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Criminal litigation > court > Flashcards

court Flashcards

1
Q

where is the first court hearing

A

if 18 - MC
under 18 - YC
if indictable MC sends straight to CC

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2
Q

how soon should MC trial be set

A

6-8weeks

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3
Q

how much evidence disclosure does CPS need to make

A

sufficient disclosure to enable D to enter plea

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4
Q

does D get a choice where the case is held for either way cases

A

D can consent to summary trial if MC willing to keep it or request jury CC trial

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5
Q

who gets free advice at police station

A

everyone regardless of their means

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6
Q

how does solicitor get paid for giving advice at station

A

fixed fee

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7
Q

can solicitor charge for acting as duty solicitor at MC

A

yes

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8
Q

general criminal contract

A

when a firm have a contract with LAA to represent D in criminal proceedings

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9
Q

does D ever have to contribute to legal aid

A

if D qualifies for legal aid then no contribution in MC but may have to contribute in CC

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10
Q

can D appeal against legal aid refusal

A

refusal on interests of justice ground - add further info t original form and resubmit it or request an appeal
refusal on financial grounds - cannot appeal but can request review on ground of hardship if they don’t meet means test but can demonstrate inability to fund

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11
Q

newton hearing

A

when D pleads guilty but disputes the facts - a newton hearing is held to determine the facts on which D will be sentenced

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12
Q

plea before venue and allocation procedure

A

for either way offences when D pleads NG to determine which court it will be heard in.
IDPC and defence statement, enter plea and determine if sending to CC

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13
Q

IDPC

A

initial details of prosecution case - where P sets out case details in advance of first hearing - P cannot introduce info without giving D sufficient time to consider it

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14
Q

for which cases is D entitled to IDPC

A

summary and either way

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15
Q

when is D entitled to IDPC

A

in advance of first hearing

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16
Q

does P need to provide IDPC for indictable offence

A

no - disclosure will be part of standard directions issued by MC when case is sent to CC

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17
Q

when does D need to provide a defence statement

A

when pleading NG at CC

No need if at MC

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18
Q

when does an either way offence get sent to CC

A

should be dealt with at MC unless powers are too weak

send to CC if related case at CC or Co-D at CC already

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19
Q

if D pleads G to one offence and NG to another when is the G offence sentenced

A

can be immediately or wait until after trial for NG offence

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20
Q

can a trial take place at MC but sentencing at CC

A

yes

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21
Q

if an indication of sentence by MC binding

A

no

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22
Q

when is a D remanded

A

when a hearing is adjourned and court wants to ensure D will attend next hearing

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23
Q

3 ways that D can be remanded

A

custody
bail
bail with conditions

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24
Q

remand before conviction

A

max 8 clear days in custody at a time
if successive remands and case at MC bring before court on every 4th remand
can remand in custody up to 28 days if previously remanded in custody for same offence, before court and can state date of next proceedings
overall max period of remand in custody for MC cases 70 days for either way and 56 days for summary unless allocation hearing takes place before 56 days then 70 days is lowered to 56.

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25
Q

what is the custody time limit

A

overall max period of remand in custody for MC cases 70 days for either way and 56 days for summary unless allocation hearing takes place before 56 days then 70 days is lowered to 56.

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26
Q

max time D can be remanded in custody at any one time

A

8 clear days

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27
Q

when can D be remanded in custody for up to 28 days

A

if previously remanded in custody for same offence
before court
can state date when next proceedings will take place

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28
Q

how often must a D be brought before a court if there is successive remand periods and its an MC case

A

every 4th remand

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29
Q

can P apply for remand time limit to be extended before conviction

A

yes
at least 2 days before hearing at MC serve written notice
show good and sufficient reason
show P acted with due dilligence and expedition

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30
Q

length of remand after conviction

A

successive periods of 3 weeks in custody and 4 weeks on bail
once time expires release on bail unless extension granted
can be remanded on bail for any time period if D consents
if awaiting CC sentence or trial can be held in custody or on bail until case goes to CC

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31
Q

can an extension to remand period be appealed

A

yes by D to CC

or P can appeal refusal to extend to CC

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32
Q

can D ever be remanded in police custody

A

normally prison or remand centre but could be police custody if necessary for enquiries into other offence - max 3 days
if this is done D must be brought back before MC as soon as need for enquiries ceases

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33
Q

when does presumption of bail apply

A

before conviction
awaiting sentence
breach of community sentence

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34
Q

when doesn’t presumption of bail apply

A

D committed to CC for sentencing

Appealing against conviction or sentence

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35
Q

if you have been charged with or previously convicted of any of these offences you will only get bail in exceptional circumstances

A 
murder
attempted murder
manslaughter
rape
attempted rape
sexual offences
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36
Q

which court can grant bail for murder charge

A

only CC

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37
Q

how long does CC have to consider bail for murder charge

A

48 hours

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38
Q

why would the court hear evidence on oath from surety

A

to ensure they are suitable to act in that capacity

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39
Q

what is a certificate of full argument

A

a record of decision of bail including reasons for refusal or conditions

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40
Q

offence of absconding

A

failing without reasonable excuse to surrender to custody at appointed time - if reasonable excuse it is still an offence unless surrender asap

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41
Q

is breaching bail conditions a crime

A

no - only a crime if fail to attend court of offence of absconding

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42
Q

can you be arrested for breaching bail conditions

A

yes

if officer reasonably believes you’re not likely to surrender or have broken or likely to break conditions

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43
Q

what happens if you’re arrested for breaching bail

A

brought before MC within 24 hours - they decide whether to remand in custody or bail again

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44
Q

how long do parties have to prepare for trial at MC

A

8 weeks

or 14 weeks if expert evidence is required

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45
Q

when can a witness summons be obtained

A

material evidence and interest of justice

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46
Q

does D need to serve on P copies of witness statements

A

No

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47
Q

does D need to serve on P copies of expert reports

A

yes in advance of trial

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48
Q

does D need to serve on P a list of their witnesses

A

yes

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49
Q

can a witness statement be used instead of an oral witnesses

A

yes if the evidence is not disputed and

signed, dated, declaration, served on P and the P has 7 days to object

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50
Q

how to verify plans/photos to be used in evidence

A

with a witness statement from the person who made/took them

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51
Q

what is unused material

A

evidence of P that isn’t used / disclosed in IDPC

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52
Q

how are directions given for CC cases

A

either standard directions from MC or a preliminary hearing at CC

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53
Q

When will there be a preliminary hearing at CC

A 
D is under 18 
need to set a quick trial date
trial may be 4 weeks or longer 
issues to resolve 
likely to be a guilty plea
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54
Q

how soon must a preliminary hearing take place

A

within 14 days of being sent to CC

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55
Q

if no preliminary hearing how soon should PTPH take place

A

within 28 days of being sent to CC

56
Q

what happens at PTPH

A

enter plea and give case management directions

57
Q

when is D arranged

A

at PTPH

58
Q

what is arrangement

A

counts on inditement are read to D who enters plea

59
Q

what is a goodyear indication

A

when judge gives indication of sentence if D pleaded guilty

60
Q

is a goodyear indication binding

A

yes

61
Q

how much evidence must P serve on D

A

everything they will rely on

62
Q

when must P disclosed unused material to D

A

when it will hinder P case or help D case

63
Q

can sensitive unused material be withheld

A

if protected by public interest immunity - apply to court for a finding of public interest immunity

64
Q

following initial disclosure of unused material how long does D have to serve defence statement

A

MC 14 days

CC 28 days

65
Q

what is compulsory disclosure

A

D must serve defence statement at CC

not compulsory at MC

66
Q

when would D at MC serve defense statement

A

if it would add detail P unaware of to help P disclose more unused material to assist Ds case

67
Q

can an adverse inference ever be drawn from a defense statement

A

yes if missing, not complete, not update, late, not consistent with defense put forward at trial

68
Q

what is included in defense statement

A

set out nature of defense
indicate facts on which D takes issue with P
set out facts on which D will rely for their defense
details of any alibi defense
any points of law/admissibility and authority relied on

69
Q

does D need to keep defense statement updated

A

under continuing obligation to update it if details change before trial

70
Q

what must P do once they have received the defence statement

A

reconsider disclosure of undisclosed material to see if there is anything else to disclose

71
Q

what can D do if P fails to disclose unused material

A

apply to court for order that P disclose unused material provided D has reasonable cause to believe that there is prosecution material that should have been but has not been disclosed.

72
Q

when can D get an order that P disclose unused material

A

reasonable cause to believe that there is prosecution material that should have been but has not been disclosed
and
D must have set out in defense statement material D thinks P has but hasn’t disclosed

73
Q

duty to reconsider bail

A

if bail is refused MC have duty to reconsider it at any subsequent hearing if D is still in custody and presumption of bail still applies

74
Q

when MC reconsider bail is there a full rehearing and can same arguments be repeated

A

On the second reconsideration it can be a full hearing with the same arguments but on subsequent considerations new arguments must be used

75
Q

if D is refused bail can they appeal

A

yes appeal from MC to CC as long as they have a certificate of full argument

76
Q

procedure for D to appeal against refused bail

A

complete a notice of application and send to CC and MC and serve on P at least 24 hours before hearing

77
Q

can P appeal against a grant of bail

A

only if D is granted bail when charged with an imprisonable offence - then P can appeal to CC

78
Q

procedure for P to appeal against grant of bail

A

must have objected at oral hearing at MC
oral notice of appeal at conclusion of MC hearing
confirm in writing and serve on court and D within 2 hours of MC hearing
appeal must be heard at CC within 48 hours

79
Q

how soon must P give notice if appealing against grant of bail

A

oral notice at end of MC hearing

written confirmation within 2 hours of MC hearing

80
Q

how soon must CC hear appeal by P against bail

A

within 48 hours

81
Q

is D kept in custody if P appeals against bail

A

yes

82
Q

how must P use their power to appeal against bail

A

judiciously and responsibly - only in cases of grave concern

83
Q

2 requirements for evidence to be taken into account

A

must be admissible and relevant to the facts in issue in the case

84
Q

when is a person a turnbull witness

A

they identified D in formal ID process
they identified D informally
or they said they know D

85
Q

when do turnbull guidelines apply

A

if D disputes the visual identification evidence and witness is a turnbull witness

86
Q

when don’t turnbul guidelines apply

A

D doesn’t dispute ID evidence

or theres no evidence against D other than that D matches the description given by witness

87
Q

in MC - if D thinks visual ID evidence is poor, there is no other supporting evidence and D disputes it then they should..

A

submit no case to answer at end of Ps case

88
Q

in MC - if D thinks visual ID evidence is good or it is poor but there is other supporting evidence and D disputes it then they should..

A

address turnbul guidelines in closing speech and point out weaknesses of eye witnesses

89
Q

what are the turnbul guidelines

A

length of observation
distances
lightening
condition eg weather, number of people in area
how much of face is seen
if they already know each other
closeness of description to actual appearance

90
Q

what is other supporting evidence

A

some other evidence that suggests the ID is reliable

91
Q

in CC - judge uses turnbul guidelines to decide how strong the visual ID evidence is. if it is poor and there is no supporting evidence what will the judge do

A

judge will stop case and direct jury to acquit - normally follows submission of no case to answer

92
Q

in CC - judge uses turnbul guidelines to decide how strong the visual ID evidence is. if it is poor but there is some supporting evidence what will the judge do

A

a turnbul warning is given and draw attention to specific weaknesses of ID evidence

93
Q

in CC - judge uses turnbul guidelines to decide how strong the visual ID evidence is. if it is good what will the judge do

A

judge will warn the jury in summing up the dangers of eye witnesses and tell them to consider the turnbul guidelines (turnbul warning)

94
Q

what is a turnbul warning

A

judge will warn the jury in summing up the dangers of eye witnesses and tell them to consider the turnbul guidelines

95
Q

what is the inference that is made when D fails to account for object, substance or mark on their person or at place of arrest

A

infer that they had no explanation or non that would stand up to questioning

96
Q

does a special caution always have to be given for an adverse inference to be drawn

A

no only when D is asked to account for an object, substance or mark on their person or at place of arrest

97
Q

what is a proper influence

A

an adverse inference

98
Q

when does negative inference arise from silence

A

when D relies in court on a fact which they failed to mention at police station

99
Q

what inference is made when D relies on a fact which they failed to mention at the police station

A

that they fabricated it or that they didn’t think it would stand up to questioning

100
Q

can D be convicted if the only evidence is an adverse inference

A

no

101
Q

can an adverse inference be drawn if D has not had legal advice

A

not until D has been offered legal advice

but if they turn it down an inference can then be drawn

102
Q

does the adverse inference due to silence apply to all facts that D could later mention

A

no - only facts which D would be reasonably expected to mention when questioned

103
Q

can an adverse inference due to silence be drawn if D gives written statement then answers no comment to all other questions

A

not if statement contained all facts later relied on

104
Q

can an adverse inference due to silence be drawn if D makes a written statement but doesn’t hand it in

A

cannot infer fabrication but can infer that D was unsure it would stand up to investigation

105
Q

can a negative inference be drawn from silence even if the only reason D was silent was become solicitor told them to

A

yes unless jury thinks D reasonably relied on legal advice

if D raises this then D waives legal privillege and can be questioned on legal advice

106
Q

can adverse inference be drawn from silence at trial

A

D doesn’t have to give evidence but if P raises issues which call for an explanation from D then an adverse inference can be drawn if D is silent
also drawn adverse inference if once sworn in D refuses to answer question

107
Q

what inference is drawn from silence at trial

A

that D has not explanation or none that will stand up

108
Q

are there any exceptions to the rule that an adverse inference will be drawn if D is silent at trial

A

if physical or mental condition of D makes it undesirable to give evidence

109
Q

what is a confession

A

any statement wholly or partly adverse to the person who made it

110
Q

does a confession have to be to a person in authority

A

no

111
Q

does a confession have to be made in words

A

no

112
Q

does a confession have to refer to whole case

A

no it could just be regarding one element of the case

113
Q

what is a mixed statement

A

a statement containing a confession and something beneficial to D

114
Q

is a mixed statement admissible

A

the whole statement is admissible

115
Q

is evidence from the trial of co-D admissible in Ds trial as evidence against D

A

yes

116
Q

how can D challenge the admissibility of a confession / when is a confession not admissible

A

D can claim that they didn’t confess or that it shouldn’t be admissible
not admissible if obtained through oppression or anything else likely to make it unreliable
if D claims this then P must prove it was not obtained in this way

117
Q

when is the admissibility of confession evidence considered at MC

A

it may be left to the end of the trial to consider

118
Q

are facts discovered as a result of inadmissible confession evidence admissible

A

yes just cannot say where they were discoverd

119
Q

what can D do if the confession evidence is admissible

A

attack the credibility or persuade jury to give it little weight

120
Q

when is confession evidence unreliable

A

something said or done that would make D confess for reasons other than actually being guilty

121
Q

when can court exclude evidence

A

if it would have such an adverse effect on fairness or proceedings it ought not to be admitted

122
Q

when evidence is obtained in breach of PACE or code will it be excluded

A

only if breach is both significant and substantial

123
Q

when is a confession made outside the station likely to be excluded

A

if police breached code by:
failing to make accurate record
failing to put it to D to sign or dispute
failing to put it to D on audio recording at start of interview

124
Q

what is hearsay

A

when a statement not made in oral evidence is relied on as evidence of a matter in it

125
Q

4 categories of hearsay evidence which is admissible

A

preserved common law
statute
public interest
parties agree

126
Q

hearsay evidence admissible under statute

A 
business docs
witness is unavaliable 
formal admission 
previous inconsistent/consistent statement 
statement from witness not in dispute
127
Q

when can hearsay evidence be admitted because a witness is unavailable

A

can ID person who made statement
must be first hand
the are dead, unfit, outside UK, missing or in fear and court gives leave

128
Q

when can business docs be admitted as hearsay

A

must have been created or received by a person in the course of a business
the person who supplied the info in the doc had or may be reasonably supposed to have a personal knowledge of the matters dealt with and
each person though who the info was supplied received it in the course of business

129
Q

is both first and multiple hand hearsay admissible in business docs

A

yes

130
Q

is both first and multiple hand hearsay admissible when a witness is unavaliable

A

no - only first hand

131
Q

when can business docs prepared for criminal proccedings be admitted as hearsay

A

either must be:
dead, unfit, outside UK, missing or infear and court gives leave
or
they cannot reasonably be expected to have any recollection of the matter in the statement (too long ago)

132
Q

when is it in the interests of justice for hearsay to be admitted

A 
probative value
other evidence 
importance
circumstances in was made in ]can oral evidence be given 
can statement be challenged
reliability of statement maker
how much prejudice is caused to D
133
Q

what are the preserved common law exceptions when hearsay is admissible

A

confessions and evidence admitted as part of the res gastae

134
Q

res gastae

A

a statement made around the same time as the event where spontaneity of the statement means possibility of concoction can be disregarded - admissible as hearsay

135
Q

ackner criteria for admission of res gestae evidence

A

can the possibility of concoction or distortion be disregarded
was the event so unusual or dramatic that utterance was instinctive reaction - no chance to reflect
utterance so closely associated with event - Ds mind still controlled by event

136
Q

when must a party give notice of intention to rely on hearsay

A

if they wish to use hearsay because:
witness is unavaliable
interest of justice
it is multiple hearsay or
business docs prepared for criminal proceedings must give notice of intention to rely on it or oppose it to court and other parties
for all other hearsay this doesn’t apply so no need to serve intention on other party

137
Q

when is admissibility of opposed hearsay is determined

A

at pre-trial hearing

Criminal litigation (6 decks)

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