22. Specific Types of Sentence and the Plea in Mitigation

This chapter explains specific types of sentence and provide guidance on how a defence solicitor might prepare and deliver a plea in mitigation. It discusses when discretionary custodial sentence can be imposed; custody between the ages 18 and 21; length of custodial sentence; suspended sentence of imprisonment; concluding remarks on discretionary custodial sentences; fixed length sentences; sentencing dangerous offenders; community sentences; community sentences under the Criminal Justice Act (CJA) 2003; guilty plea credit and community orders; enforcement of community orders under the CJA 2003 in the event of breach; deferring sentence; fines; compensation orders; conditional discharge; absolute discharge; bind over; ancillary orders; structuring a plea in mitigation; advocacy and the plea in mitigation; and professional conduct.

19. Character Evidence and the Accused as a Witness at Trial

This chapter examines the evidential rules that apply to the defendant at trial. These include the defendant’s competence and compellability; the course of the defendant’s evidence; drawing an adverse inference under s. 35 Criminal Justice and Public Order Act 1994 from the defendant’s silence at trial; the admissibility of a defendant’s past bad character; admissibility of defendant’s good character; and arguments for and against the defendant giving evidence.

24. Youth Justice—Introduction

This chapter discusses the following issues: the terminology of youth justice; the youth justice organisations; the meaning of parental responsibility; the principal aims of the youth justice system; the early diversion procedures to prevent further offending; the juvenile at the police station; the alternatives to prosecution; and the decision to charge.

8. The Decision to Prosecute and the Prosecution’s Duties of Disclosure of Evidence

This chapter first explains the role of the Crown Prosecution Service (CPS) and the factors that are taken into account when deciding to charge a suspect or to divert him from prosecution. It then examines the important obligations which are placed upon the CPS both at common law and under statute to serve pre-trial disclosure of evidence upon the defendant and their importance to the right to a fair trial. Defence disclosure obligations are also considered.

6. Challenging Unlawfully and Unfairly Obtained Evidence

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

11. Prosecuting an Either-Way Offence

Either-way offences include assault occasioning actual bodily harm, theft, and burglary. These offences can be committed with varying degrees of seriousness depending on the aggravating or mitigating features in the particular case. The more aggravating features, the more serious the offence will be regarded. This chapter examines the procedure for deciding where an either-way offence should be tried which includes the plea before venue and allocation procedure; the relative merits of summary trial and trial on indictment; and for those either-way offences that are to be tried in the Crown Court, the next stage of the proceedings.

21. Sentencing Procedure and the General Principles of Sentencing

This chapter explains the procedure on passing sentence and the general principles that govern a court’s decision when passing sentence. It discusses the role of the Crow Prosecution Service (CPS) on sentence; the procedure on sentencing; hierarchy of sentences; sentencing aims; the basis of sentencing under the Criminal Justice Act 2003; Sentencing Council for England and Wales; sentencing guidelines in the Crown Court; how the defence solicitor assesses the seriousness of an offence; Magistrates’ Court Sentencing Guidelines (MCSGs); the importance of the pre—sentence report, personal offender mitigation; discount for timely guilty pleas; the Crown Court’s sentencing powers; victim impact statements; and taking other offences into consideration.

12. Prosecuting Summary Offences

A summary trial will be held where a defendant pleads not guilty to a summary-only offence or pleads not guilty to an either-way offence where the magistrates’ court has accepted jurisdiction to try the offence at the allocation hearing and the defendant has consented to summary trial. This chapter deals with the steps in preparing for a summary trial. It considers pleading guilty by post; the circumstances in which a defendant can be summarily tried in her absence; the rules governing the drafting of a written charge/information; the pre-trial disclosure of evidence in a summary case; case management; the steps when preparing for summary trial; and the procedure at a summary trial on a not guilty plea.

25. Prosecuting Young Offenders

Where a prosecution is commenced against a child aged 10 to 13 years or against a young person aged 14 to 17 years, the general rule is that he will be tried and sentenced in the youth court. The youth court adopts more informal and less adversarial procedures to deal with the needs and vulnerabilities of young defendants. However, there are exceptional situations (grave offences and dangerous offenders) where they will be tried in the Crown Court or when jointly charged with an adult sometimes in the adult magistrates’ court. This chapter discusses the rules for deciding where a young person is to be tried; the rules for trying a young person in the Crown Court; the rules for trying a young person in the adult magistrates’ court; the young defendant’s right to court bail; and the procedure in the youth court.

9. Funding of Criminal Defence Services and First Appearance Process

This chapter considers the public funding of criminal proceedings and the early stages of the criminal litigation process. Topics discussed include legal aid as a human right; pre-charge advice and assistance; funded representation in court; representation orders; the interests of justice test; means testing and its application to cases tried in the magistrates’ court; the means test as applied to cases triable on indictment; work that can be done under a representation order; acquitted defendants and Defendants’ Costs Order; the future of public funding; and preparing for the first appearance before the magistrates’ court.