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Sam - SQE2 - Legal Content > 5a. Criminal Practice > Flashcards

5a. Criminal Practice Flashcards

1
Q

The criminal justice system

What are the four categories of offences/cases dealt with by the Crown Court?

Where do all criminal cases begin?

A
  1. Indictable only
  2. Either way, where Magistrates has declined Jx or D elects for Crown Court
  3. Either way or summary, if related to another offence heard by Crown Court and is punishable by imprisonment or disqualification from driving
  4. Appeals against conviction and sentence from Magistrates

Magistrates’ Court

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2
Q

The criminal justice system

What are the two summary only offences?

A
  1. Assault
  2. Battery
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3
Q

The criminal justice system

What six offences are triable either way?

A
  1. ABH
  2. Section 20 GBH
  3. Arson
  4. All three frauds
  5. Burglary, subject to an exception
  6. Theft, subject to an exception
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4
Q

Theft equal to or below what value is considered summary only, and regarding which Magistrates Court does not have the power to decline jurisdiction?

A

£200, but D can elect for Crown Court if he wishes

Magistrates Court Act 1980

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5
Q

The criminal justice system

What will make burglary indictable only?

A

If it is of a domestic dwelling and:

  1. Includes commission or intent to commit an indictable only offence
  2. Victim subject to violence or threat of violence, or
  3. It is D’s third charge for domestic burglary
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6
Q

Advising client at police station

What are five of a suspect’s rights at the police station under Police and Criminal Evidence Act 1984?

A
  1. Access to free legal advice, medical help, interpreter
  2. Notify someone of their arrest
  3. Right to silence
  4. Informed of reason for arrest
  5. Information on detention time limits
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7
Q

Advising client at police station

What are the nine ranks of police officer, from high to low?

A
  1. Chief constable
  2. Deputy chief constable
  3. Assistant chief constable
  4. Chief Superintendent
  5. Superintendent
  6. Chief Inspector
  7. Inspector
  8. Sergeant
  9. Constable
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8
Q

Advising client at police station

What are the three criteria for delaying a suspect’s access to legal advice, and what is the maximum amount of time it can be delayed?

A

Access to legal advice can be delayed for 36 hours at most, if:

  1. Suspect is arrested for indictable only or either way offence (i.e. on the exam, something other than assault, battery, or theft under £200)
  2. Superintendent or above has authorised, and
  3. Officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence or others, alerting other suspects, or hindering recovery of property
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9
Q

Advising client at police station

What are the three criteria for delaying a suspect informing someone of their arrest, and what is the maximum amount of time it can be delayed?

A

Can be delayed for up to 36 hours with the same criteria used as when delaying access to legal advice, except an inspector (officer two ranks below a superintendent) is able to make the decision for this

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10
Q

Advising client at police station

What is the relevant time, and what is the general rule for how long after this time a suspect can be kept in custody without being charged?

A

The relevant time is when the suspect entered the police station, and the general rule is 24 hours

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11
Q

Advising client at police station

Where extensions apply, what is the maximum time a suspect can be kept in custody without being charged?

A

96 hours

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12
Q

Advising client at police station

What are the four criteria for the first 12 hour custody extension?

A
  1. Suspect is arrested for indictable only or either way offence
  2. Superintendent or above has authorised
  3. Reasonable grounds to believe that further detention is necessary to secure/preserve/obtain evidence
  4. Investigation is being conducted diligently and expeditiously
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13
Q

Advising client at police station

What is required for the remaining 60 hours of extensions, and how are they broken up?

A

Application to Magistrates Court is needed.

  1. Further 36 hours granted on the first application (72 hours total)
  2. Final 24 hours granted on second application
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14
Q

Advising client at police station

When must an identification procedure be held under PACE?

A

Witness:

  1. Identified a suspect not known to them
  2. Expresses abilility to identify suspect
  3. Has reasonable chance of identifying suspect
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15
Q

Advising client at police station

What are a suspect’s two rights in relation to the conduct of an identification procedure?

A
  1. To have the purpose, obligations and consequences of their decisions explained
  2. Legal advisor/solicitor/friend present
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16
Q

Advising client at police station

What two consequences must be explained to a suspect in relation to an identification procedure?

A
  1. Suspect does not have to cooperate, but the procedure can still be conducted covertly and if they fail to cooperate, an adverse inference may be drawn
  2. If between being notified of the procedure and the procedure itself, a suspect changes their appearance, that an adverse inference may be drawn
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17
Q

Advising client at police station

With regard to video identification and identification parades, what conditions must be met?

A
  1. Other participants must resemble suspect physically and distinguishing features must be concealed
  2. Suspect must have chance to raise reasonable objections
  3. Witness must be warned that the suspect may not even feature
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18
Q

Advising client at police station

What could four possible objections to the conduct of a video identification or identification procedure be?

A
  1. Failure to take into account reasonable objections
  2. Failure to keep witness away from suspect
  3. Failure to keep witnesses apart
  4. Failure to warn witness that suspect might not be present
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19
Q

Advising client at police station

In what situation should a suspect not be interviewed?

PACE governs interviews

A

When they seem unable to appreciate the significance of the questions or answers or understand what is happening, due to intoxication or any other incapacity

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20
Q

Advising client at police station

Do the police have a duty to provide the solicitor with any evidence?

A

No, but they must provide enough detail for the solicitor to understand the nature of the offence and the reasons why the suspect is under suspicion

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21
Q

Advising client at police station

What is the warning that must be given when being advised of the right to remain silent?

A

That if a suspect fails to mention in an interview something that they could reasonably have been expected to mention, an adverse inference may be drawn by the court

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22
Q

Advising client at police station

What is a special caution, and what will trigger the requirement for one?

A

If suspect was at the scene of the offence, or had an object, substance, or mark on their person at the time of arrest, they must be cautioned regarding what offence is being investigated and that an adverse inference may be drawn if they fail to give an explanation for their presence or the object, mark, or substance

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23
Q

Advising client at police station

What safeguard is absolutely required when a suspect is deemed vulnerable?

A

Access to an appropriate adult who is not affiliated with the police, taking into account the wishes of the suspect

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24
Q

Advising client at police station

What things will be considered oppression or inducement?

A

Oppression: Too many officers in the room, room with improper heat, light, and ventilation
Inducement: Promises of anything, including just a warning, if they confess

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25
Q

Bail

As defendants have a general right to bail (except for murder or attempted murder), what two things are required to remand a defendant in custody at a court hearing?

A
  1. Exception to the right to bail must apply, and
  2. Real prospect of custodial sentence being imposed
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26
Q

Bail

What are five of the exceptions to the right to bail?

A
  1. Substantial grounds for believing D will fail to surrender, commit further offences, or interfere with witnesses
  2. D charged with either way/indictable offence and was on bail at the time of commission
  3. Already serving a sentence
  4. Insufficient information to make a decision on bail
  5. D has failed to surrender in the same proceedings previously
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27
Q

Bail

What factors will the court consider when determining a bail application?

A
  1. Nature and seriousness of the offence, and the likely penalty
  2. D’s:
    * character (+/-)
    * associations (+/-)
    * previous convictions (-), and
    * community ties (+)
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28
Q

Bail

What is the standard for adding conditions to bail, and what are some common conditions?

A

Conditions must be relevant, proportionate, and enforceable

  1. Requiring D to reside at specified address
  2. Requiring D to report to a local police station at specified intervals
  3. Prohibiting D from going to a particular area or contacting certain individuals
  4. Requiring D to comply with a curfew, wear an electronic tag, or provide monetary security for bail
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29
Q

Bail

What must be shown in order for a defendant charged with murder to secure bail?

A

No significant risk that the defendant would commit an offence likely to cause physical or mental injury to another person

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30
Q

Bail

How often must a court consider bail?

A

At each hearing

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31
Q

Bail

However, only how many times many a defendant make a further application on the same facts and submissions?

A

One additional time

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32
Q

Bail

Thereafter, what is required for a defendant to make an additional bail application?

A

Change of circumstance, relating to the case generally or defendant

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33
Q

Bail

What is happens if a defendant breaches their bail conditions?

A

They can be arrested without a warrant, have their bail revoked, or have stricter conditions attached

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34
Q

First hearings before the Magistrates

What happens at the first court hearing in the Magistrates where the offence is (1) summary only, (2) either way, or (3) indictable only?

A
  1. Summary: D pleads guilty or not guilty
  2. Either way: Court proceeds to plea before venue process
  3. Indictable: Matter is sent immediately to the Crown Court for trial
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35
Q

First hearings before the Magistrates

For summary only offence, what happens if the defendant’s plea is (1) guilty and (2) not guilty?

A

Guilty: Court proceeds immediately to sentencing
Not guilty: Court will set a trial date and order disclosure

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36
Q

First hearings before the Magistrates

Whose decision alone is the plea?

Who can advise but must never instruct?

A

The defendant’s alone

The solicitor can advise on the strength of evidence, likely sentence (including reduction for pleading guilty), further steps, and court procedure, but should never tell D how to plead

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37
Q

First hearings before the Magistrates

What is a representation order?

A

An order sought by a solicitor representing a defendant who is not privately funded

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38
Q

First hearings before the Magistrates

What is the two part test for a representation order, i.e. to receive legal aid?

A
  1. Means test
  2. Interests of justice test
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39
Q

First hearings before the Magistrates

When will the means test generally be satisfied?

A

If defendant is:
* Under 18
* In receipt of income support

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40
Q

First hearings before the Magistrates

When will the interests of justice test generally be satisfied?

A

If defendant is:
* Likely to lose liberty or livelihood
* Suffer serious reputational damage
* Unable to understand proceedings or state their own case

If the case:
* Requires determination of substantial question of law
* Involves tracing witnesses or interviewing them

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41
Q

Plea before venue

What is plea before venue?

A

Procedure where defendant appears at the Magistrates Court charged with an either way offence, and is asked how they would like to plead

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42
Q

Plea before venue

If the defendant pleads not guilty or gives no indication, what must the Magistrates decide, and what two factors will they consider in doing so?

A

Whether the offence can be dealt with in the Magistrates Court, or if the Crown Court is more appropriate, considering:

  1. D’s previous convictions
  2. Whether the court’s sentencing powers are adequate to deal with the conduct alleged or if Crown Court should deal with it

Magistrates Court Act 1980

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43
Q

Plea before venue

When deciding their plea, the defendant can request an indication as to what, and what is this known as?

If an indication is given, and the defendant then pleads guilty, is the court bound to follow what they said?

A

Whether the sentence would be custodial or non-custodial if they were to plead guilty (but the court is under no obligation to provide this indication).

A Goodyear indication.

Yes. Not bound if defendant maintains non-guilty plea

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44
Q

Case management and pre-trial hearings

Within what time of the case being sent from Magistrates does plea and trial preparation hearing (arraignment) take place in the Crown Court?

A

28 days

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45
Q

Case management and pre-trial hearings

In the Crown Court, within what time limit must prosecution complete disclosure, and what is this extended to if defendant is on bail?

What evidence must the prosecution disclose?

A

50 days. 70 days if D on bail.

Any evidence it intends to rely on at trial, and anything it doesn’t intend to rely on but could reasonably be considered to undermine the prosecution case or assist the defence case

46
Q

Case management and pre-trial hearings

After the prosecution has made disclosure, how long does the defence have to serve a defence case statement on the prosecution and the court?

A

28 days

47
Q

Procedures to admit and exclude evidence

In what situation must Turnbull guidelines be followed?

A

When a case wholly or substantially relies on identification evidence and the evidence is disputed by defendant

48
Q

Procedures to admit and exclude evidence

What are the eight Turnbull guidelines given to the jury (or trier of fact in Magistrates) to consider in evaluating the weight of the identification evidence?

ADVOKATE

A
  • Amount of time for which the witness observed the suspect
  • Distance between W and S
  • Visibility at the time
  • Obstruction between W and S?
  • Known or unknown (S to W)
  • Any particular reasons to remember
  • Time lapse between incident and ID
  • Errors in W’s first description
49
Q

Procedures to admit and exclude evidence

If, having considered the Turnbull guidelines, the judge concludes the evidence is weak, what must occur?

A

The case must be withdrawn and an acquittal entered

50
Q

Procedures to admit and exclude evidence

When giving a Turnbull warning to the jury at the end of the trial, what three things should the judge do?

A
  1. Warn of special need for caution before convicting based on ID evidence, as mistaken Ws can be convincing
  2. Ask jury to consider circumstances in which W identified D
  3. Specifically refer to objective weaknesses in the evidence, considering ADVOKATE
51
Q

Procedures to admit and exclude evidence

Can the defendant be convicted on the basis of an adverse inference alone?

A

No

52
Q

Procedures to admit and exclude evidence

What actually triggers the adverse inference drawn from not mentioning (at arrest, questioning, or charge) something which defendant could reasonably have been expected to mention?

A

Putting forward this explanation at trial

Adverse inferences are dealt with by Criminal Justice and Public Order Act 1994

53
Q

Procedures to admit and exclude evidence

From what two things can the jury also draw an adverse inference?

A
  1. Failure to give evidence in your defence at trial, unless excused by physical/mental condition
  2. Defendant’s failure to account for the elements for which a special caution would be given (mark, object, presence at crime scene)
54
Q

Procedures to admit and exclude evidence

What is hearsay?

A

Statement, not made in oral evidence, relied on as evidence of the matter of the statement

55
Q

Procedures to admit and exclude evidence

Although generally inadmissible, what are the four categories under which hearsay is admissible under the Criminal Justice Act?

A
  1. Statute
  2. Case law
  3. Agreement of all parties
  4. In the interests of justice
56
Q

Procedures to admit and exclude evidence

What are five of the categories under which hearsay evidence is admissible under statute?

A
  1. Witness is unavailable
  2. Business document adduced
  3. Statements were prepared for use in the criminal case and relevant person cannot recollect
  4. Previous consistent or inconsistent statement of a witness
  5. Confession
57
Q

Procedures to admit and exclude evidence

When is a witness deemed unavailable?

A
  1. Dead
  2. Unfit due to physical/mental condition
  3. Outside UK and not reasonably practicable to return
  4. Unable to be found despite steps taken
  5. Witness is in fear
58
Q

Procedures to admit and exclude evidence

What are the two requirements for a business document to be adduced in exception to the rule against hearsay?

A
  1. Created/received in the course of trade
  2. Person who supplied the information has personal knowledge of the matter
59
Q

Procedures to admit and exclude evidence

What are the three categories under which hearsay evidence is admissible under case law?

A
  1. Confessions, or statements part inculpatory and part exculpatory
  2. Statements made at the time of the event
  3. Statements preserved by res gestae
60
Q

Procedures to admit and exclude evidence

What are the three categories of res gestae statements which are admissible in exception to the general rule against hearsay?

A

Statements:

  1. Made when a person is so emotionally overpowered, the idea of fabrication can be disregarded
  2. Accompanying an act which can only be properly evaluated with reference to the statement
  3. Relating to physical or mental state at the time of the statement
61
Q

Procedures to admit and exclude evidence

What is multiple hearsay?

In additions to all parties agreeing and in the interests of justice, what are the two situations in which multiple hearsay will be admissible?

A

Hearsay within hearsay, where statement is relayed through more than one person before getting to court

  1. Business document; 2. Consistent or inconsistent statement
62
Q

Procedures to admit and exclude evidence

What is the definition of confession?

What is required for a confession to be admissible?

A

Any statement, wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise

It must be relevant to a matter in issue, i.e. it goes to proving or disproving some fact in issue

63
Q

Procedures to admit and exclude evidence

What are the two bases on which the defence can challenge the admissibility of a confession?

A
  1. Mistake, i.e. the listener misheard
  2. Untruth

If untruth is made out and not disproven, the evidence must be excluded

64
Q

Procedures to admit and exclude evidence

In what situations can confessions be challenged based on untruth?

When the admissibility of a confession is challenged, who bears the burden?

A

If obtained by oppression or by things said or done likely to render the confession unreliable, and the defence can show a causal link between the conduct and the confession and the confession would not otherwise have been made independently

Prosecution must prove beyond a reasonable doubt that the conduct does not apply

65
Q

Procedures to admit and exclude evidence

In what situation does the court have discretion to exclude any evidence offered by the prosecution?

What is the high bar to reach before the court will exercise its discretion to exclude prosecution evidence for fairness?

A

If it appears, considering all the circumstances, that admission of the evidence would have an adverse effect on the fairness of the proceeding, e.g. evidence obtained via illegal search, or improper ID procedures

Breaches must be significant and substantial, such that they have rendered the evidence unreliable

66
Q

Procedures to admit and exclude evidence

Aside from agreement of the parties, what are five of the grounds for admitting bad character evidence?

A
  1. Relevant to important matter in issue between prosecution and defence, including propensity to commit similar offences or be dishonest
  2. Defendant attacked another’s character
  3. Important explanatory evidence, including of prior offences
  4. Correct a false impression given by defendant
  5. Matter in issue between co-defendants

Admitting bad character evidence is dealt with by the Criminal Justice Act 2003

67
Q

Procedures to admit and exclude evidence

Only when can bad character evidence showing a propensity for untruthfulness be admissible?

A

If untruthfulness or dishonesty is part of the offence

68
Q

Procedures to admit and exclude evidence

What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants?

A

It must have substantial probative value, not just be relevant

69
Q

Procedures to admit and exclude evidence

If the prosecution wishes to introduce bad character evidence, within how long of entry of a not guilty plea must notice be served in (1) the Magistrates Court and (2) the Crown Court?

A
  1. Magistrates Court: 20 business days
  2. Crown Court: 10 business days

Defence must object within 10 business days

70
Q

Procedures to admit and exclude evidence

To which two grounds to admit bad character evidence does a special procedure apply?

A
  1. Important matter in issue between P and D
  2. D attacked another’s character
71
Q

Procedures to admit and exclude evidence

What is the special procedure for admission when the ground for admitting bad character evidence is either important matter in issue between prosecution and defence
or defendant attacked another’s character?

What is the similar general exclusion which applies to all seven grounds for admitting bad character evidence?

A

If the defendant makes an application to exclude on these grounds, the court must not admit it if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so

Dealt with under PACE

The court may refuse to admit any evidence for the same reason: if it appears that admitting the evidence would have such an adverse effect on the fairness of the proceedings, that they must not do so

72
Q

Procedures to admit and exclude evidence

Therefore, what is the difference between the adverse effect relief available generally, and in the two specific instances of important matter in issue between prosecution and defence
or defendant attacked another’s character?

A

Generally: When there would be an adverse effect on the fairness of the proceedings, court may refuse to admit the evidence

Two specific grounds: When there would be an adverse effect on the fairness of the proceedings, court must refuse to admit the evidence, if D applies

73
Q

Procedures to admit and exclude evidence

When is a defendant entitled to a good character direction from the judge?

What are the two parts of this?

A

If D has no previous convictions, or there are previous convictions, they are old, minor, or not related to the current charge

The good character direction is made up of the propensity direction and the credibility direction.

74
Q

Procedures to admit and exclude evidence

What is the propensity direction and what is the credibility direction?

A

Propensity direction: Person of good character is less likely to have committed an offence

Credibility direction: Person of good character is more likely to tell the truth when they assert their innocence

75
Q

Procedures to admit and exclude evidence

Even if the defendant has no previous convictions, in what situation will a good character direction probably not be available?

A

If there is other bad character evidence upon which the prosecution relies

Judge has discretion

76
Q

Trial procedure

What does the (1) competence and (2) compellability of a witness go to?

A
  1. Whether they are allowed to give evidence
  2. Whether they can be forced to give evidence
77
Q

Procedures to admit and exclude evidence

A witness will be deemed to not be competent if they are not able to do what two things?

A

Unable to:

  1. Understand questions put to them as a witness
  2. Give answers which can be understood
78
Q

Procedures to admit and exclude evidence

What is true of all competent witnesses, other than the defendant, the defendant’s spouse/civil partner, and co-defendants?

A

They are compellable

79
Q

Procedures to admit and exclude evidence

With regard to the defendant’s competence and compellability, what is the situation for the prosecution and defence?

A

Prosecution:
D is neither competent nor compellable

Defence:
D is competent but not compellable

Remember the jury can still draw an adverse inference

80
Q

Procedures to admit and exclude evidence

What must generally be true before the jury will hold the failure to give evidence against the defendant?

A

The jury must think the only sensible explanation for the decision not to give evidence is that the defendant has no answer to the case against them, or no answer that would have stood up to cross examination

81
Q

Procedures to admit and exclude evidence

With regard to the competence and compellability of the defendant’s spouse or civil partner, what is the situation for the prosecution and defence?

What is the situation if the married couple are no longer together?

A

Prosecution:
Spouse is competent but not compellable (unless exception applies)

Defence:
Spouse is competent and compellable, unless jointly charged

It is as if they were never married, and the spouse is treated as a normal witness

82
Q

Procedures to admit and exclude evidence

What must the offence for which defendant is being prosecuted involve before the spouse or civil partner of the defendant can be compelled by the prosecution?

A

Offence involves:

  1. Assault, injury, or threat of injury to the spouse or a child under 16
  2. Sexual offence on a child under 16
  3. Attempting, conspiring to commit, aiding, or abetting either 1 or 2
83
Q

Procedures to admit and exclude evidence

Can an adverse inference be drawn from the spouse’s failure to give evidence?

A

No

84
Q

Procedures to admit and exclude evidence

With regard to the competence and compellability of co-defendants, what is the situation for the prosecution and defence?

What happens where a co-defendant pleads guilty or the charges against them are dropped?

A

Same as the defendant

Prosecution:
Co-D is neither competent nor compellable

Defence:
Co-D is competent but not compellable

They become an ordinary witness

85
Q

Procedures to admit and exclude evidence

What is a submission of no case to answer and when is it made?

A

At the end of the prosecution case, the defence may argue that the prosecution has not presented enough evidence to amount to a prima facie case, either:

  1. By failing to adduce evidence of one or more of the elements or the offence, or
  2. If the evidence is so unreliable that no reasonable bench, judge, or jury could convict
86
Q

Procedures to admit and exclude evidence

What are the two possible professional conduct issues which could arise when representing a defendant?

A
  1. D tells solicitor they did it, but wants to plead not guilty
  2. D tells solicitor they didn’t do it, but wants to plead guilty
87
Q

Procedures to admit and exclude evidence

Where the defendant admits that he did it to the solicitor, but wishes to plead not guilty, what is the solicitor limited to doing?

A

Testing the strength of the prosecution case only, and must not put forward a positive defence or any suggestion that the defendant did not do it

88
Q

Procedures to admit and exclude evidence

Where the defendant admits that he did not do it to the solicitor, but wishes to plead guilty, what is the solicitor not able to do and why?

A

They will not be able to put forward anything in mitigation which suggests the defendant did not commit the offence.

Because they must not mislead the court, and when a defendant pleads guilty, they are accepting guilt.

89
Q

Procedures to admit and exclude evidence

What does a solicitor have a duty to assist the court on and what do they not have a duty to assist the court on?

A

Duty to assist: Points of law
No duty to assist: Missing or misinterpreted facts, as long as they themselves do not mislead the court

90
Q

Procedures to admit and exclude evidence

What must a solicitor do if they are representing two defendants and a conflict arises?

A

Cease to act for at least one defendant, and they can only continue to represent one if the duty of confidentiality to the other one would not be compromised

91
Q

Sentencing principles

What must be true for the court to depart from sentencing guidelines if they exist for an offence?

A

Following them must be against the interests of justice

92
Q

Sentencing principles

What are three aggravating factors which must be taken into account on sentencing?

A
  1. Previous convictions, having regard to their nature and time passed
  2. Offence committed on bail
  3. Motivated by protected characteristic of victim
93
Q

Sentencing principles

What are nine aggravating factors which may be taken into account on sentencing?

A
  1. Premeditation
  2. Committed in a group
  3. Vulnerable victim
  4. Drunk or on drugs
  5. Abuse of position of trust
  6. Weapon
  7. Gratuitous violence
  8. Victim providing public service
  9. High value or sentimental nature of property
94
Q

Sentencing principles

What are seven mitigating factors which may be taken into account on sentencing?

A
  1. Impulse
  2. Provocation
  3. Disability/mental illness
  4. Very young/old
  5. Minor role played
  6. Motivated by fear
  7. Reparation to victim
95
Q

Sentencing principles

What is the totality principle the court will consider when sentencing?

A

Overall sentence must be not be disproportionate to the overall seriousness of the offence

96
Q

Sentencing principles

Under the totality principle, when will sentences for multiple offences generally be served (1) concurrently and (2) consecutively?

A
  1. Offences are connected and arise out of the same matter, and the defendant is found guilty of more than one
  2. Offences did not arise out of the same matter
97
Q

Sentencing principles

What reduction in sentence will the defendant receive if they plead guilty at the first available opportunity?

What reduction in sentence will the defendant receive if they plead guilty at any other time during trial?

A

One third off

A reduction, but less than one third

98
Q

Sentencing principles

What does the custody threshold test provide, which must be passed before a custodial sentence can be imposed?

What sentences can the (1) Magistrates Court and (2) Crown Court suspend, and how can can they be suspended for?

A

No offender should be sentenced to a custodial sentence unless the offence (or series of offences) is so serious that neither a fine nor a community order will suffice

Magistrates Court can suspend a six month sentence and Crown Court can suspend a two year sentence, both for a maximum of two years

99
Q

Sentencing principles

When is a Newton Hearing held?

A

When a defendant wants to plead guilty on a specified basis because they accept their culpability but do not agree with the full facts set out by the prosecution, a Newton hearing will be held if the prosecution disputes the defendant’s account

100
Q

Sentencing principles

What happens if a Newton hearing is settled in (1) the prosecution’s favour and (2) the defendant’s favour?

A

Prosecution’s favour: Defendant loses 1/3 credit for pleading guilty
Defence’s favour: Defendant retains 1/3 credit

101
Q

Appeals

Do the prosecution have a general right of appeal in Magistrates Court?

A

No

They can appeal to the Divisional Court of the High Court by way of case stated

102
Q

Appeals

Within what time of conviction in Magistrates Court must the defendant lodge a written notice of appeal with either the Magistrates or Crown Court?

If defendant pleaded guilty in Magistrates’ Court, only where can they appeal?

A

15 working days

Crown Court

103
Q

Appeals

Why does the defendant not have to set out the basis of appeal if convicted in either court?

A

Appeal is the defendant’s right and the court has no power to decline jurisdiction

104
Q

Appeals

Who hears an appeal from Magistrates’ Court, and what does the hearing consist of?

Can the Crown Court change the sentence imposed by the Magistrates’ Court?

A

Crown Court judge, supported by at least two and no more than four magistrates.

It is a complete rehearing, meaning new evidence can be called.

Yes, but they are limited to the sentencing powers of the Magistrates’ Court

105
Q

Appeals

Who may appeal from the Magistrates Court to the Divisional Court of the High Court by way of case stated?

On what grounds?

A

Prosecution and defence

Decision is wrong in law or exceeds the jurisdiction of the court

106
Q

Appeals

Within what time of decision in Magistrates Court must the application for a case stated appeal be made in writing?

In a case stated appeal, is there a rehearing of evidence?

A

21 days

No

107
Q

Appeals

If a defendant seeks leave to appeal a Crown Court conviction/sentence to the Court of Appeal, within what time of the conviction must the application be made?

A

28 days, where a single CoA judge will decide whether to grant the appeal

108
Q

Appeals

What is the single basis on which a defendant can appeal a Crown Court conviction?

A

It is unsafe

109
Q

Appeals

In what situations could a claim be made that a Crown Court conviction is unsafe?

A
  1. Evidence wrongly admitted or excluded
  2. Direction wrongly given or omitted
  3. Trial judge showed bias, exercised discretion wrongfully or made errors in summing up
  4. Problems with the jury
110
Q

Appeals

On what three bases can a defendant appeal a Crown Court sentence?

Where sentence is appealed from Crown Court to Court of Appeal, can the Crown Court sentence be exceeded?

A
  1. Wrong in law
  2. Wrong in principle
  3. Manifestly excessive

No

Sam - SQE2 - Legal Content (15 decks)

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