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Posted by / 29-Nov-2017 23:35

Absolute dating principles

As a result of adverse comment in the case of Attorney General's Reference (No.

34 of 2010) [2010] EWCA Crim 2055, guidance has been issued that, where a judge wishes to indicate to the advocates his or her views of the viability of the case or the acceptability of pleas, this should be done in open court with a full recording of proceedings, in the absence of the jury but with both sides represented and the defendant present.

Prosecuting advocates should not accept a basis of plea which is different from the case originally advanced by the prosecution without considering the impact on the likely sentence.

In guilty plea cases the written basis of plea agreed between the defence and the prosecution can have a significant impact on the range of sentences that is open to the sentencer.

Judges sometimes give an indication to trial advocates of their view of the acceptability of pleas if they were to be offered.

At the stage of sentencing the prosecutor has an important responsibility to assist the court to reach its decision as to the appropriate sentence.

That role also extends to protecting the victim's interests in the acceptance of pleas and the sentencing exercise.

Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise: Rule B:4 provides: The prosecution advocate represents the public interest, and should be ready to assist the court to reach its decision as to the appropriate sentence.

This will include drawing the court's attention to: [2010] EWCA Crim 2237 the Court of Appeal explained the importance of advocates being alert to the maximum sentencing powers available to judges as it is the duty of both prosecution and defence advocates to check the court's sentencing powers and alert the court to 'traps for the unwary such as these'. In all cases, it is the prosecution advocate's duty to apply for appropriate ancillary orders, such as criminal behaviour orders and confiscation orders. However "while the prosecution is expected to assist the judge with the facts for the purpose of assisting with the management of the case, it is not the task of the prosecution to negotiate credit for guilty pleas.

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It is not sufficient to indicate merely that the prosecution cannot "gainsay" the defence account: [2009] EWCA Crim 2485, per Lord Judge LCJ.

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