Ministry of Justice

Part IV: Further Practice Directions Applying in The Crown Court

Part IV  Further Directions applying in the Crown Court
IV.30 Modes of Address and Titles of Judges
IV.31 Transfer of Cases from One Circuit to Another
IV.32 Transfer of Proceedings Between Locations of the Crown Court
IV.33 Allocation of Business Within the Crown Court
IV.34 Settling the Indictment
IV.35 Voluntary Bills of Indictment
IV.36 Abuse of Process Stay Applications
IV.37 Citation of Hansard
IV.38 Applications for Representation Orders
IV.40 Video Recorded Evidence in Chief
IV.41 Management of Cases to be Heard in the Crown Court
IV.42 Juries
IV.43 Evidence of Tape Recorded Interviews
IV.44 Defendant's Right to Give or Not to Give Evidence
IV.45 Pleas of guilty in the Crown Court
IV.46 Majority Verdicts
IV.47 Imposition of Discretionary Life Sentences
IV.48 Life Sentences for Juveniles Convicted of Murder
IV.49 Life Sentences
IV.50 Bail Pending Appeal

IV.30

MODES OF ADDRESS AND TITLES OF JUDGES

Mode of Address

(IV.30.1) The following judges, when sitting in court, should be addressed as ‘My Lord’ or ‘My Lady’, as the case may be, whatever their personal status:

(a) any Circuit Judge sitting as a judge of the High Court under section 9(1) of the Supreme Court Act 1981;

(b) any judge sitting at the Central Criminal Court;

(c) any Senior Circuit Judge who is the Honorary Recorder of the city in which he sits.

(IV.30.2) Subject to paragraph IV.31.1, Circuit Judges, Recorders and Deputy Circuit Judges should be addressed as ‘Your Honour’ when sitting in court.

Description

(IV.30.3) In cause lists, forms and orders members of the judiciary should be described as follows:

(a) Circuit Judges, as ‘His [or Her] Honour Judge A’ (when the judge is sitting as a judge of the High Court under section 9(1) of the Supreme Court Act 1981 the words ‘sitting as a judge of the High Court’ should be added);

(b) Recorders, as ‘Mr [or Mrs] Recorder B’. This style is appropriate irrespective of any honour or title which the recorder might possess, but if in any case it is desired to include an honour or title the alternative description ‘Sir CD, Recorder’ or ‘The Lord D, Recorder’ may be used;

(c) Deputy Circuit Judges, as ‘His [or Her] Honour EF, sitting as a Deputy Circuit Judge’

IV.31

TRANSFER OF CASES FROM ONE CIRCUIT TO ANOTHER

(IV.31.1) An application that a case be transferred from one Circuit to another should not be granted unless the judge is satisfied that:

(a) the approval of the Presiding Judges and Regional Director for each Region/Circuit has been obtained, or

(b) the case may be transferred under general arrangements approved by the Presiding Judges and Regional Directors.

IV.32

TRANSFER OF PROCEEDINGS BETWEEN LOCATIONS OF THE CROWN COURT

(IV.32.1) Without prejudice to the provisions of section 76 of the Supreme Court Act 1981 (committal for trial: alteration of place of trial) directions may be given for the transfer from one location of the Crown Court to another of: (a) appeals; (b) proceedings on committal for sentence or to be dealt with.

(IV.32.2) Such directions may be given in a particular case by an officer of the Crown Court, or generally, in relation to a class or classes of case, by the Presiding Judge or a judge acting on his behalf.

(IV.32.3) If dissatisfied with such directions given by an officer of the Crown Court, any party to the proceedings may apply to a judge of the Crown Court who may hear the application in chambers.

IV.33

ALLOCATION OF BUSINESS WITHIN THE CROWN COURT

General

(IV.33.1) Cases in Class 1 may only be tried by:

(1) a High Court Judge, or

(2) a Circuit Judge or Deputy High Court Judge or Deputy Circuit Judge provided (a) that, in all cases save attempted murder, such judge is authorised by the Lord Chief Justice to try murder cases, or in the case of attempted murder, to try murder or attempted murder, and (b) the Presiding Judge has released the case for trial by such a judge.

(IV.33.2) Cases in Class 2 may be tried by:

(1) a High Court Judge

(2) a Circuit Judge or Deputy High Court Judge or Deputy Circuit Judge or a Recorder, provided that in all cases such judge is authorised to try class 2 cases by the Lord Chief Justice and the case has been assigned to the judge by or under the direction of either the Presiding Judge or Resident Judge in accordance with guidance given by the Presiding Judges.

(IV.33.3) Cases in Class 3 may be tried by a High Court Judge, or in accordance with guidance given by the Presiding Judges, a Circuit Judge, a Deputy Circuit Judge or a Recorder. A case in Class 3 shall not be listed for trial by a High Court Judge except with the consent of a Presiding Judge.

(IV.33.4) Appeals from decisions of magistrates shall be heard by:

(a) a Resident Judge, or

(b) a Circuit Judge, nominated by the Resident Judge, who regularly sits at the Crown Court centre, or

(c) an experienced Recorder or Deputy Circuit Judge specifically approved by or under the direction of the Presiding Judges for the purpose, or

(d) where no Circuit Judge or Recorder satisfying the requirements above is available and it is not practicable to obtain the approval of the Presiding Judges, by a Circuit Judge, Recorder or Deputy Circuit Judge selected by the Resident Judge to hear a specific case or cases listed on a specific day.

(IV.33.5) Committals following breach (such as a matter in which a community order has been made, or a suspended sentence passed) should, where possible, be listed before the judge who originally dealt with the matter, or, if not, before a judge of the same or higher level.

Applications for removal of a driving disqualification

(IV.33.6) Application should be made to the location of the Crown Court where the order of disqualification was made.

Absence of Resident Judge

(IV.33.7) A Resident Judge must appoint a deputy to exercise his functions when he is absent from his centre.

Guidance issued by the Senior Presiding Judge and the Presiding Judges

(IV.33.8) For the just, speedy and economical disposal of the business of the Circuits or a Circuit, the Senior Presiding Judge or the Presiding Judges, with the approval of the Senior Presiding Judge, may issue guidance to Resident Judges in relation to the allocation and management of the work at their court.

(IV.33.9) With the approval of the Senior Presiding Judge, general directions may be given by the Presiding Judges of the South Eastern Circuit concerning the distribution and allocation of business of all classes of case at the Central Criminal Court.

IV.34

SETTLING THE INDICTMENT

(IV.34.1) Rule 14.1 of the Criminal Procedure Rules requires the prosecutor to serve a draft indictment not more than 28 days after service of the evidence in a case sent for trial, after the committal of the defendant for trial, or after one of the other events listed in that rule. Rule 14.2(5) provides that an indictment may contain any count charging substantially the same offence as one sent or committed for trial and any other count based on the prosecution evidence already served which the Crown Court has jurisdiction to try. Where the prosecutor intends to include in the draft indictment counts which differ materially from, or are additional to, those on which the defendant was sent or committed for trial then the defendant should be given as much notice as possible, usually by service of a draft indictment, or a provisional draft indictment, at the earliest possible opportunity.

(IV.34.2) There is no rule of law or practice which prohibits two indictments being in existence at the same time for the same offence against the same person and on the same facts. But the court will not allow the prosecution to proceed on both indictments. They cannot be tried together and the court will require the prosecution to elect the one on which the trial will proceed. Where different defendants have been separately sent or committed for trial for offences which can lawfully be charged in the same indictment then it is permissible to join in one indictment counts based on the separate sendings or committals for trial even if an indictment based on one of them already has been signed. Where necessary the court should be invited to exercise its powers of amendment under section 5 of the Indictments Act 1915.

(IV.34.3) Save in the special circumstances described in the following paragraphs of this Practice Direction, it is undesirable that a large number of counts should be contained in one indictment. Where defendants on trial have a variety of offences alleged against them then in the interests of effective case management it is the court's responsibility to exercise its powers in accordance with the overriding objective set out in Part 1 of the Criminal Procedure Rules. The prosecution may be required to identify a selection of counts on which the trial should proceed, leaving a decision to be taken later whether to try any of the remainder. Where an indictment contains substantive counts and one or more related conspiracy counts the court will expect the prosecution to justify the joinder. Failing justification the prosecution should be required to choose whether to proceed on the substantive counts or on the conspiracy counts. In any event, if there is a conviction on any counts that are tried then those that have been postponed can remain on the file marked ‘not to be proceeded with without the leave of the court’. In the event that a conviction is later quashed on appeal, the remaining counts can be tried. Where necessary the court has power to order that an indictment be divided and some counts removed to a separate indictment.

Multiple offending: trial by jury and then by judge alone

(IV.34.4) Under sections 17 to 21 of the Domestic Violence, Crime and Victims Act 2004 the court may order that the trial of certain counts will be by jury in the usual way and, if the jury convicts, that other associated counts will be tried by judge alone. The use of this power is likely to be appropriate where justice cannot be done without charging a large number of separate offences and the allegations against the defendant appear to fall into distinct groups by reference to the identity of the victim, by reference to the dates of the offences, or by some other distinction in the nature of the offending conduct alleged.

(IV.34.5) In such a case it is essential to make clear from the outset the association asserted by the prosecutor between those counts to be tried by a jury and those counts which it is proposed should be tried by judge alone, if the jury convict on the former. A special form of indictment is prescribed for this purpose.

(IV.34.6) An order for such a trial may be made only at a preparatory hearing. It follows that where the prosecutor intends to invite the court to order such a trial it will normally be appropriate to proceed as follows. The draft indictment served under Criminal Procedure Rule 14.1(1) should be in the form appropriate to such a trial. It should be accompanied by an application under Criminal Procedure Rule 15.1 for a preparatory hearing. This will ensure that the defendant is aware at the earliest possible opportunity of what the prosecution propose and of the proposed association of counts in the indictment. It is undesirable for a draft indictment in the usual form to be served where the prosecutor expects to apply for a two stage trial and hence, of necessity, for permission to amend the indictment at a later stage in order that it may be in the special form.

(IV.34.7) On receipt of a draft two part indictment a Crown Court officer should sign it at the end of Part Two. At the start of the preparatory hearing the defendant should be arraigned on all counts in Part One of the indictment. Arraignment on Part Two need not take place until after there has been either a guilty plea to, or finding of guilt on, an associated count in Part One of the indictment.

(IV.34.8) If the prosecution application is successful, the prosecutor should prepare an abstract of the indictment, containing the counts from Part One only, for use in the jury trial. Preparation of such an abstract does not involve "amendment" of the indictment. It is akin to where a defendant pleads guilty to certain counts in an indictment and is put in the charge of the jury on the remaining counts only.

(IV.34.9) If the prosecution application for a two stage trial is unsuccessful, the prosecutor may apply to amend the indictment to remove from it any counts in Part Two which would make jury trial on the whole indictment impracticable and to revert to a standard form of indictment. It will be a matter for the court whether arraignment on outstanding counts takes place at the preparatory hearing, or at a future date.

Multiple offending: count charging more than one incident

(IV.34.10) Rule 14.2(2) of the Criminal Procedure Rules allows a single count to allege more than one incident of the commission of an offence in certain circumstances. Each incident must be of the same offence. The circumstances in which such a count may be appropriate include, but are not limited to, the following:

(a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;

(b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;

(c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;

(d) in any event, the defence is such as to apply to every alleged incident without differentiation. Where what is in issue differs between different incidents, a single ‘multiple incidents’ count will not be appropriate, though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence.

(IV.34.11) Even in circumstances such as those set out in paragraph IV.34.8, there may be occasions on which a prosecutor chooses not to use such a count, in order to bring the case within section 75(3)(a) of the Proceeds of Crime Act 2002 (criminal lifestyle established by conviction of three or more offences in the same proceedings): for example, because section 75(2)(c) of that Act does not apply (criminal lifestyle established by an offence committed over a period of at least six months). Where the prosecutor proposes such a course it is unlikely that Part 1 of the Criminal Procedure Rules (the overriding objective) will require an indictment to contain a single ‘multiple incidents’ count in place of a larger number of counts, subject to the general principles set out in paragraph IV.34.3.

(IV.34.12) For some offences, particularly sexual offences, the penalty for the offence may have changed during the period over which the alleged incidents took place. In such a case, additional ‘multiple incidents’ counts should be used so that each count only alleges incidents to which the same maximum penalty applies.

(IV.34.13) In some cases, such as money laundering or theft, there will be documented evidence of individual incidents but the sheer number of these will make it desirable to cover them in a single count. Where the indictment contains a count alleging multiple incidents of the commission of such offences, and during the course of the trial it becomes clear that the jury may bring in a verdict in relation to a lesser amount than that alleged by the prosecution, it will normally be desirable to direct the jury that they should return a partial verdict with reference to that lesser amount.

(IV.34.14) In other cases, such as sexual or physical abuse, a complainant may be in a position only to give evidence of a series of similar incidents without being able to specify when or the precise circumstances in which they occurred. In these cases, a ‘multiple incidents’ count may be desirable. If on the other hand, the complainant is able to identify particular incidents of the offence by reference to a date or other specific event, but alleges that in addition there were other incidents which the complainant is unable to specify, then it may be desirable to include separate counts for the identified incidents and a ‘multiple incidents’ count or counts alleging that incidents of the same offence occurred ‘many’ times. Using a ‘multiple incidents’ count may be an appropriate alternative to using ‘specimen’ counts in some cases where repeated sexual or physical abuse is alleged. The choice of count will depend on the particular circumstances of the case and should be determined bearing in mind the implications for sentencing set out in R v Canavan; R v Kidd; R v Shaw [1998] 1 Cr App R 79.

IV.35

VOLUNTARY BILLS OF INDICTMENT

(IV.35.1) Section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 allows the preferment of a bill of indictment by the direction or with the consent of a judge of the High Court. Bills so preferred are known as voluntary bills.

(IV.35.2) Applications for such consent must not only comply with each paragraph of the Indictments (Procedure) Rules 1971, SI 1971/2084, but must also be accompanied by:

(a) a copy of any charges on which the defendant has been committed for trial;

(b) a copy of any charges on which his committal for trial was refused by the magistrates' court;

(c) a copy of any existing indictment which has been preferred in consequence of his committal;

(d) a summary of the evidence or other document which (i) identifies the counts in the proposed indictment on which he has been committed for trial (or which are substantially the same as charges on which he has been so committed), and (ii) in relation to each other count in the proposed indictment, identifies the pages in the accompanying statements and exhibits where the essential evidence said to support that count is to be found;

(e) marginal markings of the relevant passages on the pages of the statements and exhibits identified under (d)(ii).

These requirements should be complied with in relation to each defendant named in the indictment for which consent is sought, whether or not it is proposed to prefer any new count against him.

(IV.35.3) The preferment of a voluntary bill is an exceptional procedure. Consent should only be granted where good reason to depart from the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it.

(IV.35.4) Neither the 1933 Act nor the 1971 Rules expressly require a prosecuting authority applying for consent to the preferment of a voluntary bill to give notice of the application to the prospective defendant or to serve on him a copy of documents delivered to the judge; nor is it expressly required that the prospective defendant have any opportunity to make any submissions to the judge, whether in writing or orally.

(IV.35.5) The prosecuting authorities for England and Wales have issued revised guidance to prosecutors on the procedures to be adopted in seeking judicial consent to the preferment of voluntary bills. These procedures direct prosecutors:

(a) on the making of application for consent to preferment of a voluntary bill, forthwith to give notice to the prospective defendant that such application has been made;

(b) at about the same time, to serve on the prospective defendant a copy of all the documents delivered to the judge (save to the extent that these have already been served on him);

(c) to inform the prospective defendant that he may make submissions in writing to the judge, provided that he does so within nine working days of the giving of notice under (a) above. Prosecutors will be directed that these procedures should be followed unless there are good grounds for not doing so, in which case prosecutors will inform the judge that the procedures have not been followed and seek his leave to dispense with all or any of them. Judges should not give leave to dispense unless good grounds are shown.

(IV.35.6) A judge to whom application for consent to the preferment of a voluntary bill is made will, of course, wish to consider carefully the documents submitted by the prosecutor and any written submissions timeously made by the prospective defendant, and may properly seek any necessary amplification. The judge may invite oral submissions from either party, or accede to a request for an opportunity to make such oral submissions, if the judge considers it necessary or desirable to receive such oral submissions in order to make a sound and fair decision on the application. Any such oral submissions should be made on notice to the other party, who should be allowed to attend.

IV.36

ABUSE OF PROCESS STAY APPLICATIONS

(IV.36.1) In all cases where a defendant in the Crown Court proposes to make an application to stay an indictment on the grounds of abuse of process, written notice of such application must be given to the prosecuting authority and to any co-defendant not later than 14 days before the date fixed or warned for trial (“the relevant date”). Such notice must:

(a) give the name of the case and the indictment number;

(b) state the fixed date or the warned date as appropriate;

(c) specify the nature of the application;

(d) set out in numbered sub-paragraphs the grounds upon which the application is to be made;

(e) be copied to the chief listing officer at the court centre where the case is due to be heard.

(IV.36.2) Any co-defendant who wishes to make a like application must give a like notice not later than seven days before the relevant date, setting out any additional grounds relied upon.

(IV.36.3) In relation to such applications, the following automatic directions shall apply:

(a) the advocate for the applicant(s) must lodge with the court and serve on all other parties a skeleton argument in support of the application at least five clear working days before the relevant date. If reference is to be made to any document not in the existing trial documents, a paginated and indexed bundle of such documents is to be provided with the skeleton argument;

(b) the advocate for the prosecution must lodge with the court and serve on all other parties a responsive skeleton argument at least two clear working days before the relevant date, together with a supplementary bundle if appropriate.

(IV.36.4) All skeleton arguments must specify any propositions of law to be advanced (together with the authorities relied upon in support, with page references to passages relied upon) and, where appropriate, include a chronology of events and a list of dramatis personae. In all instances where reference is made to a document, the reference in the trial documents or supplementary bundle is to be given.

(IV.36.5) The above time limits are minimum time limits. In appropriate cases the court will order longer lead times. To this end in all cases where defence advocates are, at the time of the plea and directions hearing, considering the possibility of an abuse of process application, this must be raised with the judge dealing with the matter, who will order a different timetable if appropriate, and may wish, in any event, to give additional directions about the conduct of the application.

IV.37

CITATION OF HANSARD

(IV.37.1) Where any party intends to refer to the reports of Parliamentary proceedings as reported in the Official Reports of either House of Parliament (“Hansard”) in support of any such argument as is permitted by the decisions in Pepper v Hart [1993] AC 593 and Pickstone v Freeman [1989] AC 66 or otherwise must, unless the court otherwise directs, serve upon all other parties and the court copies of any such extract together with a brief summary of the argument intended to be based upon such extract. No other report of Parliamentary proceedings may be cited.

(IV.37.2) Unless the court otherwise directs, service of the extract and summary of the argument shall be effected not less than 5 clear working days before the first day of the hearing, whether or not it has a fixed date. Advocates must keep themselves informed as to the state of the lists where no fixed date has been given. Service on the court shall be effected by sending three copies to the chief clerk of the relevant Crown Court centre. If any party fails to do so the court may make such order (relating to costs or otherwise) as is in all the circumstances appropriate.

IV.38

APPLICATIONS FOR REPRESENTATION ORDERS

(IV.38.1) Applications for representation by a Queen's Counsel alone or by more than one advocate under Part IV of the Criminal Defence Service (General) (No 2) Regulations 2001 SI 2001/1437 made to the Crown Court shall be placed before the Resident Judge of that Crown Court (or, in his absence, a judge nominated for that purpose by a Presiding Judge of the circuit) who shall determine the application, save that, where the application relates to a case which is to be heard before a named High Court judge or a named Circuit Judge, he should refer the application to the named judge for determination.

(IV.38.2) This does not apply where an application is made in the course of a trial or of a preliminary hearing, pre-trial review, or plea and directions hearing by the judge presiding at that trial or hearing.

(IV.38.3) In the event of any doubt as to the proper application of this direction, reference shall be made by the judge concerned to a Presiding Judge of the circuit, who shall give such directions as he thinks fit.

IV.40

VIDEO RECORDED EVIDENCE IN CHIEF

(IV.40.1) The procedure for making application for leave to adduce a video recording of testimony from a witness under section 27 of the Youth Justice and Criminal Evidence Act 1999 is laid down in rule 8 of the Crown Court (Special Measures Directions and Directions Prohibiting Cross-Examination) Rules 2002 (S.I. 2002 No. 1688).

(IV.40.2) Where a court, on application by a party to the proceedings or of its own motion, grants leave to admit a video recording in evidence under section 27(1) of the 1999 Act it may direct that any part of the recording be excluded (section 27(2) and (3)). When such direction is given, the party who made application to admit the video recording must edit the recording in accordance with the judge's directions and send a copy of the edited recording to the appropriate officer of the Crown Court and to every other party to the proceedings.

(IV.40.3) Where a video recording is to be adduced during proceedings before the Crown Court, it should be produced and proved by the interviewer, or any other person who was present at the interview with the witness at which the recording was made. The applicant should ensure that such a person will be available for this purpose, unless the parties have agreed to accept a written statement in lieu of attendance by that person.

(IV.40.4) Once a trial has begun if, by reason of faulty or inadequate preparation or for some other cause, the procedures set out above have not been properly complied with and an application is made to edit the video recording, thereby making necessary an adjournment for the work to be carried out, the court may make at its discretion an appropriate award of costs.

IV.41

MANAGEMENT OF CASES TO BE HEARD IN THE CROWN COURT

(IV.41.1) This section of the practice direction supplements the rules in Part 3 of the Criminal Procedure Rules as they apply to the management of cases to be heard in the Crown Court. Where time limits or other directions in the Consolidated Criminal Practice Direction appear inconsistent with this section, the directions in this section take precedence.

(IV.41.2) The case details form set out in annex E should be completed by the Crown Court case progression officer in all cases to be tried on indictment.

Cases sent for trial

(IV.41.3) A preliminary hearing (‘PH’) is not required in every case sent for trial under section 51 of the Crime and Disorder Act 1998: see rule 12.2 (which altered the Crown Court rule from which it derived). A PH should normally only be ordered by the magistrates' court or by the Crown Court where:

(i) there are case management issues which call for such a hearing;

(ii) the case is likely to last for more than 4 weeks;

(iii) it would be desirable to set an early trial date;

(iv) the defendant is a child or young person;

(v) there is likely to be a guilty plea and the defendant could be sentenced at the preliminary hearing; or

(vi) it seems to the court that it is a case suitable for a preparatory hearing in the Crown Court (see sections 7 and 9 of the Criminal Justice Act 1987 and sections 29 – 32 of the Criminal Procedure and Investigations Act 1996).

A PH, if there is one, should be held about 14 days after sending.

(IV.41.4) The case progression form to be used in the magistrates’ court and the PH form to be used in the Crown Court are set out in annex E with guidance notes. The forms provide a detailed timetable to enable the subsequent plea and case management hearing (‘PCMH’) to be effective.

(IV.41.5) Where the magistrates’ court does not order a PH it should order a PCMH to be held within about 14 weeks after sending for trial where a defendant is in custody and within about 17 weeks after sending for trial where a defendant is on bail. Those periods accommodate the periods fixed by the relevant rules for the service of the prosecution case papers and for making all potential preparatory applications. Where the parties realistically expect to have completed their preparation for the PCMH in less time than that then the magistrates’ court should order it to be held earlier. But it will not normally be appropriate to order that the PCMH be held on a date before the expiry of at least 4 weeks from the date on which the prosecutor expects to serve the prosecution case papers, to allow the defence a proper opportunity to consider them. To order that a PCMH be held before the parties have had a reasonable opportunity to complete their preparation in accordance with the Criminal Procedure Rules risks compromising the effectiveness of this most important pre-trial hearing and risks wasting their time and that of the court.

Cases committed for trial

(IV.41.6) For cases committed to the Crown Court for trial under section 6 of the Magistrates’ Courts Act 1980 the case progression form to be used in the magistrates’ court is set out in annex E with guidance notes. A PCMH should be ordered by the magistrates’ court in every case, to be held within about 7 weeks after committal. That period accommodates the periods fixed by the relevant rules for making all potential preparatory applications. Where the parties realistically expect to have completed their preparation for the PCMH in less time than that then the magistrates’ court should order it to be held earlier. However, to order that a PCMH be held before the parties have had a reasonable opportunity to complete their preparation in accordance with the Criminal Procedure Rules risks compromising the effectiveness of this most important pre-trial hearing and risks wasting their time and that of the court.

Cases transferred for trial

(IV.41.7) In a case transferred to the Crown Court for trial under section 4(1) of the Criminal Justice Act 1987 or under section 53(1) of the Criminal Justice Act 1991 the directions contained in the case progression form used in cases for committal for trial apply as if the case had been committed on the date of the notice of transfer. A PMCH should be listed by the Crown Court to be held within about 7 weeks after transfer. That period accommodates the periods fixed by the relevant rules for making all potential preparatory applications. Where the parties realistically expect to have completed their preparation for the PCMH in less time than that then the magistrates’ court should order it to be held earlier. However, to order that a PCMH be held before the parties have had a reasonable opportunity to complete their preparation in accordance with the Criminal Procedure Rules risks compromising the effectiveness of this most important pre-trial hearing and risks wasting their time and that of the court.

Plea and case management hearing

(IV.41.8) Active case management at the PCMH is essential to reduce the number of ineffective and cracked trials and delays during the trial to resolve legal issues. The effectiveness of a PCMH hearing in a contested case depends in large measure upon preparation by all concerned and upon the presence of the trial advocate or an advocate who is able to make decisions and give the court the assistance which the trial advocate could be expected to give. Resident Judges in setting the listing policy should ensure that list officers fix cases as far as possible to enable the trial advocate to conduct the PCMH and the trial.

(IV.41.9) In Class 1 and Class 2 cases, and in all cases involving a serious sexual offence against a child, the PCMH must be conducted by a High Court judge; by a circuit judge or by a recorder to whom the case has been assigned in accordance with paragraph IV.33 (allocation of business within the Crown Court); or by a judge authorised by the Presiding Judges to conduct such hearings. In the event of a guilty plea before such an authorised judge, the case will be adjourned for sentencing by a High Court judge or by a circuit judge or recorder to whom the case has been assigned.

Use of the PCMH form

(IV.41.10) The PCMH form as set out in annex E must be used in accordance with the guidance notes.

Further pre-trial hearings after the PCMH

(IV.41.11) Additional pre-trial hearings should be held only if needed for some compelling reason. Such hearings – often described informally as ‘mentions’ – are expensive and should actively be discouraged. Where necessary the power to give, vary or revoke a direction without a hearing should be used. Rule 3.9(3) of the Criminal Procedure Rules enables the Court to require the parties’ case progression officers to inform the Crown Court case progression officer that the case is ready for trial, that it will proceed as a trial on the date fixed and will take no more or less time than that previously ordered.

(IV.41.12) The following directions apply to matters before the Crown Court, where

(a) the prosecutor serves evidence in committal proceedings;

(b) there is an application to prefer of a bill of indictment in relation to the case;

(c) there is service of notice of transfer under section 4(1) of the Criminal Justice Act 1987 (notices of transfer) or under section 53(1) of the Criminal Justice Act 1991 (notices of transfer in certain cases involving children);

(d) a person is sent for trial under section 51 of the Crime and Disorder Act 1998 (sending cases to the Crown Court) the service of copies of the documents containing the evidence on what the charge or charges are based under Paragraph 1 of Schedule 3 to that Act; or

(e) a defendant wishes to serve evidence.

(IV.41.13) 'A party who serves evidence in the Crown Court should

(a) paginate each page in any bundle of statements and exhibits sequentially

(b) provide a tabulated index to each bundle of statements produced including the following information:

(i) the name of the case;

(ii) the author of each statement;

(iii) the start page number of the witness statement;

(iv) iv. the end page number of the witness statement.

 

(c) provide a tabulated index to each bundle of documentary and pictorial exhibits produced, including the following information:

 

(i) the name of the case;

(ii) the exhibit reference;

(iii) a short description of the exhibit;

(iv) the start page number of the exhibit;

(v) the end page number of the exhibit;

(vi) where possible, the name of the person producing the exhibit should be added.

 

 

(IV.41.14) Where additional documentary evidence is served, a party should paginate following on from the last page of the previous bundle or in a logical and sequential manner. A party should also provide notification of service of any amended index.

(IV.41.15) The prosecution must ensure that the running total of the pages of prosecution evidence is easily identifiable on the most recent served bundle of prosecution evidence.

(IV.41.16) For the purposes of these directions, the number of pages of prosecution evidence served on the court includes all (a) witness statements; (b) documentary and pictorial exhibits; (c) records of interviews with the defendant; and (d) records of interviews with other defendants which form part of the committal or served prosecution documents or which are included in any notice of additional evidence, but does not include any document provided on CD-ROM or by other means of electronic communication

IV.42

JURIES

Jury service

(IV.42.1) The effect of section 321 Criminal Justice Act 2003 was to remove certain categories of persons from those previously ineligible for jury service (the judiciary and others concerned with the administration of justice) and certain other categories ceased to be eligible for excusal as of right (such as members of Parliament and medical professionals). Jury service is an important public duty which individual members of the public are chosen at random to undertake. The normal presumption is that everyone, unless mentally disordered or disqualified, will be required to serve when summoned to do so. This legislative change has, however, meant an increase in the number of jurors with professional and public service commitments. One of the results of this change is that trial judges must continue to be alert to the need to exercise their discretion to adjourn a trial, excuse or discharge a juror should the need arise. Whether or not an application has already been made to the jury summoning officer for deferral or excusal it is also open to the person summoned to apply to the court to be excused. Such applications must be considered with common sense and according to the interests of justice. An explanation should be required for an application being much later than necessary.

(IV.42.2) Where a juror appears on a jury panel, it may be appropriate for a judge to excuse the juror from that particular case where the potential juror is personally concerned with the facts of the particular case or is closely connected with a prospective witness. Where the length of the trial is estimated to be significantly longer than the normal period of jury service, it is good practice for the trial judge to enquire whether the potential jurors on the jury panel foresee any difficulties with the length and if the judge is satisfied that the jurors' concerns are justified he may say that they are not required for that particular jury. This does not mean that the judge must excuse the juror from sitting at that court altogether as it may well be possible for the juror to sit on a shorter trial at the same court.

(IV.42.3) Where a juror unexpectedly finds him or herself in difficult professional or personal circumstances during the course of the trial, jurors should be encouraged to raise such problems with the trial judge. This might apply, for example, to a parent whose childcare arrangements unexpectedly fail or a worker who is engaged in the provision of services the need for which can be critical or Member of Parliament who has deferred their jury service to an apparently more convenient time, but is unexpectedly called back to work for a very important reason. Such difficulties would normally be raised through a jury note in the normal manner. In such circumstances, the judge must exercise his or her discretion according to the interests of justice and the requirements of each individual case. The judge must decide for himself whether the juror has presented a sufficient reason to interfere with the course of the trial. If the juror has presented a sufficient reason, in longer trials it may well be possible to adjourn for a short period in order to allow the juror to overcome the difficulty. In shorter cases it may be more appropriate to discharge the juror and to continue the trial with a reduced number of jurors. The power to do this is implicit in section 16 (1) Juries Act 1974. In unusual cases (such as an unexpected emergency arising over night) a juror need not be discharged in open court. The good administration of justice depends on the cooperation of jurors who perform an essential public service. All such applications should be dealt with sensitively and sympathetically and the trial judge should always seek to meet the interests of justice without unduly inconveniencing any juror.

Jury oath

(IV.42.4) The wording of the oath to be taken by jurors is: ‘I swear by Almighty God that I will faithfully try the defendant and give a true verdict according to the evidence.’ Any person who objects to being sworn shall be permitted to make his solemn affirmation instead. The wording of the affirmation is ‘I do solemnly, sincerely and truly declare and affirm that I will faithfully try the defendant and give a true verdict according to the evidence.’

Guidance to Jurors

(IV.42.5) The following directions take effect immediately.

(IV.42.6) Trial judges should ensure that the jury is alerted to the need to bring any concerns about fellow jurors to the attention of the judge at the time, and not to wait until the case is concluded. At the same time, it is undesirable to encourage inappropriate criticism of fellow jurors, or to threaten jurors with contempt of court.

(IV.42.7) Judges should therefore take the opportunity, when warning the jury of the importance of not discussing the case with anyone outside the jury, to add a further warning. It is for the trial judge to tailor the further warning to the case, and to the phraseology used in the usual warning. The effect of the further warning should be that it is the duty of jurors to bring to the judge's attention, promptly, any behaviour among the jurors or by others affecting the jurors, that causes concern. The point should be made that, unless that is done while the case is continuing, it may be impossible to put matters right.

(IV.42.8) The Judge should consider, particularly in a longer trial, whether a reminder on the lines of the further warning is appropriate prior to the retirement of the jury.

(IV.42.9) In the event that such an incident does occur, trial judges should have regard to the remarks of Lord Hope at paras 127 and 128 in R v Connors and Mirza [2004] 2 WLR 201 and consider the desirability of preparing a statement that could be used in connection with any appeal arising from the incident to the Court of Appeal Criminal Division. Members of the Court of Appeal Criminal Division should also remind themselves of the power to request the judge to furnish them with any information or assistance under rule 22 of the Criminal Appeal Rules 1968 (SI 1968/1262) and section 87 (4) of the Supreme Court Act 1981.

IV.43

EVIDENCE OF TAPE RECORDED INTERVIEWS

(IV.43.1) Where a suspect is to be interviewed by the police, the Code of Practice on Tape Recording of Interviews with Suspects effective from 10th April 1995 and issued under section 60 of the Police and Criminal Evidence Act 1984 applies. Where a record of the interview is to be prepared this should be in accordance with the national guidelines approved by the Secretary of State, as envisaged by Note E:5A of the Code.

(IV.43.2) Where the prosecution intends to adduce evidence of the interview in evidence, and agreement between the parties has not been reached about the record, sufficient notice must be given to allow consideration of any amendment to the record or the preparation of any transcript of the interview or any editing of a tape for the purpose of playing it back in court. To that end, the following practice should be followed.

(a) Where the defence is unable to agree a record of interview or transcript (where one is already available) the prosecution should be notified no more than 21 days from the date of committal or date of transfer, or at the PDH if earlier, with a view to securing agreement to amend. The notice should specify the part to which objection is taken or the part omitted which the defence consider should be included. A copy of the notice should be supplied to the court within the period specified above.

(b) If agreement is not reached and it is proposed that the tape or part of it be played in court, notice should be given to the prosecution by the defence no more than 14 days after the expiry of the period in (a), or as ordered at the PDH, in order that counsel for the parties may agree those parts of the tape that should not be adduced and that arrangements may be made, by editing or in some other way, to exclude that material. A copy of the notice should be supplied to the court within the period specified above.

(c) Notice of any agreement reached under (a) or (b) should be supplied to the court by the prosecution as soon as is practicable.

(d) Alternatively, if, in any event, prosecuting counsel proposes to play the tape or part of it, the prosecution should, within 28 days of the date of committal or date of transfer or, if earlier, at the PDH, notify the defence and the court. The defence should notify the prosecution and the court within 14 days of receiving the notice if they object to the production of the tape on the basis that a part of it should be excluded. If the objections raised by the defence are accepted, the prosecution should prepare an edited tape or make other arrangements to exclude the material part and should notify the court of the arrangements made.

(e) Whenever editing or amendment of a record of interview or of a tape or of a transcript takes place, the following general principles should be followed:

(i) Where a defendant has made a statement which includes an admission of one or more other offences, the portion relating to other offences should be omitted unless it is or becomes admissible in evidence;

(ii) Where the statement of one defendant contains a portion which is partly in his favour and partly implicatory of a co-defendant in the trial, the defendant making the statement has the right to insist that everything relevant which is in his favour goes before the jury. In such a case the judge must be consulted about how best to protect the position of the co-defendant.

(IV.43.3) If there is a failure to agree between counsel under paragraph IV.43.2(a) to (e), or there is a challenge to the integrity of the master tape, notice and particulars should be given to the court and to the prosecution by the defence as soon as is practicable. The court may then, at its discretion, order a pre-trial review or give such other directions as may be appropriate.

(IV.43.4) If a tape is to be adduced during proceedings before the Crown Court it should be produced and proved by the interviewing officer or any other officer who was present at the interview at which the recording was made. The prosecution should ensure that such an officer will be available for this purpose.

(IV.43.5) Where such an officer is unable to act as the tape machine operator it is for the prosecution to make some other arrangement.

(IV.43.6) In order to avoid the necessity for the court to listen to lengthy or irrelevant material before the relevant part of a tape recording is reached, counsel shall indicate to the tape machine operator those parts of a recording which it may be necessary to play. Such an indication should, so far as possible, be expressed in terms of the time track or other identifying process used by the interviewing police force and should be given in time for the operator to have located those parts by the appropriate point in the trial.

(IV.43.7) Once a trial has begun, if, by reason of faulty preparation or for some other cause, the procedures above have not been properly complied with, and an application is made to amend the record of interview or transcript or to edit the tape, as the case may be, thereby making necessary an adjournment for the work to be carried out, the court may make at its discretion an appropriate award of costs.

(IV.43.8) Where a case is listed for hearing on a date which falls within the time limits set out above, it is the responsibility of the parties to ensure that all the necessary steps are taken to comply with this Practice Direction within such shorter period as is available.

(IV.43.9) In paragraph IV.43.2(a) and (d), ‘date of transfer’ is the date on which notice of transfer is given in accordance with the provisions of section 4(1)(c) of the Criminal Justice Act 1987.

(IV.43.10) This direction should be read in conjunction with the Code of Practice on Tape Recording referred to in paragraph IV.43.1 and with Home Office Circular 26/1995.

IV.44

DEFENDANT'S RIGHT TO GIVE OR NOT TO GIVE EVIDENCE

(IV.44.1) At the conclusion of the evidence for the prosecution, section 35(2) of the Criminal Justice and Public Order Act 1994 requires the court to satisfy itself that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

If the accused is legally represented

(IV.44.2) Section 35(1) provides that section 35(2) does not apply if at the conclusion of the evidence for the prosecution the accused's legal representative informs the court that the accused will give evidence. This should be done in the presence of the jury. If the representative indicates that the accused will give evidence the case should proceed in the usual way.

(IV.44.3) If the court is not so informed, or if the court is informed that the accused does not intend to give evidence, the judge should in the presence of the jury inquire of the representative in these terms: ‘Have you advised your client that the stage has now been reached at which he may give evidence and, if he chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from his failure to do so?’

(IV.44.4) If the representative replies to the judge that the accused has been so advised, then the case shall proceed. If counsel replies that the accused has not been so advised, then the judge shall direct the representative to advise his client of the consequences set out in paragraph IV.44.3 and should adjourn briefly for this purpose before proceeding further.

If the accused is not legally represented

(IV.44.5) If the accused is not represented, the judge shall at the conclusion of the evidence for the prosecution and in the presence of the jury say to the accused:

“You have heard the evidence against you. Now is the time for you to make your defence. You may give evidence on oath, and be cross-examined like any other witness. If you do not give evidence or, having been sworn, without good cause refuse to answer any question the jury may draw such inferences as appear proper. That means they may hold it against you. You may also call any witness or witnesses whom you have arranged to attend court. Afterwards you may also, if you wish, address the jury by arguing your case from the dock. But you cannot at that stage give evidence. Do you now intend to give evidence?”

IV.45

PLEAS OF GUILTY IN THE CROWN COURT

(IV.45.1) Advocates must be free to perform their duty namely to give the accused the best advice possible and, if need be, in strong terms. It will often include advice that, in accordance with the relevant authorities and sentencing guidelines, a court will normally reduce a sentence as a result of a guilty plea and that the level of reduction will reflect the stage in the proceedings at which willingness to admit guilt was indicated. The advocate will, of course, emphasise that the defendant must not plead guilty unless he or she is guilty of the offence(s) charged.

(IV.45.2) The defendant, having considered the advocate's advice, must have complete freedom of choice whether to plead guilty or not guilty.

(IV.45.3) There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If an advocate is instructed by a solicitor who is in court, he or she, too, should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in the client's interest, mention them in open court, e.g. the advocate, by way of mitigation, may wish to tell the judge that reliable medical evidence shows that the defendant is suffering from a terminal illness and may not have long to live. It is imperative that, so far as possible, justice must be administered in open court. Advocates should, therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in the interests of justice, this is necessary. Where any such discussion takes place it should be recorded either by a tape recorder or a shorthand writer.

PLEAS OF GUILTY IN THE CROWN COURT: PROCEDURE

(IV.45.4) This direction outlines the three routes by which a defendant may put forward a plea of guilty in the Crown Court, which are as follows:

(a) a plea of guilty to all or some of the charges on the basis of the prosecution case set out in the papers;

(b) a plea of guilty upon a basis of plea agreed by the prosecution and defence, or upon a basis of plea put forward by the defence but not contested by the prosecution; and

(c) in cases involving serious or complex fraud conducted in accordance with paragraphs IV.45.16 to IV.45.28, below, a plea of guilty upon a basis of plea agreed by the prosecution and defence accompanied by joint submissions as to sentence.

(a)A plea of guilty to all or some of the charges on the basis of the prosecution case set out in the papers

(IV.45.5) In many cases, defendants wishing to plead guilty will simply plead guilty to all charges on the basis of the facts as alleged and opened by the prosecution, with no dispute as to the factual basis and extent of offending alleged by the prosecution. Alternatively a defendant may plead guilty to some of the charges brought. When a defendant pleads guilty as set out above, the judge will consider whether that plea represents a proper plea on the basis of the facts set out by the papers. Where the judge is satisfied that the plea is properly grounded, sentencing may take place.

(IV.45.6) Where the prosecution advocate is considering whether to accept a plea to a lesser charge, the advocate may invite the judge to approve the proposed course of action. In such circumstances, the advocate must abide by the decision of the judge.

(IV.45.7) If the prosecution advocate does not invite the judge to approve the acceptance by the prosecution of a lesser charge, it is open to the judge to express his or her dissent with the course proposed and invite the advocate to reconsider the matter with those instructing him or her.

(IV.45.8) In any proceedings, where the judge is of the opinion that the course proposed by the advocate may lead to serious injustice, the proceedings may be adjourned to allow the following procedure to be followed:

(a) as a preliminary step, the prosecution advocate must discuss the judge's observations with the Chief Crown Prosecutor or the senior prosecutor of the relevant prosecuting authority as appropriate, in an attempt to resolve the issue;

(b) where the issue remains unresolved, the Director of Public Prosecutions or the Director of the relevant prosecuting authority should be consulted;

(c) in extreme circumstances the judge may decline to proceed with the case until the prosecuting authority has consulted with the Attorney General as may be appropriate.

(IV.45.9) Prior to entering a plea of guilty, a defendant may seek an indication of sentence under the procedure set out in R v Goodyear [2005] 2 Cr.App.R. 20; see paragraphs IV.45.29 to IV.45.33, below.

(b)A plea of guilty upon a basis of plea agreed by the prosecution and defence

(IV.45.10) The prosecution may reach an agreement with the defendant as to the factual basis on which the defendant will plead guilty, often known as an "agreed basis of plea". It is always subject to the approval of the court, which will consider whether it is fair and in the interests of justice.

(IV.45.11) R v Underwood [2004] EWCA Crim 2256 [2005] 1 Cr.App.R.(S.) 90 outlines the principles to be applied where the defendant admits that he or she is guilty, but disputes the basis of offending alleged by the prosecution:

(a) The prosecution may accept and agree the defendant’s account of the disputed facts or reject it in its entirety. If the prosecution accepts the defendant’s basis of plea, it must ensure that the basis of plea is factually accurate and enables the sentencing judge to impose a sentence appropriate to reflect the justice of the case;

(b) In resolving any disputed factual matters, the prosecution must consider its primary duty to the court and must not agree with or acquiesce in an agreement which contains material factual disputes;

(c) If the prosecution does accept the defendant's basis of plea, it must be reduced to writing, be signed by advocates for both sides, and made available to the judge prior to the prosecution's opening;

(d) An agreed basis of plea that has been reached between the parties must not contain any matters which are in dispute;

(e) On occasion the prosecution may lack the evidence positively to dispute the defendant’s account, for example, where the defendant asserts a matter outside the knowledge of the prosecution. Simply because the prosecution does not have evidence to contradict the defendant's assertions does not mean those assertions should be agreed. In such a case, the prosecution should test the defendant’s evidence and submissions by requesting a Newton hearing (R v Newton (1982) 4 Cr.App.R.(S.) 388, (1982) 77 Cr.App.Rep. 13), following the procedure set out in paragraph IV.45.13, below.

(f) If it is not possible for the parties to resolve a factual dispute when attempting to reach a plea agreement under this part, it is the responsibility of the prosecution to consider whether the matter should proceed to trial, or to invite the court to hold a Newton hearing as necessary.

(g) Subject to paragraph IV.45.12, where the prosecution has not invited the Court to hold a Newton hearing, and where the factual dispute between the prosecution and the defence is likely to have a material impact on the sentence, if the defence does not invite the Court to hold a Newton hearing the Court is entitled to reach its own conclusion of the facts on the evidence before it.

(IV.45.12) R v Underwood emphasises that whether or not pleas have been "agreed" the judge is not bound by any such agreement and is entitled of his or her own motion to insist that any evidence relevant to the facts in dispute (or upon which the judge requires further evidence for whatever reason) should be called. Any view formed by the prosecution on a proposed basis of plea is deemed to be conditional on the judge's acceptance of the basis of plea.

(IV.45.13) Where the defendant pleads guilty, but disputes the basis of offending alleged by the prosecution, the following procedure should be followed:

(a) The defendant’s basis of plea must be set out in writing, identifying what is in dispute;

(b) The court may invite the parties to make representations about whether the dispute is material to sentence; and

(c) If the court decides that it is a material dispute, the court will invite such further representations or evidence as it may require and decide the dispute in accordance with the principles set out in R v Newton.

(IV.45.14) Where the disputed issue arises from facts which are within the exclusive knowledge of the defendant and the defendant is willing to give evidence in support of his case, the defence advocate should be prepared to call the defendant. If the defendant is not willing to testify, and subject to any explanation which may be given, the judge may draw such inferences as appear appropriate. Paragraphs 6 to 10 of Underwood provide additional guidance regarding the Newton hearing procedure.

(IV.45.15) The Attorney General has issued guidance for prosecutors regarding their duties when accepting pleas and during the sentencing exercise titled, ‘Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise’.

(c) Cases involving serious fraud – a plea of guilty upon a basis agreed by the prosecution and defence accompanied by joint submissions as to sentence

(IV.45.16) This section applies when the prosecution and the defendant(s) to a matter before the Crown Court involving allegations of serious or complex fraud have agreed a basis of plea and seek to make submissions to the court regarding sentence.

(IV.45.17) Guidance for prosecutors regarding the operation of this procedure is set out in the ‘Attorney General’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud’, published on 18 March 2009, referred to in this direction as the "Attorney General’s Plea Discussion Guidelines".

(IV.45.18) In this part –

(a) "a plea agreement" means a written basis of plea agreed between the prosecution and defendant(s) in accordance with the principles set out in R v Underwood, supported by admissible documentary evidence or admissions under section 10 of the Criminal Justice Act 1967;

(b) "a sentencing submission" means sentencing submissions made jointly by the prosecution and defence as to the appropriate sentencing authorities and applicable sentencing range in the relevant sentencing guideline relating to the plea agreement;

(c) "serious or complex fraud" includes, but is not limited to, allegations of fraud where two or more of the following are present:

(i) the amount obtained or intended to be obtained exceeded £500,000;

(ii) there is a significant international dimension;

(iii) the case requires specialised knowledge of financial, commercial, fiscal or regulatory matters such as the operation of markets, banking systems, trusts or tax regimes;

(iv) the case involves allegations of fraudulent activity against numerous victims;

(v) the case involves an allegation of substantial and significant fraud on a public body;

(vi) the case is likely to be of widespread public concern;

(vii) he alleged misconduct endangered the economic well-being of the United Kingdom, for example by undermining confidence in financial markets.

Procedure

(IV.45.19) The procedure regarding agreed bases of plea outlined in paragraphs IV.45.10 to IV.45.12, above, applies with equal rigour to the acceptance of pleas under this procedure. However, because under this procedure the parties will have been discussing the plea agreement and the charges from a much earlier stage, it is vital that the judge is fully informed of all relevant background to the discussions, charges and the eventual basis of plea.

(IV.45.20) Where the defendant has not yet appeared before the Crown Court, the prosecutor must send full details of the plea agreement and sentencing submission(s) to the court, at least 7 days in advance of the defendant's first appearance. Where the defendant has already appeared before the Crown Court, the prosecutor must notify the court as soon as is reasonably practicable that a plea agreement and sentencing submissions under the Attorney General's Plea Discussion Guidelines are to be submitted. The Court should set a date for the matter to be heard, and the prosecutor must send full details of the plea agreement and sentencing submission(s) to the court as soon as practicable, or in accordance with the directions of the court.

(IV.45.21) The provision to the judge of full details of the plea agreement requires sufficient information to be provided to allow the judge to understand the facts of the case and the history of the plea discussions, to assess whether the plea agreement is fair and in the interests of justice, and to decide the appropriate sentence. This will include, but is not limited to: (i) the plea agreement; (ii) the sentencing submission(s); (iii) all of the material provided by the prosecution to the defendant in the course of the plea discussions; (iv) relevant material provided by the defendant, for example documents relating to personal mitigation; and (v) the minutes of any meetings between the parties and any correspondence generated in the plea discussions. The parties should be prepared to provide additional material at the request of the court.

(IV.45.22) The court should at all times have regard to the length of time that has elapsed since the date of the occurrence of the events giving rise to the plea discussions, the time taken to interview the defendant, the date of charge and the prospective trial date (if the matter were to proceed to trial) so as to ensure that its consideration of the plea agreement and sentencing submissions does not cause any unnecessary further delay.

Status of plea agreement and joint sentencing submissions

(IV.45.23) Where a plea agreement and joint sentencing submissions are submitted, it remains entirely a matter for the court to decide how to deal with the case. The judge retains the absolute discretion to refuse to accept the plea agreement and to sentence otherwise than in accordance with the sentencing submissions made under the Attorney General’s Plea Discussion Guidelines.

(IV.45.24) Sentencing submissions should draw the court’s attention to any applicable range in any relevant guideline, and to any ancillary orders that may be applicable. Sentencing submissions should not include a specific sentence or agreed range other than the ranges set out in sentencing guidelines or authorities.

(IV.45.25) Prior to pleading guilty in accordance with the plea agreement, the defendant(s) may apply to the court for an indication of the likely maximum sentence under the procedure set out in paragraphs IV.45.29 and following, below.

(IV.45.26) In the event that the judge indicates a sentence or passes a sentence which is not within the submissions made on sentencing, the plea agreement remains binding.

(IV.45.27) If the defendant does not plead guilty in accordance with the plea agreement or if a defendant who has pleaded guilty in accordance with a plea agreement successfully applies to withdraw his plea under Rule 39.3 of the Criminal Procedure Rules, the signed plea agreement may be treated as confession evidence, and may be used against the defendant at a later stage in these or any other proceedings. Any credit for a timely guilty plea may be lost. The court may exercise its discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude any such evidence if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(IV.45.28) Where a defendant has failed to plead guilty in accordance with a plea agreement, for example in the circumstances set out in paragraph IV.45.27, above, the case is unlikely to be ready for trial immediately. The prosecution may have been commenced earlier than it otherwise would have been, in reliance upon the defendant’s agreement to plead guilty. This is likely to be a relevant consideration for the court in deciding whether or not to grant an application to adjourn or stay the proceedings to allow the matter to be prepared for trial in accordance with the protocol on the ‘Control and Management of Heavy Fraud and other Complex Criminal Cases’, or as required.

Indications of sentence

(IV.45.29) Prior to pleading Guilty by any of the above routes, it is open to a defendant in the Crown Court to request from the judge an indication of the maximum sentence likely to be imposed if a guilty plea is tendered at that stage in the proceedings, in accordance with the guidance in R v Goodyear.

(IV.45.30) Attention is drawn to the guidance set out in paragraphs 53 and following of R v Goodyear. During the sentence indication process and during the actual sentencing hearing, the prosecution advocate is expected to assist the court in sentencing by providing, where appropriate, references to the relevant statutory powers of the court, relevant sentencing guidelines and authorities, and such assistance as the court is likely to require.

(IV.45.31) Whether to give such an indication is a matter for the discretion of the judge, to be exercised in accordance with the principles outlined by the Court of Appeal in Goodyear. Such indications should normally not be given if there is a dispute as to the basis of plea unless the judge concludes that he or she can properly deal with the case without the need for a Newton hearing. In cases where a dispute arises, the procedure in R v Underwood should be followed prior to the court considering a sentencing indication further, as set out in paragraphs IV.45.11 to IV.45.13, above. Following an indication of sentence, if a defendant does not plead guilty, the indication will not bind the court.

(IV.45.32) Attention is drawn to paragraph 70(d) of Goodyear which emphasises that the prosecution "should not say anything which may create the impression that the sentence indication has the support or approval of the Crown." This prohibition against the Crown indicating its approval of a particular sentence applies in all circumstances when a defendant is being sentenced, including when joint sentencing submissions are made in accordance with the procedure set out in paragraphs IV.45.16 to IV.45.28, above.

(IV.45.33) A Goodyear indication should be given in open court in the presence of the defendant but any reference to the hearing is not admissible in any subsequent trial; and reporting restrictions should normally be imposed (see paragraphs 76-77 of Goodyear).

IV.46

MAJORITY VERDICTS

(IV.46.1) It is important that all those trying indictable offences should so far as possible adopt a uniform practice when complying with section 17 of the Juries Act 1974, both in directing the jury in summing-up and also in receiving the verdict or giving further directions after retirement. So far as the summing-up is concerned, it is inadvisable for the judge, and indeed for advocates, to attempt an explanation of the section for fear that the jury will be confused. Before the jury retire, however, the judge should direct the jury in some such words as the following:

“As you may know, the law permits me, in certain circumstances, to accept a verdict which is not the verdict of you all. Those circumstances have not as yet arisen, so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a majority verdict, I will give you a further direction.”

(IV.46.2) Thereafter the practice should be as follows: Should the jury return before two hours and ten minutes since the last member of the jury left the jury box to go to the jury room (or such longer time as the judge thinks reasonable) has elapsed (see section 17(4)), they should be asked: (a) “Have you reached a verdict upon which you are all agreed? Please answer Yes or No”; (b) (i) If unanimous, “What is your verdict?”; (ii) If not unanimous, the jury should be sent out again for further deliberation with a further direction to arrive if possible at an unanimous verdict.

(IV.46.3) Should the jury return (whether for the first time or subsequently) or be sent for after the two hours and ten minutes (or the longer period) has elapsed, questions (a) and (b)(i) in paragraph IV.46.2 should be put to them and, if it appears that they are not unanimous, they should be asked to retire once more and told that they should continue to endeavour to reach an unanimous verdict but that, if they cannot, the judge will accept a majority verdict as in section 17(1).

(IV.46.4) When the jury finally return they should be asked: (a) “Have at least ten (or nine as the case may be) of you agreed on your verdict?”; (b) If “Yes”, “What is your verdict? Please only answer Guilty or Not Guilty”; (c) (i) If “Not Guilty”, accept the verdict without more ado; (ii) If “Guilty”, “Is that the verdict of you all or by a majority?”; (d) If “Guilty” by a majority, “How many of you agreed to the verdict and how many dissented?”

(IV.46.5) At whatever stage the jury return, before question (a) is asked, the senior officer of the court present shall state in open court, for each period when the jury was out of court for the purpose of considering their verdict(s), the time at which the last member of the jury left the jury box to go to the jury room and the time of their return to the jury box and will additionally state in open court the total of such periods.

(IV.46.6) The reason why section 17(3) is confined to a majority verdict of guilty and for the somewhat complicated procedure set out in paragraph IV.46.3 and paragraph IV.46.4 is to prevent it being known that a verdict of “Not Guilty” is a majority verdict. If the final direction in paragraph IV.46.3 continues to require the jury to arrive, if possible, at an unanimous verdict and the verdict is received as in paragraph IV.46.4, it will not be known for certain that the acquittal is not unanimous.

(IV.46.7) Where there are several counts (or alternative verdicts) left to the jury the above practice will, of course, need to be adapted to the circumstances. The procedure will have to be repeated in respect of each count (or alternative verdict), the verdict being accepted in those cases where the jury are unanimous and the further direction in paragraph IV.46.3 being given in cases in which they are not unanimous. Should the jury in the end be unable to agree on a verdict by the required majority (i.e. if the answer to the question in paragraph IV.46.4(a) be in the negative) the judge in his discretion will either ask them to deliberate further or discharge them.

(IV.46.8) Section 17 will, of course, apply also to verdicts other than “Guilty” or “Not Guilty”, e.g. to special verdicts under the Criminal Procedure (Insanity) Act 1964, verdicts under that Act as to fitness to be tried, and special verdicts on findings of fact. Accordingly in such cases the questions to jurors will have to be suitably adjusted.

IV.47

IMPOSITION OF DISCRETIONARY LIFE SENTENCES

(IV.47.1) Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 empowers a judge when passing a sentence of life imprisonment, where such a sentence is not fixed by law, to specify by order such part of the sentence (‘the relevant part’) as shall be served before the prisoner may require the Secretary of State to refer his case to the Parole Board.

(IV.47.2) Thus the discretionary life sentence falls into two parts:

(a) the relevant part, which consists of the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence, and

(b) the remaining part of the sentence, during which the prisoner's detention will be governed by considerations of risk to the public.

(IV.47.3) The judge is not obliged by statute to make use of the provisions of section 82A when passing a discretionary life sentence. However, the judge should do so, save in the very exceptional case where the judge considers that the offence is so serious that detention for life is justified by the seriousness of the offence alone, irrespective of the risk to the public. In such a case, the judge should state this in open court when passing sentence.

(IV.47.4) In cases where the judge is to specify the relevant part of the sentence under section 82A, the judge should permit the advocate for the defendant to address the court as to the appropriate length of the relevant part. Where no relevant part is to be specified, the advocate for the defendant should be permitted to address the court as to the appropriateness of this course of action.

(IV.47.5) In specifying the relevant part of the sentence, the judge should have regard to the specific terms of section 82A and should indicate the reasons for reaching his decision as to the length of the relevant part.

(IV.47.6) Whether or not the court orders that section 82A should apply, the judge shall not, following the imposition of a discretionary life sentence, make a written report to the Secretary of State through the Lord Chief Justice as was the practice until 8 February 1993.

NOTE: Reference should also be made to the section on life sentences below.

IV.48

LIFE SENTENCES FOR JUVENILES CONVICTED OF MURDER

(IV.48.1) When a person is convicted of a murder committed when under the age of 18 the determination of the minimum term (previously tariff) applicable to his sentence has since 30 November 2000 been set by the trial judge, as it was and is for adults subject to discretionary life sentences: see section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.

IV.49

LIFE SENTENCES

(IV.49.1) This direction replaces amendment number 6 to the Consolidated Criminal Practice Direction handed down on 18 May 2004 (previously inserted at paragraphs IV.49.1 to IV.49.25 of the Consolidated Criminal Practice Direction). Its purpose is to give practical guidance as to the procedure for passing a mandatory life sentence under section 269 and schedule 21 of the Criminal Justice Act 2003 (‘the Act’). This direction also gives guidance as to the transitional arrangements under section 276 and schedule 22 of the Criminal Justice Act 2003 (‘the Act’). It clarifies the correct approach to looking at the practice of the Secretary of State prior to December 2002 for the purposes of schedule 22 of the Act, in the light of the judgment in R. v Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim. 1762 (‘Sullivan’).

(IV.49.2) Section 269 of the Act came into force on 18 December 2003. Under section 269 all courts passing a mandatory life sentence must either announce in open court the minimum term the prisoner must serve before the Parole Board can consider release on licence under the provisions of section 28 of the Crime (Sentences) Act 1997 (as amended by section 275 of the Act) or announce that the seriousness of the offence is so exceptionally high that the early release provisions should not apply at all (a ‘whole life order’).

(IV.49.3) In setting the minimum term the court must set the term it considers appropriate taking into account the seriousness of the offence. In considering the seriousness of the offence the court must have regard to the general principles set out in Schedule 21 of the Act and any other guidelines issued by the Sentencing Guidelines Council which are relevant to the case and not incompatible with the provisions of Schedule 21. Although it is necessary to have regard to the guidance, it is always permissible not to apply the guidance if a judge considers there are reasons for not following it. It is always necessary to have regard to the need to do justice in the particular case. However, if a court departs from any of the starting points given in Schedule 21 the court is under a duty to state its reasons for doing so.

(IV.49.4) The guidance states that where the offender is 21 or over, the first step is to choose one of three starting points: ‘whole life’, 30 years or 15 years. Where the 15 year starting point has been chosen, judges should have in mind that this starting point encompasses a very broad range of murders. At paragraph 35 of Sullivan the court found that it should not be assumed that Parliament intended to raise all minimum terms that would previously have had a lower starting point to 15 years.

(IV.49.5) Where the offender was 21 or over at the time of the offence, and the court takes the view that the murder is so grave that the offender ought to spend the rest of his life in prison, the appropriate starting point is a ‘whole life order’. The effect of such an order is that the early release provisions in section 28 of the Crime (Sentences) Act 1997 will not apply. Such an order should only be specified where the court considers that the seriousness of the offence (or the combination of the offence and one or more other offences associated with it) is exceptionally high. Paragraph 4 (2) of Schedule 21 of the Act sets out examples of cases where it would normally be appropriate to take the ‘whole life order’ as the appropriate starting point.

(IV.49.6) Where the offender is aged 18 to 20 and commits a murder that is so serious that it would require a whole life order if committed by an offender aged 21 or over, the appropriate starting point will be 30 years.

(IV.49.7) Where a case is not so serious as to require a ‘whole life order’ but where the seriousness of the offence is particularly high and the offender was aged 18 or over when he committed the offence the appropriate starting point is 30 years. Paragraph 5 (2) of Schedule 21 of the Act sets out examples of cases where a 30 year starting point would normally be appropriate (if they do not require a ‘whole life order’).

(IV.49.8) Where the offender was aged 18 or over when he committed the offence and the case does not fall within paragraph 4 (1) or 5 (1) of Schedule 21 the appropriate starting point is 15 years.

(IV.49.9) 18 to 20 year olds are only the subject of the 30 year and 15 year starting points.

(IV.49.10) The appropriate starting point when setting a sentence of detention during Her Majesty's pleasure for offenders aged under 18 when they committed the offence is always 12 years.

(IV.49.11) The second step after choosing a starting point is to take account of any aggravating or mitigating factors which would justify a departure from the starting point. Additional aggravating factors (other than those specified in paragraphs 4 (1) and 5 (1)) are listed at paragraph 10 of Schedule 21. Examples of mitigating factors are listed at paragraph 11 of Schedule 21. Taking into account the aggravating and mitigating features the court may add to or subtract from the starting point to arrive at the appropriate punitive period.

(IV.49.12) The third step is that the court should consider the effect of section 151 (1) of the Powers of Criminal Courts (Sentencing) Act 2000 (or, when it is in force, section 143 (2) of the Act) in relation to previous convictions and section 151 (2) Powers of Criminal Courts (Sentencing) Act 2000 (or, when it is in force, section 143 (3) of the Act) where the offence was committed whilst the offender was on bail. The court should also consider the effect of section 152 of the Powers of Criminal Courts (Sentencing) Act 2000 (or, when it is in force, section 144 of the Act) where the offender has pleaded guilty. The Court should then take into account what credit the offender would have received for a remand in custody under section 240 of the Act, but for the fact that the mandatory sentence is one of life imprisonment. Where the offender has been remanded in custody in connection with the offence or a related offence, the court should have in mind that no credit will otherwise be given for this time when the prisoner is considered for early release. The appropriate time to take it into account is when setting the minimum term. The court should normally subtract the time for which the offender was remanded in custody in connection with the offence or a related offence from the punitive period it would otherwise impose in order to reach the minimum term.

(IV.49.13) Following these calculations the court should have arrived at the appropriate minimum term to be announced in open court. As paragraph 9 of Schedule 21 makes clear, the judge retains ultimate discretion and the court may arrive at any minimum term from any starting point. The minimum term is subject to appeal by the offender under section 271 of the Act and subject to review on a reference by the Attorney-General under section 272 of the Act.

TRANSITIONAL ARRANGEMENTS FOR NEW SENTENCES WHERE THE OFFENCE WAS COMMITTED BEFORE 18 DECEMBER 2003

(IV.49.14) Where the court is passing a sentence of mandatory life imprisonment for an offence committed before 18 December 2003, the court should take a fourth step in determining the minimum term in accordance with section 276 and schedule 22 of the Act.

(IV.49.15) The purpose of those provisions is to ensure that the sentence does not breach the principle of non-retroactivity by ensuring that a lower minimum term would not have been imposed for the offence when it was committed. Before setting the minimum term the court must check whether the proposed term is greater than that which the term the Secretary of State would probably have notified under the practice followed by the Secretary of State before December 2002.

(IV.49.16) The decision in Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim. 1762 gives detailed guidance as to the correct approach to this practice and judges passing mandatory life sentences where the murder was committed prior to 18 December 2003 are well advised to read that judgment before proceeding.

(IV.49.17) The practical result of that judgment is that in sentences where the murder was committed before 31 May 2002, the best guide to what would have been the practice of the Secretary of State is the letter sent to judges by Lord Bingham CJ on 10th February 1997, the relevant parts of which are set out at paragraphs IV.49.18 to IV.49.21 below.

(IV.49.18) The practice of Lord Bingham, as set out in his letter of 10 February 1997 was to take 14 years as the period actually to be served for the ‘average’, ‘normal’ or ‘unexceptional’ murder. Examples of factors he outlined as capable, in appropriate cases of mitigating the normal penalty were:

(1) Youth

(2) Age (where relevant to physical capacity on release or the likelihood of the defendant dying in prison)

(3) Subnormality or mental abnormality

(4) Provocation (in a non-technical sense), or an excessive response to a personal threat

(5) The absence of an intention to kill

(6) Spontaneity and lack of premeditation (beyond that necessary to constitute the offence: e.g. a sudden response to family pressure or to prolonged and eventually insupportable stress

(7) Mercy killing

(8) A plea of guilty, or hard evidence of remorse or contrition.

(IV.49.19) Lord Bingham then listed the following factors as likely to call for a sentence more severe than the norm:

(1) Evidence of a planned, professional, revenge or contract killing

(2) The killing of a child or a very old or otherwise vulnerable victim

(3) Evidence of sadism, gratuitous violence, or sexual maltreatment, humiliation or degradation before the killing

(4) Killing for gain (in the course of burglary, robbery, blackmail, insurance fraud, etc.)

(5) Multiple killings

(6) The killing of a witness or potential witness to defeat the ends of justice

(7) The killing of those doing their public duty (policemen, prison officers, postmasters, firemen, judges, etc.)

(8) Terrorist or politically motivated killings

(9) The use of firearms or other dangerous weapons, whether carried for defensive or offensive reasons

(10) A substantial record of serious violence

(11) Macabre attempts to dismember or conceal the body.

(IV.49.20) Lord Bingham further stated that the fact that a defendant was under the influence of drink or drugs at the time of the killing is so common he would be inclined to treat it as neutral. But in the not unfamiliar case in which a married couple, or two derelicts, or two homosexuals, inflamed by drink, indulge in a violent quarrel in which one dies, often against a background of longstanding drunken violence, then he would tend to recommend a term somewhat below the norm.

(IV.49.21) Lord Bingham went on to say that given the intent necessary for proof of murder, the consequences of taking life and the understandable reaction of relatives of the deceased, a substantial term will almost always be called for, save perhaps in a truly venial case of mercy killing. While a recommendation of a punitive term longer than, say, 30 years will be very rare indeed, there should not be any upper limit. Some crimes will certainly call for terms very well in excess of the norm.

(IV.49.22) For the purposes of sentences where the murder was committed after 31 May 2002 and before 18 December 2003, the judge should apply the Practice Statement handed down on 31 May 2002 reproduced at paragraphs 49.23 to 49.33 below.

(IV.49.23) This Statement replaces the previous single normal tariff of 14 years by substituting; a higher and a normal starting point of respectively 16 (comparable to 32 years) and 12 years (comparable to 24 years). These starting points have then to be increased or reduced because of aggravating or mitigating factors such as those referred to below. It is emphasised that they are no more than starting points.

The normal starting point of 12 years

(IV.49.24) Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in paragraph 49.26. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.

(IV.49.25) The normal starting point can be reduced because the murder is one where the offender's culpability is significantly reduced, for example, because:

(a) the case came close to the borderline between murder and manslaughter; or

(b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or

(c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or

(d) the case involved an over reaction in self-defence; or

(e) the offence was a mercy killing.

These factors could justify a reduction to 8/9 years (equivalent to 16/18 years).

The higher starting point of 15/16 years

(IV.49.26) The higher starting point will apply to cases where the offender's culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as:

(a) the killing was ‘professional’ or a contract killing;

(b) the killing was politically motivated;

(c) the killing was done for gain (in the course of a burglary, robbery, etc.);

(d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness);

(e) the victim was providing a public service;

(f) the victim was a child or was otherwise vulnerable;

(g) the killing was racially aggravated;

(h) the victim was deliberately targeted because of his or her religion or sexual orientation;

(i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing;

(j) extensive and/or multiple injuries were inflicted on the victim before death;

(k) the offender committed multiple murders.

Variation of the starting point

(IV.49.27) Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

(IV.49.28) Aggravating factors relating to the offence can include:

(a) the fact that the killing was planned;

(b) the use of a firearm;

(c) arming with a weapon in advance;

(d) concealment of the body, destruction of the crime scene and/or dismemberment of the body;

(e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.

(IV.49.29) Aggravating factors relating to the offender will include the offender's previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.

(IV.49.30) Mitigating factors relating to the offence will include:

(a) an intention to cause grievous bodily harm, rather than to kill;

(b) spontaneity and lack of premeditation.

(IV.49.31) Mitigating factors relating to the offender may include:

(a) the offender's age;

(b) clear evidence of remorse or contrition;

(c) a timely plea of guilty.

Very serious cases

(IV.49.32) A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender's eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.

(IV.49.33) Among the categories of case referred to in paragraph IV.49.26 some offences may be especially grave. These include cases in which the victim was performing his duties as a prison officer at the time of the crime or the offence was a terrorist or sexual or sadistic murder or involved a young child. In such a case, a term of 20 years and upwards could be appropriate.

(IV.49.34) In following this guidance, judges should bear in mind the conclusion of the Court in Sullivan that the general effect of both these statements is the same. While Lord Bingham does not identify as many starting points, it is open to the judge to come to exactly the same decision irrespective of which was followed. Both pieces of guidance give the judge a considerable degree of discretion.

PROCEDURE FOR ANNOUNCING THE MINIMUM TERM IN OPEN COURT

(IV.49.35) Having gone through the three or four steps outlined above, the court is then under a duty under section 270 of the Act, to state in open court, in ordinary language, its reasons for deciding on the minimum term or for passing a whole life order.

(IV.49.36) In order to comply with this duty the court should state clearly the minimum term it has determined. In doing so, it should state which of the starting points it has chosen and its reasons for doing so. Where the court has departed from that starting point due to mitigating or aggravating features it must state the reasons for that departure and any aggravating or mitigating features which have led to that departure. At that point the court should also declare how much, if any, time is being deducted for time spent in custody. The court must then explain that the minimum term is the minimum amount of time the prisoner will spend in prison, from the date of sentence, before the Parole Board can order early release. If it remains necessary for the protection of the public, the prisoner will continue to be detained after that date. The court should also state that where the prisoner has served the minimum term and the Parole Board has decided to direct release the prisoner will remain on licence for the rest of his life and may be recalled to prison at any time.

(IV.49.37) Where the offender was 21 or over when he committed the offence and the court considers that the seriousness of the offence is so exceptionally high that a ‘whole life order’ is appropriate, the court should state clearly its reasons for reaching this conclusion. It should also explain that the early release provisions will not apply.

IV.50

BAIL PENDING APPEAL

(IV.50.1) The procedure for granting bail by a judge of the Crown Court pending an appeal to the Court of Appeal (Criminal Division) (see sections 1(2) and 11(1A) of the Criminal Appeal Act 1968, and section 81(1B) of the Supreme Court Act 1981) is described in the Guide to Proceedings in the Court of Appeal Criminal Division. This is available at Crown Courts and is to be found at (1983) 77 Cr App R 138 and [1983] Crim LR 145.

(IV.50.2) The procedure is also set out in outline on Criminal Appeal Office Form C (Crown Court Judge's Certificate of fitness for appeal) and Form BC (Crown Court Judge's Order granting bail), copies of which are held by the Crown Court. The court clerk will ensure that these forms are always available when a judge hears an application under these provisions.

(IV.50.3) The judge may well think it right (a) to hear the application for a certificate in chambers with a shorthand writer present; (b) to invite the defendant's advocate to submit before the hearing of the application a draft of the grounds of appeal which he will ask the judge to certify on Form C. The advocate for the Crown will be better able to assist the judge at the hearing if the draft ground is sent beforehand to him also.

(IV.50.4) The first question for the judge is then whether there exists a particular and cogent ground of appeal. If there is no such ground there can be no certificate, and if there is no certificate there can be no bail. A judge should not grant a certificate with regard to sentence merely in the light of mitigation to which he has, in his opinion, given due weight, nor in regard to conviction on a ground where he considers the chance of a successful appeal is not substantial. The judge should bear in mind that, where a certificate is refused, application may be made to the Court of Appeal for leave to appeal and for bail.

(IV.50.5) The length of the period which might elapse before the hearing of any appeal is not relevant to the grant of a certificate, but, if the judge does decide to grant a certificate, it may be one factor in the decision whether or not to grant bail. A judge who is minded to take this factor into account may find it advisable to have the court clerk contact the Criminal Appeal Office Listing Co-ordinator in order that he may have an accurate and up-to-date assessment of the likely waiting time. This can be very short. The Co-ordinator will require a general account of the weight and urgency of the case.

(IV.50.6) Where the defendant's representative considers that bail should be applied for as a matter of urgency, the application should normally be made, in the first instance, to the trial judge, and the Court of Appeal may decline to treat such an application as urgent if there is no good reason why it has not been made to the trial judge.