CLP (+ Criminal) Flashcards

Question

Plea before venue and allocation for either-way offences

Answer 1

no indication = not guilty guilty => convicted so needs sentence -- presumption: mags sufficient (6/12 m if consecutive) at first hearing or adjourned (= pre-sentence report by probation + BAIL) -- mags can send to crow (solicitor warned client) When appearing before the magistrates for an either way offence, a process known as plea before venue will be undertaken. This asks the defendant to indicate whether or not they will be pleading guilty or not guilty. The defendant is also entitled to not give an indication; in which case the court will proceed as if they had indicated not guilty. If the defendant indicates that they will plead guilty, then the court will proceed as if the defendant is now convicted and needs to be sentenced. There is a presumption that the magistrates will be able to sentence the offender unless their powers are insufficient. When dealing with an either way offence, their powers here are six months, for one and up to 12 months for two or more either way offences where the sentences run consecutively. The defendant should have been warned about the possibility of being sent to the Crown Court for sentence as part of the plea before venue process. If the magistrates are happy to sentence, then this can take place either again at the first hearing or, alternatively, the matter could be adjourned to enable a pre-sentence report to be prepared by the probation service. If the matter is to be adjourned, then the court will have to consider the question of bail.

Answer 2

test: nature/seriousness + mags sentence powers representations: P + D including previous convictions (aggravating factor re sentencing) The test for allocation is located in Section 19 of the Magistrates’ Courts Act 1980, and it says that in determining which court should hear the trial the magistrates should take into account the nature and seriousness of the offence and also the magistrates’ sentencing powers. The magistrates will hear representations from both the prosecution and the defence. The prosecution will outline the facts of the case and the defendant's offending history, if any and will make submissions as to where the trial should be held consistent with the allocation guidelines. The defence can also make submissions as to venue. Where the defence agree with the prosecution It will be usually a very quick process. However, if the prosecution, for example, submits that the case should be heard in the Crown Court and the defence disagree, they will need to make fuller and more persuasive submissions on this point. The court will be told about previous convictions. This is because previous convictions are a statutory aggravating factor in sentencing and therefore will have an influence on whether or not the sentencing powers might be sufficient.

Answer 3

discretion of mags if D pleads guilty confined to: non/custodial If the magistrates consider that the case is suitable to be tried by the magistrates themselves (on a later date) then the defendant will be given the option to ask for an indication of sentence if they were to plead guilty instead. The court has the discretion as to whether or not to give such an indication and if they do, it must be confined to telling the defendant whether or not the sentence would be custodial or non-custodial. The process is to try and encourage guilty pleas where perhaps the only reason for going not guilty is concern by a defendant of the sentence that they might receive.

Answer 4

The other option available to the defendants at this stage would be to elect trial by jury. The decision to elect is one taken by the defendant with advice from the solicitor, if necessary. There are a number of advantages and disadvantages of a trial by jury, for example, time cost as well as sentencing powers. But the separation of the role of the judge and jury can, in some cases be very advantageous.

Answer 5

then the magistrates at this first hearing will undertake case management setting out directions for trial and setting down a date wherever possible.

Answer 6

then the next hearing will be in the Crown Court at a Plea and Trial Preparation Hearing. Therefore, at this stage, the magistrate, along with the clerks, will fill out documentation which will then effectively transfer the case to the Crown Court and their involvement in it will cease.

Answer 7

If the matter is indictable only then the magistrates have no jurisdiction other than dealing with administrative matters such as legal aid and making decisions regarding bail, if necessary, the matter will simply be sent to the Crown Court and they will have no further dealings.

Answer 8

mags: all adults but classifications => proceedings pleas: summary only/either at first hearings plea before venue: either-way initial details served by P before/at first hearing no plea taken: indictable only · First hearings - All adult defendants have their first hearing before a magistrates' court irrespective of the offence that they are charged with. Exactly what happens at the first hearing depends on the classification of offence . · Pleas- At a first hearing for a summary only or an either-way offence the defendant will be asked to enter their plea to a charge. · Plea before venue and allocation - will take place to determine the location of a trial for an either way offence. · Initial details- The prosecution is obliged to serve 'initial details' as set out in Criminal Procedure Rules, which include a summary of the circumstances of the offence and the defendant's criminal record and sometimes other documents. The information supplied must be sufficient at the first hearing to allow the court to take an informed view. · Indictable only offences- no plea will be taken.

Answer 9

default = unconditional bail unless murder (unless no sig risk) interfere with right to bail if a statutory exception met Being released on bail to a later date should be on unconditional bail, as this is the default position for unconvicted defendants, except for those falling into special categories such as murder. In that situation, the defendant may not be granted bail unless there is no significant risk. This statutory right to unconditional bail is enshrined in Section 4 of the Bail Act. A criminal court can only interfere with somebody's right to bail if one or more of the statutory exceptions are met.

Answer 10

no need to grant bail if D charged with indictable/either way while already on bail D would x3 (N/A if unlikely custodial eg steal sweets) 1 -- fail to surrender 2 -- commit further offence 3 -- interfere with witness/obstruct justice The three most commonly used exceptions are located in part one, schedule 1, paragraph 2 of the Bail Act. Here, the court must be satisfied that there are substantial grounds to believe that if released on bail, the defendant would 1) fail to surrender, 2) commit further offences or 3) interfere with witnesses or otherwise obstruct the course of justice. It is also worth noting paragraph 2A. Here, bail need not be granted if the defendant is appearing before the court charged with an indictable offence alleged to have been committed whilst already on bail. Remember that an indictable offence is indictable only and either way. There is, however, a stipulation that bail should not be removed under one of these grounds if the defendant is charged with an offence where there are no real prospects of the defendant receiving a custodial sentence. For example, theft is an indictable offence and is imprisonable and so, strictly speaking, even stealing a chocolate bar could lead to a prison sentence. However, if on the facts of the case, there is no real prospect of a custodial sentence being imposed, then the grounds for objection to bail under paragraph 2 or 2A cannot succeed.

Answer 11

The factors are not grounds themselves, but help the courts determine if the grounds are made out and for the evidence base. mandatory to consider: - ground failure to surrender: all nature/seriousness (likely disposal): all grounds character of D + antecedents, associations/communitiy ties: + commit further offence D's past bail record: strength of evidence: witness interference + commit further offences

Answer 12

relevant, proportionate and enforceable. For example, thinking about our failing to surrender, this could include a condition of residence or condition of reporting to a police station, a surety, a security or maybe surrendering their passport if there are friends or family abroad. Other conditions might relate to the commission of further offences, such as having a curfew, staying away from certain areas or certain people, or staying out of certain premises which might sell alcohol, for example.

Answer 13

at mags first hearing unless murder P + D make cases if refused then reapply in front of court after 8 days judge in chambers bail application heard by judge in crown court (hearing n1 or 2 if full argument) Apart from murder, magistrates have the jurisdiction to make decisions about bail at the first hearing of all offences. An argument will be put before the court by the prosecution if they are seeking a remand in custody and then the defence will set out the points they wish to raise to counter argue the prosecution's case. This is known as a full argument, and on reaching their decision, the magistrates will complete a relevant document setting out why bail has been granted, what conditions have been imposed, if so, or why they have remanded somebody into custody. It will also set out clearly the exceptions, grounds and factors upon which the magistrates have based their decision. If the decision is taken to refuse bail and remand the defendant in custody, then they must be brought back before the court no later than eight days subsequent, where they will be allowed to make another application. This might be towards a different bench or district judge and more information might now be available, which would allow for different decision to be reached. If a further remand into custody is made, then following a full argument and a certification of said full argument, a judge in chambers bail application can be issued. And this is heard by a judge sitting in his chambers in the Crown Court. This can be done after either the first or the second hearing provided, a full argument was made.

Answer 14

breach w/o reasonable cause = prison sentence + power of arrest does not create a new offence! The offence of failing to surrender does carry a prison sentence along with a power of arrest, the offence of failing to surrender does have a caveat in so far as it is without reasonable cause. And it is therefore a matter for the defence to establish reasonable cause on the balance of probabilities. Breaching a bail condition whilst having a power of arrest does not create an offence. For a defendant arrested and brought back before the court for breach of bail, the magistrates will probably have to be persuaded that it is appropriate to extend the bail, notwithstanding that the condition has now been breached. They will, of course, listen to arguments as to the extent of the breach and the reasons for it.

Answer 15

A lot of the case management and directions which are needed can be given by the magistrates during the first hearing if the trial is going to take place in that jurisdiction, because it is either a summary only or an either way matter where summary trial has been deemed appropriate. In the Crown Court much of the case management will take place at the Plea and Trial Preparation Hearing. This is for all indictable only matters and those either way cases which have been sent from the lower court. Part of the case management will involve the parties having to complete the appropriate forms. In the Crown Court this will be the Plea and Trial Preparation Form and in the magistrates’, it is called the Preparation for Effective Trial (PET) form.

Answer 16

The duty to disclose this material falls on the prosecution and they should do so once the duty has been triggered. This happens when a not guilty plea has been entered in the magistrates’ or the matter is sent for trial to the Crown Court. The test is that any material which undermines the prosecution case or could reasonably assist the defence case should be disclosed to the defence. It is an ongoing duty, and therefore, if material comes into the possession of the prosecution after the initial disclosure has occurred or following the service of the defence statement, then the material should be reviewed and disclosed if appropriate. Material can be distinguished between that which is sensitive and non-sensitive, and there is usually not an issue in disclosing the non-sensitive material to the defence. Sensitive material, however, might involve information relating to intelligence or undercover officers. In some circumstances, the prosecution will make an application if it does not wish to disclose this material, believing that to do so would give rise to a real risk or serious prejudice to an important public interest. This is why it is known as an application for public interest immunity.

Answer 17

There are time limits which need to be complied with by the defence in relation to the service of the defence statement. Because the defence statement is a mandatory requirement in the Crown Court, it must be served within 28 days of the prosecution complying with their duty of disclosure; a failure to do this within the requisite time period can lead to adverse inferences being drawn. A defence statement is not obligatory in the magistrates’ court, although for reasons such as seeking specific disclosure, it might be appropriate for one to be prepared. If one is served in the magistrates’ court, then the time limit is shorter and it must be done within 14 days, or, as the magistrates’ court standard directions state, within 10 business days of the prosecution disclosure.

Answer 18

Whenever a defence statement is served it must be in writing and signed by the defendant or their solicitor. It must set out: · the nature of the defence of the accused; · the matters upon which the accused takes issue with the prosecution; · why the accused takes issue with the prosecution; and · any particulars of the matters upon which they intend to rely in their defence. They should also set out any points of law, including those as to admissibility or abuse of process, and also set out an alibi or any alibi witnesses. Bare denials are not sufficient to comply with these obligations. In addition, in both the Crown Court and the magistrates’ court the defendant must set out to the court and the prosecutor a notice indicating whether or not the defendant intends to call any witnesses at trial above and beyond the defendant and identifying who those witnesses are. Alibi witnesses, of course, having already been included in the defence statement do not need to be repeated in this Notice of Intention to Call Defence Witnesses.

Answer 19

As well as the prosecution being able to apply under public interest immunity, under Section 8 of the CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under the prosecution's duty, but which has not been disclosed. This is commonly known as a Section 8 application or an application for specific disclosure. As the title suggests, the application must be for a specific item and not a ‘fishing expedition.’ Sometimes it may become apparent during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education authorities or even financial institutions. No duty of disclosure under the CPIA rests with such third parties but if the material might be considered capable of undermining the prosecution case or assisting the case for the accused, then the prosecution should take appropriate steps to obtain it.

Answer 20

Given the importance of disclosure in criminal cases, where it becomes apparent that the prosecution has failed in its duty to disclose relevant material, the consequences can be quite serious. For example, it might be that the defence can issue an application to stay the indictment on the grounds of abuse of process or evidence might be excluded under the court's discretionary powers under Section 78 PACE or ultimately, it could result in a conviction being quashed on appeal due to the conviction being deemed unsafe.

Answer 21

A trial is the hearing at which a court determines somebody's guilt. In the magistrates’ court, this might be done by bench magistrates or by a single district judge. In the Crown Court a judge will preside over the trial, but the decision as to guilt will be taken by a jury of 12 people. A jury verdict should be unanimous, although there are situations in which a majority verdict can be returned. Generally, however, trials follow the same basic process wherever they are held, because the burden of proof rests with the prosecution.

Answer 22

It is always the prosecution that will start the trial process. After the jury has been sworn in the Crown Court, the prosecutor will open the case. In doing so, they will set out the context and explain what it is that the prosecution must prove. They might highlight the evidence upon which they intend to do this and which witnesses they will be calling. The prosecution case will involve the calling of those witnesses who were identified during the case management pre-trial process. The witness enters the courtroom and goes into the witness box where they are sworn. The prosecutor will then take the witness through their evidence called evidence in chief. Using their witness statement, the advocate will guide the witness through the key testimony in the hope that they will establish the relevant facts in issue. Other parties, namely the defence, will have the opportunity to cross-examine. The defence will have seen the written witness statement and any major inconsistencies can be drawn to the witnesses attention by the defence during the cross-examination.

Answer 23

There are some rules about who can give evidence at a trial and the type of evidence that they are allowed to give. A witness cannot normally give opinion evidence unless they are an expert. So, an ordinary witness may not, for example, be able to say that the car was being driven dangerously. Whether or not the manner of driving was dangerous is a matter of opinion and may well be the issue that the jury themselves have to determine. Instead, the witness will be invited to describe to the court the manner of driving which they observed, such as the speed or any erratic manoeuvres.

Answer 24

There are also rules about who can give evidence, the general rule is that any person, irrespective of their age, is able and competent to give evidence provided they can understand the questions put to them and give understandable answers. Obviously, when dealing with particularly young witnesses. The method in which they give evidence might be different; this is what we know as special measures. It might be that they do a pre-recorded testimony outside of the courtroom and they might also be cross-examined in a similar fashion. The surroundings might be less formal and they might have somebody there to support them. This is not the same thing as not being a competent witness. The only exception to competency is that of a defendant, who can never make a competent witness for the prosecution. If you stop and think about this for a moment, it makes sense. How can a defendant be a witness against themselves?

Answer 25

The main rules that cause difficulty are to do with the compellability of a witness. Compellability refers to being able to make a witness attend court by allowing a summons to be issued to secure their attendance. Again, the general rule is that if a witness is competent, then they are also comparable for that party that seeks to call them. There are, of course, a number of exceptions. The defendant is one of these exceptions, they cannot be compelled to give evidence at their own trial; only a defendant can choose whether or not to give evidence. However, if they choose not to, they must be aware that a court is entitled to draw an inference, if it so chooses, from their failure to testify. The other difficult group of witnesses are those of the spouses of the defendant. There are, however, some exceptions to this rule. First and foremost, a spouse can be compelled to give evidence against their wife or husband or civil partner on behalf of the prosecution if the alleged offence is against themselves. Likewise, they can be compelled for the prosecution if the offence is a sexual allegation or it is an offence committed on a child under the age of 16. These are known as specified offences. -- So, if you are dealing with a specified offence, then the spouse of the defendant can be compelled to come to court. It's the same rules, for example, if a co-accused would like the spouse of their co-accused to give evidence. Let us imagine that we have two defendants, Alan and Bruce. Bruce is married to Caroline. Unless the offence is specified, Caroline could not be called by the prosecution to give evidence. Maybe Alan wants to call Caroline because he believes that she would be able to exonerate him? Alan could not compel Caroline to give evidence unless the offence is specified. Bruce, however, could compel Caroline to give evidence on his behalf whatever type of offence is alleged against him. This is because the spouse of the defendant is not only competent, but compellable on their behalf.

Answer 26

At the end of the prosecution case, the defence will be able, if they so choose, to make an application of a no case to answer. This is when the defence are of the opinion that the witnesses evidence has not been good enough to establish a case to answer. In the Crown Court an application will be made in the absence of the jury. This is sometimes known as Galbraith's submission, because the test that needs to be met originally came from the case of Galbraith. The test in the criminal procedure rules is ‘that the prosecution evidence is insufficient for any reasonable court properly to convict’. If the application is successful, then that will be the end of the case and if in the current court the jury will be directed to acquit. If an application of no case to answer fails or is not made, then the trial will move to the defence case.

Answer 27

Usually, the first witness called will be the defendant themselves, although, as we've just heard, the defendant does not have to give evidence. The second half of the trial will take place in the same way insofar as witnesses will be called by the defence, they will give their evidence in chief and they can be cross-examined. It is unusual for defence witness statements to be served upon the prosecution in advance. The prosecution will, however, of course, up the defence statement in the Crown Court and possibly have it in the magistrates’ court. If there are any inconsistencies between this document and the defendant's evidence or case, then they can be cross-examined about it. At the conclusion of the defendant’s case, then both the prosecution and the defence will make closing speeches outlining the strengths of their case and the weaknesses of their opponents based upon the evidence that has been heard before the court. This might, of course, include highlighting any inconsistencies between the witnesses or where the witnesses have been particularly sure or unsure of a particular issue. In the magistrates’ court, the magistrates or district judge will retire. Whereas in the Crown Court, the judge at this stage will have to sum up the case of the jury and give any directions that are needed. Obviously, these directions will depend upon the nature of the case, but might include directions by inferences about particular types of evidence and, of course, about the burdens of proof.

Answer 28

Sometimes it's possible to find the defendant not guilty of the offence charged but of an alternative offence. In the Crown Court this might even be an alternative count on the indictment. So it might be that they are found not guilty of one count, but guilty of the other. Once the guilty verdict has been returned, then the defendant will have to be sentenced and it may be that the matter is adjourned to allow for sentence; although in the magistrates, it might be possible for them to sentence on the same day. In the Crown Court, the jury has no further role to play. Sentence is entirely a matter for the judge.

Answer 29

admissible + complies with rules of admissibility First, evidence needs to be admissible. If the evidence is not before the court, then the court will not be able to consider it. The general rule is that evidence which is relevant and probative to a fact, an issue should be admissible. If the piece of purported evidence is not relevant to a fact at issue, then it will not be admissible. Assuming that the evidence is relevant to a fact issue, the next stage is to ensure that it complies with the rule of admissibility. Most pieces of evidence will be admissible, however, there are types of evidence which can be complicated. Evidence of a person's character, expert's evidence, confession evidence and hearsay evidence are just some of the examples.

Answer 30

hearsay bad character

Answer 31

Does the evidence fall within the definition of hearsay evidence? If the answer to this question is 'yes', then it is prima facie inadmissible. Does it fall within one of the exceptions to the general exclusionary rule? A statement is hearsay if: it is made out of court; and the person that made it intended another person to believe it; and it is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003).

Answer 32

Hearsay is admissible if all the parties agree or one of the exceptions apply: the witness is unavailable (s.116); it is a business document (s.117) it falls under a common law exception (s.118); it is a previous inconsistent or consistent statement of a witness (ss.119 and s.120). If any of the exceptions apply, the court has discretion to exclude otherwise admissible hearsay if: a business document etc and the court is satisfied that the statement’s reliability is doubtful (s.117(6) and(7)); by stopping the case, where the case depends wholly or partly on unconvincing hearsay evidence (s.125); it is superfluous (s.126); it is unfair prosecution evidence (s.78 PACE). If the parties don’t agree and the exceptions do not apply, the court has discretion to admit hearsay if it is in the interests of justice to admit it under: s.114(1)(d) in respect of hearsay or s.121(1)(c) in respect of multiple hearsay.

Answer 33

The effect of s.114(1) & s.115 taken together was considered in R v Twist [2011] EWCA Crim 1143. The Court of Appeal reformulated the sections as a test that determines whether or not a communication is hearsay. It is in three parts: 1) Identify what relevant fact (matter) it is sought to prove. 2) Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication). 3) If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true. -- If yes, it is hearsay. -- If no, it is not.

Answer 34

Private diary — It follows from the definition of hearsay that anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. This is because there is no intention on the part of the maker of the statement that any other person should believe anything. CCTV — section 115(2) contains the words '... made by a person ...’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device such as a CCTV system without any human input. Questions — Where there is no statement of a matter, eg where the communication consists only of the asking of a question, the court in Twist thought that no issue of hearsay could arise. In Twist the communications in question were text messages received by the defendant asking for drugs. There was no statement that he was a drug dealer (which was the matter that the prosecution sought to prove), so the messages were not hearsay and were admissible. The court went on to say that even if on these facts there was an implied statement that the recipient of the messages was a drug dealer, it was certainly not the intention of the sender of the message to make the recipient believe that fact. Applying s.115(3) means that on that interpretation the messages are still not hearsay. To show the effect of words — In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay. Therefore where a defendant wants to reveal solicitor’s advice to show why a "no comment" interview was given, that evidence is not hearsay. Legally significant words — Where the words spoken have significance as a matter of law, they are not hearsay. Therefore an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of "brothel". Falsehoods — It follows from the definition of hearsay in s.114 that there can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true. Therefore the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.

Answer 35

In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if – 1. all parties to the proceedings agree to the evidence being admissible; 2. the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it; 3. it is important explanatory evidence; 4. it is relevant to an important matter in issue between the defendant and the prosecution; 5. it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; 6. it is evidence to correct a false impression given by the defendant; or 7. the defendant has made an attack on another person’s character.

Answer 36

First, the court must be satisfied, however, that it is dealing with evidence of bad character. So, the first step is to ensure that the evidence meets the definition. Bad character can cover misconduct or other reprehensible conduct that is not pertaining to the offence itself. Membership of a gang might be deemed to be misconduct or reprehensible behaviour and might thus fall under the definition of bad character. But whether that information is put before the court will depend on whether or not it is admissible under one of the seven gateways in the statute.

Answer 37

It is not simply the case that it completes the picture; it must be the situation that without it, it would be impossible or difficult to understand the context of the rest of the evidence.

Answer 38

propensity (+ untruthfulness) First, it will, of course, be necessary to identify the relevant issues, i.e., a matter of substantial importance within the context of the case. Evidence of propensity to commit offences of the type charged can be established by showing previous convictions that are of the same description or of the same category. According to the statute, two offences are of the same description if they are written in the same terms such as theft and theft or ABH and ABH. Offences of the same category are those that belong to the same category prescribed by the Secretary of State. At the moment, these are limited to theft offences and offences under the Sexual Offences Act. Importantly, Hanson stated that there is no minimum number of convictions necessary to demonstrate propensity, although the fewer the number of convictions, the harder it will be to establish propensity. A single previous conviction for an offence even of the same description or category is unlikely to show propensity unless it demonstrates a particular or unusual type of behaviour. This is similar to the old law of striking similarity. Meanwhile, propensity towards untruthfulness is usually used in cases where perhaps the defendant is relying on an explanation in their defence that they have used previously. Be careful and truthfulness is not necessarily the same as dishonesty. So, having a previous conviction for dishonesty offences such as theft or burglary does not necessarily mean that the defendant is untruthful. They might perhaps have always admitted that guilt in respect of their previous offending

Answer 39

usually used when dealing with cut-throat defences. A cut-throat defence is where two or more defendants are all blaming each other. In that situation, it might be that if the defendant A is blaming defendant B, defendant B would like to tell the jury about the previous convictions of defendant A to try and demonstrate that, in fact, it's far more likely that A committed the offence than B.

Answer 40

Another gateway is for bad character evidence to be admitted to correct a false impression. This is only available to the prosecution where a defendant has perhaps made an assertion during their evidence that they are perhaps somebody of previous good character.

Answer 41

Previous convictions or other bad character could be admitted under the final gateway whereby the defendant has attacked another person's character. For example, they might have accused the prosecution witness of lying or behaving in a manner that is reprehensible. This must be beyond the mere denial of the prosecution case, but it is effectively ensuring that the jury is made aware of the character of the person who made such accusations.

Answer 42

However, there are a number of safeguards. For example, the court must not admit evidence under gateways d or g (4-7) if it appears to the court that the admission of such evidence would have an adverse effect on the fairness of the proceedings. 4. it is relevant to an important matter in issue between the defendant and the prosecution; 5. it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; 6. it is evidence to correct a false impression given by the defendant; or 7. the defendant has made an attack on another person’s character. Once bad character has been admitted through one of the gateways, the weight to be attached to it is a matter for the jury subject to directions given to them by the judge.

Answer 43

A confession is defined in statute as a statement wholly or partly adverse to the person who made it and can be made orally or in writing; it can also be made to anybody. Often an admission will be made to the police during the interview conducted under caution and in those situations, one would normally anticipate that a guilty plea would follow. There are, however, situations when a confession is subsequently disputed by the defendant and there have been miscarriages of justice which were not subsequently shown to be true. Confessions are an exception to the rule against hearsay: They are of court statement which is being repeated to prove the truth of the statement, i.e., the admission of the defendant. Confessions therefore are admissible.

Answer 44

s76: once defence raises, prosecution to prove not obtained by oppression or in consequence of things/said done s78: defence to adverse effect on fairness of proceedings (not just limited to confessions) Section 76 operates as a matter of law. A confession must not be put before the court if it was obtained through oppression or in consequence of something said or done. Once raised by the defence, unless the prosecution is able to prove beyond reasonable doubt that the confession was not obtained by oppression, it must be excluded. Another way of having a confession excluded is through the discretionary power under section 78. Here, the defence could argue that to allow the confession into evidence would have an adverse effect on the fairness of the proceedings. It is important for the defence to be able to demonstrate that the unfairness arises from the circumstances in which the evidence was obtained. The circumstances in which the evidence was obtained may include breaches of PACE or the COP. Breaches of PACE can also be used to demonstrate the things said or done under Section 76.

Answer 45

A voir dire is a trial within a trial and will only be required if a factual matter relating to the substance of the legal argument requires resolution. If the facts are in dispute, perhaps a dispute as to whether or not things were said or about whether a conversation took place, then it is likely the evidence will need to be called from the police and the defendant themselves. And in that situation, a voir dire will be necessary.

Answer 46

Whenever a case rests wholly or substantially on the identification of the defendant, then the court must be mindful of the identification evidence. The case which provides guidelines is that of the case of R v Turnbull and many of the key elements are often remembered by using ADVOKATE. If the judge is of the view that the evidence is not reliable, for example, the length of time under observation or the visibility or any doubt displayed by the witness in their evidence, then the judge is entitled to consider whether that evidence should remain admissible. If there is other evidence that does suggest that the defendant could be the person responsible, (maybe there are fingerprints or other witnesses who have identified the defendant in the VIPER) then the judge is more likely to allow the case to proceed. If, however, at this stage, there is no other evidence, the judge will undoubtedly accede to an application by the defence and will have no option but to withdraw the case from the jury at that point. If the case does proceed, then the jury will be allowed to consider the strength of the ID evidence made by the witness in the usual manner. As part of the summing up to the jury, the judge will provide a Turnbull direction setting out the manner in which the identification was made by each and every identification witness where necessary and remind the jury that even an honest and convincing witness can still make a mistake.

Answer 47

Once evidence has been admitted and put before the court, it is a matter for the magistrate's district judge or jury to decide the weight which they think should be given to a particular piece of evidence.

Answer 48

Unless the court is satisfied beyond reasonable doubt of someone’s guilt the benefit must be given to the defendant. This is known as the legal burden. The legal burden the burden on the prosecution to prove the case beyond reasonable doubt. Whenever a party has to prove something, they have the legal burden. It is rare for the defence to have a legal burden, but when they do so, it is only on the balance of probabilities. Every now and then, the prosecution has the burden to disprove something, but this is still a legal burden. For example, where the prosecution must prove beyond reasonable doubt that the defendant was not acting in self defence.

Answer 49

This situation only arises however once the issue has been raised by the defence and this is known as the defence having the evidential burden. The reason that the defence has an evidential burden in some situations like self defence is so that the issues remain focused and it only becomes a matter for the prosecution to disprove it if it is actively raised by the defence. Evidential burdens are not the same as legal burdens Another example of an evidential burden is that the burden falls upon the prosecution to establish a case to answer. If at the end of the prosecution case, the evidence presented does not suggest a case to answer, then the case should be stopped at that point, usually in response to an application by the defence. Sometimes this can depend on how the witnesses have performed in the witness box, or sometimes it's due to a procedural error becoming apparent, such as a particular statement not having been obtained. Different types of evidence have some specific rules pertaining to them. For this reason, it is important to make sure that you understand the different types of procedures.

Answer 50

There are two key thresholds, namely the custodial threshold, which must be passed before a discretionary custodial sentence can be imposed and also the community threshold.

Answer 51

the sentence itself and then the operational period. So, for example, a custodial sentence of one year could be suspended for two years - The operational period is two years. When the court suspends the sentence, it may impose one or more requirements for the offender to undertake in the community. These requirements are identical to those available for community orders. So, for example, they could order that the defendant complete 200 hours of unpaid work. If during the period of the suspension, in our case two years, the defendant reoffends, then the court can activate the sentence of imprisonment in whole or in part. The court must activate the custodial sentence unless it would be unjust in all the circumstances to do so. If an offender fails without reasonable excuse to comply with the requirements of their order, they must first be warned that their failure is unacceptable. If they continue without reasonable excuse to comply, then breach proceedings must be instituted against the offender.

Answer 52

Courts are limited by maximum sentences that can be imposed. There are certain custodial sentences which can only be imposed by the Crown Court, such as life sentences or sentences for dangerous offenders. When we turn to discretionary sentences in the magistrates’ court, these are limited, irrespective of the offence, to six months imprisonment unless it is two or more either way offences. In the Crown Court, the maximum penalties are set by the specific offence’s statute. So, for example, theft carries seven years on indictment, but six months in the magistrates, whereas ABH would carry five years on indictment, but still six months in the Magistrates’ Court. It is also an option in some circumstances for the court to suspend a custodial sentence. There are two parts to a suspended sentence, the sentence itself and then the operational period.

Answer 53

At a sentencing hearing, both the prosecution and the defence will have an opportunity to address the court. The judge will then have to reach a decision about the appropriate sentence to pass and will provide full reasons to the court. The first thing that the judge will have to do is decide on the category of the offence. They will do this by considering the extent of the culpability of the offender and the harm caused by the offending. Having identified the category, this will provide the judge with a starting point and a range within which the sentence should fall. Aggravating factors will result in an uplift from the starting point, whereas mitigating factors will reduce it. Having considered both the aggravating and mitigating factors, this will allow the judge to reach a provisional decision as to the appropriate sentence, for example, the judge may consider that six months imprisonment would be appropriate. It is at this point that the judge will then consider whether or not any other reductions need to be made. Have they assisted the prosecution? Or do any reductions have to be applied for a guilty plea?

Answer 54

A guilty plea at the first stage of proceedings should result in a reduction of a third. The judge will then consider the totality of the sentence, as well as considering whether or not there should be any ancillary orders, such as compensation or any orders for costs.

Answer 55

On occasion, it may be necessary to have a Newton hearing. A Newton hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of facts from that of the prosecution, and the court has concluded that the factual differences would make a material difference to the sentence imposed. If the prosecution accepts and agrees with the defendant's account, this should be put in writing and given to the judge before the sentencing hearing. If the prosecution rejects the defence version of the areas of dispute, this should also be outlined in writing. The judge may approve the prosecution's acceptance of pleas, but they are not bound to. If a dispute continues to arise, then the judge may decide to hold a hearing without a jury present to resolve these issues. This is called a Newton hearing.

Answer 56

10 and 17 years of age.

Answer 57

need to have an appropriate adult if they are under 17.

Answer 58

The principal aim of the youth justice system is to prevent offending by children and young people. But the courts must also have regard to the welfare of the child or young person.

Answer 59

All cases concerning children and young people should be dealt with by the youth court. The youth court is a special court and is a court of summary jurisdiction, although it has different powers to that of the Magistrates’ Court. The Youth Court is not a public court and there are reporting restrictions on its cases. There are, however, some exceptions to this general rule. · If a child or young person is charged with homicide – murder or manslaughter -they must be dealt with by the Crown Court. · Likewise, if notice has been given in respect of a serious or complex fraud or in a child case, they must be dealt with by the Crown Court. · A child or young person who would fall under the dangerous offender provisions will be sent to the Crown Court. · Any young person over the age of 16 charged with a particular type of firearms offence will be sent to the Crown Court. There are two other important exceptions. Those are what we refer to as grave crimes and those situations where the child or young person is jointly charged with an adult.

Answer 60

Whenever a child or young person is charged with an offence that falls under the definition of a grave crime, then the court may send that person to the Crown Court either for trial or for sentence. There are two parts of the test. 1. The offence must fall within the definition of a grave crime. 2. The committing court must be of the view that a sentence of more than two years is going to be necessary to be imposed. A grave crime in relation to a child or young person is an offence which for an adult is punishable with 14 years imprisonment or more, or it's an offence of sexual assault or a child sex offence or a specified offence in relation to firearms. Whenever a child or young person appears before the youth court in respect of such an offence, the youth court will have to make a decision. It will be assisted by submissions from both the prosecution and the defence as it has to decide whether or not that is a real prospect that a sentence in excess of two years detention would need to be imposed. Although it has certain similarities, this is not the same as the process that an adult court would go through when dealing with an either way offence under the allocation guideline. The reason that the test is set at two years or more is because the maximum sentence that a youth court can impose is a two year detention and training order. Therefore, if the sentence is going to be more than that, only the Crown Court has the jurisdiction to impose it. In its overarching guideline, the Sentencing Council notes that sending a case under the grave crime provisions to the Crown Court should only take place where the offence is really serious and where the offence is of such gravity that a custodial sentence substantially exceeding two years is a realistic possibility. This should therefore be treated as a rare occurrence. It also highlights that in many cases it might not be possible to decide at that juncture whether there is a real prospect of a sentence in excess of two years detention. In those situations, the youth court is advised to retain jurisdiction and, if necessary, send the matter for sentence to the Crown Court at a later stage.

Answer 61

When a child or young person is jointly charged with an adult offender, their first appearance will be in the magistrate's court. This final exception will only be triggered if there is going to be a joint trial. So, if either party is to plead guilty, the exception will not be relevant. If however, the adult is to be sent to the Crown Court and the young person has also indicated a not guilty plea then the magistrates’ court is going to have to decide whether or not it would be in the interests of justice for them to be tried together. Some of the types of factors that the court will have to consider are set out. These include the age of the child or young person. Someone who is only 11 years old is going to have a very different experience of a Crown Court environment to somebody who is 17 or even nearing adulthood themselves. They will also think about the age gap. 17 and 18? or 17 and 48? and they think about the culpability of each of those involved; as well as the experience of the young person within the court system. But one of the key considerations is about the potential injustice that might be caused to witnesses or to the case as a whole in having to have separate trials. The emphasis at this point is always on the trial and how the trial will be conducted. If the magistrates reach the decision that it is not necessary to have a joint trial, then the child or young person will be remitted back to the youth court. Likewise, even if there is a joint trial in the Crown Court, it is always open to the Crown Court on conviction to remit the child or young person to the youth court for the sentencing process.

Answer 62

This might be relevant where, for example, on conviction, it becomes apparent that the child or young person should be given a referral order; the Crown Court does not have the power to impose such a sentence and therefore the individual would have to be sent back to the youth court. Many of the considerations in relation to sentencing that are relevant for adults apply equally to children and young people. The thresholds within the Sentencing Act apply. A detention and training order, which is a custodial sentence, can only be imposed when the relevant threshold has been passed. Likewise, a youth rehabilitation order should only be imposed when that threshold has also been passed. A referral order is a special type of sentence that can only be imposed on children and young people and in certain circumstances it is a mandatory sentence to impose. There are also additional penalties that can be imposed on parents such as parenting orders or parental bind overs. But, just as with adults, aggravating and mitigating factors are crucial and credit will be given wherever the child or young person has pleaded guilty. Some sentences are restricted by the age of the offender and others can only be imposed on children and young people of certain ages if they are deemed to be a persistent offender. It is recommended that you consider the Overarching Guideline Sentencing Children and Young People available on the Sentencing Council website.

Answer 63

It is possible to appeal a conviction and or sentence. It is not necessary for there to be grounds in the same way that there are in other appeal processes but it is necessary to set out the reason for the appeal in the documents served. It may be that it is argued that the sentence imposed is excessive given the circumstances of the case. The time limit in which to lodge an appeal from the magistrates’ court is 15 business days from sentence. An Appeal hearing in the Crown Court is called a hearing de novo, which means that everything is heard again. If it is an appeal against conviction, then the witnesses will be called and the trial will take place afresh. A Crown Court judge sits alongside two lay magistrates. Likewise, for a sentencing hearing, fresh submissions will be made. When sitting as an appeal court the Crown Court sentencing powers are restricted to those of the magistrates.

Answer 64

to the Court of Appeal. The usual procedure is to apply to the Court of Appeal for leave to appeal. A defendant has 28 days from conviction (in conviction appeals) and 28 days from sentence (in sentence appeals) in which to lodge an appeal. The advocate who represented the defendant will usually draft the grounds of appeal. Usually, it will be for the Single Judge to decide whether to grant leave to appeal. An application for leave to appeal can be renewed before the full Court of Appeal if the Single Judge refuses leave to appeal. It is necessary in this case to have grounds. These may take different forms. However, the overall test for the Court of Appeal is: · In relation to conviction, whether the conviction was unsafe · In relation to sentence, whether the defendant should have been sentenced differently.

Answer 65

There are a number of different schemes available through the legal aid agency criminal defence service which will allow for advice and assistance to be given but to be represented before the magistrates or the Crown Court it is necessary to be given a representation order. These are usually applied for at the first hearing where appropriate. In order to get a representation order there are two tests that must be satisfied that is the means and the merits test. The means test will always be satisfied if the defendant is on certain passport benefits otherwise it will be necessary to calculate their disposable income. In the magistrates’ court one is either eligible for legal aid under the means test or not where is in the Crown Court there is an option for a contribution order to be made towards defence costs. The merits test also known as the interests of justice or the Widgery criteria sets out a number of different factors that will be considered in deciding whether or not it is appropriate for the defendant's case to be funded from the public purse. This includes for example how likely it is that the defendant will receive a prison sentence as well as other factors impacting their life such as that reputation or livelihood. Cases which are more legally complex are also more likely to attract legal representation. The old duty solicitor schemes available in the magistrates’ court although these are limited to one appearance only and to imprisonable offences only unless the defendant is appearing in custody before the court. . Of course, everybody is entitled to free legal advice whilst in police detention although the legal aid scheme in some situations will limit this to telephone advice only.

Answer 66

First it may be that you are notified of your client's arrest by a third party. It may be for example that a family member contacts you to advise you that somebody has been arrested and asks that you go to the police station in order to represent them. This would be deemed third party instructions and it would be necessary to confirm the instructions directly from the suspect. They will need to have spoken with the custody sergeant on their arrival who would have had to contact the DSCC. It might be as another solicitor has already been instructed by the suspect. It is worth noting that the police cannot use you being asked to attend by somebody else as a reason to withhold legal advice from somebody in detention. In those situations the suspect should be notified that a solicitor is present and they should be asked whether or not they wish to speak to the solicitor in accordance with their rights. Of course criminal proceedings can be quite emotive and family members might be worried about somebody and their welfare while in custody. We owe our clients a duty of confidentiality and therefore should not discuss their case with any other person without the client's consent.

Answer 67

It is not unusual for there to be more than one person arrested or charged in relation to a particular crime. The starting presumption is that one solicitor is expected to act for all defendants and thus save public money close brackets unless there is a conflict of interest between those individuals. Principle 7 of the solicitor's Code of Conduct makes it clear that we are under a duty to act in the best interests of each client. Whenever we are put in a position where we are unable to do that we are in a conflict position. This might be for example where one suspect seeks to blame the other or where their stories are so different that it would adversely affect one client for that version to be explained to the police. It might also be that one client is clearly under the influence of another and that this would provide good mitigation come the sentencing hearing. All of these are examples of how there is an actual conflict of interest or a potential conflict of interest. Our Code of Conduct makes it quite clear that we cannot act for clients where there is or a risk of a conflict of interest. None of the exceptions that can apply in other areas of practice apply here. Conflicts of interest exist across the firm and cannot for example be dealt with by instructing different solicitors or different advocates to deal with the matter. Additionally, there may be an issue whereby we come into information from one client which is material to the other client. Again, we are under a duty to disclose to a client any information that is material to their case that we are personally aware of however if revealing this information would be contrary to the interests of the other client or that client does not consent to are revealing that information then we will not be able to meet this duty. In those circumstances we would have to stop acting for the clients. This is because we owe duties of confidentiality as well as duties of disclosure. We must be careful not to inadvertently breach our duty of confidentiality when, for example, telling a custody sergeant that it's necessary to contact another solicitor or telling the court that we are professionally embarrassed and will have to withdraw from acting.

Answer 68

We also owe a duty to the court. We must not knowingly or recklessly mislead the court including by omission. This could happen by telling the court something in a submission which we know to be untrue or we suspect to be untrue as well as calling a witness whose evidence we know or suspect to be untrue. Again, we can sometimes be put in a difficult position where we owe a duty to the court under duty of confidentiality to the client. In those situations where we are unable to tell the court something because our client will not allow it, but this will compromise our duty to the court then we would have to withdraw from acting. Our duty of confidentiality is paramount so we cannot explain to the court the reasons for withdrawing from the case. Courts do not like it when solicitors withdraw especially when clients are legally aided as it means another solicitor has to take over the case. However, it is important to uphold our principles and act with integrity and uphold the administration of justice. The decision whether or not to act is therefore always the decision of the solicitor. One issue that often arises is whether or not it is possible to continue to act for somebody when they have made admissions to you. You must not confuse pleading not guilty with misleading the court. Because the legal burden rests with the prosecution, it is for the prosecution to prove the case and any defendant is innocent until proven guilty. They are therefore perfectly within their rights to sit back and ask the crown to prove the case against them. It is for this reason the defendants will often not give evidence or will have remained silent during their police interview. However, it would be misleading the court to suggest in any way that your client is innocent of the crime alleged. In practice, this can be quite difficult and often what would really happen is that an application of no case to answer would be made and is successful, obviously, because the evidence has simply not come up to proof, then the defendant would be acquitted. If, however, the application of no case to answer is not successful, then some serious discussions would have to take place as to whether or not the defence would be able to present any case. It is important that we do not breach our duty to the court in any way during the presentation of our client's case.

Answer 69

punishing/reforming offenders, reducing crime, protecting public

Answer 70

Identify The defendant The defendant’s act or omission The offence Define the law — AR and MR of the offence Explain the law with the help of statute/case law Apply the law to the facts

Answer 71

Burden of proof on prosecution is beyond reasonable doubt: make sure of it Even for most defences eg self-D only requirement on defendant is to raise possibility — then up to prosecution to prove that self-D does not apply! Defence: rarely bears the burden Diminished responsibility in murder Standard: lower — balance of probabilities

Answer 72

Innocent until proven guilty + Entitled to fair trial + Burden on prosecution

Answer 73

Classifications are only relevant to adults With youths, the potential sentence determines where the trial is held Summary only: least serious (eg assault/criminal damage subject to value) only in mags and subject to max that mags has power to impose eg 5000 fine and/or 6 months imprisonment or 12 months for consecutive sentences on two or more offences triable either way Either way: either mags or crown (aka indictable offences: ABH, theft) initial decision by mags but defendant can elect If mags power sufficient can offer summary trial but D can choose trial by jury If mags power not sufficient then sends to crown court then D can no longer choose Indictable only: most serious only tried by a judge and jury in crown court (murder, manslaughter, GBH with intent, robbery)

Answer 74

AR + MR + absence of valid defence

Answer 75

Conduct offences e.g. appropriates (s1(1) Theft Act 1968) Circumstances e.g. belonging to another (s1(1) Theft Act 1968) Result offences eg murder: causing death of a human being Factual causation — White: but for test Legal causation, Pagett: operating and substantial (Hughes —more than minimal) cause NAI: D will not be liable if there is a break in the chain of causation Medical negligence (Smith/Cheshire): unlikely unless OG wound is merely part of history OR medical treatment is so independent of D’s act and so potent in causing death that D’s acts are insignificant Acts of 3rd party (Pagett): free, deliberate and informed Acts of the victim: not foreseeable to the reasonable person and not within the range of reasonable responses from the victim (bearing in mind any characteristics of victim visible to the reasonable person and victim might act in the agony of the moment) ‘Fright and flight’ cases (Roberts/Williams and Davies) Refusing medical treatment (Holland) — no break if D’s actions still operating on V Suicide (Wallace) — no Thin skull rule (Hayward) — belief or pre-existing condition does not break

Answer 76

General rule: D cannot be liable for failure to act (R v Smith (William)) However, a legal duty to act may arise from a Statutory duty (Road Traffic Act 1988, s6(4)) Special relationship: spouse (Hood), parents (Gibbons) and Proctor) Voluntary assumption of a duty of care (e.g. Stone and Dobinson) Contractual duty (Pittwood) Creating a dangerous situation (Miller) Public office (Dytham)

Answer 77

Intention: direct (Moloney) or oblique (Woolin) Judge: no guidance as to meaning, should be left to jury Direct: consequence is what D subjectively aims to happen Oblique: where consequence is not D’s purpose but side effect which D accepts as inevitable/certain accompaniment (does not have to be desired, regret possible) Juries cannot find oblique intent unless death or injury were a certainty and D appreciated this Certainty of death/injury: objective test D appreciate it: subjective test Transferred malice (Latimer) + Limitations: MR for intended harm can be transferred to actual harm that occurred as long as MR for the offences are the same! Recklessness (R v G) D does not intend to cause harmful result but sees risk of harm and goes ahead anyway Risk of harm must be unjustifiable Justifiable if eg social utility/value against likelihood /amount of harm Intoxication!

Answer 78

Guilty act and guilty mind at the same time But continuing act theory: as long as MR takes place at some point during AR (Fagan) But one transaction principle: at some point during a series of acts

Answer 79

Valid and complete defence: self-defence Partial: diminished R and loss of control only for murder and if successful = manslaughter (not acquittal!!)

Answer 80

Has D unlawfully killed another human being? No: D is not liable for murder Yes: did D do so with intuition to kill or cause GBH? Yes: can D rely on the partial defence of loss of control of diminished R No: D is liable for murder Yes: D is liable for voluntary manslaughter No: does D fulfil the elements of unlawful act manslaughter or gross negligent manslaughter? Yes: D liable for involuntary manslaughter No: is not liable for involuntary manslaughter

Answer 81

AR — All share common AR: unlawfully killed human being under the king’s peace MR Murder + VM: MR intention to kill or cause intention to cause GBH IM: MR no intention to kill or cause GBH Defence Murder: absence of a valid defence: self-defence Partial/special defence: loss of control or diminished R Absence of a valid defence: self-defence

Answer 82

VM — Two partial and special defences to murder Diminished R: x4 — defence — balance of probabilities (yes to all!) Does D have abnormality of mental function (AMF) Does AMF arise from medical condition Does AMF impair D’s ability to understand/control conduct? Does AMF provide an explanation for D’s conduct? Loss of control: once D raises it then prosecution must disprove at least 1/3 elements beyond reasonable doubt! Did D lose self control? Due to the (serious) fear and/or anger qualifying trigger normal person test: might a normal person have acted in the same or similar way to the defendant?

Answer 83

IM — Two types: unlawful act and gross negligence Unlawful act manslaughter: liable if yes to all 4 Did D do an intention act? Was the act unlawful? Was the unlawful act dangerous? Did the unlawful act cause the death of V? Gross negligence manslaughter: liable if yes to all 5 Did D have a duty of care? Did D breach that duty of care? Did the breach cause death? Was there a risk of death? Was the breach of duty so bad so as to amount to gross negligence?

Answer 84

fear of SERIOUS violence (cannot be an excuse) overlaps with self-D but use instead of self-D if force is unreasonable anger * Things said and/or done (not sexual infidelity!); * That constitute circumstances of an extremely grave nature; and * That caused D to have a justifiable sense of being seriously wronged (objective!)

Answer 85

There are two steps. The jury will have to assess: (a) The gravity of the qualifying trigger to a person in the defendant’s circumstances; then (b) Whether as a result of that trigger a normal person might have done what the defendant did or something similar. The normal person will have ordinary powers of tolerance and self-restraint. The jury will not be allowed to take into account any characteristics or circumstances that would affect normal tolerance and the ability to exercise restraint. Characteristics or circumstances likely to be excluded in assessing the normal person’s capacity for tolerance and self-restraint: * Bad temper * Intoxication * Extreme sensitivity * Post-traumatic stress disorder (R v Rejmankski) * Personality disorder (R v Rejmankski)

Answer 86

AR: causing V to apprehend immediate and unlawful personal violence victim does not need to be afraid! Cannot be in future Has to be physical Consent or honest belief means lawful MR (I/R) Intention or recklessness as to causing C to apprehend immediate and unlawful personal violence eg threats of violence but there is no actual touching Words or physical movements from D (eg raising fist) Silence in some cases

Answer 87

AR: applying unlawful force to another no need for injury If consent or D genuinely believed consent then not unlawful MR: I/R Intention or reckless as to applying unlawful force to another eg mere touch or slap An unwanted kiss Scratches, minor bruising or superficial cuts

Answer 88

AR Assault = assault or battery Occasioning (causation) ABH: physical or psychiatric (needs to be more than fear, distress or panic) MR: A/B MR of assault or battery (no need for MR for ABH) eg temporary loss of sensory function (sight/hearing…) Temporary loss of consciousness Extensive bruising Cutting hair Minor fractures Psychiatric injury more than trivial

Answer 89

AR Wound or infliction of GBH = serious harm (can psychiatric; totality of injuries eg baby with cuts/bruises) MR: I/R D must intend or be reckless as to the cause of SOME harm eg GBH -permanent loss of sensory function -permanent disability -broken bones -substantial blood loss Wound: breaking both alters of skin (dermis an epidermis)

Answer 90

AR same as s20 MR: intend GBH (if wound or GBH, incorrect to say D intends to wound) eg same as s20

Answer 91

consent not a defence where D intends to cause ABH or more unless a public exception applies Medical treatment Sports Horseplay Tattoo Personal adornment Sexual gratification Accidental infliction of harm

Answer 92

AR x4 (D/D; property; another; excuse) + MR (I/R) Destroy or damage (by fire) question of fact/degree can be temporary/permanent physical harm can be temporary/permanent impairment to value/usefulness Property: anything of a tangible nature whether real or personal including money Issue regarding wild creatures and plants Belonging to another Without lawful excuse — aside from general defences x2: Where D believes that owner would have consented to the damage (subjective) Where D acts to protect their or another’s property (subjective and objective) MR: intention or reckless as to the destruction or damage of property belonging to another (by fire)

Answer 93

ARx2 Destroy or damage (by fire) Property: can belong to D or another MR x2 (I/R: DD + endangerment by D/D not the means!) Intention or recklessness as to destruction or damage of property (by fire) AND Intention or recklessness as to the endangerment of life by the damage or destruction (by fire) - No life need actually be endangered - Endangerment of life must arise from damaged property and not the means of damaging it - Lawful excuses do not apply to aggravated damage/arson

Answer 94

AR x3: appropriate property belonging to another MR x2: disonesty (if no 1/3 exceptions then test x2qs: sub + obj) + IPD AR Appropriation: assume any one right of the owner (sell, lend, damage) Can appropriate with consent Can appropriate valid gift Can have a later appropriate: if honestly at first and then dishonestly Property: money, real property, things in action, intangible all property can be stolen but exceptions in relation to land, things growing wild, wild creatures Belonging to another Can steal from someone other than legal owner Someone having possession or control of property Someone having proprietary right or interest Property is not easily abandoned in law If lost or discarded by original owner, it can still belong to another re theft If D has obligation to deal with property in a particular way Or if D receives property by another’s mistake MR Dishonesty Not dishonest exceptions x3 If D appropriates in the belief that D has a right in law to deprive the other of it D would have the other’s consent if the other knew Person to who property belongs cannot be discovered taking reasonable steps Can still be dishonest even if willing to pay for it If any of 3 exceptions don’t apply then casino test x2 questions (subj + obj) What was D’s knowledge and belief as to the facts Given knowledge/belief was D dishonest by standards of ordinary decent people Intention to permanently deprive Ordinary meaning but permanent deprivation is not required Treating it in a manner that risks its loss Rendering property useless

Answer 95

AR x4: theft + force x1/3 (use or threat: puts or seeks) + any person + before/now MR x3: theft (dishonest + IPD) + use force to steal (rather than stealing as an afterthought to the force) AR AR of theft: appropriation of property belonging to another Force x1/3 Use of force -Does not require violence -Can be applied through property Putting any person in fear of being then and there subjected to force (apprehend rather than fear) Seeking to put any person in fear of being then and there subjected to force On any person Use or threat of force immediately before or at the time of stealing Assisted by the principle that appropriation is a continuing act and the jury decides when it has come to an end MR MR of theft: if there is not theft, there is no robbery! Intention to use force in order to steal: rather than stealing as an afterthought to the force

Answer 96

AR x3: enter + building + trespasser MR x2: K/R + intend 1/3 (theft, GBH, damage) AR x3 D enters Entry is a question of fact for the jury Any part of a person’s body is sufficient A building or part of a building Includes inhabited vehicles or vessels whether the person is living there or not Structure of a considerable size and intended to be permanent or at least endure for considerable time Parts includes areas like behind the till of a shop As a trespasser Without consent or in excess of consent D has been given MR x2 Knowing or being reckless as to entry as a trespasser D does not need to know in law that they are a trespasser Just know or be reckless as to the facts that make them one Upon entry D must x1/3 Intend to steal from the building or part of the building; and/or Intend to inflict GBH on any person in the building or part of the building; and or Intend unlawfully to damage the building or anything in the building or part

Answer 97

AR x3: entered; building; trespasser MR x2: K/R + stole or attempted; GBH or attempted no crim damage! AR D having entered (point in time is different) A building or part of a building As a trespasser MR Knowing or being reckless as to entry as a trespasser D did one of the following x1/4 (no criminal damage!!) - Stole something from the building or part of the building - Attempted to steal something from the building - Inflicted GBH on any person - Attempted to inflict GBH on any person

Answer 98

burglary (a/b) AR/MR + 1/4 article + when enter (a) or committing/attempting (b) s9(1)(a) + article + D has the article with them when entering the building S9(1)(b) + article + D must have the article with them when committing the (attempted) theft or (attempted) GBH Article x4: (imitation) firearm; explosive; weapon of offence (WO) WO: any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use’ MR: as long as D knew that they had the article with them at one point then MR continues (even if they forgot)

Answer 99

Only one offence of fraud can be committed in 3 ways all have min MR x2: dishonesty + intention to make gain/loss but false rep has +1: intention for false statement False representation (AR x1 false S ; MR x3) Failure to disclose (AR x2 legal duty to disclose + failure; MR x2) Abuse of position (AR x2 occupy $ + abuse position; MR x2)

Answer 100

AR x1: false representation Fact, law or state of mind Can be expressed or implied Must be untrue or misleading Can arise in certain circumstances of overcharging MR x3: dishonesty + G/L + false statement Dishonesty: casino test The 3 exceptions under Theft Act for dishonesty do not apply Intention to make a gain or cause a loss Actual gain or loss is not required A gain can be for themselves or someone else Loss can be risk of loss Money, real or personal property: things in action or other intangible property Loss can be temporary or permanent MR for false statement D must know or might be untrue/misleading

Answer 101

(ie lying by omission) ARx2 The existence of a legal duty to disclose: statute; contract; fiduciary relationship Failure to disclose information to another person: matter of fact MR x2 Dishonesty Intention to make a gain or cause a loss

Answer 102

AR Occupy a position D looks after V financial well-being Determined on case by case basis Professional, fiduciary, long-term business R or within family or voluntary work Abuse that position Use it incorrectly or Put it to improper use MR Dishonesty Intention to make a gain or cause a loss

Answer 103

x3 intoxication self defence consent

Answer 104

available to almost any crime negate MR or influencing factor (in)involuntary? (non) dangerous drug? specific or basic intent crime? if D is unable to from MR due to intoxication? (not a defence to say that D only formed MR because they were intoxicated; the question is did they form the MR) - involuntary available - voluntary + non dangerous - voluntary + dangerous + specific intent would D have formed MR if sober? usually yes... - voluntary + dangerous + basic (I/R) intent

Answer 105

x6 murder s18 theft robbery burglary (except b when causing GBH) attempts

Answer 106

x9 unlawful act manslaughter gross negligence manslaughter non fatal (except s18): s20; s47; battery; assault basic/ aggravated criminal damage burglary b by causing GBH

Answer 107

statutory + common law (sup) trigger (subjective) + response (objective) trigger x6 D honestly believed in circumstances known to them (subjective mistake) - if mistaken belief due to voluntary intoxication then cannot rely - not required to retreat - can anticipate - even if by antagonist - against innocent 3rd party to prevent another committing offence response: householder vs non-householder - house: LEVEL grossly disproportionate? yes = no defence; no = USE reasonable? - non: degree objectively reasonable in circumstances as D believed (genuine)? house if x3 - (part) of building (includes part dwelling/business) - D not a tresspasser - V is (believed by D to be) a trespasser

Answer 108

statutory defence for theft or criminal damage where x2 - V consented OR - D believes V consented general rule: only A/B and ABH + if x2 - did not intend A/B - did not see risk of ABH+ exceptions x5 - medical treatment - sport - horseplay - tattoo/piercing - sexual gratification

Answer 109

AR: an act that is more than merely preparatory where D has embarked on the act proper MR: to commit the full offence (eg intention to kill but intention to cause GBH would not be enough)

Answer 110

AR: any of the following x5 To aid/abet/ counsel P in committing offence To procure P to (=causal) commit offence To be a party to a joint enterprise with P regarding one offence and during the enterprise P commit a second offence (consensus for abet/counsel) (abet is at the time but counsel is before) MR Intention to assist or encourage the principal’s conduct If crime require MR, an intention that the principle will do the AR with that MR (procuring as exception) Knowledge of existing facts or circumstances necessary for the offence to be criminal

Answer 111

AR: to give help, support or assistance to principal offender in carrying out principal offence NO CAUSAL link required NO CONSENSUS required with the principal offender

Answer 112

AR: to incite, instigate or encourage It means encouraging at THE TIME the offence is being committed NO CAUSAL link required The principal must know they are being abetted = CONSENSUS Mere presence may not be enough Failing to prevent an offence may = abetting (eg case where husband watched his wife drown their kids)

Answer 113

AR: giving advice or encouragement BEFORE the commission of the offence NO CAUSAL link required between the counselling and the offence CONSENSUS — contact between parties and CONNECTION between counselling and offence

Answer 114

AR: To produce by endeavour or endeavour to cause No need for consensus There must be a causal link between D’s act and the commission of the offence Secondary party action caused principal to commit offence

Answer 115

A secondary party may change their mind and want to withdraw their help or encouragement General rule: not enough to just have a change of mind The relevant time of MR is at the time of the act of assistance, not at the time the principal commits the crime Withdrawal must take place BEFORE the act of ASSISTANCE If D (secondary party) has supplied the principal with the means of committing the crime and has given assistance — less likely to be able to demonstrate withdrawal

Answer 116

Rule: if it cannot be proved which two people commit the crime, both must be acquitted If it can be proved that the one who did not commit the crime as the principal was a secondary party, then both can be convicted (???) Conviction of a secondary party and acquittal of the principal is possible eg where principal successful runs a defence or insufficient evidence As long as it is clear that someone has committed the offence to which D was a secondary party, D can be convicted

Answer 117

It is not an offence to attempt to aid, abet, counsel or procure an offence A person cannot be found guilty of attempting to aid, abet, counsel, procure an offender It is an offence to aid, abet, counsel or procure a principal offender who attempts to commit an offence (R v Hui Ching) Can be found guilty of aiding an offender who attempted to commit an offence

Answer 118

Where two or more people are committing a crime together D1 and D2 have a common intention to commit crime A. D1, as an incident of committing crime A, commits crime B Crime B must be committed in the course or be incidental to crime A No need to show that D2 aided or encouraged the offence --it is enough that D2 was a party to the joint enterprise and had the relevant MR for an accessory A party cannot be liable for any offences committed before they join the enterprise MR An intention to assist or encourage the principal’s conduct If the crime requires MR, an intention that the principal will do AR with that MR (procuring appears as an exception) Knowledge of existing facts of circumstances necessary for the offence to be criminal