TYPES OF OFFENCES
Criminal Procedural Rules (CrimPR) governs all criminal courts overriding objective that criminal
cases are dealt with justly must prepare + conduct cases + further by actively managing cases
The Magistrates’ court is made up of either 3 lay magistrates (justices) or a full time District Judge
An offence will fall into one of three categories (need to know to advice client)
1. Summary only offence – Less serious e.g. Assault + road traffic dealt in Magistrates court
Summary if statute creating it provides max penalty on summary conviction but none on indictment
2. Indictable only offences – Most serious e.g. Murder, manslaughter, rape, robbery Must
be heard in Crown Court but starts at Magistrates
Triable on indictment only if statute creating it provides a penalty on conviction on indictment
3. Either way offences – (Actual Bodily Harm / Theft) Magistrates’ or Crown Court starts
are magistrates and then magistrates decide to keep or send to CC if too serious, Defendant has
right to elect for trial by judge and jury in the CC
Offence is triable either way if listed in Schedule 1 Magistrates Court Act 1980 or statute creating
offence specifies one penalty on summary conviction and different if convicted on indictment
-When a case is heard in the Magistrates’ court it is tried ‘summarily’ (even if the offence is either
way), if convicted the defendant is said to have a summary conviction.
-Whenever a case is heard in the Crown Court, the defendant it tried on ‘indictment’.
-When the offence is summary only, it will be heard in the Magistrates’ Court.
-If the offence is ‘either-way’ it can be tried in either the Magistrates’ or the Crown Court. The
decision as to which court will deal with the case consists of two stages: the plea before venue and
the optional mode of trial hearing.
If the Magistrates’ Court regard their sentencing powers as insufficient, they have the power to
‘commit for sentence’ to the Crown Court. The limits on Magistrates’ Court sentencing powers are:
Any number of Summary only offences - 6 months maximum
One Either way offence - 6 months maximum
One Either way and a Summary only offence - 6 months maximum
Two Either way offences - 12 months maximum
ADVANCE INFORMATION:
The defence will receive Advance Information from the prosecution. This will be supplied in the case
of all either-way offences. It allows the defendant to know the case against him and assess the
strength of the evidence before entering a plea – Advance Information consists of:
1. Prosecution summary of the case
2. Charge sheet or summons
3. Copies of witness statements
4. Copy antecedents and previous convictions of the accused
5. Transcript of the defendant’s interview under caution
If there is an adjournment then the magistrates need to decide whether to remand the defendant,
and if so whether that should be on bail or in custody.
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,PUBLIC FUNDING FOR DEFENCE – advice client on extent of public funding available
A suspect or defendant to criminal charge is free to instruct and pay for his own solicitor but may
be entitled to advice and/or representation at public expense.
The Legal Aid Agency (LAA) administers public funding of criminal defence work firms with a
contract with LAA can obtain public funding to represent clients
Work done at the Police Station
Any suspect who has been arrested and detained in the police station has the right to free legal
advice Police Station Advice and Assistance Scheme allows solicitors to advise and assist
individuals who have been arrested at the police station
If offence is triable on indictment only, individual’s solicitor or duty solicitor will attend in person.
In straightforward cases, free advice limited to telephone advice by Criminal Defence Direct (CDD)
Not means tests (all are entitled to legal advice at police station)
Work done outside the Police Station prior to Charge
Public funding available under the Advice and Assistance Scheme, provided solicitor is satisfied that
there is sufficient benefit to the client to justify the work being done Is means tested
Representation at Court
Limited assistance at court if work straightforward and can be done by duty solicitor if not
sufficient defendant apply for representation orderCriminal legal aid applications processed by LAA
Applicant must satisfy both a merits and a means test before the representation order is granted
Merits (‘interests of justice’) test
A representation order will be granted only if it is in the interests of justice for D to have costs paid
from public funds– Factors under s.17(2) Legal Aid, Sentencing and Punishment of Offenders Act 2012
-Some automatically satisfy this test if charged with INDICTABLE ONLY OR EITHER WAY (THAT IS
DECIDED TO BE TRIED IN THE CROWN COURT) so if tried in Crown Court, will satisfy Interests of
justice test and will get representation order
-For Magistrates court cases applicant must indicate which of the criteria apply and reasons Hard
for summary or either way offence that will be tried in the magistrates court – then the Defendant
will need to satisfy this test completed on CRM14 (application for legal aid in criminal
proceedings) Question 29 addresses interests of justice test
s.17(2) LASPOA 2012:
If any matter in the proceedings is decided against the defendant, would he be likely to lose his
liberty or livelihood or suffer serious damage to his reputation?
Does the case involve a substantial question of law?
May the defendant be unable to understand the proceedings or to state his own case (eg through
lack of knowledge of English or through mental or physical disability)?
May the defence involve the tracing and interviewing of witnesses or the expert cross
examination of prosecution witnesses?
Is it in the interests of another person for the defendant to be represented?
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,Means test
Automatic qualification
Applicants on certain state benefits (income support, income-based job seeker's allowance,
guaranteed state pension credit, income-based employment and support allowance or universal
credit)= automatically qualify financially for criminal legal aid, as will those under the age of 18.
Means testing in the magistrates’ court
Initial means test
All other applicants for a representation order must complete a financial statement (CRM15)
gross annual income calculated then adjusted by family circumstances
Adjusted income is under £12,475= will qualify for criminal legal aid; if it is over £22,325, he will not
Full means test
If an applicant's income is between £12,475 and £22,325= full means test will be applied. The
applicant's annual disposable income is calculated by deducting from the gross annual income tax
and national insurance, annual housing costs, annual childcare costs, annual maintenance to former
partners and any children and an adjusted annual living allowance. To qualify for criminal legal aid,
the applicant’s annual disposable income must not exceed £3,398.
If a defendant qualifies for legal aid in the magistrates’ court, he will get free legal representation
Means testing in the Crown Court
In Crown Court, the scheme is contributory and capital and equity are considered, as well as income.
If a defendant’s annual household disposable income is £37,500 he will be ineligible for legal aid and
will have to pay for legal representation on a private basis. If his annual household disposable
income is between £3,398 and £37,500, he will be legally aided but will have to contribute to his
defence costs from his income. If convicted and his monthly contributions from income have not
covered his defence costs in full, at the conclusion of the case he can be ordered to pay a
contribution out of his capital should he have £30,000 or more.
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,POLICE INVESTIGATIVE POWERS
The Police and Criminal Evidence Act 1984 (PACE) most police powers and duties
-Breach of Codes can lead to exclusion of evidence from trial obtained as a result
-Police may use reasonable force to exercise their PACE powers – s.117
-s.66 PACE empowers secretary of state to issue Codes of Practice on how powers be exercised
Police ranks in PACE
-Super intendent (highest)
-Inspector
-Sergeant
-Constable (lowest)
The Codes of Practice (COP) provides a framework for the operation of PACE and police officers are
bound to adhere to their guidelines.
Code A – Stop and search of persons
Code B – Searching of premises
Code C – Detention, treatment & questioning of persons
Code D – Identification of persons
Code E – Tape recordings of interviews
Code F – Visual recordings of interviews
Any breach of the code is not a criminal offence. civil wrong BUT s67(11) PACE obliges courts to
take into account any breach of the code relevant to an issue in proceedings
OUTSIDE THE POLICE STATION
STOP AND SEARCH – CODE A
Section 1(2) PACE gives a police constable the power to stop and search any person or vehicle or
anything in or on the vehicle for stolen or prohibited articles. This includes:
Stolen Property
Offensive weapons
Articles made or adapted for use in dishonesty offences
Articles connected to offences of criminal damage
-The power to stop and search is subject to precondition the constable has ‘reasonable grounds’ for
suspecting that he will find stolen or prohibited articles.
-A stop and search can be carried out in any place to which, at the time of search, public has access
Code A – guidance on ‘reasonable suspicion’= Code A 2.2-2.11
Code A, 1.1 – 2.29: lay down the principles governing stop and search.
Code A, 2.2: Reasonable grounds for suspicion depend on the circumstances of each case
There must be an objective basis without racist bias
Officer has a genuine suspicion they will find an object, and suspicion is reasonable (based
on facts or intelligence)
2.2B: cannot be solely based on a ‘persons physical appearance’ or ‘generalisations or
stereotypical images of certain groups’
Code A, 2.4 however, this should be linked to current information regarding a suspected offender.
Suspicion based on information relating to articles, can be based on reports from public
Code A, 2.11 reasonable suspicion may arise during an encounter even if no grounds existed before
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, Conduct of searches
Code A, 3.8 Steps to be taken prior to and after search:
a) Tell the person that they are being detained for the purpose of a search
b) Give name, (warrant card), police station
c) Advise of the legal power of search
d) Explain the purpose of the search and the grounds the officer has for reasonable suspicion
Section 1(1) PACE only allows police to exercise their stop and search powers in a public place. If the
person is on private property, officer can only search him if the person is not entitled to be there.
Code A, 3.1 all searches must be carried out with courtesy, consideration and respect.
Code A, 3.2 co-operation for search must be sought. Reasonable force may be used as a last resort
Code A, 3.3: The length of time a person/vehicle may be detained must be kept to a minimum
Code A, 3.4: search should be carried out at or near the place where the person/vehicle was detained
Code A, 3.5: no power to require a person to remove any clothing in public other than outer coat,
jacket or gloves. Where a more thorough search is required, this must be conducted out of view,
either in a police van or at a police station.
A breach of PACE and the Codes of Practice may give rise to a Human Rights violation Articles 5 & 8.
ARREST – CODE G
An arrest is a restriction of a person’s liberty It must be affected lawfully or it will breach HRA. In
order for an arrest to be lawful, power of arrest must be allowed by statute or common law (to
prevent a breach of the peace).
The police have two grounds for arrest. A common law ground to prevent a breach of the peace and
statutory grounds under either PACE (s.24 & 25) or the provisions of a particular statute.
s.24 PACE: Only certain offences carry a power of arrest:
Gives a police constable the power of arrest in respect of any criminal offence provided certain
conditions are satisfied anyone in the act of committing or about to commit an offence or who he
has reasonable grounds for suspecting to be committing or about to commit an offence. If an
offence has been committed, or a police officer has reasonable grounds for suspecting an offence
has been committed, he may arrest anyone who is guilty of that offence or who he has reasonable
grounds for suspecting to be guilty of it.
a) An offence for which the sentence is fixed by law; or
b) An offence which carries a sentence of 5 years or more; or
c) Offences listed in Schedule 1 of PACE.
General arrest conditions: s.25 PACE.
All offences now carry a limited power of arrest under s.25 to be used a constable must have
reasonable grounds for suspecting that any offence has, or is, being committed or attempted. If
service of a summons is inappropriate (i.e. the person has not been identified) then the officer may
arrest the person for an offence which is not usually an arrestable offence.
S.24A: ‘Citizens arrest’ limited power persons not police constables to arrest for indictable offence
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