Interactive timeline

Representation at the police station will require you to

• Seek disclosure of evidence from the investigating officer.
• Interview your client.
• Advise your client on police powers and what to do in interview.
• Negotiate outcome and client’s release on bail pending first appearance, if charged.

Funding: non-means tested - Advice and Assistance at the Police Station administered by the LAA.

Client may seek advice from the duty -solicitor at court where the scheme permits

Client may seek advice in the office where s/he has been charged at the police station or has received a written charge/postal requisition.

Liaise with investigating officers.

Advise the police on state of evidence (out-of-hours advice is provided by CDS Direct).

Apply CPS Code (evidential and public interest tests) to decide whether to charge, divert, release on bail pending further investigation, or not proceed. If the detainee is to be charged, in most cases it will be for the CPS lawyer to determine the appropriate charged based on the available evidence.

The investigating officer, in consultation with the custody officer, will determine defendant’s bail status if charged.

The defence practitioner is entitled to consult the custody record (Code C) 2.4.

There is no obligation on the police to disclose copies of witness statements at this stage.

If charged, the defendant will be given a charge sheet giving details of the charge/s and the date for first appearance before a magistrates’ court.

Defence adviser at the police station needs to pro-actively assist his/her client and be robust in pressing the police for as much disclosure as possible.

If detainee is to be advised to remain silent, s/he must understand the consequence of an adverse inference being drawn if s/he is later charged and advances a defence at trial.

Solicitors Code of Conduct (2019)

From the defence perspective - be alert to Principles 1 -7 and Chapter 6 Conflict, Confidentiality and Disclosure especially if you are representing two co-accused.

Also consider 1.4 the 2019 Code – which states ‘You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts and omissions of others (including your client).

There is no set time limit to an investigation. It may take:

• hours
• days
• weeks
• months
• or longer

Bail time limits apply pending further investigation

Once the decision has been taken to either charge or issue a written charge/requisition, the defendant will be given a date on which to make his/her first appearance before a magistrates’ court (this may be within 24 hours of being charged if police bail is refused, or several days/weeks later if police bail is granted).

Open a file and complete CRM 1

Evaluate prosecution’s disclosure (Initial Details of Prosecution Case) 

Take full instructions and a proof of evidence from your client, taking into account the IDPC.

Complete eCRM 14 (and if applicable CRM 15).

For a summary-only offence

If summary only offence, offer advice as to plea and enter plea on client’s behalf. If guilty plea is entered, make a plea in mitigation of sentence. If a not guilty plea is entered, assist the court to complete Crim PR 3-Preparation for Effective Trial Form (PET form).

For an either-way offence

If charged with an offence triable either-way, offer advice as to plea.

If a guilty plea is indicated, submit a plea in mitigation of sentence. (Note - there is a risk of committal for sentence to the Crown Court).

If plea is to be not guilty or no plea is to be indicated, explain the purpose of and the procedure at the/allocation hearing and offer advice as to which trial venue to choose.

If no plea or a not guilty plea is indicated, make representations to the magistrates’ court as to appropriate venue for trial.. If summary jurisdiction is refused or the defendant elects trial on indictment, the case will be sent forthwith to the Crown Court under s. 51 CDA 1998.

If summary jurisdiction is accepted, the case will be adjourned for summary trial and you will be expected to assist the court by identifying the facts in issue, agreeing evidence if possible, and having witness availability-See Crim PR 3 and completion of Preparation for  Effective TrialForm (PET form) .

For an indictable-only offence

If the offence is triable only on indictment, represent your client before the magistrates’ court on his/her initial appearance -case will be sent forthwith to the Crown Court under s. 51 CDA 1998.

If the initial hearing before the magistrates’ court ends in an adjournment (whatever the offence classification) apply for bail pending your client’s next court hearing.

If bail is refused, advise client as to the next opportunity they will have to make an application (including the possibility of applying forthwith to the Crown Court).

If the offence charged is summary-only or either-way offence, ensure service of initial details of the prosecution’s case (Initial Details of Prosecution Case and the Streamlined Disclosure Certificate (if relevant)).

For an either-way offence

If the offence charged is triable either-way, be prepared to make representations as to allocation if no plea or a not guilty plea is entered. If summary jurisdiction is accepted and not guilty plea confirmed, assist the court to complete Preparation for Effective Trial Form (PET form)- Crim PR 3

Be prepared to assist the court in sentencing the offender if they plead guilty to a summary-only or either-way offence.

For an indictable-only offence

If the offence charged can only be tried on indictment, ensure case is sent forthwith to the Crown Court under s. 51 CDA 1998 (along with any co-accused and linked offences) for a Plea and Trial Preparation Hearing (PTPH).

Agree or oppose the grant of bail pending adjournment.

If bail is opposed but is granted or conditions are insufficient, consider immediate notification of appeal.

CPS must ensure service of initial details of the prosecution’s case (Initial Details of Prosecution Case and Streamlined Disclosure Certificate in a case likely to be tried summarily where a not guilty plea is anticipated))-Crim PR, Part 8 and otherwise comply with common law disclosure duties to assist the defence with the early preparation of their case or at a bail hearing.

The principles of SDJ / TJS/ CJSSS apply to offences that are triable summarily (this includes the either-way offence) and which were commenced by charge. TSJ/CJSSS requires the first hearing before a magistrates’ court (save if the accused appears in custody) to always be an effective hearing with pleas being entered.

Solicitors Code of Conduct (2019)

 Principle 7, Chapter 8 - There is a duty to act in the best interests of a client. You must therefore ensure you have advised your client about public funding.

Send client care letter confirming instructions.

If it is in your client’s best interests to plead guilty at the earliest opportunity (this will mean reduced prosecution costs and a reduced sentence), advise accordingly.

Principle 1, Chapter 2.5 and 2.6 If a not guilty plea is entered to a matter that is to be tried summarily, the prosecuting advocate and the defence solicitor must be in a position to assist the court by identifying the matters that are in dispute; indicating which of the prosecution’s witnesses could have their evidence read at trial (s. 9 CJA 1967) and having up-to-date witness availability so that a firm date for trial can be set.

From the defence perspective - be alert to issues of-

Chapter 6 Conflict, Confidentiality and Disclosure especially if you are representing two co-accused and be mindful of confidentiality issues if a conflict materialises.

You need to be a qualified solicitor to be able to represent a client in the magistrates’ court. CPS advocates may be qualified lawyers or associate prosecutors.

Part 1 (Overriding Objective)

Part 3 (Case Management).
All parties must comply with the principles of SDJ / CJ-SSS/TSJ (which applies in all cases that are triable summarily)

Part 9 (Allocation and Sending for Trial).
Part 8 (Initial Details of the Prosecution Case)

Part 14 (Bail)

Part 24 (Trial and Sentence in the Magistrates’ Court)

If remanded in custody by the police post charge, the defendant will appear before a magistrates’ court within 24 hours of being charged.

If the defendant has been charged and released on bail or has been requisitioned, s/he will be given a date for his/her first appearance before the magistrates’ court (this may be within a few days or several weeks depending on the nature of the allegation).

Take a full proof of evidence from any potential defence witnesses including potential character witnesses.

Consider instructing an expert witness at the earliest opportunity if applicable and ensure you have the prior authority of the LAA to incur such expenditure.

For a summary-only offence

If case is to be tried summarily, review disclosed used and unused material and serve a copy of expert’s report (if applicable) as soon as is reasonably practicable. Service of a defence statement is optional but there is a requirement to serve a defence witness notice within 14 days of the prosecution serving unused material in accordance with s. 3 CPIA 1996.Comply with trial preparation directions.

For an either-way offence

If an either-way matter is sent to the Crown Court, evaluate the case sent bundle (comprising used and unused prosecution material in order to properly evaluate the evidence).

Re-submit application for a representation order if not granted to cover magistrates’ court proceedings.

Brief counsel or a solicitor-advocate to represent defendant at the Plea and Trial Preparation Hearing (PTPH).

Consider whether (on the strength of the evidence disclosed in the case sent bundle) an application to dismiss some or all of the charges should be made.

Draft defence statement and witness notice within 28 days of being served with unused material.

Give notice to oppose admission of bad character/hearsay in accordance with standard direction time limits.

Work towards trial date.

For an indictable-only offence

Brief counsel or a solicitor-advocate to represent defendant at the PTPH before the Crown Court.

Evaluate case sent bundle when it is served.

Consider whether (on the strength of the evidence disclosed in the case sent bundle) an application to dismiss some or all the charges should be made.

Draft defence statement and witness notice within 28 days of being served with unused material.

Give notice to oppose admission of bad character/hearsay in accordance with PTPH direction time limits.

Work towards the trial.

For a summary-only offence

Comply with trial preparation directions. Keep disclosure under review. Prepare for summary trial. 

For an either-way offence

Attend PTPH and assist judge to complete PTPH form so that a date for trial can be fixed. If a guilty plea is entered, be prepared to outline the case for the purposes of passing sentence.

For the either-way offence that is to be sent to the Crown Court for trial, serve case sent bundle on the defence in accordance with PTPH directions. Serve any notices for admission of bad character or hearsay evidence or an application for special measures.

Consider defence statement and further review unused material to see if further evidence needs to be disclosed in accordance with statutory requirements under s. 3 CPIA 1996.

Check and have available an up-to-date list of witness availability. Respond to defence requests. Prepare for trial.

For an indictable-only offence

If matter can only be tried on indictment, attend PTPH and assist judge to complete PTPH form so that a date for trial can be fixed. If a guilty plea is entered, be prepared to outline the case for the purposes of passing sentence.

Post PTPH, ensure service of case sent bundle (including draft indictment) in accordance with judge’s stipulated directions.

Serve notice of application for any of the following within stipulated time limits:

• special measures direction;
• hearsay;
• bad character/good character
• s 41 YJCEA 1999 (to admit sexual behaviour of the complainant).

Serve copies of expert report on defence (if applicable).

Consider defence statement and further review unused material to see if further evidence needs to be disclosed in accordance with statutory requirements under s. 3 CPIA 1996.

Check and have available an up-to-date list of witness availability.

Respond to defence requests for disclosure

Prosecution is under a statutory duty under s. 3 CPIA 1996 to disclose any previously undisclosed material that might reasonably be considered capable of undermining the prosecution’s case or assisting the defence.

In a case to be tried summarily, the prosecution’s section 3 CPIA 1996 obligation should have been complied with at the initial appearance where a not guilty plea was anticipated.

Where the defendant is to be tried summarily, there is no obligation to serve a defence statement but there is an obligation to provide written notice of intended defence witnesses 14 days after service of unused material.

Prosecution must serve case sent bundle in relation to an indictable-only offence or either-way offence that is to be tried on indictment. This comprises used and unused material plus draft indictment in accordance with Crime and Disorder Act 1998 (Service of Prosecution Evidence) Regulations 2005.

If the offence is triable on indictment, defence must serve defence statement in compliance with ss. 5 and 6 CPIA 1996 and defence witness notification complying with s.6c CPIA 1996 or risk an adverse inference being drawn.

Other than the service of any expert report to be relied on at trial and a defence statement and witness notification requirement (which is not mandatory for cases to be tried on indictment), no further disclosure obligations fall on the defence.

Prosecution must serve any further unused material required in light of the defence statement in compliance with its on-going obligation under s. 7 CPIA 1996, which is to keep disclosure under review.

Where either party seeks to rely on expert evidence at trial, a written copy of the expert’s opinion in accordance with time limit determined by standard directions or as determined by the court.

Both prosecution and defence must actively assist the court to determine the length of trial by collectively determining the matters in issues and identifying what evidence can be agreed.

Drafting a defence statement:

Great care must be taken when drafting a defence statement to avoid an inference being drawn in accordance with s. 11 CPIA 1996. Therefore:

• adhere to time limit of 28 days after service of initial disclosure for cases tried on indictment and 14 days for summary cases where service of a defence statement is optional;
• do not advance inconsistent defence;
• Give full details on any alibi to be relied on;
• Do not put forward a differed defence at trial.
• Also, do not forget to serve witness notice within 28/14 days identifying any witnesses to be called on the defendant’s behalf

Pre-trial binding rulings on a point of law or evidence can be made before trial (Crown Court or the magistrates’ court) and may have a very significant impact on plea. The prosecution can exercise its rights to appeal against binding rulings and terminating rulings made in the Crown Court.

Legal professional privilege applies to all defence witness statements and expert reports. There is no obligation on the defence to disclose an unfavourable expert opinion - the same is not true of the prosecution.

Solicitors Code of Conduct (2019)

Principles 1 and 5, Chapter 1.4 and Chapter 2, Chapter 6 Conflict, Confidentiality and Disclosure Principle 7: You have a duty to act in the best interests of each client. Sometimes this duty can conflict with your duty to uphold the proper administration of justice. You must always assist a court to comply with the overriding objective of the Crim PR, Part 1 but not to the extent that it would require you to breach a professional conduct obligation as to conflict or confidentiality .

There is no property in a witness such that you can interview a prosecution witness in advance of trial however, this would be a very unusual step for a defence practitioner to take.

Witness statements must be in the witness’s own words . (Chapter 2, 2.2-2.5), Solicitors Code of Conduct 2019)

Part 1 (Overriding Objective)

Part 3 (Case Management) - all parties must actively assist the court in furtherance of the overriding objective - this includes complying with all directions and time limits and keeping the court appraised as to difficulties with compliance.

Part 9 (Allocation and Sending for Trial)

Part 10-The Indictment

Part 15 (Disclosure)

Part 19 (Disclosure of Expert Evidence)

Part 18 (Special Measures Directions)

Part 20 (Hearsay Evidence)

Part 21 (Evidence of Bad Character).

Part 24 (Trial and Sentence in the Magistrates’ Court)

Part 3 (Case Management )

For a summary-only offence

If the offence is to be tried summarily, it will normally be listed for trial within 6 to 8 weeks of first hearing in accordance with TSJ/CJ-SSS (standard directions apply as to the conduct of the case; including date for the service of any prosecution unused material and applications for special measures, hearsay, and bad character).

For an either-way offence

Once an either-way offence is sent for trial it will be sent to the Crown Court for a Plea and Trial Preparation Hearing within 28 days. Note that where the defendant is remanded in custody, custody time limits apply.

For an indictable-only offence

If the offence is triable only on indictment it will be sent forthwith to the Crown Court via s 51 CDA 1998 and listed for a PTPH within 28 days.

For trial on indictment:

Instruct the trial advocate to appear at trial.

Ensure witness attendance (witness summons if necessary).

If you are attending with counsel or solicitor-advocate, liaise with trial advocate and marshal witnesses.

If it is in your client’s best interests to plead guilty at this point (this will mean reduced prosecution costs and a reduced sentence), advise accordingly. You may need to agree a basis of plea with the prosecution.

If you are the trial advocate, observe jury selection and swearing in.

Cross-examine prosecution witnesses.

Consider whether a submission of no case to answer can and should be made.

Make opening speech.

Examine defence witnesses.

Re-examine defence witnesses.

Make closing speech.

Keep verbatim note of trial judge’s summing up and directions to jury.

Explain consequences of verdict to client.

For summary trial:

Ensure witness attendance (witness summons if necessary).

Determine your trial strategy (what do you need to put to opposing witnesses in cross-examination).

Cross-examine prosecution witnesses.

Consider whether a submission of no case to answer can and should be made.

Examine defence witnesses.

Re-examine defence witnesses.

Make closing speech (unless you made an opening speech).

For trial on indictment:

Brief Crown Court advocate to attend trial.

Ensure attendance and welfare of prosecution witnesses.

Prepare and copy trial bundle if required.

If you are the advocate, observe jury selection and swearing in.

Make opening speech.

Examine prosecution witnesses.

Re-examine prosecution witnesses.

Cross-exam defence witnesses.

Make closing speech.

Keep verbatim note of trial judge’s summing up and directions to jury.

For summary trial:

Make opening speech.

Examine prosecution witnesses.

Re-examine prosecution witnesses.

Cross-exam defence witnesses.

Make closing speech.

Prosecution is under a duty to keep disclosure under review throughout the proceedings (s. 7 CPIA 1996).

The burden of proof rests with the prosecution.

Prosecutor will have researched the substantive law elements of the offence that need to be proved.

The parties will need to devise a strategy for prosecuting and defending the case based on the evidence available. For the prosecution to discharge its burden, the elements of the offence need to be proved beyond reasonable doubt.

Be sure to use the correct form of address when in court.

Solicitors Code of Conduct (2019)

Principle 7 - There is a duty to act in the best interests of each client. Having regard to the complexity of the trial, consider whether you have the experience and skills to be able to act in the best interests of your client?

Principles 1 and 5 and Chapter 2 Dispute resolution and proceedings before courts, tribunals and inquiries. You need to be a qualified solicitor to be able to represent a client in the magistrates’ court.

You need to be a barrister or solicitor advocate to conduct a trial before the Crown Court and be suitably attired.

You must not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts and omissions of others (including your client). (Chapter 1.4). Note you should draw the court’s attention to relevant case law or statute or to a procedural regularity (Chapter 2, 2.7).

Principle 1 and Chapter 2 (2.3) says you must not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case.

Part 1 (Overriding Objective)

Part 3(Case Management)

Part 9 (Allocation and Sending for Trial)

Part 15 (Disclosure)

Part 24 (Trial and Sentence in the Magistrates’ Court)

Part 25 (Trial and Sentence in the Crown Court)

Following the PTPH in the Crown Court, the prosecution and defence will be notified of the date for trial (this could be in several weeks or months’ time).

A summary trial can last between one and several hours (occasionally the trial may have to be adjourned part-heard).

Crown court trials vary tremendously in length from several hours to several days, weeks, or months).

Consider whether a pre-sentence report is likely to be needed to assist the court to reach the most appropriate sentence.

Review any pre-sentence report with your client.

Submit plea in mitigation to the court

Advise client on possible avenues and grounds for appeal against conviction and or sentence.

If appeal is to the Court of Appeal seek advice from trial advocate as to the probability of being granted leave to appeal.

Consider making an application for bail pending appeal if the defendant has been convicted and imprisoned (note: the presumption in favour of bail does not apply).

In road traffic cases, apply to have a disqualification from driving or endorsement of penalty points suspended pending outcome of an appeal.

A further application for a representation order is needed to fund representation of an appeal to the Crown Court, Divisional Court, or Court of Appeal

Assist the court to pass sentence by fully outlining the circumstances of the offence and the accused’s role in its commission (if a guilty plea has been entered).

Provide court with details of accused’s previous convictions and any ancillary orders sought.

If conviction places the accused in breach of a current order of the court, have details of the previous conviction.

If served with notice of appeal, consider whether to contest appeal and ensure representation at appeal hearing.

Prosecution has the right to appeal by way of case stated on a point of law arising out of a decision taken by a magistrates’ court.

The Attorney-General can seek the leave of the Court of Appeal to refer an unduly lenient sentence arising out of a Crown Court case.

Disclosure is unlikely to be an issue post-conviction although the prosecution remains under a continuing duty to review (s. 7 CPIA 1996).

Pre-sentence reports must be treated with the utmost confidentiality

Both sides need to attend court (Crown Court or magistrates’ court) having researched any applicable sentencing guidelines in advance.

Before attempting a plea in mitigation, the defence advocate should research applicable sentencing guidelines and consider what is a realistic sentencing objective on that basis

An agreed basis for a guilty plea obviates the need for a ‘Newton’ hearing where aspects of the prosecution’s outline of the offence are disputed.

A defendant needs to be advised of the possible cost and sentence implications of an appeal to the Crown Court.

Part 1 (Overriding Objective)

Part 3 (Case Management).

Part 24 (Trial and Sentence in the Magistrates’ Court)

Part 25 (Trial and Sentence in the Crown Court)

Part 34 (Appeal to the Crown Court)

Part35 (Appeal by way case stated)

Part 36 (Appeal to the Court of Appeal against conviction and sentence)

Sentence will follow immediately upon conviction or following an adjournment for a pre-sentence report.

A fast delivery PSR is available within hours; a full PSR will take 4 weeks if the offender has been bailed post- conviction and 3 weeks if remanded into custody post- conviction.

Appeal to Crown Court - written notice of appeal to be served within 21 days of conviction or sentence.

Appeal by way of case stated – written notice to state a case to be served within 21 days after conviction or acquittal.

Appeal to the Court of Appeal - serve notice of application to appeal within 28 days of conviction or sentence.