CLP - weaker areas Flashcards
1
Q
New sentencing powers in MC
A
- Single summary only - 6 months
- Singe either way - 12 months
- 2 or more either way - 12 months
2
Q
Defence statement deadline for MC and CC
A
MC - 14 days
CC - 28 days
Note flipped time limits
3
Q
3 components of Turnbull warning
A
- Instruct jury as need for such warning
- Direct jury to examine circumstances in which ID was done
- Remind jury of specific weaknesses of ID evidence
4
Q
Secondary grounds re indictable offences - D need not be granted bail if…
A
- Committed current offence while on bail
- Harm to associated person (substantial grounds to believe)
- Own protection
- Do not have sufficient info (not practicable)
- Arrested for absconding / breaching bail
- Already serving custodial sentence
CHODAA
5
Q
Summary only imprisonable - need not be granted bail if…
A
- Catch all
- Own protection
- Don’t have sufficient info
- Current offence committed on bail
- Already serving
- Previous failure to surrender
- Substantial grounds to believe they would commit offence likely to cause / fear mental or physical injury
CODCAPS
6
Q
Summary only non-imprisonable - need not be granted bail if…
A
- Previous failure to surrender
- Already serving
- Granted bail already in proceedings but arrested for failing to answer / breach of condition & court thinks D would again commit catch all 3
- Own protection or under 18
PAGO
7
Q
3 catch all things re bail ground
A
- Fail to surrender
- Commit offence
- Interfere with witnesses or obstruct course of justice
8
Q
Bail appeal by defence - procedure
A
D must complete notice of app, attaching certificate of full argument + any reasonings to CC, MC & P as soon as practicable
9
Q
Bail appeal by prosecution - when is it heard?
A
Usually within 48 hours of initial refusal by MC
10
Q
Bail appeal by defence - who hears appeal?
A
CC judge in chambers (NOT court) - both sides can make reps
11
Q
Only when can prosecution appeal bail
A
D charged with / convicted of imprisonable offence
12
Q
Where can P appeal to re bail
A
CC or HC
13
Q
When would P’s appeal hearing re bail be heard in CC
A
As soon as practicable but no later than the 2nd business day after appeal notice served (48 hours)
14
Q
What notice must prosecution give when appealing bail
A
- Oral notice to court which granted bail at the end of the hearing and before D released
- Written notice served on court not more than 2 hours after doing the above
15
Q
Consequences of breach of bail
A
- Carries power of arrest if police have reasonable cause to believe D has broken bail conditions or is likely to
- D then brought before MC within 24 hours
16
Q
When must first hearing take place if D on bail?
A
- 14 days of charge - if P anticipates guilty plea
- 28 days of charge - if P anticipates not guilty plea OR case likely to go to CC
17
Q
If D elects CC, when must evidence be served if a) in custody, or b) on bail
A
a) within 50 days (custody)
b) within 70 days (bail)
18
Q
If D elects CC, by when must draft indictment be served on CC officer by P
A
Within 20 business days of P serving evidence
19
Q
Only when is hearsay procedure (i.e. serving notice of intention to rely on it on court and every other party) relevant?
A
- Prepared for criminal proceedings
- W unavailable
- Interests of justice
- Multiple hearsay
CWIM
20
Q
Deadlines for P admitting notice of intention to rely on hearsay
A
20 business days - MC
10 business days - CC
Court can dispense with these or extend / shorten
21
Q
Deadlines for D admitting notice of intention to rely on hearsay
A
As soon as reasonably practicable
22
Q
Deadlines for objecting to notice of intention to rely on hearsay
A
10 business days of:
* notice
* evidence objected to
* not guilty plea
23
Q
Procedure for admitting D bad character evidence
A
Notice to admit (will be admitted UNLESS opposed)
24
Q
If P serves D bad character notice, what are the deadlines in both MC and CC
A
MC - 20 business days after plea
CC - 10 business days after plea
25
If Co-D serves D bad character notice, what are the deadlines in both MC and CC
Not more than 10 business days after P discloses material on which it is based (in any event, as soon as reasonably practicable)
26
Who can adduce non-D bad character evidence
Any party!
27
Procedure for admitting non-D bad character evidence - deadline for notice & objection
* Within 10 business days of P disclosing relevant info
* Objection within 10 business days of service of initial app
28
How will app to adduce bad character be heard & how will decision be announced
* In public / private OR without a hearing
* Decision must be announced at public hearing in absence of jury
29
Only when can court determine outcome of bad character app
Court cannot determine outcome unless:
* each party (other than applicant) is present, or
* has had at least 10 business days to serve notice of objection
30
Common law method to exclude evidence (NOT relevance)
Prejudicial effect on the arbiter of fact's mind outweighs probative value of evidence
*Prosecution evidence*
31
When can s 78 app be made
* Before trial e.g. at PTPH
* Commencement of trial, or
* Just prior to P seeking to admit the evidence which defence wants excluded
*Voir dire if in CC*
32
When can't s 78 be dealt with
Once evidence has been adduced
33
When should s 76 be dealt with in MC
As preliminary issue
34
When should s 76 be dealt with in CC
At specific pre-trial hearing or just before opening case to jury
*voir dire required*
35
Where will points raised by the defence on admissibility of evidence be contained?
Defence statement - judge may review at PTPH and request skeleton arguments before trial
36
Abuse of process test
1. D cannot have a fair trial, or
2. Continuing the prosecution offends the court's sense of justice & propriety or would undermine public confidence in the criminal justice system & bring into disrepute
37
Who opens MC trial
Prosecution (D does not have right - at court's discretion)
38
When are sumissions of no case to answer made
After P's case
39
What is D advised of before giving their case in MC trial
Right to give evidence & potential effects if not
40
Who testifies first in D's case
If D is testifying, must go first (as long as other witnesses)
41
Only when may the prosecution make a closing speech
1. D is legally represented, or
2. Whether represented or not, D has introducted evidence **other than their own**
*Note: court has discretion to allow in CC*
42
Can Defence always make closing speech
Yes - as of right (unlike P)
43
How is D's right to give evidence dealt with differently in CC
Will ask D if they intend to give evidence & if no, must satisfy itself that it and the consequences have been explained
44
What will be done by the judge following the defence's closing speech
Summing up - will often provide a 'route to verdict' for jury
45
What must jury inform court of if guilty verdict delivered
How many jurors in majority + minority
46
Requirement re submission of no case to answer
* Made in absence of jury if in CC
* P must be given opportunity make reps
47
Submission of no case to answer test - *Galbraith*
1. P has failed to prove an essential element of the case, **or**
2. The prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it
48
When can submission of no case to answer exceptionally be made at end of D's case not P's
* Murder
* Attempted murder
* Manslaughter
* s 20
* s 18
49
When is giving evidence in private available
1. Sexual offences cases
2. Reasonable grounds to believe any person other than D will / has intimidated W
50
Purposes of sentencing
1. Reduction of crime
2. Reform & rehab
3. Reparation
4. Punishment
5. Protection
| RRRPP
51
When does the court need not consider sentencing aims
1. Sentence fixed by law
2. Offence subject to stat min
3. D classed as *dangerous offender*
52
Only when may the court depart from the sentencing guidelines
In the interests of justice
53
4 statutory aggravating factors
1. Relevant previous convictions (considering nature of offence + time)
2. **Offences committed on bail**
3. Hostility on race / religion / disability etc.
4. Assaults on emergency workers
*if court uses one, must state so in open court*
54
When is PSR required (adults)
Always before passing community / custodial unless *court considers it unnecessary to do so*
55
Totality principle
1. Multiple offences - sentence must reflect all offending behaviour and be **just and proportionate**
2. Be necessary to address both offending behaviour + specific factors
*Court then considers whether sentence should run consecutively / concurrently*
56
3 limitations to custody threshold
1. **Last resort**
2. Even if threshold met, **should not be deemed inevitable** if e.g. community order would address needs
3. If it would impact *dependants* who is on cusp of meeting, custody should not be imposed to extent it is **disproportionate to aims** of sentencing
57
What must be met to pass suspended sentence
Custody threshold!
58
Consequences for breaching requirements of suspended sentence or reoffending (convicted)
* The suspended sentence takes immediate effect on the original term with no alterations
* The suspended sentence takes immediate effect on a substituted, lesser term
* Impose more onerous community requirements by amending original order
* Extend operational period or supervision period by amending original order, OR
* The offender pays a fine not exceeding £2,500
59
When may the court not impose consequences for breach of suspended sentence
Where the court takes the view that in all the circumstances, it would be **unjust** to enforce such consequences
* E.g. custody would result in significant impact on others
60
Only when may a community order be imposed
1. Offence is sufficiently serious
2. D is over 18
3. Imprisonable offence
4. Offender suitable
61
Consequences of D committing further offences during community order
Magistrates may either:
1. Allow the original order to continue, OR
2. If in the interests of justice:
* Revoke the order, OR
* Revoke the order AND re-sentence D for the original offence as if they have just been convicted (If so, must have regard to extent of D's compliance with original order)
62
What if D breaches community order without reasonable excuse
1. Warning
2. If warning issued within past 12 months, may be referred back to court - if so, it must either:
* Amend the order to make more onerous
* Revoke the order completely & re-sentence D for the offence
* Fine the offender up to £2,500, OR
* Where D has wilfully & persistently failed to comply with the order, court may revoke & impose a custodial sentence
*Can be done **even if the original offence was not punishable by way of custodial sentence***
63
When may YC send youth without indication of plea to CC re dangerous offender
1. Charged with **specified offence**
2. Court considers them to be a **dangerous offender**
3. Custodial term of **at least 4 years** would be imposed
64
Definition re specified offence re dangerous offender
Violent, sexual or terrorim offence
*E.g. **manslaughter, wounding, robbery**, rape & sexual assault*
65
Definition of dangerous offender
Court believes there is a **significant risk** to the public of *serious harm* caused by the youth committing further specified offences
*i.e. more than a mere possibility*
66
Only when may 12-17 year olds be remanded to youth detention accommodation for bail and not local authority accommodation?
1. Must usually have **legal representation**
2. Violent / sexual offence which an adult could be imprisoner for for **more than 14 years** OR **history** of absconding etc.
3. Necessary to protect community from **serious harm**
*10-11 years olds in local authority accommodation only*
67
4 key considerations re sentencing youths other than principal aims
1. **S**eriousness of offence
2. **A**ge of child
3. **L**ikelihood of further offences
4. **E**xtent of harm likely to result from further offences
| SALE
68
Mandatory referral order
1. No prior convictions
2. Pleads not guilty to **imprisonable offence**
3. Court not proposing to impose custodial sentence / discharge
4. Offence does not have fixed sentence
69
Discretionary referral order
1. Pleads guilty, or
2. Pleads guilty to some but not others, or
3. Previous convictions but no referral order, or
4. Has had referral order previously, but YOT recommends further one and court finds **exceptional circumstances** to justify
70
Only when can DTO be imposed
1. Must be so serious (last resort)
2. Court must consider whether YRO with intensive supervision is appropriate and give reasons if not
3. Court received PSR specifically addressing custody
4. Youth must be legally represented*unless refused legal aid / had funding withdrawn*
71
When wil D's second appearance take place and must this be in person
* In person or live link
* Within 8 days of first appearance
* D can make another bail app
72
How often must D be formally remanded into custody for
Every 28 days until trial (can do in their absence)
73
When must trial take place in MC
Within 56 days of first appearance *unless P apply to extend*
74
Where is first bail attempt dealt with
MC (unless charged with murder - CC judge only)
75
Further apps for bail in MC by D
1. Can have full rehearing - normally within 1 week (can use any facts)
2. No more unless new facts or law
76
Further apps for bail in CC by D
* 1 attempt at first hearing in MC (unless charged with murder - CC only)
* 1 further as of right in CC (listed no later than 1 business day after receipt of notice)
77
Summary of bail procedure for Ds starting in MC
If D starts in MC:
* MC: typically 2 hearings as of right (using same facts) - **1 week apart**
* Can appeal MC decision in CC (need certificate of full argument from MC) - **next business day**
*Otherwise, need new facts / law*
78
So how can D expedite bail hearing?
Waive their right to second MC hearing and apply straight for CC hearing - takes place the **next business day**
*NB: they lose their right to a second hearing in MC if they do this process*
79
Summary of bail procedure for Ds starting in CC
* 1 attempt in MC as of right (unless charged with murder - CC judge only)
* 1 further app in CC as of right (next business day)
80
Is leave required for appeal from MC to CC
No
81
Who can appeal from MC to CC
D only
82
When must D appeal from MC to CC
15 business days from **sentence**
*must accompany reasons for delay + app for extension of past deadline*
NB: once notice served, MC must notify CC asap
83
Appeal from MC to CC - grounds
Conviction - error in fact or law
Sentence – excessive
84
Appeal from MC to CC - powers of CC
Conviction – confirm, reverse or vary
Sentence - limited to MC powers (more or less severe)
85
Appeal from MC to CC - hearing type
de novo (complete rehearing)
86
Appeal from MC to CC - who presides
A **judge** (HCJ, CJ or Recorder),
AND
**Usually 2**, up to 4 **lay magistrates** (*none of whom presided over original decision*)
87
Appeal from MC to CC - risks to appellant
Can increase sentence
88
Appeal from MC to CC - benefits to appellant
Can still apply to HC following appeal
89
What must respondent do if they contest appeal that is against conviction from MC to CC
Submit respondent's notice within 15 business days of appeal notice
90
Potential cost consequences following MC to CC appeal
* Successful appellant may be awarded a defence costs order
* Unsuccessful appellant may be required to pay P’s costs
91
Appeal by way of case stated - leave needed?
Yes - can refuse if e.g. frivolous
Certificate of refusal
92
Appeal by way of case stated - who can appeal?
Appeal by way of case stated - both P and D
93
Appeal by way of case stated - time limits?
21 days from **decision** (even if court adjourned for sentencing)
94
Appeal by way of case stated - grounds
1. **Wrong** in law, or
2. Decision made by MC **in excess of their jurisdiction**
95
Appeal by way of case stated - powers of court
1. Reverse, affirm or vary
2. Remit
3. Make such order as it thinks fit e.g. costs
96
Appeal by way of case stated - hearing?
* No evidence may be called!
* Submission on the papers, confined to legal arguments
97
Appeal by way of case stated - who presides?
**Usually 3 judges**, no fewer than 2
98
Appeal by way of case stated - risks to appellant
Lose right of appeal to CC!
99
Appeal by way of case stated - risks to appellant
Next appeal to SC (available to both P and D):
* Leave from HC or SC
* Point of law / general public importance
100
Appeal from CC to CA - leave needed?
Yes – from CA or trial judge giving certificate stating that case is fit for appeal
If applying to CA:
* Usually first considered by single judge on the papers (no hearing) re granting leave
* *May grant re part of appeal but not other parts*
* If suitable = leave granted & hearing before full court
101
What can D do if parts of appeal to CA are granted by single judge but not others
* Reapply for leave at appeal hearing for rest
* Must serve form on CA within 10 business days of single judge's decision
102
When might CA registrar refer case to full court instead of single judge
* There is an unlawful sentence which must be amended, or
* There is a novel point of law, or
* Requires expedition e.g. old appellant
103
Appeal from CC to CA - who can appeal?
D only (unless P uses another method e.g. unduly lenient sentence)
104
Appeal from CC to CA - time limits
If not granted by trial judge, serve on CA:
28 days from **decision** (even if adjourned for sentencing)
105
Appeal from CC to CA - grounds
Conviction - **unsafe**
Sentence:
* **wrong** in law
* wrong in principle
* wrong approach
* **manifestly excessive**
* disparity re co-Ds
106
Appeal from CC to CA - powers of CA
Conviction:
* dismiss appeal
* allow appeal (incl. part)
* order retrial if *in the interests of justice*
* find guilty of alternative offence
* make order for loss of time
Sentence:
* dismiss appeal
* allow appeal
* substitute sentence
* make order for loss of time
107
Appeal from CC to CA - hearing?
Appeal not granted on grounds of new evidence UNLESS i**n the interests of justice**, considering whether it:
* Is credible
* Affords a ground of appeal
* Would have been admissible at trial, AND
* Whether there is a reasonable explanation for the failure to adduce it at trial
108
Appeal from CC to CA - who presides?
Heard before full CA
Usually, **a bench of at least 3** judges (occasionally 5 or 7 if exceptionally complex)
* Sentence – may be bench of **2**
* Conviction – minimum of **3**
109
Appeal from CC to CA - risks to appellant
Single judge may make direction as to loss of time if appeal is completely without merit
110
Appeal from CC to CA - benefits to appellant
Cannot increase sentence imposed by trial judge!
111
Only when can P appeal to CA re unduly lenient sentence
* 28 day period to seek leave from A-G
* CA can then increase sentence as exception (but still one that CC could have passed)
112
Criminal Cases Review Commission test
Whether there is a '**real possibility**' that CA will quash original sentence / conviction
113
Only when will retrial of serious offences be ordered
1. D acquitted of 'qualifying offence'
2. Written consent of DPP obtained
3. Leave to appeal granted
114
Only when will DPP give consent re serious offence retrial
1. New and compelling evidence, and
2. In the public interest to do so
115
Qualifying offences re retrial of serious offences
1. Murder
2. Attempted murder
3. Manslaughter
4. Aggravated arson
| MAMA
116
Appeal destination from HC
SC
117
Appeal destination from CA
SC
118
Age of young person
14-17 inclusive
119
Age of child
10-13 inclusive
120
Which cases must be sent straight to CC without pbv re youths
1. Homicide offences (incl. attempts)
2. Firearm offences w mandatory min of 3 years (must have been at least 16 when committed)
3. Notice in fraud cases / cases involving children
4. Dangerous offender
121
What if D pleads guilty to grave crime
* YC will sentence, or
* Commit to CC if sentencing powers inadequate
122
What if D pleads not guilty to grave crime
* Allocation procedure - will only decline where sentencing powers inadequate
* Will only send to CC where real prospect that sentence in excess of 2 years will be imposed
123
Youth jointly charged with adult in MC - what if adult pleads guilty
Youth normally remitted to YC
124
Youth jointly charged with adult in MC - what if adult pleads not guilty
* Should be tried together in adult MC
* Normally remitted to YC for sentence, unless propose to deal with matter by fine / discharge (MC)
125
Youth jointly charged with adult in CC - what if adult pleads guilty
* MC will sentence, or
* Remit to YC for sentencing
*In limited circumstances may commit to CC*
126
Youth jointly charged with adult in CC - what if adult pleads not guilty
Allocation hearing held
* General rule = youth offender should be tried separately in YC
*UNLESS **in the interests of justice** for youth and adult to be tried jointly in CC* - can still commit
127
Interests of justice test re CC
* Lack of **m**aturity of the youth
* **A**ge of youth / age gap
* Lack of previous findings of **g**uilt on part of youth
* Whether separate trials will cause **i**njustice to witnesses or to the case as a whole
* Relative **c**ulpability of youth vs adult & whether youth only played minor role
| MAGIC
128
Rank of custody officer
Sergeant or above
129
Detention review officer rank
At least inspector and not custody officer!
130
ID officer rank
Inspector at least
131
Which rank of officer can authorise interview in limited circumstances
Superintendent
132
Which rank of officer can remove solicitor from interview if obstructing
Superintendent
133
What must a breach be to exclude under s 76 vs s78
* s 76 - causal link
* s 78 - significant & substantial
134
What must bail conditions be
Relevant, proportionate & enforceable
135
What must prosecution disclose
1. Evidence they **rely** on
2. **Unused material** *if* it might *reasonably be considered capable of undermining P's case* and supporting D's
136
When can P withhold disclosure
Can make *public interest immunity* app. to court if it does not wish to disclose material due to real risk of **serious prejudice to an important public interest**
137
Specific disclosure app
* Where D has **reasonable cause** to believe P is refusing to disclose info to them
* App to court requiring disclosure
* Only where defence has filed defence statement beforehand!
138
Consequences of failing to disclose in CC
1. Jury may draw such adverse inferences as appear proper
2. Prosecution / co-D may comment on such a failure - permission not generally required for P to make comments unless it relates to point of law
3. D cannot apply for specific disclosure
139
Consequences of failing to disclose in MC
D cannot apply for specific disclosure
140
Arguments for MC
* Limited sentencing powers (though D can be committed)
* Can appeal to CC without leave (CC requires leave from CA)
* Quicker listing of trial & trial itself
* Less formal trials
* Less publicity
* Lower costs & no income contributions required for LA
* No requirement to serve defence statement (can hide more of defence from P)
141
Arguments for CC
* Lower conviction rate than MC
* CC judge better placed to deal with points of law than lay magistrate (+ jury will never hear excluded evidence)
* Whilst a longer trial, this means defence have longer to prepare
142
What will be conducted where D pleads not guilty in MC
* Case management hearing - directions for an effective trial
* Parties must complete PET form before
143
Mutual criteria to delay right to legal advice / have someone informed of arrest
Reasonable grounds to believe it might lead to...
* Inference with/harm to evidence connected with the offence
* Inference with/harm to others
* Alerting of other people suspected of committing such an offence but not yet arrested for it,
* Hinder the recovery of property obtained in consequence of the commission of such an offence.
144
Grounds to meet at each stage of detention extension review
1. Dention necessary to secure / preserve evidence
2. Investigation conducted diligently & expeditiously
3. Indictable
145
Exceptions to requirement that suspect should be interviewed at police station
Where delay would likely lead to...
* interference with / harm to evidence or physical harm to persons
* **serious loss of / damage to property**
* alerting
* hindering recovery of property
| SAHI
146
147
What are the two questions the court must answer when determining whether to admit bad character evidence under gateway s.101(1)(e) between co-defendants?
1) Does the evidence has substantial probative value?
2) If so, is it a matter of substantial importance to the case as a whole?
* consider whether other evidence in case already sheds light on this same issue - does it bring something more to case…?
If court is satisfied in relation to both questions - must admit evidence.
* no discretion to refuse
148
What is the higher threshold for bad character evidence to be admissible due to a matter in issue between co-defendants?
It must have **substantial probative value**, not just be relevant
149
Only when can propensity to be untruthful be adduced under s 101(e)
Where the nature of the defence is such as to undermine the co D's defence
150
Only when is propensity to commit offences of the type charged admissible under s 101(e)
Where one of them **asserts that they have no such propensity**, in which case the other D can adduce evidence of a propensity
151
What can be adduced under s 101(f) and (g) that can't be under (d)
Evidence of a propensity to be dishonest e.g. 'I have never acted dishonestly' (can correct false impression)
*c.f. untruthful under (d)*
152
What if defence loses at Newton Hearing
Loses 1/3 credit
153
Who has burden at Newton hearing
Prosecution
154
How long can sentence be suspended in MC
Between 6 months and 2 years
155
What are six mitigating factors which may be taken into account on sentencing?
* No previous convictions
* Examplary character or conduct
* Genuine remorse
* Co-operation
* Sole or primary carer for a dependent relative
* Very young/old
* Early guilty plea
* Determination to treat behavior that may fuel reoffending (ie. rehab)
156
What three conditions must be satisfied before a defendant can be subject to a community order ?
1) Defendant must be over 18;
2) Offence is one punishable by a term of imprisonment not exceeding 3 years;
3) Order has at least one punitive condition attached;
* unless a fine was impose or there exists exceptional cirucmstance that would make it unjust to.
4) Conditions do not conflict with an offender’s relgious beliefs/work/education.
157
What is the key distinction between a community service order and a suspended sentence?
Suspended sentence - offender is not re-sentenced if it breaches/re-offends.
* Original sentence is simply ‘activated.’
Community service order - offender is re-sentenced, and generally requires ‘persistent’ breaches for court to.
158
When can an RO not be made
D pleads not guilty and is then convicted
159
160
