CLP Flashcards
Appeal from Mags to CC (time limit, contents, service)
Deadline: 15 business days of SENTENCE
Contents: Specify conviction and grounds of appal
Serve on: Mags and P (not CC)
Deadline for responding to application to introduce bad character evidence
not more than 10 business days after receiving the notice
Is a confession hearsay?
Yes, but confessionas are admissible under the exception to the hearsay rule
Bail Appeals
- 2nd attempt in Mags: no earlier than 1 week later
- Appeal to CC(notice of application to CC, Mags and P) ASAP
When is a case management form completed?
First hearing in all cases where D pleads not guilty
Purpose is to identify issue snad prepare for trial
Not required if pleads Guilty
operational period for a suspended sentence
6 months - 2 years
When does duty not to mislead the court begin?
At the police station (i.e. you cannot allow client to lie during police interview otherwise in breach)
Considerations at Allocation Procedure for either-way offence
P can make reps about previous convictions
Both parties can make reps about venue
Sentencing Guidelines
Appeal from CC
- Conviction or sentence
- Submit notice of appeal + grounds for appeal
Within 28 days of conviction or sentence
Adverse inferences after charge
s34 (fail to mention something later rely on) does not apply after charge. Therefore, if interviewed after being charged and refuses to answer questions, no adverse inferences can be drawn.
Statute references for adverse inferences
s34: failure to mention something later rely on in court
s36: failure to account for item in possession
s37: failure to account for presence
Excluding confessions
s78: May be excluded if admitting confession would have such an adverse effect on the fairness of proceedings the court ought not to admit it
s76 if D argues the confession is unreliable (things said or done / breach of PACE) or obtained through oppression (A3 or threat of violence) the court will only permit confession to be given in evidence if P can prove beyond reasonable doubt the confession was not obtained unreliably or through oppression.
Bail
Preumption in favour of bail.
No bail (remanded) ONLY if SUBSTANTIAL grounds for believing one of the relevant outcomes may occur
treatment of low value shoplifting
Treated as a summary only offence UNLESS D elects CC trial
Detention permissions
24 hours
1. 12 hour extension by SI (max 36)
2. 36 hour exension by Mags (max 72)
3. 24 hour extension by Mags (max 96)
Max 96 hours from time of arrival
When are special measures automatically granted?
Age
Who takes a loss of time direction?
Single judge when deciding if leave should be granted
Powers for dealing with a case where Y is 17 at first hearing but turns 18 before trial
- Trial and sentence can be in Youth or Mags
Sentencing Powers are not limited to those available for a 17 year old (can sentence as an adult)
Adverse Inferences - Blood on person?
comes under s36… failure to account for mark, object or substance on person or place at time of arrest
Arises automatically if D fails to account during interview provided given special warning (ordinary language caution)
Requirements for DTO
Ordered if:
1. So serious
2. Pre-sentence report addresses custody as sentencing option
3. Y is 12 or older (if between 12-14 Y must be a persistent offender (i.e. 3 imprisonable offences in prior 12 months)
Note: term between 4-24 months and cannot be suspended.
Assessing seriousness of offence
D’s culpability
Harm: caused, intended, foreseeable
Right to delay informing someone of arrest
ONLY for indictable offences (not summary: battery or assault or CD under 5k)
AA ability to request solicitor to attend
Even if D refuses LA, AA can still request sol attends. D can then refuse to consult.
If D refuses legal advice, what should inspector do?
Record reasons in custody record
contact soliciotr
provide authority in writing for interview to proceed
Requirement for adverse inference (overlooked)
D must be under arrest
police disclosure duty at investigative stage
- custoy record
- first description by eywitensses
- nature of offence and why D is suspected
what should be ignored when consider excluding confession evidence under s76
Drug withdrawal
Means test CC
Capital assets are not taken into account
can you still get legal aid if you plead guilty?
Yes. IoJ test includes:
- loss liberty
- lose livlihood
- serious damage to reputation
- substantial question of law
- may not be able to understand
- witnesses to be traced
- cross examination
- interests of another person
- any other reason
Automatically satisfied if trial at CC
Contents of IDPC
If D is in custody:
- summary of case
-D’s previous convictions
If D was released on bail
- Summary of case
- D’s previous convictions
- Transcript or summary of D’s interview
- Witness statements which are available
Appealing bail decision to CC
Apply to CC judge in writing
App is reheard before a judge within 48 hours
When will an allocation hearing take place
Only if D pleads NG, makes no indication or an equivocal plea
When will burglary of a dwelling be treated as indictable only
D has committed 3 or more domestic burglarys since Nov 1999
Special measure not available for victim of domestic violence against husband
Video played cross examination
available measures include:
- screens
-live link
- video of examination in chief
- clearing people from court
When are V’s automatically entitled to special measures?
- sexual offence
- murder if gun or knife was used
preventing s35 adverse inference
mental condition makes it undesirable for D to give evidence.
D must discharge evidential burden = submit suffiicnt evidence to pass the judge.
Judge must then be of the view mental conditions means it is undesirable to give evidence. if so, judge can direct jury does not draw an adverse inference.
process for establishing a witness is competenet
Presumption W is competent. If issue is raised:
- party calling witness must establish on balance of probabilites that witness can understnd questions and give answers which can be understood.
Judge determines
When is cross examination recorded in advance availale as a special measure?
Child witness
W has mental disorder, physical disability or sig impairment of intelligence and social function.
Only avialable in CC
When is multiple hearsay admissible?
- All parties agree
- the court is satisfied admission is in the interests of justice
What might constitute sufficient grounds to appeal sentence?
failure to allow credit for guilty plea if D was entitled to a reduction.
When will a conviction be unsafe
No other evidence to support conviction (i.e if woudl have still be found guilty despite misdirection, appeal is likely to be dismissed)
if there is a misdirection, CoA may still dismiss her appeal.
when can Mags sentence up to 12 months
2 or more either way offences (not summary only)
No case to answer
P bears an evidential burden
issues in PET
indicate D witnessses
identify real issues
attendance at summary trial
proceeds even if D is absent, unless is it contrary to interests of justice
What happens if a jury cannot reach agreement
judge discharges jury and P determines whether there will be a re-trial.
When does defence have right to mkae an opening speech
D intends to call witnesses in addition to D
