Criminal Litigation: Revision Notes
Table of Contents
Section 2: Preliminaries to Prosecution 4
Section 3: Bail and Remands 25
Section 4: Procedure in the magistrates’ courts, allocation for trial, and sending to the
Crown Court for trial or sentence 46
Section 5: Disclosure for unused material and defence statements 47
Section 6: Indictments 48
Section 7: Preliminaries to trial in the Crown Court 49
Section 8: Summary trial procedure 50
Section 9: Jury trial procedure 51
Section 10: Preliminary evidential matters 52
Section 11: Burden and standard of proof 55
Section 12: Preliminary issues relating to witnesses 55
Section 13: The rules relating to the examination of witnesses 55
Section 14: Hearsay evidence 55
Section 15: Character evidence 55
Section 16: Confessions and unlawfully or unfairly obtained evidence 55
Section 17: Inferences from the defendant’s silence and other conduct 55
Section 18: Visual identification evidence 55
Section 19: Opinion evidence and experts 55
Section 20: Privilege 55
Section 21: Youth courts and the appearance of youths in other courts 55
Section 22: Sentencing principles 55
Section 23: Non-custodial sentences 55
Section 24: Custodial sentences 55
Section 25: Ancillary orders and costs on conviction 55
Section 26: The dangerous offender provisions 56
,Section 27: Appeals from the magistrates’ courts and from the Crown Court in its appellate
capacity 56
Section 28: Appeals from the Crown Court 56
,Section 2: Preliminaries to Prosecution
Police powers and the investigation of crime
● PACE 1984 and/or PACE codes of practice govern police powers of investigation
including: arrest; detention; interrogation; entry and search of premises; personal
search and the taking of samples and various procedures for identification
● Codes A to D and G are set out in the PACE Codes of Practice (Appendix 1 of
Blackstones) – Admissible in court
o A does not apply to stop and search powers under TA 2000, which are
governed by separate codes of practice given effect by the TA 2000 (Codes of
Practice for the Exercise of Stop and Search Powers)
o A does apply to powers under the Terrorism Prevention and Investigations
Measures Act 2011 to search persons without them being arrested
o B includes powers to enter and search premises for the purposes of
serving/monitoring/enforcing TPIM notices
● A failure of a police officer to observe PACE codes does not render that officer liable
to criminal/civil proceedings
● To the extent that they are relevant, the codes are admissible in evidence in
criminal/civil proceedings
Cautioning and interviewing
Interrogation of suspects
● Code C: Rules on treatment of people who are being questioned and the questioning
itself
o Governs the physical conditions of, and the treatment of detainees in,
interviews conducted at police stations
● Code E contains rules regulating the audio-recording of interviews
● Code F contains rules regulating the visual recording with sound of interviews
● Legal advice must be provided in person (unless exceptional circumstances)
Interviews generally
● Interview defined: the questioning of a person regarding their involvement or
suspected involvement in a criminal offence or offences which must be carried out
under caution
● A person suspected of an offence must be cautioned before any questions of the
offence/further questions from answers that provide grounds for suspicion, if either
the suspect’s answers or their silence may be given in evidence to a court in
prosecution
● Caution is not necessary if questions are for other purposes such as:
o Solely to establish identity or ownership of a vehicle
o To obtain information in accordance with a statutory requirement, eg under the
RTA 1988 (the statutory driving procedure is not an interview!)
o In furtherance of the proper/effective conduct of a search (although if
questioning goes further eg whether drugs found were intended to be supplied
to another, a caution will be necessary)
, o To seek verification of a written record of comments made by a person outside
an interview
● Questioning of a person in circumstances where a caution does not have to be
administered does not amount to an interview under Code C
● Questioning a person about an offence of which there are grounds to suspect them
will amount to an interview (even if that person has not been arrested/no decision of
arrest has been made)
● A caution must be given if the person is questioned about an offence other than that of
which they have been arrested for
● Following arrest, must be normally interviewed at a police station/other authorised
place of detention
● ‘Decision to arrest’ – if a police officer has decided to arrest a person, the arrest
should not be delayed to question the suspect before doing so
● The requirement that an interview be conducted at a police station is subject to
exception where delay would be likely to:
o Lead to interference with/harm to evidence connected with an offence;
interference with/physical harm to other persons; or serious loss of/damage to
property
o Lead to the alerting of other persons suspected of having committed an
offence but not yet arrested
o Hinder the recovery of property obtained in consequence of the commission of
an offence
● Interviewing in any of the above exceptional circumstances must cease once the
relevant risk has been averted/the necessary questions have been put to avert the risk
● Persons in police detention may be interviewed by an officer who is not at the police
station using a live link
● Custody officer may transfer/permit the transfer of the detained person to a police
officer for a live link interview conducted by another officer
Cautions and special warnings
● A caution must be administered at the commencement of an interview and on arrest
● Suspect should be reminded that they are under caution at the recommencement of an
interview after any break, and if any doubt the caution should be given in full
● Caution (general): “You do not have to say anything. But it may harm your defence if
you do not mention when questioned something which you later rely on in Court.
Anything you do say may be given in evidence”
o Does not need to be perfectly translated to be valid
o Should explain in own words if person does not understand
● Caution used in exceptional circumstances where suspect is interviewed after charge
or where the suspect has requested a solicitor but has not been permitted to consult
one: “You do not have to say anything, but anything you do say may be given in
evidence”
o Different cautions because in such circumstances, inferences cannot be drawn
● There must be “some reasonable, objective grounds for the suspicion, based on
known facts or information”
o Should be objective and not simply dependent on how the police officer
regards the matter
● Caution does not apply to someone who has been unreasonably suspected
Table of Contents
Section 2: Preliminaries to Prosecution 4
Section 3: Bail and Remands 25
Section 4: Procedure in the magistrates’ courts, allocation for trial, and sending to the
Crown Court for trial or sentence 46
Section 5: Disclosure for unused material and defence statements 47
Section 6: Indictments 48
Section 7: Preliminaries to trial in the Crown Court 49
Section 8: Summary trial procedure 50
Section 9: Jury trial procedure 51
Section 10: Preliminary evidential matters 52
Section 11: Burden and standard of proof 55
Section 12: Preliminary issues relating to witnesses 55
Section 13: The rules relating to the examination of witnesses 55
Section 14: Hearsay evidence 55
Section 15: Character evidence 55
Section 16: Confessions and unlawfully or unfairly obtained evidence 55
Section 17: Inferences from the defendant’s silence and other conduct 55
Section 18: Visual identification evidence 55
Section 19: Opinion evidence and experts 55
Section 20: Privilege 55
Section 21: Youth courts and the appearance of youths in other courts 55
Section 22: Sentencing principles 55
Section 23: Non-custodial sentences 55
Section 24: Custodial sentences 55
Section 25: Ancillary orders and costs on conviction 55
Section 26: The dangerous offender provisions 56
,Section 27: Appeals from the magistrates’ courts and from the Crown Court in its appellate
capacity 56
Section 28: Appeals from the Crown Court 56
,Section 2: Preliminaries to Prosecution
Police powers and the investigation of crime
● PACE 1984 and/or PACE codes of practice govern police powers of investigation
including: arrest; detention; interrogation; entry and search of premises; personal
search and the taking of samples and various procedures for identification
● Codes A to D and G are set out in the PACE Codes of Practice (Appendix 1 of
Blackstones) – Admissible in court
o A does not apply to stop and search powers under TA 2000, which are
governed by separate codes of practice given effect by the TA 2000 (Codes of
Practice for the Exercise of Stop and Search Powers)
o A does apply to powers under the Terrorism Prevention and Investigations
Measures Act 2011 to search persons without them being arrested
o B includes powers to enter and search premises for the purposes of
serving/monitoring/enforcing TPIM notices
● A failure of a police officer to observe PACE codes does not render that officer liable
to criminal/civil proceedings
● To the extent that they are relevant, the codes are admissible in evidence in
criminal/civil proceedings
Cautioning and interviewing
Interrogation of suspects
● Code C: Rules on treatment of people who are being questioned and the questioning
itself
o Governs the physical conditions of, and the treatment of detainees in,
interviews conducted at police stations
● Code E contains rules regulating the audio-recording of interviews
● Code F contains rules regulating the visual recording with sound of interviews
● Legal advice must be provided in person (unless exceptional circumstances)
Interviews generally
● Interview defined: the questioning of a person regarding their involvement or
suspected involvement in a criminal offence or offences which must be carried out
under caution
● A person suspected of an offence must be cautioned before any questions of the
offence/further questions from answers that provide grounds for suspicion, if either
the suspect’s answers or their silence may be given in evidence to a court in
prosecution
● Caution is not necessary if questions are for other purposes such as:
o Solely to establish identity or ownership of a vehicle
o To obtain information in accordance with a statutory requirement, eg under the
RTA 1988 (the statutory driving procedure is not an interview!)
o In furtherance of the proper/effective conduct of a search (although if
questioning goes further eg whether drugs found were intended to be supplied
to another, a caution will be necessary)
, o To seek verification of a written record of comments made by a person outside
an interview
● Questioning of a person in circumstances where a caution does not have to be
administered does not amount to an interview under Code C
● Questioning a person about an offence of which there are grounds to suspect them
will amount to an interview (even if that person has not been arrested/no decision of
arrest has been made)
● A caution must be given if the person is questioned about an offence other than that of
which they have been arrested for
● Following arrest, must be normally interviewed at a police station/other authorised
place of detention
● ‘Decision to arrest’ – if a police officer has decided to arrest a person, the arrest
should not be delayed to question the suspect before doing so
● The requirement that an interview be conducted at a police station is subject to
exception where delay would be likely to:
o Lead to interference with/harm to evidence connected with an offence;
interference with/physical harm to other persons; or serious loss of/damage to
property
o Lead to the alerting of other persons suspected of having committed an
offence but not yet arrested
o Hinder the recovery of property obtained in consequence of the commission of
an offence
● Interviewing in any of the above exceptional circumstances must cease once the
relevant risk has been averted/the necessary questions have been put to avert the risk
● Persons in police detention may be interviewed by an officer who is not at the police
station using a live link
● Custody officer may transfer/permit the transfer of the detained person to a police
officer for a live link interview conducted by another officer
Cautions and special warnings
● A caution must be administered at the commencement of an interview and on arrest
● Suspect should be reminded that they are under caution at the recommencement of an
interview after any break, and if any doubt the caution should be given in full
● Caution (general): “You do not have to say anything. But it may harm your defence if
you do not mention when questioned something which you later rely on in Court.
Anything you do say may be given in evidence”
o Does not need to be perfectly translated to be valid
o Should explain in own words if person does not understand
● Caution used in exceptional circumstances where suspect is interviewed after charge
or where the suspect has requested a solicitor but has not been permitted to consult
one: “You do not have to say anything, but anything you do say may be given in
evidence”
o Different cautions because in such circumstances, inferences cannot be drawn
● There must be “some reasonable, objective grounds for the suspicion, based on
known facts or information”
o Should be objective and not simply dependent on how the police officer
regards the matter
● Caution does not apply to someone who has been unreasonably suspected
