apply for “full” legal aid.
In relation to all work undertaken at both the police station and at court, no charge is made to the arrested person.
Legal aid is now known as a REPRESENTATION ORDER. It is available for any trial in a magistrates’ court including all preliminary applications such as bail; for trial or committal for sentence in the Crown Court; for appeal from Magistrates’ Court to the Crown Court, for appeal from the court to the Crown Court of Appeal or thereafter to the House of Lords.
Two grounds have to be satisfied for legal aid to be granted:
(1) it appears that the applicant’s financial resources are such that he requires assistance in meeting the costs of the proceedings; and
(2) it is desirable to do so in the interests of justice.
The means test has gone in an out of favour, but as from 2 October 2006 all applications for a representation order are subjected to a means test. The following qualify automatically:
Those on benefit
Under the age of 16 years
Under the age of 18 years and in full-time education
Otherwise a ‘simple means test’ is applied. If the end figure is below £11,590 the applicant will qualify: over £20,740 they will not. If the figure is in between the two a “full means test’ is applied. Here the annual disposable income needs to be less than £3,156 to be eligible. THE FIGURES CHANGE YEARLY, SO THERE IS NO POINT IN TRYING TO MEMORISE THEM, FOR THEY WILL NOT BE CORRECT AT THE TIME OF THE EXAM.
An application for criminal legal aid is made to the court, either orally or in writing. The application will be made at the accused’s first appearance, the early administrative hearing. Assunming that the applicant qualigies under the means test, the matter is then subjected to an “interests of justice” or “merits” test.
Section 22 LEGAL AID ACT 1988 assists the court by suggesting that in defined circumstances the “interests of justice” test (also commonly known as the “Widgery” criteria) is satisfied where one or more of the following criteria applies:
LIKELIHOOD OF DEPRIVATION OF LIBERTY. The offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty. This condition is likely to be satisfied where the client is charged with a serious offence for which imprisonment is the likely punishment or where he has previous convictions or is in breach of a probation order which will increase the severity of the sentence to be imposed. The condition is also likely to apply where the offence involves serious aggravating circumstances such as theft in breach of trust.
To determine whether the ground applies to the particular defendant, reference should be made to the sentencing approaches of the courts and the Magistrates’ Association Sentencing Guidelines.
Deprivation of liberty includes all forms of imprisonment.
LOSS OF LIVELIHOOD. Motoring offences cover the “loss of livelihood” criteria, where the client may lose his licence and his job either through disqualification or under the totting up procedure. Also included in this category would be where the offence is relatively trivial, but a conviction may jeopardise the client’s continued employment where, for example, he is charged with theft and his job involves handling money or having charge of people’s property or generally acting in a fiduciary capacity.
It will seldom be granted where the defendant is to be disqualified as a result of drink/drive (mandatory disqualification), or the ‘totting-up’ procedure.
SERIOUS DAMAGE TO REPUTATION. If the defendant occupies a position of standing in the community such as member of the clergy, a solicitor or a doctor, legal aid will be granted even where the offence is relatively minor.
THE CHARGE MAY INVOLVE CONSIDERATION OF A SUBSTANTIAL QUESTION OF LAW. This ground will apply where there is a conflicting case law on a point relevant to the client’s case. In these circumstances it is clearly in the “interests of justice” for the client to be professionally represented.
THE DEFENDANT HAS INADEQUATE KNOWLEDGE OF ENGLISH, OR SUFFERS FROM MENTAL ILLNESS OR PHYSICAL DISABILITY. Clearly it is in the interests of justice that legal aid should be granted in these circumstances.
THE DEFENCE CASE WILL INVOLVE THE TRACING AND INTERVIEWING OF WITNESSES. The nature of the defence case or the way in which the defence should challenge the prosecution case requires the specialised, professional skills of a lawyer.
LEGAL REPRESENTATION IS DESIRABLE IN THE INTERESTS OF SOMEONE OTHER THAN THE DEFENDANT. The most common example in this category is the case of a sexual offence. It is clearly undesirable that the accused should be permitted personally to cross-examine the victim. In this situation legal aid would also probably be granted under other “interests of justice” criteria, most notably under ground (1). We will consider this further when looking at vulnerable witnesses.
In addition to the “interests of justice” criteria under s22, a legal aid order must be made, subject to the defendant’s financial means, in the following circumstances:
(a) where a person is committed for trial on a murder charge: or
(b) where an unrepresented person who wishes to be legally represented is brought before a Magistrates’ Court having once been remanded in custody and not legally represented on the first occasion and risks a second remand in custody or of being committed to the Crown Court in custody; or
(c) a person having been convicted is remanded in custody by a Magistrates’ Court or the Crown Court so that reports may be made before passing sentence; or
(d) to a person who received legal aid in the Court of Appeal whose case has been taken to the House of Lords by the prosecution.
An appeal against a refusal is made to the same court that refused, and is made to the appropriate court officer.
In the Crown Court legal aid is very freely available because in the nature of things the charge is likely to be more serious and thus the first of the Widgery criteria will be more easily satisfied. Representation under the legal aid order in the Crown Court does of course extend to representation by counsel. The scheme is means tested, and always has been.
We then turned to another popular examination topic, the issue of BAIL. Bail is the release of a person subject to a duty to surrender to custody in the future. The question of bail arises both during the suspect’s detention at the police station, and, if the matter proceeds to court, during the proceedings. Bail in the course of criminal proceedings is governed by the BAIL ACT 1976, and applies only to bail granted by a court. The question of bail also arises at the police station where the custody officer has to decide whether to authorise the suspect’s continued detention (where Code C permits) or whether to release the suspect on bail or unconditionally. This is governed by PACE 1984 as amended by the Criminal Justice & Public Order Act 1994.
Where the person has yet to be charged, and there are further enquiries to make, it is possible to bail the suspect to return to the police station under s47(3) PACE. No condition can be imposed on the bail, other than the condition to return.
We will continue with this next week.
We began with a look at the classification of offences, something with which you should already be familiar. Offences are classified as either:
Summary – tried only in a Magistrates’ Court, minor motoring matters.
Triable either way – offences which if committed by an adult are triable either on indictment or summarily, e.g. theft.
Indictable offences – triable only at a Crown Court, e.g. murder.
SUMMARY OFFENCES are created by statute which set out the relevant offence and also specify the maximum penalty which can be imposed on summary conviction.
INDICTABLE OFFENCES are the more serious offences, e.g. rape, s18 wounding, robbery, aggravated burglary etc are triable only on indictment. All common law offences are indictable (e.g. murder).
OFFENCES TRIABLE EITHER WAY: classified in one of two ways:
(1) by the statute creating the offence providing two separate penalties. one relating to summary conviction, the other to conviction upon indictment, e.g. s47 a.b.h. or
(2) by the inclusion of an indictable offence in Schedule 1 to the MAGISTRATES’ COURTS ACT 1980.
Where a defendant is charged/summoned to appear before the court with damaging or destroying property contrary to s1 CRIMINAL DAMAGE ACT 1971, if the amount of damage does not exceed £5,000 then the offence will be a summary offence and thus no mode of trial proceedings will arise. If the value exceeds £5,000, the mode of trial procedure will be used, giving the accused a right, if the magistrates are prepared to hear the case, to elect jury trial if he so wishes.
Except in the case of some minor offences , the decision to prosecute is taken not by the police but by the Crown Prosecution Service established under the provisions of the PROSECUTION OF OFFENCES ACT 1985.
Alternatives to prosecution are the administering of a formal caution or, in the case of certain road traffic offences, issuing a fixed penalty notice.
Prosecutions in Magistrates’ Courts are normally conducted by Crown Prosecutors who are qualified solicitors or barristers, or agents acting for and on behalf of the Crown Prosecution Service who are normally engaged to meet staffing shortfalls within the Crown Prosecution Service. In the Crown Court, however, no permanent employee of the Crown Prosecution Service, be he a qualified solicitor or barrister, can at the current time prosecute the matter, and the Crown Prosecution Service therefore brief counsel practising on the various circuits within England and Wales to appear on behalf of the Crown.
We now turn to an important topic, the FINANCING OF CRIMINAL LITIGATION.
When one is consulted by a client in connection with a non-contentious matter the client is usually under no illusions that anyone is going to pay his costs except himself (e.g. residential or commercial conveyancing). It is sensible at the outset of the case to discuss with one’s client the question of costs. The criteria for the granting of legal aid in criminal cases are dealt with below; however, from the outset, in some cases, it is clear that a prospective client will not be granted legal aid and is not eligible for advice under the advice and assistance scheme. It is prudent in such cases to obtain money in advance or “on account of costs”. This can either be by asking to be put in funds to an amount which will adequately cover costs, travelling expenses and VAT or alternatively to seek payment in instalments. In some cases there is a risk of a custodial penalty, when it is important to ensure that one’s firm has money “on account of costs”. Perhaps the most frequent occasions when people will not be eligible for legal aid are cases involving drinking and driving. The Magistrates’ Association’s suggested penalties are fines and disqualification’s. In relatively few Crown Court cases are people not eligible for legal aid because of the more serious category of case that is dealt with there. Where, however, a privately funded client is to go before the Crown Court then a substantial payment in advance is normally required. One should be aware of the fact that the solicitor will be liable for counsel’s fees whatever the outcome of the case. As a rule of thumb, costs at the Crown Court tend to total something in the region of £1,500 per day and thus for a two or three day Crown Court trial substantial sums are required in advance of the commencement of the proceedings.
If a defendant is acquitted, it may be possible for him to get an order reimbursing him for his legal costs, assuming of course that these were not in fact borne by the legal aid fund. Provisions as to costs orders are in ss 16-21 PROSECUTION OF OFFENCES ACT 1985. The court may make a “defendant’s costs order” under s16 if the defendant is acquitted after summary trial or if he is acquitted even on one of several counts following trial on indictment, or if he is discharged following committal proceedings where the prosecution were unable to establish a case to answer. The costs covered will be those reasonably incurred in the proceedings.
If a defendant is convicted, he may be ordered to pay “just and reasonable” prosecution costs, in respect of any kind of trial (s19).
Costs orders may cover proceedings in the court making the order, and any court below it (s21).
The making of costs orders is discretionary, but guidance given in the Practice Direction (Crime Costs in Criminal Proceedings) [1999]. An order should be made unless the defendant’s actions were such that it misled the prosecution to believe that their case was stronger than it actually was.
Publicly funded or subsidised advice and assistance is available in the following forms.
ADVICE & ASSISTANCE. The advice enables a solicitor to give a client, who qualifies on financial grounds, advice on any matter of English law. The client’s financial eligibility is worked out with the aid of a “key card”.
So far as it concerns criminal litigation, the advice will include work up to the value of two hours fees covering such things as taking the client’s first proof of evidence, a preliminary consideration of the evidence and providing assistance in completing an application form for “full” legal aid. A solicitor can apply to have the two hour limit exceeded by completing an application form indicating the grounds for seeking to do further work for the client beyond the basic amount. In urgent cases authorisation may be sought by telephone.
ADVICE UNDER THE DUTY SOLICITOR SCHEME. The Duty Solicitor Scheme originated over 20 years ago as an experiment in certain parts of the country. It involved experienced criminal lawyers being available on a rota basis to give advice to suspects who were held at police stations or to assist those appearing before the Magistrates’ Court who were unrepresented; and covered such matters as preliminary bail applications or pleas in mitigation. The Duty Solicitor Scheme covers the areas of advice and assistance at the police station and at court.
Where the client is at the police station, either in custody or attending voluntarily, he is entitled to free legal advice from either his own solicitor or some other qualified person or from the duty solicitor under the Duty Solicitor Scheme This scheme is not means tested, so even the wealthiest client is entitled to free assistance.
Once a case has been referred to a duty solicitor, he will often first make contact with the police station by telephone to ascertain the reason for the arrest, the arresting officer and any other relevant information which will assist in speaking to the suspect. The solicitor also has the right to consult privately with the suspect by telephone. In some cases the detained person will seek the duty solicitor’s attendance when he is being interviewed by police officers.
The court duty solicitor will see a defendant before he goes before the court for the first time and may represent him at the first hearing making a bail application or, where the defendant has pleaded guilty. making a plea in mitigation. If the case proceeds after the first hearing. the defendant must apply for “full” legal aid.
In relation to all work undertaken at both the police station and at court, no charge is made to the arrested person.
Legal aid is now known as a REPRESENTATION ORDER. It is available for any trial in a magistrates’ court including all preliminary applications such as bail; for trial or committal for sentence in the Crown Court; for appeal from Magistrates’ Court to the Crown Court, for appeal from the court to the Crown Court of Appeal or thereafter to the House of Lords.
Two grounds have to be satisfied for legal aid to be granted:
(1) it appears that the applicant’s financial resources are such that he requires assistance in meeting the costs of the proceedings; and
(2) it is desirable to do so in the interests of justice.
The means test has gone in an out of favour, but as from 2 October 2006 all applications for a representation order are subjected to a means test. The following qualify automatically:
Those on benefit
Under the age of 16 years
Under the age of 18 years and in full-time education
Otherwise a ‘simple means test’ is applied. If the end figure is below £11,590 the applicant will qualify: over £20,740 they will not. If the figure is in between the two a “full means test’ is applied. Here the annual disposable income needs to be less than £3,156 to be eligible. THE FIGURES CHANGE YEARLY, SO THERE IS NO POINT IN TRYING TO MEMORISE THEM, FOR THEY WILL NOT BE CORRECT AT THE TIME OF THE EXAM.
An application for criminal legal aid is made to the court, either orally or in writing. The application will be made at the accused’s first appearance, the early administrative hearing. Assunming that the applicant qualigies under the means test, the matter is then subjected to an “interests of justice” or “merits” test.
Section 22 LEGAL AID ACT 1988 assists the court by suggesting that in defined circumstances the “interests of justice” test (also commonly known as the “Widgery” criteria) is satisfied where one or more of the following criteria applies:
LIKELIHOOD OF DEPRIVATION OF LIBERTY. The offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty. This condition is likely to be satisfied where the client is charged with a serious offence for which imprisonment is the likely punishment or where he has previous convictions or is in breach of a probation order which will increase the severity of the sentence to be imposed. The condition is also likely to apply where the offence involves serious aggravating circumstances such as theft in breach of trust.
To determine whether the ground applies to the particular defendant, reference should be made to the sentencing approaches of the courts and the Magistrates’ Association Sentencing Guidelines.
Deprivation of liberty includes all forms of imprisonment.
LOSS OF LIVELIHOOD. Motoring offences cover the “loss of livelihood” criteria, where the client may lose his licence and his job either through disqualification or under the totting up procedure. Also included in this category would be where the offence is relatively trivial, but a conviction may jeopardise the client’s continued employment where, for example, he is charged with theft and his job involves handling money or having charge of people’s property or generally acting in a fiduciary capacity.
It will seldom be granted where the defendant is to be disqualified as a result of drink/drive (mandatory disqualification), or the ‘totting-up’ procedure.
SERIOUS DAMAGE TO REPUTATION. If the defendant occupies a position of standing in the community such as member of the clergy, a solicitor or a doctor, legal aid will be granted even where the offence is relatively minor.
THE CHARGE MAY INVOLVE CONSIDERATION OF A SUBSTANTIAL QUESTION OF LAW. This ground will apply where there is a conflicting case law on a point relevant to the client’s case. In these circumstances it is clearly in the “interests of justice” for the client to be professionally represented.
THE DEFENDANT HAS INADEQUATE KNOWLEDGE OF ENGLISH, OR SUFFERS FROM MENTAL ILLNESS OR PHYSICAL DISABILITY. Clearly it is in the interests of justice that legal aid should be granted in these circumstances.
THE DEFENCE CASE WILL INVOLVE THE TRACING AND INTERVIEWING OF WITNESSES. The nature of the defence case or the way in which the defence should challenge the prosecution case requires the specialised, professional skills of a lawyer.
LEGAL REPRESENTATION IS DESIRABLE IN THE INTERESTS OF SOMEONE OTHER THAN THE DEFENDANT. The most common example in this category is the case of a sexual offence. It is clearly undesirable that the accused should be permitted personally to cross-examine the victim. In this situation legal aid would also probably be granted under other “interests of justice” criteria, most notably under ground (1). We will consider this further when looking at vulnerable witnesses.
In addition to the “interests of justice” criteria under s22, a legal aid order must be made, subject to the defendant’s financial means, in the following circumstances:
(a) where a person is committed for trial on a murder charge: or
(b) where an unrepresented person who wishes to be legally represented is brought before a Magistrates’ Court having once been remanded in custody and not legally represented on the first occasion and risks a second remand in custody or of being committed to the Crown Court in custody; or
(c) a person having been convicted is remanded in custody by a Magistrates’ Court or the Crown Court so that reports may be made before passing sentence; or
(d) to a person who received legal aid in the Court of Appeal whose case has been taken to the House of Lords by the prosecution.
An appeal against a refusal is made to the same court that refused, and is made to the appropriate court officer.
In the Crown Court legal aid is very freely available because in the nature of things the charge is likely to be more serious and thus the first of the Widgery criteria will be more easily satisfied. Representation under the legal aid order in the Crown Court does of course extend to representation by counsel. The scheme is means tested, and always has been.
We then turned to another popular examination topic, the issue of BAIL. Bail is the release of a person subject to a duty to surrender to custody in the future. The question of bail arises both during the suspect’s detention at the police station, and, if the matter proceeds to court, during the proceedings. Bail in the course of criminal proceedings is governed by the BAIL ACT 1976, and applies only to bail granted by a court. The question of bail also arises at the police station where the custody officer has to decide whether to authorise the suspect’s continued detention (where Code C permits) or whether to release the suspect on bail or unconditionally. This is governed by PACE 1984 as amended by the Criminal Justice & Public Order Act 1994.
Where the person has yet to be charged, and there are further enquiries to make, it is possible to bail the suspect to return to the police station under s47(3) PACE. No condition can be imposed on the bail, other than the condition to return.
We will continue with this next week.
posted by John Robotham at 7:34 AM
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