This review continues the examination of recent developments in criminal law begun in [1994] Gazette, 31 August, 20.-- Bail Amendment ActThe Bail Amendment Act 1993 was brought into force on 27 June 1994.

The prosecution now has a right of appeal in relation to the grant of bail in cases where the offence carries a possible sentence of five years, or involves vehicle taking or aggravated vehicle taking.

However, it is clear that the power is to be used only in serious cases.

Writing in her 1994 annual report, the director of public prosecutions states: 'We recognise that the Act gives Crown prosecutors a very significant power and we must use it responsibly.

Our guidance on when to use the right of appeal emphasises the intention of Parliament that it should be reserved for cases of greatest concern where there is a serious risk of harm to the public or there are other significant public interest grounds for appeal.

The nature of the offence and the risk of harm to individual victims are clearly factors which we should take into account.'As a safeguard, all decisions to appeal will be reviewed by a senior lawyer.

Any matters of concern to defence solicitors should be brought to that lawyer's attention.

Appeals by the prosecution against the granting of bail follow the procedure set for defence appeals when bail has been denied.

They will usually be heard by a Crown Court judge in chambers.

A defendant does not have a right to be present at this hearing unless unrepresented, or unless in exceptional cases the Crown Court considers the interests of justice require him or her to be present and has given leave to attend.

The appeal is by way of rehearing and any new information which is relevant to the remand decision can be presented.

-- Custody time limitsIt has proved difficult for defence lawyers to prevent the extension of custody time limits.

However, in order to obtain an extension the prosecution must show that it has acted with due expedition.

This will not be possible where it has failed to disclose to the defence significant evidence which is available and so prevented the defence from fully preparing its case (R v CCC, ex p.

Behbehani [1994] Crim LR 352).-- Code for Crown prosecutorsThe 1994 annual report of the DPP introduces a new code for Crown prosecutors.

Failure to apply the code can result in judicial review (R v DPP, ex p.

C [1994] The Times, 7 March).

The new code lays down clear criteria to which defence solicitors will wish to pay as much regard as any prosecutor.

The code makes clear that the review of the prosecution case is a continuing process so that Crown prosecutors can take into account any changes in circumstances (para 3.2.) This will include those brought to their attention by the defence.

The code emphasises the two stages in the decision to prosecute.

The first is the evidential test.

If a case does not pass the evidential test it must not go ahead, no matter how important or serious it may be.

If the case does pass the evidential test, the Crown prosecutor must decide whether the prosecution is needed in the public interest (para 4.1).The evidential test remains the need to provide a realistic prospect of conviction.

When deciding whether there is enough evidence to prosecute, Crown prosecutors consider whether the evidence can be used and is reliable (p ara 5.3).

In her annual report, the DPP states: 'It is a fundamental principle of our criminal justice system that those suspected of crime are presumed innocent unless proved guilty.

Suspicion is not enough.

We must satisfy the jury or magistrates so that they are sure of the defendant's guilt.

To do so we must present evidence to establish each of the facts which the law requires us to prove and to identify the person responsible.

Rules of evidence govern whether or not information can be put before the court and how it must be presented.

If the available evidence does not establish one or more of the elements of the offence or if the offender cannot be identified to the exclusion of other suspects, a prosecution should not be started.

Equally, even if there appears to be enough evidence there may be good reasons to believe that the court would not regard it as reliable.

If the accused raises a defence the law usually requires the prosecutor to disprove it; so the prosecutor must have regard to lines of defence which are raised or plainly available.'The code now lists common factors in favour and against prosecution: 'The following lists of some common public interest factors, both for and against prosecution, are not exhaustive.

The factors that apply will depend on the facts in each case.'The more serious the offence, the more likely it is that a prosecution will be needed in the public interest.

A prosecution is likely to be needed if:(a) a conviction is likely to result in a significant sentence;(b) a weapon was used or violence was threatened during the commission of the offence;(c) the offence was committed against a person serving the public (eg a police or prison officer, or a nurse);(d) the defendant was in a position of authority or trust;(e) the evidence shows that the defendant was a ringleader or an organiser of the offence;(f) there is evidence that the offence was premeditated;(g) there is evidence that the offence was carried out by a group;(h) the victim of the offence was vulnerable, had been put in considerable fear, or suffered personal attack, damage or disturbance;(i) the offence was motivated by any form of discrimination against the victim's ethnic or national origin, sex, religious beliefs, political views or sexual preference;(j) there is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption;(k) the defendant's previous convictions or cautions are relevant to the present offence;(l) the defendant is alleged to have committed the offence whilst under an order of the court;(m) there are grounds for believing that the offence is likely to be continued or repeated, eg by a history of recurring conduct; or(n) the offence, although not serious in itself, is widespread in the area where it was committed.'A prosecution is less likely to be needed if:(a) the court is likely to impose a very small or nominal penalty;(b) the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence);(c) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgment;(d) there has been a long delay between the offence taking place and the date of the trial, unless: (i) the offence is serious; (ii) the delay has been caused in part by the defendant; (iii) the offence has only recently come to light; or (iv) the complexity of the offence has meant that there has been a long investigation;(e) a prosecution is likely to have a very bad effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence;(f) the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility that it may be repeated.

The Crown Prosecution Service, where necessary, applies Home Office guidelines about how to deal with mentally disordered offenders.

Crown prosecutors must balance the desirability of diverting a defendant who is suffering from significant mental or physical ill health with the need to safeguard the general public;(g) the defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution simply because they can pay compensation); or(h) details may be made public that could harm sources of information, international relations or national security.'In a case of any seriousness, a prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour (para 6.2).

Special provision continues to be made for young offenders (para 6.8.)The code also deals with the selection of charges.

The Crown prosecutor should select charges which reflect the seriousness of the offending, give the court adequate sentencing powers and enable the case to be presented in a clear and simple way.

This means that Crown prosecutors may not always continue with the most serious charge where there is a choice (para 7.1).The DPP has confirmed that once a decision has been taken that an either way offence is the right charge in the circumstances of the case, it is entirely wrong to withdraw it and to prefer a summary only offence in the light of the defendant's election for trial or, more rarely, the magistrates' direction for trial.-- DisclosureThe rules on the disclosure of material by the prosecution continue to receive attention from the courts.

If a prosecution witness has made enquiries about a reward, the defence should be so advised (R v Rasheed [1994] The Times, 20 May) but the prosecution does not have to disclose material that may throw doubt on the credibility of a defence witness (R v Brown (Winston) [1994] The Times, 20 June).Magistrates have no jurisdiction in committal proceedings to decide questions of disclosure.

These must be resolved in Crown Court (R v CPS, ex p.

Warby [1994] Crim LR 281).Most significantly, in R v Keane [1994] 2 All ER 478, the court further developed the law of public interest immunity.

In R v Ward [1993] 1 WLR 619 it had been made clear that it was for the court to decide whether immunity applied.

In R v Davis (Michael) [1993] 1 WLR 613, a procedure had been set out for dealing with such applications.

In Keane, the court held that where the prosecution refused on the grounds of public interest immunity to disclose the relevant material to the defence, the court had to balance the weight of public interest in non-disclosure against the importance of the documents to the defence.

In carrying out that balancing exercise the court should always order disclosure if the disputed material might prove the defendant's innocence or avoid a miscarriage of justice.

However, in order to put the court in a position to determine whether and to what extent the material which the Crown wished to withhold was of assistance to the defence, the prosecution was required to put before the court only those documents which it regarded as material but wished to withhold.

Material documents included those which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised new issues whose existence was not apparent from the evidence the prosecution proposed to use or which held out a real as opposed to fanciful prospect of providing a lead on evidence which went to a relevant or new issue.

Defence solicitors will therefore need to remain particularly vigilant to ensure that the prosecution does disclose documents falling within this definition of materiality.

The court pointed out that it was open to the defence to indicate to the prosecution a defence or an issue it proposes to raise to which material in the possession of the prosecution might be of assistance.

If that was done the prosecution might need to reconsider what should be disclosed.The judge had to consider the importance of the documents to the issues of interest to the defence, present and potential, so far as they had been disclosed or could be foreseen.

The more specific the indication the defendant's lawyers gave of the defence or issues it was likely to raise, the more accurately both prosecution and judge would be able to assess the value to the defence of the material.