CLP tests Flashcards
Bail
Court must presume that D is entitled to bail. Bail can only be refused if an objection is properly made out
Exceptions:
(a) Appealing conviction/sentence
(b) D being committed for sentence from MC to CC
(c) Charged with most serious types of offence (e.g. (attempted) murder, manslaughter, (attempted) rape)
‘No real prospect of custody’ restriction
Grounds of objection: substantial grounds for believing that D will, if released on bail:
1. FTS
2. CFO
3. IWW
If there is still a substantial ground: conditional bail (relevant, proportionate and enforceable)
Plea in mitigation
- Tell court what you want
- Likely sentence: culpability and harm
- Circumstances of the offence: aggravating and mitigating factors
- Personal mitigation
- Suggested sentence: type of sentence D’s solicitor considers would be the most appropriate for the court to impose
Bad character evidence
Definition: evidence of, or a disposition towards, misconduct (i.e., commission of an offence or other reprehensible behaviour) other than evidence which (a) has to do with the alleged facts of the offence with which D is charged or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence
General rule: bad character evidence is not admissible
Exception: gateway is made out –> admissible
D’s bad character
(a) Agreement: all parties agree
(b) Blurts it out: D chooses to adduce evidence - D adduces evidence or gives it in answer in XE that intended to elicit it
(c) Context: important explanatory evidence - (1) without it, court would find it impossible/difficult to properly understand the evidence in case + (2) its value for understanding the case as a whole is substantial
(d) Done it before (+ not unfair): relevant to an important matter in dispute between D&P - propensity to commit offence of type charged or propensity to be untruthful
(e) Substantive probative value in relation to an important matter in dispute between D & co-D
(f) Correct a false impression given by D (+ not unfair)
Non-D’s bad character:
(a) Important explanatory evidence
(b) It has substantive probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole
(c) Agreement
Further safeguards
-s78 PACE: fairness (P evidence only)
-s107: stop case where evidence is contaminated, such that D’s conviction would be unsafe (CC only)
Relevant to an important matter in dispute between D&P: propensity to commit offence of type charged
- Does D’s history of offending show a propensity to commit offences of the type charged?
- If so, does that propensity make it more likely that D committed the current offence?
- If so, is it just to rely on convictions of the same conviction or category; and, in any event, will the proceedings be unfair if they are admitted?
Hearsay
Definition:
(a) A statement made outside of court
(b) Which the maker intended to be taken as true
(c) Which a party seeks to rely on in court
(d) To prove a fact included in the statement
General rule: hearsay is inadmissible
Exceptions:
-Witness is unavailable
-Business doc
-Previous statement
-Public info
-Evidence of reputation as to character
-Res gestae
-Confession by D
-Statement of furtherance of common enterprise
-Body of expertise
-Agreement by all parties
-IOJ (court’s discretion)
Safeguards:
-Unsafe?
-Unfair? (s78)
-Discretion? (case for excluding statement substantially outweighs case for admitting it)
Witness is unavailable
a. Oral evidence given in proceedings by statement maker would be admissible (i.e., original hearsay)
b. Statement maker is identified to court’s satisfaction
c. Statement maker is:
–Dead
–Unfit to be W due to bodily/mental condition
–Outside UK + not reasonably practicable to attend (incl. video link)
–Unable to be found + reasonably practicable steps to find W have been taken
–Through fear (does not need to be caused by D), does not (continue to) give oral evidence in proceedings + court gives leave for statement to be given in evidence, in IOJ, having regard to statement’s content, risk of unfairness if admitted/excluded, and that special measures could be given
Hearsay: business doc
(a) Oral evidence given in proceedings would be admissible as evidence of that matter
(b) The (part of the) doc (containing the statement) was created/received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid/unpaid office
(c) The person who supplied the info contained in the statement (may reasonably be supposed to have) had personal knowledge of the matters dealt with
(d) Each person (if any) through whom the info was supplied received the info in the course of a trade, business, profession or other occupation, or as the holder of a paid/unpaid office
If doc is prepared for criminal proceedings: additional requirements
(a) A condition in s116 is satisfied; or
(b) The person who supplied the info contained in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement
Court has discretion to exclude if its reliability is doubtful, considering its content, the source of info contained in it, and how info was supplied/received and doc created/received
Hearsay: previous statement
Route 1: a previous inconsistent statement made by W, where W in box:
(a) Contradicts the statement; or
(b) Adds something to it which was not there originally
Route 2: previous consistent statement admitted to rebut a suggestion of recent fabrication or as recent complaint evidence
Hearsay: res gestae
Note: this is only 1 way in which res gestae may come about, but seems the most likely
Statement maker was so emotionally overpowered by an event that the possibility of concoction/distortion can be disregarded (utterance was an instinctive reaction to the event)
1. Circumstances: event was so unusual/dramatic as to dominate the thoughts of V so that his utterance was an instinctive reaction to the event, giving no real opportunity for reasoned reflection
2. Sufficiently spontaneous: so closely associated with the event which had excited the statement that it could fairly be said that the mind of the declarant was still controlled by the event
3. Consider special features in a case which relate to possibility of distortion
Hearsay: IOJ - factors
-Value of evidence for issuing/understanding other evidence, in context of case as a whole
-Circumstances in which statement was made
-Apparent reliability of statement maker
-Whether oral evidence of matter stated can be given; if not, why not
-Difficulty of challenging the statement + how much this would prejudice the party
s76
Confession: any statement wholly/partly adverse to the person who made it (i.e., unequivocal confessions of guilt and equivocal, mixed statements)
-Whether made to a person in authority or not
-Whether made in words or otherwise
P to prove BRD that confession was NOT obtained in this manner
Oppression:
1. Oppression took place
2. Oppression caused confession
Unreliable: anything said/done which is likely, in the circumstances at the time, to render a confession unreliable
1. Identify thing said/done (positive act or ommission)
2. Was thing said and done likely to render unreliable a confession made in consequence?
s78
Would the admission of the evidence have such an adverse effect on the fairness of proceedings that the court ought not to admit it?
-Consider (effect of) PACE breaches: ‘significant and substantial’
-Burden of proof: on defence, on BOP
Submission of no case to answer
Galbraith test: appears to the judge that the evidence against D would be insufficient for him to be properly convicted i.e.
(a) No evidence that D has committed the crime; or
(b) P’s evidence, taken at its highest, is such that a properly directed jury could not properly convict on it (i.e., tenuous or inconsistent in nature
Allocation for trial
Preliminary issues:
-Pleads NG
-EW offence
Allocation guideline: EW offence should generally be tried summarily, unless it is likely that the court’s sentencing powers would be insufficient (taking into account personal mitigation and any potential reduction for G plea)
Case should be tried in CC if there is unusual legal, procedural or factual complexity
Allocation for trial: eligible offences for trial at MC or CC
- Either-way offence
-Theft
-Burglary
-Fraud
-s47 ABH
-s20 GBH
-Simple criminal damage >£5k
-Simple arson
-Attempts of above - Low-value shoplifting <=£200
- Offences connected to indictable offence
NOT cases involving complex fraud or where children may be called as witness
Whether to commit for sentence to CC
Mags can commit an adult for sentence to CC for EW offences where greater sentencing powers are required i.e., mags consider that the offence (or, combination of offences) is so serious that CC should have the power to deal with D as if D had been committed at a CC trial
Order for a witness summons
Note: likely to be representing P
- Is the witness competent? Can give intelligible testimony i.e., understand questions and give comprehensible answers; NOT D/co-D for P (unless special cases)
- Is the witness compellable? Will only be compellable if competent. Special rules for spouse/CP of D
- Witness is likely to be able to give evidence that is likely to be material evidence (or to produce a material doc)
- IOJ to issue summons
Special measures for witness (note: likely to represent P)
- Does W belong to a category of eligible witnesses?
- If applicable, would the special measure be likely to improve, or maximise as far as practicable, the quality of evidence?
Special measures for D: live link
- IOJ
- Live link would enable D to participate more effectively in proceedings as a witness
Special measures: eligible witnesses
(a) <18 at time of trial (automatic)
(b) Mental disorder, significant impairment of intelligence and social functioning, or physical disability/disorder: court considers that, due to any such matter, the quality of their evidence is likely to be reduced
(c) Witness in fear/distress about testifying: court considers that evidence is likely to be affected by their fear/distress at giving evidence (take into account nature and alleged circumstances of offence; age; and behaviour towards W by D, members of family or associates of D, or any other person who is likely to be an accused or witness in proceedings)
(d) Adult complainant of sexual offences or certain offence under MSA (automatic)
(e) Case involves a ‘relevant offence’ i.e., serious offence, incl. offence of homicide or involving firearms or knives (automatic)
Submissions on ‘grave crimes’
- Offence is capable of being a grave crime: if adult had committed it, capable of 14 years’ imprisonment
- In the circumstances of the case, this is a grave crime: real prospect of a sentence of >2 years’ detention
Submissions on ‘IOJ’ where an adult and youth are jointly charged
General rule: proper venue for trial of any youth is normally YC. Youth must be tried summarily unless IOJ for both the youth and adult to be committed to CC for trial
IOJ: consider guidance
-Will separate trials cause injustice to witnesses/case as a whole?
-Age of youth
-Age gap between youth and adult
-Youth’s lack of maturity
-Relative culpability of youth vs adult and whether alleged role played by youth was minor
-Youth’s lack of previous convictions
-Likely waiting time in CC vs YC
Sentencing / plea in mitigation: youth
- Likely sentence: range of sentences - culpability and harm
- Aggravating/mitigating factors relating to offence
- Offender: personal mitigation
- Suggested sentence: what would be most appropriate for court to impose, given principal aim is to prevent offending
-Balance seriousness of offence (and youth’s previous record) with youth’s welfare requirements
-Sentence should focus on rehabilitation where possible
-Custodial sentence should be a measure of last resort
What is the principal aim regarding sentencing youths? What factors should be consider
Principal aim: prevent offending
-Balance seriousness of offence (and youth’s record) with youth’s welfare requirements
-Sentence should focus on rehabilitation where possible
-Custodial sentence should be measure of last resort
DTO: requirements
-Last resort: offence is so serious that neither a fine nor community sentence can be justified
-Offence is punishable with imprisonment for adults
-12-14: persistent offender
-Court should take account of circumstances, age and maturity (and discount sentence by 1/2-3/4 of adult sentence)
-Any case that warrants DTO <4 months must result in a non-custodial sentence
Youth Rehabilitation Order: requirements
-Offence is ‘serious enough’ to warrant YRO (but does not have to be imprisonable)
-Cannot be imposed if requirements for RO are met
Referral Order: requirements
Mandatory:
(a) Not previously convicted of an offence; and
(b) Pleads G to an imprisonable offence and any ‘connected’ offences
Discretionary:
(a) 2nd or later conviction; and/or
(b) Pleads G to offence or a connected offence being dealt with by the court
Unless
1. Sentence is fixed by law
2. Court feels that an absolute/conditional discharge is justified
3. Court is proposing to make a hospital order
4. Court considers that custody is the only correct disposal
5. Pleads NG
