CP2

Question 1

Definition of a hearsay statement?

Answer 1

a statement, not made in oral evidence, that is relied on as evidence of a matter in it’

two stages:
1. out of court
2. purpose prove truth

STATEMENT is fact or opinion, inc by photos etc - believe it or act upon it

e.g. Adam tells court that George told him out of court that his bike was stolen

Purpose must be to cause another to believe or act on

Question 2

Define statement for purposes of hearsay evidence definition?

Answer 2

‘any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form’.

Question 3

What must purpose of a hearsay statement be?

Answer 3

appears to court to have been to cause another person to either believe it or person/machine to act on basis of it

e.g. diary entries hearsay as not intend another to read

e.g. S says to B that “T stole your watch”. So B punches T. That isn’t hearsay - because it is not used to show T stole the watch but fact it was said made him hit him. truthfulness is irrelevant so not hearsay.

Question 4

Examples of common hearsay evidence

(just for understanding)

Answer 4

• witness repeating at trial what told by another
• statement from witness being read out at trial instead of witness attending court
• police officer repeating at trial confession D made

Question 5

Two types of hearsay evidence?

Answer 5

First-hand hearsay
- repeating statement heard D make

Multiple hearsay
- relayed through more than one person before it is recorded

Question 6

Four categories for admitting hearsay

(not DUA stuff)

Answer 6

permitted by

1. statutory provision
2. preserved common law rules (inc res gestae)
3. parties agree (easy one - always if agree)
4. court satisfied interests of justice

Question 7

Will hearsay evidence be admissible if witness is unavailable to attend court?

Answer 7

Yes if:

• otherwise admissible (ie first-hand hearsay only);
• can identify maker of statement; and
• any of following conditions met:

DUA MF

a) they are dead
b) physically/mentally unfit to be witness
c) outside UK and not reas prac to attend
d) missing / can’t find despite reas pract steps taken
e) refuses cos fear

For purposes of (e) only:
- court must give leave
- court consider if interests of justice to admit
- interests of justice = consider contents/risk of unfairness (eg how difficult to challenge the statement if no witness) and fact special directions measure could have been made

Question 8

When will business documents/their contents be admissible (as hearsay evidence)?

Answer 8

(basically:
- maker had personal knowledge
- made and received course of business)

1. Oral evi would be admissible;
2. Created or received by a person in the course of their occupation or holder of a paid or unpaid office;
3. person who supplied the information had personal knowledge of the matters; and
4. if multiple hearsay, each person passing it on received in course of their occupation, or holder paid or unpaid office

e.g. could admit:
- hand-written receipt from shop owner that bought gun from
- boss (has knowledge and at work) tells clerk enter on ledger

Question 9

When will a hearsay statement prepared for use/in contemplation of criminal proceedings be admissible?

Answer 9

1. W unavailable (DUAFF)

OR (!)

2. W could not be expected to remember matters in statement
   ^ consider time passed and other circumstances

remember if business doc must satisfy all those - think includes that if hearsay all must have had personal knowledge??

e.g.
- shop owner lists items stolen, burglar arrested 2 years later, allowed to attend trial but unable to recall all items on the list - admissible as firts-hand business doc cos personal knowledge and course of business
- BUT as it was made for use in contemplated criminal proceedings (was for insurance policy), must satisfy one of these conditions. can satisfy time elapsed.

Question 10

Common law exceptions which allow hearsay evidence to be admitted?

Answer 10

• confession evidence
  (confession made by D admissible, even if hearsay)
• res gestae
  (statement made at same time as event)

Question 11

Explain res gestae exception which permits hearsay evidence to be admitted?

Answer 11

If statement made contemporaneously at same time of action.

Can possibility of concoction/distortion can be disregarded, considering:

1. How startling or dramatic event was;
2. How spontaneous statement was;
3. Whether triggering event still operative when statement was made;
4. Any special features suggesting concoction or error
   (e.g. motive fabricate)
   (e.g. poor eyesight).

Question 12

When will hearsay be admissible in interests of justice?

(inc considerations)

Answer 12

Catch all / wide discretion/ HAVE REGARD TO ART 6 THROUGHOUT
(good for adv)

Admit under s 114(1)(d)

having regard to s114(2) factors:
(a) probative value re disputed matter in isssue OR valuable for understanding eother evi
(b) can/has other evi given on relevant matter or evi?
(c) importance of the matter or evi context case whole
(d) circumstances statement made?
(e) reliability maker appears
(f) reliability making appears
(g) can oral evi be given? why not?
(h) difficulty in challenging statement
(i) extent difficulty likely prejudice

Also consider other factors consider relevant.

No need to reach conclusion on each factor.

e.g. could use to admit lost note from a witness of a road traffic accident with reg plate of D

e.g. reluctance to testify rape in person as don’t want to relive - difficult appellant challenge, circumvent s 116 (eg dead/outside UK etc - even though can use if not fall within s 116 sometimes)

Question 13

When do procedural rules apply/not apply regarding admission of hearsay?

Answer 13

i.e. give notice of intention to rely to other parties and court

only applies if:

1. IoJ 114(1)(d)
2. W unavailable court (DUAMF) s 116
3. multiple hearsay s 121; or
4. prepared for use in criminal proceedings s 117 (c)

(NB these are part 20 rules)

don’t apply if:
- res gestae
- confession
- parties agree
- business docs
- court excluded requirement

^ if no notice required, there is stil an application form to use!

Think that’s it

Question 14

If procedural rules apply to hearsay evidence, what needs to happen?

(ie what are the procedural rules in relation to hearsay evi)

Answer 14

To adduce or oppose other’s ‘s app to introduce , must:

• serve NOTICE of intention of this on court and other parties in case
• use prescribed FORMS
• During STANDARD DIRECTIONS at mags/CC - court will impose time limits on both parties to give notice of intention to adduce

HOWEVER court can:
a) dispense requirement to give notice
b) allow notice to be given orally
c) shorten/extend time limits for notice

Question 15

Define confession evidence

Answer 15

‘any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise’ (PACE 1984, s 82(1)).

i.e. anything said by D which admits any element of offence or is in any way detrimental to case

Question 16

Will a confession by D prior to trial be admissible evi at trial if hearsay?

Answer 16

Yes

Question 17

What is a mixed statement in context of confessions and will it be admissible in whole?

Answer 17

Confession which contains something which is favourable to defendant

Yes

eg
‘I did have sex with her, but only because she consented.’ This is a mixed statement, because Connor makes a confession (admitting to having sexual intercourse with the complainant) but he also makes a statement favourable to his defence (saying that it was consensual). The entire statement will be admissible.

Question 18

Is evidence made by a co-defendant admissible in evidence against a co-defendant?

Answer 18

Yes any evidence that implicates the other defendant admissible evidence against that other defendant

Including confessions

And they can give evi for cps at trial of other D implicating them in offence

Question 19

how can a D who is alleged to have made a CONFESSION challenge its admissibility at trial?

Answer 19

1. argue didn’t make it at all and person to whom made either mistaken or fabricated; or
2. s76 - did make but shouldn’t admit cos:
   (a) oppression; OR
   (b) unreliable
   (o comes before u in alphabet)

^ If D argues A or B, court must not admit unless CPS prove beyond reasonable doubt that not obtained in that way
(even if court thinks it’s true)
(and i checked this and this is true!)

4. such adverse effect fairness of proceedings s78 PACE

Question 20

What would count as oppression for purposes of obtaining confession (and therefore it not admissible)?

Answer 20

V high threshold

Includes:

• Torture, inhuman or degrading treatment
• Use or threat of violence
• Exercise of authority or power in harsh/wrongful manner

e.g. D bullied and hectored into confession during interview

Question 21

When would confession be excluded due to unreliability (due to circumstances existing at time)?

Answer 21

(ie caused to confess for reasons other than committed offence)

Usually breach code C. main ones:

1. denying refreshments and rest
2. inducement to confess
   e.g. lesser sentence/leave quicker/bail
3. misrepresenting strength CPS case
4. questioning inappropriate way
   eg badgering until give answer they want
5. questioning when unfit state
   eg drink/drugs/ill
6. threatening
   eg can’t leave until confess

Question 22

Will defendant be able to argue confession unreliable and should exclude because denied legal advice?

Answer 22

only if causal link between breach and unreliability of confession

i.e. would they have not made confession if had legal advice?

approach as a but for test

unlikely if experienced criminal who knows rights

could say if solicitor was here interview would have stopped here but continued and confession made at X point

Question 23

Can a co-defendant rely on a confession made by another defendant?

Answer 23

Yes

Unless the other D challenges admissibility on grounds of unreliable/oppression and D can’t prove on balance of probabilities that was not obtained that way

Question 24

When may court exercise discretion under s78 (such adverse effect fairness proceedings)

to exclude confession where D accepts making?

Answer 24

If breaches (by police of PACE/Codes) are both

SIGNIFICANT and SUBSTANTIAL

Often exercise if denied legal advice then make confession

(nb this is different to oppression / unreliability)

Question 25

When may court use 78 discretion (adverse fairness) to exclude a confession D denies making?

Answer 25

Can only challenge under s78 (adverse fairness) and not oppression/unreliability (s 76)

eg
confession allegedly made during interview outside police station, likely excluded if policy breached Code C by:

• Failing to make accurate record of D’s comments
• Failing to give D opportunity to view record of comments and sign as accurate
• Failing to put admission or confession to D at start of subsequent polices station interview
  (so could not confirm or deny on record)

Question 26

What is the procedure for challenging admissibility of confession evidence at the CROWN court?

Answer 26

• voir dire trial judge (w/o jury)

if police station interview confession:
- interviewing officer and D will give evidence; and 👮‍♀️
- audio recording likely played 🔊

if outside station:
- officer/D give evi

CPS and defence then submissions to judge

If judge rules admissible, interviewing officer will give evi of confession to jury and** D will still be able to challenge**

Question 27

What is the procedure for challenging admissibility of confession evidence at the MAGS?

Clue: depends how challenging

Answer 27

• D will usually seek ruling on admissibility when the interviewing officer gives evi
• if D wants to exclude on grounds of:

A) oppression or unreliability - must hold voir dire

B) oppression or reliability AND s 78 - deal with both at same voir dire

C) s 78 only - decide if admissible at:
- end of CPS case if D made submission of no case to answer; or
- end of trial when D’s solicitor makes closing speech

Question 28

If court excludes a defendant’s confession, will facts discovered as a result of that confession be excluded?

Answer 28

No

But CPS will not be able to tell court that they discovered such facts as a result of a confession

Question 29

Define bad character evidence?

Answer 29

Evi of, or a disposition towards, misconduct - other than regarding the offence which D charged of

Misconduct = commission of offence or other reprehensible behaviour

NB if connected to the offence, doesn’t count as bad character so will be admissible
- e.g. Sean fabricated will then killed him, allegation of fabrication is connected so defo admissible

Question 30

What are the 7 gateways for admissibility of D’s bad character evidence?

Answer 30

s101(1) CJA 2003 (zoey 101)

(a) all parties agree 🤝
(b) provided by D himself or provided by D in answer to a cross-examination Q which intended to elicit it 🕴️
(c) is imp explanatory evidence 🙇‍♀️
(d) is relevant to an important matter in issue between D and CPS; 👑
(e) substantial probative value in relation to an important matter in issue between the** D and co-D**; 👯‍♀️
(f) is to correct a false impression given by the defendant; or ✅
(g) D made attack on another’s character 🥊

Question 31

Does

A) bad character evidence

B) adverse inferences

need to be substantiated by other evi to go before jury?

Answer 31

Yes - would need to other evi if just relying on one of those to prove guilt

Question 32

When may a defendant want to adduce bad character evidence on own volition?

(gateway B)

Answer 32

Cos only got minor convictions and not want jury to think they aren’t providing character evidence because got loads

Or if pleaded guilty previously but pleading not guilty today
(if id done it I would say !)

Or eg evi in car suggests committing offence - but actually proved committed a previous offence
(proof of previous burglary but not current offence)

Question 33

Gateway c - bad character evi can be adduced bcos imp explanatory evi.

Can either party rely on this ground?

When can it be used?

Answer 33

CPS only.

If:
- without it, difficult to properly understand case; and
- value of evi is substantial
(not marginal/trivial)

If CPS satisfies above to adduce under gateway C, court can only exclude on ‘such adverse effect fairness’ ground (s78)

e.g. part of reason for D’s offence was sexual - can adduce evi relating to this as necessary to show motive

Not if evi understandable without the bad character evi

Question 34

What would usually be ‘imp matter in issue between D and CPS’, as to allow bad character evi to be adduced under gateway D?

Can either party use this gateway?

Answer 34

CPS only

If answers:

1. Q of whether D has propensity to commit offence of KIND charged - unless having such propensity makes no more likely that guilty; and
2. Q of whether D has propensity to be untruthful - unless not suggested that D’s case is untruthful

KU not TU

Under K is DFC

Question 35

Explain when CPS will be able to argue that bad character evi should be adduced because shows PROPENSITY to commit an OFFENCE of the kind charged?

(imp matter in issue)

Answer 35

Must establish that propensity makes more likely that D committed offence

DFC - don’t fgn care - description, factual, category.

By providing evi of conviction of:

a) offences of same description
(same on charge sheet - eg both ABH)

b) offences of same category
S of S confirmed will be same:
1. sexual offences against children under 16
2. theft category: burglary, robbery, theft, aiding and abetting those

c) OR diff category/description but significant factual similarities
(eg commit crimes using knife)

Unless court satisfied that would be unjust to apply due to amount of** time passed** since conviction, or any other reason.
(see sep card on spent etc)

Question 36

Explain guidelines court must follow when CPS seeking adduce propensity commit offences same KIND

Answer 36

gateway (g) KIND - d,f,c - onlt
not description

R v Hanson

Must answer YES to each:

1. offending history show PROPENSITY commit offences of KIND charged?
2. If so, does it make more likely committed THIS offence?
   e.g. committed last offence BECAUSE drug addict. no longer.
3. If so, just to rely - considering overriding principle must be fair?

Consider:
* Fewer convictions, less likely propensity.
* If only 1 1️⃣ conviction, must be unusual behaviour or distinguishing feature
(e.g. against children, fire)
(e.g. rape - some dissimilarities and v prejudicial - didn’t allow)

Question 37

when would CPS will be able to argue that bad character evi should be adduced because shows propensity to be UNTRUTHFUL?

(gateway D)

Answer 37

only if suggested D’s case/part of is untruthful

1. manner committed the PREVIOUS offence demonstrates propensity untruthfulness:
   actively sought to deceive or mislead by false representations
   - usually fraud by false rep or perjury
   - not usually theft unless ACTUALLY sought to mislead or lied.
2. previously pleaded and testified not guilty
   - but not believed and convicted
   (offences of any description fall within this)
   (only applies to that previous offence where pled not guilty)

Question 38

When must court exclude bad character evidence which would otherwise be admissible and under which 2 gateways?

When is it most likely to do this?

WHICH SECTION !!!

Answer 38

(d) CPS matter in issue
(g) Anothers character

s101(3)

MUST (!!!) not admit if:
- D applies ; AND
- appears admit such adverse effect fairness

Considering:

(a) nature of convictions mean likely convict on that alone (instead of evi in case) or
evi of prev convictions more prejudicial than probative
(e.g. sexual offences)

(b) otherwise weak CPS case 💪

(c) previous convictions spent 🤑

Question 39

When will offences be treated as spent?

Effect?

Answer 39

Can still admit if spent but court likely to prevent for (d) and (g) especially under 101(4).

• 1 yr after fine/community order
• 2 yrs up to 6 months imprisonment
• 4 yrs over 6 - 30 months
• 7 yrs after 30 m - 4 yrs
  never spent after 4 yrs

Question 40

How may D’s solicitor seek to challenge admissibility of previous convictions under gateway D?
(KU)

As in what steps should they take? Advocacy imp.

What use to argue there not propensity??

Answer 40

Step 1:

Propensity = R v Hanson
a) not got propensity cos, e.g.:
- 1 conviction
- diff facts?
- time elapsed?
- propensity makes no more likely?

OR for untruthfulness
is it suggested D’s case is untruthful?

2. If do show propensity, persuade exclude such adverse effect 101(4)
   (more prejudicial than probative, weak CPS case, time spent)

Question 41

Who can use gateway E to inc D’s bad character evi and why would they want to?

Answer 41

Co-D only

NOT CPS

To show more likely to be D than themselves who committed

(as with gateway D - is about committing offences of same kind or untruthfulness)

Question 42

Explain when a co-defendant will be able to admit bad character evidence under gateway E?

(substantive probative value imp matter between D and co-D)

Can this be excluded?

Answer 42

substantive = relevance more than marginal or trivial

1. Propensity same kind
   - e.g. each not guilty plea. ONE had prev violent offences.
   - relevance is who is guilty
2. Propensity untruthful
   - ‘cut-throat’ defence
   (i.e. both blaming other)
   - obvs helpful if can show not credible
   - e.g. lied in past

S78 DOES NOT APPLY TO THIS!
if co-D establishes gateway E, must be admitted.

Question 43

Explain who will be able to adduce evidence under gateway E and how?

When can courts exclude despite this gateway being satisfied?

Answer 43

Correct false impression given by D

CPS only

• if D gives false impression via express or implied assertion which would give court or jury false or misleading impression about them
• assertion must be:
  (a) made by D in the proceedings
  e.g. in witness box or a defence statement
  (b) made by D during police questionning;
  (c) made by one of D’s witnesses;
  (d) made by a witness in response to D’s cross-examination, which intended elicit that response;
  (e) made by anyone outside of court and D seeks to use in court.

e.g. during interview D said I’m a good christian would never commit such an offence but actually already done it 3 times

Court can only exclude under discretionary s 78 PACE power (such unfairness !)

Question 44

Explain who will be able to adduce prev convictions evi under gateway G.

HOW?

Answer 44

CPS only

• attack can be on anyone - not just witness or victim
• can have attacked at police station, trial or in defence statement

Must just be evi suggesting other person has:
- committed any offence; or
- behaved / likely to behave in reprehensible way

courts likely wide discretion
- e.g. called complainant a slag
- e.g. alleged officers trying to set D up / where conspiracy against others which impacts character

Question 45

when must court exclude evi under gateway g?

(adducing prev convictions ie bad char evi bcos attacked another’s character)

Answer 45

D applies

and admission of evi such adverse effect that ought not to

(same as gateway D - consider nature and extent of offence, more prejudicial than probative, Cps case otherwise weak and time spent)

Question 46

Under what gateways MUST court exclude bad character evi due to unfairness?

What about the other gateways - anything they can do other than s 78?

Answer 46

• Important matter in issue between D and CPS
  (propensity - same kind/untruthful)
• Attacked anothers character

For all others, automatically admissible

Discretion 78 PACE
- use where ruling on admissibility and is appropriate to exclude

Under CJA, court also has power to direct jury to acquit or order re-trial when bad character evi is ‘contaminated’
(eg witnesses colluded to fabricate bad character evi)

Question 47

When will court exercise its s 78 discretionary power to exclude D’s bad character evidence?

Answer 47

such adverse effect fairness proceedings

signif and substantial breach PACE required.

In reality this will be:
- C: is important explanatory evidence
- F: evidence to correct a false impression given by defendant

Question 48

When can a court stop a contaminated case and what would it do?

Answer 48

all the C’s - crown court. contaminated case.

Crown Court only

Direct jury acquit D or order re-trial if D’s bad character evidence is contaminated

Contaminated ifs witnesses colluded to fabricate bad character evidence

Question 49

Procedural practicalities which must be follow if seeking to adduce bad character evidence?

(by CPS, Court and D)

Answer 49

CPS:
- Notice of intention to court and other parties

• Using prescribed form and attaching previous conditions convictions to adduce

Mags/Crown Court:
- in standard directions, set time limit to serve notice or apply to adduce

D:
- if opposes adducing, apply to court
- application sent to court and other parties by time limit in CrimPR

Question 50

When can bad character evidence of anyone other than D be adduced?

Answer 50

CPS or D can adduce. Can be about anyone. Witness/complainant or not.

s 100(1)

1. Imp explanatory evi
   only hit him because he did xyz
   misconduct
2. Substantive probative value to matter which is:
   (a) in issue; or
   (b) is of substantial imp to case; or
   credibility/guilty
3. all parties agree

EMA - explanatory, matter in issue, agree

see sep cards for explanation of each.
CMND F flower onenote for diagram if care

Question 51

When will bad character evi of someone other than D be considered important explanatory evidence?

Answer 51

1. without it, court / jury find difficult to properly understand other evi; and
2. substantial in understanding whole case
   (more than trivial)

- leave of court required

e.g. only hit him because she was threatening to hit X

Question 52

When will LEAVE of court be required for adducing bad character evi of someone other than D?

Leave of court = permission of court

Answer 52

100(1)(a) - important explanatory evidence

100(1)(b) - substantial probative value matter in issue

(only not required if both parties agree to adducing)

Question 53

When is D likely to argue should adduce bad character evidence of another bcos

substantial probative value in relation to a matter which—
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or

and what must they show for each

(100(1)(b))

Answer 53

CMG.
InCREDIBLE that u can use dishonesty.

1. Credibility of witness
   a) dishonest / untruthful; or
   b) not guilty plea
   ^ if relying on dishonesty, must be imp witness and relate to credibility
2. Misconduct re current offence
   - court will consider factual similarities
   - inc previous convictions
   - eg fought cos nasty words about GF, history of that - was he drunk when did it prev instances etc.
3. Guilty of current offence
   - eg night worker fabricated evi against D. worker actually stole them and previous 2 convictions
   - try to adduce them convictions
   - court considers factual similarities prev offence.

Question 54

What must court consider if D trying to adduce bad character evi of another because substantive probative value to matter in issue?

good advocacy buzz words

Answer 54

Consider probative value based on:

1. Nature and number of events that incidents relates to
   - factual similarities?
2. When those events/things alleged to have happened
3. more than merely marginal or trivial

Question 55

When will D likely to succeed in adducing bad character evidence of another to show lack of CREDIBILITY?

Answer 55

• Ideally imp witness (should defo be imp if credibility) and
• Previous convictions involving dishonesty, regardless of whether involved untruthfulness
  but consider nature/number/age
  (lower threshold than for the other one); or
• Previously convicted following non-guilty plea

(reminder: this will be on gateway for substantive probative value relevant to matter in issue)

Question 56

When will D likely to succeed in adducing bad character of another to suggest misconduct in relation to offence or guilt of that offence?

Answer 56

Court considers:

• similarities relevant misconduct and previous convictions
• extent evi shows they are guilty for current offence

e.g. Nathan convicted stealing. Jack has 2 convictions for theft from employer. Jack adduces to show more likely of two. May permit if facts similar.

• not relevant whether will be witness in case or not

(reminder: this will be on gateway for substantive probative value relevant to matter in issue)

Question 57

When will bad character evi (ie prev convictions) be substantial?

Answer 57

more than minimal or trivial

Question 58

burden of who and to what standard in showing admissibility of confessional evidence where challenged bcos oppression/unreliable?

Answer 58

CPS prove on reas doubt not on any way obtained by oppression or circumstances unreliable

(engage task 4 q5)

Question 59

For what gateways MUST court exclude bad character evidence if application by D and such adverse affect on fairness ought not to admit?

s 101(3)

Answer 59

Gateway D and G

(matter in issue / attack another’s character)

Question 60

general note

Answer 60

for MCQs on bad character evi e.g. propensity to be untruthful etc / when there are two options

u can do both, but he said not great advoacy

and e.g. with oppression so hard to prove

I don’t think this is correct for SQE2 tbh!!

Question 61

Under the standard case management directions (criminal), how long are parties allowed to prepare a case for trial at the magistrates?

Answer 61

8 weeks

Or 14 weeks if expert evidence required

Question 62

What is the purpose of the Magistrates’ Court Trial Preparation Form?

Answer 62

Asks CPS/D to say things liek complex areas of law relied on / witnesses

Then mags records directions - inc timetable

Question 63

What is contained in the Magistrates Court Trial Preparation Form?

Answer 63

Asks both parties to provide detailed info about how they will prepare for and conduct the trial

All directions and decisions made by the court

Question 64

What can defence/CPS do if witness is reluctant to give oral evidence at magistrates court?

Answer 64

obtaining a witness summons from the magistrates court, which requires their attendance

Question 65

When will the magistrates court issue a witness summons?

Answer 65

Satisfied witness can give material evidence
and is in interests of justice

Question 66

What must defence serve on CPS re their witnesses/what information?

Original purpose of this?

Answer 66

Notice

Setting out witnesses’ names, addresses and dates of birth

Allows CPS to search if they have any previous convictions

(s 6C)

Question 67

Can CPS interview a defence witness? How?

Answer 67

Yes

Via police

Police must follow a code of practice

Question 68

How long does defence have to serve notice on CPS regarding witnesses intend to call?

Answer 68

28 days from cps discloure

Question 69

What COULD happen if defence fail to provide CPS with notice of witnesses intend to call?

Answer 69

court may draw adverse inferences which appear proper if in crown court

Question 70

Are the defence required to serve witness statements (which intend call at trial) on CPS?

Answer 70

No

Unless EXPERT witness reports which intend to call at trial

Question 71

When can a WRITTEN statement from a witness be admitted at trial, instead of them having to give oral evidence?

What are these statements known as?

How long to serve ?

Answer 71

‘section 9 witness statement’

Witness 7 letters !

Either party

1. Signed and dated
2. Declaration:
   “this statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if tendered in evidence I shall be liable to the prosecution if I have wilfully stated in it anything which know to be false or not believe true”
3. Copy served on other parties
4. No parties objected in 7 days

Should only use for evi not in dispute
(e.g. doctor who treated victim, defence relying on self-defence anyway)

Only matters admissible in oral evi

Question 72

Documentary evidence at criminal trial - examples of it and what must it be accompanied by?

Answer 72

Witness statement from person who prepared it

e.g. photographs or plans of crime scene

(thats all textbook says)

Question 73

What is ‘unused material’ including examples

Answer 73

Evidence CPS has in possession but won’t use at trial

e.g.
- eyewitness description of suspect which differs from what D looks like
- info provided by D indicating innocent explanation
- something casting doubt on witness/confession reliability
- witness statements which support D

Question 74

For what offences MUST magistrates court send send D to Crown Court for trial?

important

Answer 74

• indictable-only
• either-way or summary offence related to indictable-only
• summary only punishable by:
  (a) imprisonment; or
  (b) driving disqualifacation (mandatory or disccretionary)

e.g.
charged with robbery (indictable). used ABH (either-way) or common assault (summary-only) to commit that offence.
^ whether summary or either-way, still related, still send to CC.

Question 75

if offence triable only on indictment, will it go to mags?

Answer 75

yep still goes to mags first

cos mags determine whether offence is triable on indictment only and whether are any related offences to send to CC

Question 76

If mags decide offence must go to Crown Court, what will they do next?

Answer 76

• set date for the PTPH at Crown Court
• or set date for preliminary hearing at Crown Court if one is necessary
• remand D on bail or in custody
• give set of standard case management directions - unless preliminary hearing at CC is set
• notice to D specifying offences and which Crown Court, and copy of notice to CC

Question 77

Charged either-way going to Crown Court, can summary-only also convicted of be tried CC too?

Answer 77

1. founded same fact or part of series of similar offences and:
   - common assault;
   - criminal damage
   - taking a conveyance (vehicle) without consent; or
   - driving whilst disqualified.
2. Or any summary-only punishable by imprisonment or driving disqualification
   (even if not related)

Question 78

D being tried either-way AND summary in CC

What sentencing powers CC have if:

A) convicted either-way and pleads guilty to summary-only

B) acquitted either-way offence and pleads not guilty to summary-only

Answer 78

A) can sentence but powers limited to that of mags

B) send back to mags

Question 79

What is preliminary hearing?

When will a preliminary hearing be required for an offence triable only on indictment?

How long for it to take place?

Answer 79

usually mags issue standard directions when sending to CC

but sometimes require preliminary hearing in CC to set directions.

Must be indictable-only and:

1. there are case management issues which the CC needs to resolve;
2. the trial is likely to exceed 4 weeks;
3. desirable to set an early trial date;
4. the defendant is under 18; or
5. likely to be a guilty plea

Question 80

Time limit must a preliminary hearing take place?

Answer 80

Within 10 BUSINESS days of the date on which mags send case to Crown Court

(business days are not weekends or bank hols)

Question 81

Purpose of PTPH?

Answer 81

Allow D to enter plea

And if D pleading not guilty, enable judge to give further directions

Question 82

How long after ___ should PTPH take place?

What is a PTPH?

Answer 82

Within 20 business days of case being sent to Crown Court (i.e. allocation hearing

(not weekends or bank holidays)

PTPH = sent to CC and preliminary hearing was not required (ie standard directions issued) (allows to enter plea/give further directions)

Question 83

What is ‘the arraignment’?

(including when it happens)

Answer 83

• at start of PTPH, D will be arraigned

meaning that the count(s) of indictment put to D, who will plead guilty or not

Question 84

What will jury be told if D pleads guilty to some counts and not to others at the arraignment?

Answer 84

Won’t be told about the counts to which a guilty plea has already been entered

(so not prejudiced)
(cos if pleaded guilty pre-trial at arraignment wouldn’t be going before jury anyway)

Question 85

When may CPS offer no evidence at arraignment? What would happen in this instance?

Answer 85

1. reached agreement with D that if they plead guilty to certain counts, CPS will not proceed with other counts

• Judge will order not guilty plea entered

2. New evidence become available which means no reasonable prospect of convicting

• Judge will order not guilty plea entered
• D will be formally discharged

Question 86

As an alternative to offering no evidence at an arraignment, what may CPS request? When would they do this?

Answer 86

That a count against D is ‘put on the court file’

i.e. no further proceedings unless leave of CC or CoA

Would do if:
- several counts, evi for each is strong
- D prepared to plead guilty to the more serious ones, agree to lesser counts being left on file
- here, a not guilty verdict would be entered

Question 87

What happens if D pleads guilty at PTPH?

Answer 87

Judge either:
- sentence immediately; or
- adjourn sentence until receive reports eg medical; or
- adjourn if D disputes factual allegations made by CPS witnesses

If disputing witness allegations, will have a separate hearing (a Newton hearing) to determine factual basis on which sentenced

Question 88

Can a judge give a defendant an advance indication of their likely sentence at a PTPH? If so, when?

Answer 88

Yes

must ASK what would get if they pleaded guilty at that stage

If D pleads guilty after this, judge bound to give the sentence indicated

i.e. goodyear

Question 89

PTPH - what info must CPS and defence be prepared to supply to judge

(so can sort any further directions)

Answer 89

baso what do i need to do. any issues? what do u think the case will be like? enough to let me make idrections. common sense.

1. summary of issues in case
2. number of Ws
3. est trial length
4. whether police station interview needs editing
5. if defence statement served/agreed on
6. if CPS will serve any additional evi
7. disputes on disclosure of unused material ?
8. expert evi?
9. further directions re hearsay or bad character?
10. special measures for any witnesses?
11. evi admissibility issues?
12. availability trial dates

Question 90

What is the warned list?

Answer 90

List of cases awaiting trial that have not been allocated fixed date yet

if on warned lsit, D’s solicitor only informed shortly before trial date

Question 91

is D entitled to change a not guilty plea to a guilty plea before jury return verdict?

why would they do this?

Answer 91

judge’s discretion

may do if admitted guilt but plead not guilty in hope no case to answer
- or if judge made ruling on point of law/evidence which were relying on

Question 92

What are CPS obligations regarding unused material?

Answer 92

D enters NOT GUILTY plea

applies same in mags and CC

must disclose any unused material which might be capable of undermining CPS case or assisting defendant
(so like standard disclosure in civil)

ongoing!

e.g. casting doubt on a confession

Question 93

basic CPS disclosure requirement at mags and CC?

Answer 93

serve on D all evi on which wishes to rely on at trial to prove D’s guilt

Question 94

Time limits for CPS to disclose unused material?

Answer 94

In accordance with case management directions

Question 95

If defence consider CPS disclosure insufficient, when will they request ‘missing info’?

Answer 95

defence statement

Question 96

what should D’s solicitor do if want further CPS disclosure and already done defence statement?

when can they do this?

Answer 96

must have :

• reasonable cause to believe CPS material should but not been disclosed
• provided defence statement which set out
  IN DETAIL what material consider CPS has in possession and not subsequently disclosed

apply to court for order that CPS disclose material

Question 97

When CPS withhold disclosure of unused material (despite it satisfying test).

What must they do?

Answer 97

may want if ‘sensitive materials’

only if PUBLIC INTEREST IMMUNITY

Must apply to court
- Don’t need to give notice to defence
- Will be court’s decision

Note: defence statement will often ask CPS if schedule of sensitive materials has been prepared and if applied to court

Question 98

Who makes disclosure first - CPS or defence?

Answer 98

CPS

(defence only serve defence statement after received IDCP)

Question 99

How long does defence have to serve a defence statement in magistrates and Crown?

Answer 99

Mags: 10 business days of CPS serving unused material

CC: 20 business days (of CPS unused ^)

Can apply for extension if complex case

think of it as being same times for prelim and PTPH

Question 100

Who is defence statement served on? (criminal)

Answer 100

CPS and a copy on Court

Question 101

If there are two or more co-accused, what order can court make in relation to defence statements?

Answer 101

Each D serve copy of their defence statement on the other defendants

Question 102

Is it compulsory for defence to provide defence statement? Any implications if don’t?

Answer 102

Yes in Crown Court - not magistrates.

Obligation enforced in CC via drawing adverse inferences if fail to.

Question 103

When would it be good to serve defence statement on CPS in mags?

Answer 103

If they think CPS would be required to disclose additional unused material that may assist D’s case due to info disclosed

(under their ongoing duty of disclosure)

but note it is v rare - usually benefits of not giving CPS a heads up on the case outweighs getting unused evidence

Question 104

What must be contained in a defence statement?

imp

Answer 104

1. nature of defence, inc any specific defences (eg self-defence)
2. fact they dispute with CPS and why
3. facts intend to rely on
4. any law (inc re evidence) which intend to rely on
5. name/address/DoB of any alibis

note: under continuing obligation to update statement if any details change.

Question 105

Will defence statements need authority of defendant? (criminal)

Answer 105

Assumed to have authority of D unless contrary proved

So ensure D sees and approved copy before served

Question 106

How is defence statement signed? (criminal)

Answer 106

Usually original by solicitor and copy by D

Question 107

What may court draw adverse inferences regarding defence’s disclosure?

Answer 107

(nb Crown Court only)

if there are faults in defence statement, can draw adverse inferences when determining guilt.

Faults include:
- not providing
- late service
- incomplete
- inconsistent with defence put forth at trial
- failing to update

Question 108

if faults in defence statement, who may do what?

Answer 108

court can always

and other party with leave can

make comments on this and court/jury can draw adverse inferences

Question 109

Usual order of trial at the mags?
imp

not plea before venue

Answer 109

1. opening CPS speech
2. CPS witness
   - examination in chief by CPS
   - cross-examined D’s solicitor
   - CPS may re-examine
3. Possible D submission no case to answer
4. D witnesses
   (D themselves first)
   - exam in chief D
   - cross-examine CPS
   - D may re-examine
5. CPS sometimes can make closing speech
   if D is represented or D introduced evidence other than own
6. D’s solicitor closing speech
7. Mags retire to consider
8. Mags deliver verdict
9. If guilty, sentence or adjourn to obtain reports.
   (if adjourn, bail or custody)
10. If not guilty, formally discharged.

Question 110

Is the opening speech part of CPS evidence?

What will it contain in mags?

Answer 110

Not evidence.

Tell mags:

• facts
• relevant law
• what CPS need to prove to convict
• CPS burden proof/entitled acquittal otherwise
• what CPS case consists of
• which witnesses intend call
• summarise witness evi

may highlight points law anticipate arising e.g. Turnbull

Question 111

which witness will CPS usually call first?

Answer 111

victim

Question 112

At what stage of a trial at mags will D’s police interview be displayed, and in what format?

Answer 112

during prosecution evidence

read out transcript or summary

unless D disputes ^ (eg summary doesn’t show full picture) - then will play audio recording

Question 113

what stage of trial will ‘voir dire’ be in mags?

Answer 113

during CPS presentation of their case - when they are seeking to rely on that evidence

Question 114

Alternative to ‘voir dire’ in magistrates where there is disputed evidence?

Answer 114

1. Hear as part of the trial itself

• then consider admissibility when the defendant’s solicitor makes submission of no case to answer
• or when D makes closing submission

2. pre-trial hearing
   - to avoid contamination as will usually be diff bench of mags

Question 115

When should D put forward submission no case to answer? What will they need to show?

how will this submission be assessed?

Answer 115

(same for CC and mags)

End of CPS case.

1. failed put forward EVIDENCE to show essential element of offence; or

(e.g. that item belonged to another)
(the essential wtrose was a key element of my [fcccaaacia] and now i have sbmission no crust to answer !)

2. evidence discredited in cross-examination,
   or so manifestly unreliable,
   no reasonable tribunal could safely convict

^ even if only tenuously capable of proving a charge in law will be case to answer
(e.g. fingerprints on OTHER bombs)

(r v galbraith)

Question 116

Is defendant obliged to give evidence on own behalf in mags?

Answer 116

No

But in practice usually necessary

Because
- draw adv inf imp that no explanation stand up cross-examination)
- dispute W evidence
- defence requires them to give evidence (self-defence or alibi)
- explain conduct (eg why confessed)
- enhanced credibility if gives same account as in police station interview

Question 117

When should CPS exercise right to make a closing speech in mags? What would happen after?

Answer 117

• complex cases where would assist court
• defence will make their closing speech afterwards

(makes sense that usually in mags CPS do opening then defence do closing)

defence have choice in mags as to whether to make opening or closing speech - pretty much laways do closing speech
(closing speech not evi but summing up)

Question 118

Do defence have to make an opening or closing speech in mags?

Explain why would want to?

When would D do opening speech?

Answer 118

No - has choice as to both

Would want to make closing - last word.

Opening speech - only entitled to if intend to call witness(es) in addition to D

brief point in textbook so don’t overdeep it

just always do closing

Question 119

Is there a set format for closing speech?

What should it look like?

Answer 119

No

But should:
- short
- remind CPS burden / entitled acquittal otherwise / not need prove innocence
- refer CPS opening speech
- point out areas CPS come up short
- evidential issues

Question 120

Does there need to be unanimity in mags verdict? (bearing in mind usually sit in bench of 3)

Answer 120

No, majority.

Question 121

Crown Court vs Mags main diff re points of law and fact?

Answer 121

Mags - decide points of law and fact

CC - jury decide facts, judge decide law/sentencing

Question 122

Order of Crown Court procedure

Answer 122

** = diff to Mags

1. Jury sworn in (‘empanelled’)
   (12 jurors)
2. CPS opening speech
   (not judge)
3. CPS witnesses give evidence and agreed s 9 statements read by CPS
   (think s 9 statement is where summon a witness)
4. Submission of no case to answer
5. Opening speech defence **
6. Defence witnesses give evidence
7. Closing speech by CPS **
8. Closing speech by defence
9. Judge summing up **
10. Jury retire to consider **
11. Verdict announced
12. Guilty - either sentence or adjourn for pre-sentence report

Question 123

if Crown Court and no arraignment yet, what happens and at what stage?

Answer 123

Before jury sworn in (empanelled)

Court clerk then informs jury what counts pleaded not guilty too
- they don’t mention any pleaded guilty to

Question 124

CPS opening speech in CROWN court - what will speech usually contain?

Answer 124

1. Legal elements of the offence
2. Outline of evi CPS intend to call
3. Explanation of how burden and standard of proof work in criminal cases

Question 125

When will there be a voir dire in Crown Court?

before / during trial?

Answer 125

Disputed CPS evidence.

Often BEFORE trial:

• Defence often notify CPS before
• if CPS have advance notice, won’t mention opening speech

DURINGL
- if issue during CPS presentation of case
- jury retire and voir dire

Question 126

What is Galbraith test?

Answer 126

• as long as evidence capable of proving charge in law, even tenuously, will be case to answer
• only where evi not capable in law of convicting
  e.g. individual in region, possessing info about terrorism and fingerprints found on other bombs - was a case to answer

Question 127

Crown Court - when will defence make sure re submission of making application no case to answer?

Answer 127

That done in absence of jury

Question 128

What happens if successful submission of no case to answer in Crown Court?

Answer 128

Judge instructs jury to return a verdict of not guilty

Question 129

If multiple defendants, who goes first in witness box?

Answer 129

Whoever name appears first on the indictment

Question 130

When judge directs jury on the LAW (not evi), what will they cover?

(clue: there are 3)

Answer 130

1. Legal requirements of offence
2. Burden and standard of proof; and
   (usually CPS beyond reasonable doubt)
3. Any other issues of law and evidence that have arisen during trial
   (e.g. Turnbull - will need to say DCHC)

Question 131

When judge directs jury on evidence, what will they cover?

Answer 131

1. Summary of the issues of fact that jury must decide
2. Summary of the evidence and arguments raised by both parties
3. Inferences that jury are entitled to draw

Question 132

What happens in judge summing up ?

(three elements)

Answer 132

• directions on law
• sums up evidence
• tells jury to appoint foreman

Question 133

Does juries verdict need to be unanimous?

Answer 133

Yes

But can accept 10:2 if unanimity not possible after 2 hours 10 minutes
good way to remember - 2h10/10:2)
- judge likely require longer if complex case

If jurors discharged, e.g. to 11, majority 10:1

Question 134

What happens if jury can’t reach unanimous verdict in reasonable time?

Answer 134

Judge discharges

CPS likely request retrial before new jury

Question 135

What happens in terms of D’s costs if jury find not guilty?

Answer 135

order that legal costs paid by the state
(if not legal aid funded)

Question 136

If defendant convicted but not sentence, are they likely to be granted bail?

(what is the presumption)

Answer 136

There is presumption in favour of bail here

But judge likely refuse if serious offence
usually on grounds that:
A) will fail to surrender or
B) impractical to prepare report unless D is in custody

Textbook:
Although there is a presumption in favour of bail for a defendant who has been convicted but not yet sentenced, if the sentencing hearing has been adjourned so that pre-sentence reports may be prepared, a defendant who has been convicted of a serious offence
is very unlikely to be granted bail before sentence.

Question 137

What should you address the Magistrates / CC judges as as?

Answer 137

mags - sir or madam (think also your worship sometimes more outdated tho!)

if district judge, always sir or madam

If in Crown Court, to all judges ‘Your Honour’

Question 138

Opposing advocate what do you call them

Answer 138

My friend

Or if barrister - my learned friend
(that’s a bit annoying !)

Question 139

Random formalities / court room etiquette in criminal law?

Answer 139

• bow to judge or mags
• stand up when judge or mags leave/enter
• no food or phones
• advocate stand when addressing court or examining witnessses in open court (most are)
  .. unless:
  a) representing U18
  B) witness/D/other advocate via video link
  C) making bail appeal in Crown Court

Question 140

What are leading questions in criminal cases?

Answer 140

Qs which are suggestive of the answer

Opposite of open Qs which enables to place their account in own words - usually start with “who” “what” “where” “how” “when”

e.g.
“Did you see KTB steal baked beans from Sainsbury’s Hyde Park at 2pm on 5th June?”
Instead:
“where were u at 2pm 5th June”… “what did u see when u were in Sainsbury’s”etc

Question 141

Is advocate allowed to use leading Qs in cross-examination / examination in chief / re-examination?

Answer 141

(did you..) (how..)

Not allowed in examination in chief or re-examination

Allowed in cross-examination

But wouldn’t really want to use in cross-examination as may be enhancing CPS evidence/giving opportunity to expand

Question 142

types of qs in examination.

what types of Qs for what types

Answer 142

Examination-in-chief/re-examination = open/non-leading only
i.e. how what when where who why

“where were u at 2pm?”

Cross-examination = closed/leading

“did u see ktb steal beans from sainsburys?”

Question 143

What are the three main purposes of cross-examination?

Answer 143

1. put your case to the witness
   (suggesting that their version of events incorrect)
2. challenge credibility of evidence they gave in examination-in-chief
3. obtain favourable evidence from them

Question 144

why is it so important to put forward your case to a witness in cross-examination?

Answer 144

can’t rely on if not put it forward for some offences

e.g. self-defence - burden of CPS to prove did not act in SD only arises if D raises it

It is always necessary for an advocate to put their client’s version of events to a witness in cross-examination. For example, in an assault case where the defendant is claiming they acted only in self-defence, the defendant’s solicitor must, when cross-examining the alleged victim of the assault, put to the victim that they (the victim) attacked the defendant first and that the defendant was acting only in self-defence. If the defendant’s solicitor fails to put to the witness that the defendant was acting in self-defence, the defendant will then not be entitled to enter the witness box and say that they were acting in self-defence.

Question 145

Implication of failure of witness to attend court if been compelled by a court order or attending court but refusing to answer Qs?

Answer 145

Contempt of court

Can result in imprisonment

Question 146

Who is competent to give evidence at criminal trial?

(inc general rule. any age limit?)

Answer 146

General rule:
- Everyone, whatever age, are competent
(sam thompson)

Exceptions - not competent if:

A) can’t understand Qs; and
B) Give answers which could understand

(see sep queue cards on children and defective intellects)

if competent, ur compellable

Question 147

Will children be competent to give sworn evidence at criminal trial?

Clue: age where can be sworn

Answer 147

• consider the individual child
• even v young children if could give intelligible response
• but there evidence only sworn if aged 14+; AND
• understand solemnity / responsibility
• presumed to understand unless evi to contrary

Question 148

Will people with defective intellect be competent and therefore compellable witnesses?

Answer 148

• unsworn evidence only
• exceptions must not apply
  (i.e. understand Qs and understandable answers)

Question 149

Who are there exceptions to general rule on compellability of competent witnesses for

Answer 149

CPS can’t compel:

A) the accused themselves

B) Spouse of the accused

C) Co-accused

Question 150

Is co-accused a competent and compellable witness for the CPS?

Answer 150

General rule - no.

But may be competent and compellable for Crown if:

1. AG files ‘nolle prosequi’
   (terminates accuseds’ case)
2. Order made for **separate trials **
   - co-accused from first trial may be called at second trial (but not vice versa)
3. Accused formally acquitted, e.g. if CPS offers no evidence
4. Accused may give evi AFTER pleading guilty
   (best if sentenced before giving evi)

Question 151

Can a spouse be a competent compellable witness for the CPS?

Answer 151

Not competent OR compellable if jointly charged
- unless they plead guilty - then competent and compellable

Competent but not compellabie - UNLESS:

1. charged with an offence involving involves assault / injury / threat of injury / aiding + abetting -
   - to spouse themselves or someone UNDER 16
2. sexual offence/attempted sexual offence against under 16, or aiding and abetting that
   (but not spouse themselves)

Question 152

Can an accused compel their spouse to be a witness?

Answer 152

Yes

No limits

Question 153

Can a spouse of one accused be compelled as a witness for another co-accused?

Answer 153

only in same limited class if CPS tried to compel the spouse of the accused

(assault or threat under 16 or spouse/sexual or attempted under 16 or aiding/abetting)

Question 154

where co-accused are spouses, can one compel the other to act as a witness for them?

Answer 154

No never compellable for the other

Fairs. Would be harming own defence. If was ❤️ might be defeated in W box i guess ! By ❤️

Question 155

If spouses are divorced at date of trial, how are they treated for purposes of witness compellability?

Answer 155

As if never married so no limits on compellability

Question 156

Which categories of witnesses can apply to court for special measures to help them give evidence in court?

Answer 156

1. under 18
2. victim of sexual offences
3. witnesses of knife and gun crimes
4. mental/physical disability or disability/impairment which would affect their evidence
5. fear or distress

Question 157

What category of witnesses are automatically deemed eligible for special measures?

Answer 157

Victims of sexual offences

Unless tell court don’t want it

(other cases - court decide if fall into category)

Question 158

What types of special measures may be used for witnesses?

Answer 158

• screens
• judges/barristers (in CC) removing wigs and gowns (❤️)
• allowing to appear via video link, with witness supporter if apt
• emptying court room
• allowing examination-in-chief / cross / re - in private and video shown
• intermediary e.g. interpreter
• communication aid e.g. sign language

Question 159

What must a trial judge do if special measures are employed?

Answer 159

• warn the jury that special measures have been used and should not prejudice D

Question 160

Is defendant entitled to special measures?

Answer 160

No

But if D is a witness and compromised due to mental disorder/impaired intellect/social function - can give evi via video link

Question 161

If client admits guilt to solicitor before criminal trial, what should solicitor do?

Could u represent if pelading not guilty?

Answer 161

Can still put prosecution to proof of its case if considers their case to be weak
(clients best interests)

There is a professional duty to require the prosecution to prove its case beyond reasonable doubt

But still overriding duty not to mislead court so cannot say anything which know to be untrue

e.g. if client pleading not guilty but admitted they were guilty:
Continue to represent the man on a not guilty basis and require the prosecution to prove its case but do nothing to positively assert the man’s innocence.

Question 162

What should defence solicitor tell court if has to cease acting for client?

Answer 162

Not give reasons bcos client confidentiality

Say ‘professional reasons’

Question 163

What must defence solicitor do prior to trial?

What must they be cautious of doing?

Should u give them a copy of WS?

Answer 163

Must:
- prepare to give evidence
- tell them what is likely to happen at trial
Should:
- give copy of their WS
(nb D can’t refer to when giving evi)

Shouldn’t:
- ‘coach’/rehearse client or any other witnesses
(same for CS)

Question 164

What type of plea can D make to indictable-only offence in MAGS court?

Answer 164

INDICTABLE = INDICATE

Mags CANNOT accept a plea

D can INDICATE a not guilty plea i.e. intends to plead not guilty before CC

But cannot FORMALLY enter

So in a Q it would say “indicate a not guilty plea” rather than “plead not guilty”

NB - for summary-only offences, MUST enter guilty or not guilty

Question 165

what witnesses should not be adduced and if such witnesses are adduced anyway, what are the risks? (criminal)

Answer 165

• those whose evi is not in dispute
  (e.g. police officers who don’t dispute evi of/doctors evi of assault if we are saying we acted in SD)
• if adduce them, must explain why necessary
• if they are not necessary, could have costs against us

Question 166

If got an in person witness and a written witness statement, which goes first?

Answer 166

In person witness

(fair! don’t make them wait when anxious!)

Question 167

Is the court allowed to ask either side to rephrase questions? If so, how can they ask them to rephrase.

Answer 167

Yes.

To rephrase so a witness can understand.

Bcos should always ask witnesses clear and intelligible Qs.

Question 168

what is s9 statement (criminal)?

HOW LONG TO OBJECT?

Answer 168

either party can give

WRITTEN statement admissible (instead of having to give oral) if

1. signed and dated
2. declaration of truthfulness.
3. served before hearing on other parties
4. evidence **not disputed **
   (eg doctor re injuries when pleading SD anyway)

7 days to object

(and W’s age if under 18)

matters must have been admissible if did attend court

Question 169

5 purposes of sentencing and when the court must consider them?

Answer 169

Offender aged 18 and over; and
Sentence is not already fixed by law or subject to statutory minimum; and
Not classed as ‘dangerous’ offender

1. rehabilitation
2. protection of public
3. reduction of crime (inc deterrence)
4. making reparation to those impacted
5. punishment

Question 170

Does court always have a duty to follow relevant sentencing guidelines?

Answer 170

Yes unless satisfied would be contrary to interests of justice to do so

Question 171

What is overarching principle a sentencing court must consider when passing sentence?

What does this require Court to consider?

(section 63 sentencing guidelines)

Answer 171

SERIOUSNESS

1. Culpability
2. Any harm which was
   - caused;
   - intended; or
   - foreseeable

Question 172

Explain the concept of culpability and how the courts consider it in sentencing?

Are these in any particular order?

Answer 172

In descending order of seriousness, courts must consider when sentencing:

1. Intended to cause harm
   - worse harm, more serious
2. Reckless as to causing harm
3. Did not intend harm but was aware of the risks
4. Negligence

Question 173

When may a court treat the exact same offence more seriously in terms of sentencing?

Answer 173

Prevalence in particular area

Esp if risk to community at large

Question 174

What are statutory aggravating factors?

Answer 174

1. Previous convictions
   if similar / recent
2. Committed on bail
3. Racial/religious
4. Sexual orientation/disability

Question 175

What ‘other’ aggravating factors that can ask court to consider?

(i.e. ‘other’ rather than statutory factors)
(nb not exhaustive and it is long so just consider them)

Answer 175

1. Committed as part of gang or group ☠️
2. Intended/premeditated 🧘‍♀️
3. Targeting vulnerable groups ☎️
4. Weapon 🔫
5. Deliberate and unjustified damage to property 🧽
6. Targeting public sector/providing public service 🚻
   (NB not an IMMEDIATE custodial offence)
7. Under influence drugs/alcohol 💉
   (only raise if relevant to mens rea for that offence)
8. Failure to respond to previous sentences
   (maybe if community sentence) 🤡
9. Value of property to victim (inc sentimental) 💸
10. Involving abuse of trust 👩‍💼
    (eg employer)
11. Domestic context 👨‍👩‍👦

Question 176

What are mitigating factors for court to consider when sentencing?

Answer 176

1. Acted on impulse
   (deodorant)
2. Provocation
   (eg sally)
3. Particularly young or old
   (eg young led astray)
4. Mental disability or mental illness
5. Acting out of fear
6. Remorse/reparations to V
7. Played minor role in offence
8. No related / previous previous convictions !!!!
   (so previously good character)
9. Personal circumstances
   eg hit wife but supports her financially - sad but she shouldn’t have to suffer twice

Question 177

What is the full discount which a defendant who pleads guilty can receive?

Answer 177

One-third discount

Question 178

When will a defendant be eligible for full one-third discount on sentencing for pleading guilty?

Answer 178

Pleads guilty at first stage in proceedings.

Unless unreasonable to expect to indicate then (limited exception)

Indication in mags that “likely to plead guilty” in CC not enough - must be unequivocal

Usually:
- first hearing at mags;
- indication of guilty at mags for offence triable only on indictment, followed by guilty plea at CC
(remember can only indicate if indictable at mags)

(not PTPH)

Question 179

What is NOT relevant in determining whether defendant will get a reduction for entering guilty plea?

Answer 179

strength of CPS case / whether D displays any remorse

Question 180

When will defendant usually be entitled to one-quarter discount for guilty plea?

Answer 180

Pleaded guilty after first stage of proceedings

Typically where indicated at PTPH instead of when in mags

Question 181

If guilty plea is entered first day trial meant to take place (‘at door of court’), what reduction usually entitled to?

Answer 181

Maximum of one-tenth

May be reduced to zero where guilty plea entered in course of trial

Question 182

What is the totality principle?

(criminal law - sentencing)

Answer 182

When sentencing, court will consider any ‘associated offences’

Consider offences together instead of separately

Court can only sentence if totality of offending passes relevant threshold

Associated offences =
- being sentenced for at same time,
- offence D asked court to consider when sentencing or
- convicted of in same proceedings

Question 183

Explain procedure for ‘offences taken into consideration’ (TIC) when court is sentencing?

Why would u want this?

Answer 183

(usually)

• police present D w list of offences may be charged for
• D asks court to consider some or all when sentencing
• Should be of similar nature or less serious than one convicted of
• in theory, should increase sentence for present offence but sometimes doesn’t

Why would u want this?
- for D, wipes slate clean if deal with at same time
- and police/CPS don’t have to bring fresh cases

Question 184

What steps do sentencing guidelines require court to follow to arrive at a sentence?

(criminal)

Answer 184

1. Determine the offence category
2. Consider aggravating/mitigating factors and statutory thresholds for custody
3. Factors reducing sentence e.g. assisted CPS?
4. Guilty plea?
5. Extended sentence - e.g. if ‘dangerous offender’?
6. Totality principle
   (multiple offences under same sentencing)
7. Compensation and other ancillary orders
   e.g. orders to pay compensation/confiscate etc
   victim provocation likely reduce comp
8. Must give reasons for sentence

Question 185

What are the offence CATEGORIES which court must determine when sentencing?

Answer 185

Category 1:
greater harm and enhanced culpability

Category 2:
greater harm OR enhanced culpability

Category 3:
lesser harm and lower level of culpability

(court then start with corresponding starting point)

Question 186

When court gives reasons at end of sentencing, what must this include?

Answer 186

• effect of sentence passed
• effect of non-compliance with sentence
• state which sentencing guidelines used
• explain why imposed lesser sentence than guidelines recommend if appropriate

Question 187

Public policy/Rory Stewart style thing that courts may consider when sentencing?

Answer 187

If prison population high

and sentencing for an offence with SHORT custodial sentence

CAN (not mandatory) suspend that sentence or impose a community order instead

Question 188

Explain concurrent vs consecutive sentences and when they are relevant?

Answer 188

When convicted of 2 or more custodial (imprisonable) offences

Separate sentences but will be served concurrently or consecutively

Concurrent = sentences deemed to run/will be served at same time
================== (like that)

Consecutive = serve sentence one after another
——–I——— (like that)

Question 189

When will consecutive / concurrent sentences be likely imposed?

Answer 189

Consecutive
- usually if occur whilst in prison
- perhaps if v diff set of facts / circumstances

Concurrent
- likely if arise same facts / incident ^
- even if diff, if totality principle applied

Question 190

What is a pre-sentence report?

Who requests/prepares it/is it compulsory?
(nb not conditions)

Answer 190

Probation service prepares.

(Pre-Sentence - Prob Service - both start with PS)

1. D’s solicitor can REQUEST Probation Service to prep before first hearing
   - Court’s decide whether to use it
2. Sentencing court MUST obtain in certain situs
   (sep queue card)
   - unless it considers unnecessary in circumstances

Will not invalidate sentence if court does not consider report

Question 191

When is a D’s solicitor able to request a pre-sentence report?

Answer 191

• likely sentenced in mags
• will plead guilty to all charges on CPS facts
• D will** co-operate** with Probation Service to prep report
• serious enough for community order and pre-sentence report likely necessary
• (makes sense that would request here as court technically must request if custodial)

AND

D must understand that:
1. no indication of actual sentence (all other sentencing options available to court)
2. court decides whether to consider
3. court may proceed to sentence without report if considers unnecessary

(i have checked all this)

Question 192

When must a sentencing court obtain a pre-sentence report (probation service)? Is this obligatory?

Answer 192

Must obtain before deciding whether:
1. custody threshold passed and if has, how long sentence should be
2. whether threshold for community service passed and if so, conditions attached
(ie before sentencing i guess ^!)

Not required to obtain if considers unnecessary in circumstances of case to do so

e.g. custodial sentence inevitable due to seriousness of offence
e.g. already has a recent pre-sentence report for that defendant

IMP:
does not invalidate community or custodial sentence if impose w/o obtaining

Question 193

What does plea in mitigation usually look like and what’s the goal?

Answer 193

Goal is to get most lenient sentence possible

Usually just speech by D’s advocate but can involve calling character witnesses/speaking of D’s good character

Question 194

Typical structure of a plea of mitigation?

Answer 194

1. Identifying likely ‘starting point’ sentence
2. The offence
   - emphasise mitigating factors and minimise aggravating
3. Personal mitigation of that particular D
4. Propose suggested sentence
   - lower than likely sentence / reflect mitigation

Question 195

Relevant factors to a plea of mitigation regarding mitigating factors?

(nb this is long but relatively interesting - would be good to do a mindmap blurt when remembering!)

(ie personal mitigation rather than mitigatin factors)

Answer 195

1. Age
   - young or old
2. Health
   - depressed at time/mental health
   - alcohol/drugs usually aggrevating, but could suggest sentence aimed at assisting addicts
3. Character
   - stole cos drug addict - no longer drug addict
   - no prev convictions ‘one-off’
   - e.g. husband broke up and left no money so stole
4. Family circumstances
   - probation service report considers
   - if really bad and evidence of trying to overcome
   - home and job = good
5. Remorse
   - trying to overcome what caused them to offend
6. Voluntary compensation
   - esp if low means
7. Low risk re-offending
   - Probation Service report will address the risk
8. Co-operation with police
   - early guilt plea
   - prompt confession
   - naming others/revealing whereabouts

Question 196

Do certain sentences have a mandatory sentence?

Answer 196

Yes

main one is life imprisonment for murder

Question 197

Explain the ‘custody threshold’ and when it applies?

Does it mean have to impose custodial sentence?

Answer 197

The threshold is:
must not pass custodial sentence unless believes the offence was so serious that fine/community sentence not enough

^ can only impose if satisfied of that.

If only just passed, guilty plea or strong mitigation may prevent imposing.

Question 198

when does custodial threshold test not apply?

Answer 198

offender FAILS to express willingness to participate in community sentence

Question 199

If custody threshold passed and court is determining length of sentence, what does statute require the sentence to be?

(s 231(2) Sentencing Act)

Answer 199

**Shortest term considering the SERIOUSNESS **of offence (or combination of offences if totality principle applies)

Question 200

What ages of offenders must serve sentence in young offenders institute instead of a prison?

Answer 200

19-21 years
(wow!)

(checked this in textbook and it is right that they are 19 not 18)

Question 201

If defendant is classed as a dangerous offender, what must sentencing court impose?

Can a child be classed as dangerous?

Answer 201

Yes child/juvenile can be

If meet criteria for imposing one of the following CUSTODIAL sentences:

1. Automatic life imprisonment;
2. Discretionary life imprisonment; or
3. Extended sentence
   (don’t need to know any more than that!)

Question 202

When will D be entitled to early release?

What happens for remaining time?

(explain 2 categories and procedure)

Answer 202

(most prisoners serve half in custody unless really bad)

1. adult D: custodial sentence for 2 YEARS or less
   - automatically released halfway
   - licence in community for rest
   - supervised for 12 months from leaving custody
2. adult D: DETERMINATIVE sentence (ie fixed period) for over 2 years
   - same as above (ie automatic/licence)
   - unless ‘offender of particular concern’
   e.g. terrorism and child sexual abuse
   ^ need to apply for parole. could then be released anytime after halfway point.
   if granted, will then be on licence / similar supervision.

Question 203

Offender of ‘particular concern’ who has a determinative sentence (even if over 2 years), will they be entitled to early release?

Explain.

Answer 203

Not entitled to AUTOMATIC early release after serving half their sentence

Can apply for parole
- if granted, could be released from half-way point onwards

Will be released on licence and subject similar supervision (to if they were automatically entitled to release)

Question 204

When will a suspended sentence be imposed and how long will it be for?

Diff between operational and supervision period?

What is a suspended sentence?

Answer 204

Custodial sentence but served in community instead of prison

1. Custodial sentence for at least 14 days but no more than 2 years; and
2. Satisfied passed custody threshold but considers particular circumstances justify suspension
   (eg during plea mitigation)

May suspend for at least 6 months but not more than 2 years

^ Period it is suspended for = ‘operational period’

Period during which D must comply with requirements = supervision period

Question 205

Which court (ie mags or CC) will deal with breach of a suspended sentence?

(ie activating)

When will there be a breach?

Answer 205

If imposed by mags - may be dealt with by mags or CC

If impose day CC - dealt with by CC

If breached conditions of sentence or committed a new offence during operational period

Question 206

What MUST court do if defendant has breached terms of suspended sentence?

important

Answer 206

(activated if court impose a custodial sentence - steps 1 - 2.)

Must order one of the following:

1. Impose original custodial sentence
2. Impose altered version of original custodial sentence
   (e.g. shorter to reflect time spent)
3. E x t e n d suspended sentence
   - by extending either operational or supervision period
4. Impose more ONEROUS requirements to suspended sentence

Must do 1 or 2 unless unjust

e.g. coming to end of supervision period / minor breach

MAY also impose fine of up to £2,500 if decides not to impose custodial sentence

Question 207

supervision vs operational period?

(criminal)

Answer 207

Suspended sentence

• supervision period = period during which the offender must comply with requirements
  (e.g. must attend rehab for 6 months)
• entire length of suspension/period suspended for = “the operational period”
  (e.g. should have been in prison for 6 months, suspend this for 12 months)

Supervision period must end no later than end of operational period

Question 208

If a court imposes a custodial sentence cos committed new offence during suspended sentence,

will the sentence for the original offence and new offence be consecutive or concurrent?

Answer 208

Consecutive

(usually)

—-I——

Question 209

Conditions for court to impose a community order?

Answer 209

Satisfied offence (or combination associated offences) SERIOUS enough to warrant

Question 210

What menu of options are available for court to consider in making a community order?

😀

Answer 210

(context of Fleabag)

1. Use of mental health services
   (when he gives therapy voucher)
2. Supervision meetings with probation service
   (Phil meets fleabag)
3. Programme requirements eg anger management
   (hugh Dennis)
4. Activities which make reparations to victim/overcome issues
   (sorry Patricia)
   (eg scrubbing grafiti)
5. Foreign travel prohibitions
   (Finland)
6. Reside in specified place
   (priest plz)
7. Curfew
   (really enjoying going to bed at 10.30)
8. Prohibited activity requirements
   (refrain from - and what have you found?)
9. alcohol/drug treatment
   - agree to reduce or eliminate
10. exclusion from entering certain places for max 2 years
    (never want u in my chrch agan)
11. unpaid work in community
    (e.g. fayre with Jake)
12. attendance centre requirements (if over 25)
    (q meeting)

Question 211

If community order requires unpaid work, what are the requirements?

Answer 211

Must complete within 12 month period

Unpaid work between 40 to 300 hours

Question 212

What happens when a defendant breaches a community sentence without lawful excuse?

Answer 212

1. First time - warning Probation Service
2. If in following 12 months does it again:

• Goes to court which imposed original order
• If court finds had no reasonable excuse, must:

a) AMEND order to make more onerous; or

b) REVOKE order and RE-SENTENCE for the offence
BUT without considering the custody threshold; or

c) if PERSISTENT and WILFUL failure, may revoke and IMPOSE custodial sentence
even if offence not imprisonable

Question 213

What happens if a defendant convicted of further offences whilst a community order is in force?

Which court considers?

Answer 213

(nb - previous queue card is breaches, this is a new offence)

MAGS

Considers interests of justice and may:

1. allow community order to continue
2. revoke order if they will be in prison for new offence (and therefore won’t be able to complete - but may not apply if realy short); or
3. revoke and re-sentence for original offence
   - if do that, must consider extent to which D complied with original order

Question 214

What is a Newton hearing?

Answer 214

Where D admits guilt but disputed CPS facts relied on, and those facts will impact sentence

Court must either accept D’s version or call Newton Hearing

^ i.e. a trial on the FACTS to determine those upon which D will be sentenced

Question 215

What should CPS and D do to avoid a Newton Hearing?

Answer 215

Agree a version of events upon which D will be sentenecd - i.e. basis of plea

• document setting out D’s factual version of events
• defence would use to try and remove aggravating factors

If CPS and sentencing judge agree, will proceed on D’s version of events.
(judge must agree, not just CPS)

If CPS disagree and judge thinks CPS version of events sufficiently more serious, will be a Newton hearing.

If judge considers plea itself to be absurd, can reject it and take place on CPS version w/o hearing.

Question 216

What (ie sentence/conviction/both) can D in mags or youth court appeal to Crown Court if:

1. pleaded guilty
2. pleaded not guilty

Answer 216

1. if pleaded guilty - appeal sentence only
2. if pleaded not guilty - conviction and/or sentence

Question 217

Do CPS have right to appeal?

Answer 217

No rights of appeal to Crown Court re:
- sentence imposed by Mags
- the acquittal of a D in CC

But can appeal to High Court on a point of law (as can defence)

Question 218

What must D to if appealing mags decision to Crown Court?

What must magistrates do?

(i.e. what must D do first, by when, and what should happen after that)

time limit is key.

Answer 218

**1. File notice of appeal **

• with mags AND CPS
• no more than 15 working days from date of sentence

2. Mags clerk

• sends to relevant County Court
• CC will arrange date
• even if outside 15 working day timeframe, may exercise discretion to allow

known matt since 15

Question 219

Can D apply for bail whilst awaiting appeal?

Answer 219

Presumption in favour of bail does not apply

Mags may grant but rare
(would effectively be arguing their decision for custodial sentence was wrong)

If mags refuse, can apply to CC pending appeal
- if short sentence, often don’t grant bail but expedite appeal instead

Question 220

Will D be able to rely on original representation order if appealing conviction or sentence from mags to CC?

Answer 220

No

Need separate representation order

BUT any advice given in preparing notice of appeal will be covered by original

Question 221

If D appeals conviction/sentence in mags, do they risk an increased sentence due to higher sentencing powers?

Answer 221

No

CC can only impose sentence which mags or County Court had power to impose

(but also it’s like if you get your exams remarked there is still a risk that will get higher sentence - but will not be higher than what mags could impose)

Question 222

When can CPS or defence appeal decision to High Court?

Which division?

Answer 222

(nb will be Kings Bench Division)
(CL is king/queen energy)

MAGS decision:
1. wrong in law; or
2. mags acted outside of their jurisdiction

(e.g. may have made errors on admissibility)

Question 223

Procedural requirements for party (either CPS or defence) seeking to appeal mags decision to High Court?

(inc timeframe)

Answer 223

Appeal within 21 days mags decision

Usually write to mags clerk, stating point of law
(always mags clerk seems to be the messenger don’t they)

also knew mat when 21 !

Question 224

What must mags clerk do on receipt of the defence or CPS application for appeal to High Court?

(inc what this will contain ……, what do afterwards etc)

Answer 224

draft statement of case for High Court
(with help of mags or district judge who heard)

Must contain:

1. Decision in issue
2. Specify Q will be asked
3. Summarise proceedings so far, findings of fact and contentions of party’s
4. If argument is that was not sufficient evidence:
   - specify the court’s finding and evidence relied on

Once prepared, send to both parties

They suggest amendments

Once final version agreed, the party wanting the appeal must send to High Court then give notice to the other party

Question 225

Procedure at the hearing for an appeal from Mags to High Court

(nb this will be because mags acted outside of jurisdiction or erred on point of law)

inc which section of court

Answer 225

• Will usually be Divisional Court of King’s Bench Division
• No witnesses
• Will be confined to legal argument based on agreed facts
  (no one is disputing facts here!)

Question 226

What powers does Divisional Court (of Queens Bench of High Court) have if has been an appeal to them of a mags decision?

Answer 226

(ribble valley area RVA)

Reverse
Vary
Affirm
Re-send to mags either:
- same mags but direction to acquit or convict
- remit to new bench of mags if think need to rehear completely

Question 227

What can be appealed to Supreme Court from High Court?

Who by?

(criminal)

Answer 227

CPS or Defence

• can appeal an appeal decision or order made in High Court
  (ie appeal by way of case stated)

(that is not a misspelling you acc have to be appealing an appeal which HC already heard)

• point of law only
• certified public importance by High Court
• High Court or Supreme Court must grant leave to appeal

Question 228

Would it be better for defence to advise client to appeal to Crown Court or High Court?

Answer 228

Crown Court

Super lengthy to do the statement of case which is required to appeal to High Court

If go to High Court often just ends up going back to mags for retrial anyway

Nb: CPS have no choice and can only appeal to HC

Question 229

Can either party apply for judicial review and in what circumstances?

(criminal)

Answer 229

Yes, if MAGS have:

1. Acted ultra vires (made order beyond their powers); or
2. Breached rules of natural justice (ie fair hearing or bias)

NB: this is not strictly an appeal and would not be usual route to take

Question 230

Procedure to apply for judicial review of decision in mags?

Answer 230

Apply to divisional court to either:
1. QUASH mags decision
2. COMPEL mags to act in a certain way

Question 231

What rights does a defendant have to appeal to CoA / when do they arise?

Answer 231

If convicted in Crown Court; and

Either the CoA grants leave to appeal; or

Relevant judge (who did the trial or sentenced) grants certificate that case is fit for appeal.

Can appeal against conviction or sentence

Question 232

Required ground to appeal against CONVICTION in Court of Appeal?

(ie when they would agree to overturn)

imp

Answer 232

Conviction UNSAFE
(this is the ONLY ground)

^ dm if error/mistake in trial, as long as think verdict would have correctly been guilty

Rare but may quash even if believe guilty
- usually if abuse of process by police/CPS

Question 233

D’s conviction will only be quashed by Court of Appeal if it is “unsafe”.

When may it be “unsafe”?

Answer 233

1. Misdirection by trial judge to jury
   e.g.:
   - power to convict of lesser offence if evidence supports
   - need for unanimity
   - law itself
   - their role (decide on fat)
   - BoP and standard proof
2. Failure to administer correct warnings
   e.g. Turnbull, can adverse inf be drawn, former convictions
3. Wrongfully admitted or excluded evidence
   - eg hearsay, confession, bad char
4. Failure when summing up
   eg
   - special measures shouldn’t prejudice / assume behave improperly
   - deal w essential points defence case
   - inconsistencies CPS case
   - summarise evi
5. Fresh evidence
   - if verdict might have been diff with that
   e.g. alibi
6. Inappropriate interventions by judge
   e.g. interrupted defence counsel during cross-examination

Question 234

Procedure for making an appeal against CONVICTION from Crown Court to CoA?

(inc time period)

Answer 234

1. 28 days from conviction (not sentence) - serve appeal notice with draft grounds of appeal (setting out why unsafe) to registrar at CA
2. Registrar obtains transcript from original trial
   - Single judge assesses application (filtering stage)
   - If without merit, may make a lost time order (later queue card)
   - If grant appeal, will also grant public funding
3. 3 judge panel at CA
   - hear oral evidence and sometimes fresh evi (sep queue card)

Question 235

When will CoA hear fresh evidence if appealing conviction from CC?

Answer 235

• appears credible;
• would have been admissible at original trial; and
• reasonable explanation for not adducing

Question 236

Explain when a ‘loss of time direction’ will be made against D in context of appeals and what means?

Answer 236

Appealing CC conviction or sentence to CA

At stage where single judge is assessing application

If they consider without merit, they will order that time D has spent in custody whilst awaiting outcome of appeal does not count towards their overall sentence

Question 237

What powers of Court of Appeal do have at an appeal against conviction?

(nb is where D is appealing CC decision)

Answer 237

1. Quash and acquit
   (e.g. new evi)
2. Quash and re-trial
   (e.g. not summed up correctly)
3. Allow part of the appeal
   e.g. appealing conviction for multiple offences
   - likely re-sentence (themselves) for remaining sentences
4. Convict of a new offence
   - likely re-sentence (themselves)
5. Dismiss

Question 238

If CoA considers conviction ‘unsafe’, what decision must Court make and what will they consider in making ecision?

Answer 238

whether re-trial is needed

^ consider based on interests of justice

if happy that would have been acquitted at trial, no retrial
(eg fresh evi avail)

otherwise, normally order retrial unless unfair to D or inappropriate

Question 239

Procedure for appealing against sentence from CC to CoA?

Answer 239

(baso same as for conviction except 28 days from sentence, appeal grounds state why wrong or excessive, two/three judges, legal args only)

1. Require either permission of CA or CC certificate fit for appeal
   (rare CC grant so usually go for CA)
2. Notice for application to appeal and draft grounds of appeal to registrar within 28 days of SENTENCE
3. Appeal grounds state why sentence wrong or excessive
4. Single judge must grant
5. Consider by two- or three-judge panel
6. Usually confined to legal submissions on appropriate sentencing
   (not evi like for conviction)

Question 240

When will an appeal against SENTENCE in CoA (against CC decision) be successful?

IMPORTANT

Answer 240

ONLY when decision was:

1. Wrong in law
   - e.g. went beyond sentencing powers
   (eg mags 2 years)
2. Wrong in principle
   e.g. custody theshold ie not ‘serious’ enough
3. Wrong approach to sentencing
   e.g. not consider guilty plea
   not consider mitigation
   no newton
   inc sentence for not guilty plea
4. Co-D sentenced unequally when equally culpable
5. Manifestly excessive (most common)
   - ONLY if beyond upper limit in appropriate range of sentences

Question 241

Can defendant receive higher sentence on basis of submitting not guilty plea?

Answer 241

No

Sentenced on assumption enter not guilty plea

Question 242

Powers of Court of Appeal in appeal re SENTENCING sent from CC?

Max sentencing?

Answer 242

• confirm CC sentence
• quash sentence and replace sentence
  (note that quash and replace is diff wording to replace)
• cannot INCREASE sentence imposed by CC !!!!!!! IMP!!!!!!
• can make lost time direction if w/o merit

^ wow ! checked that - bit of a win win except lost time

Question 243

Does CPS have right to appeal D being acquitted following a CC trial?

Answer 243

Generally no, unless:

1. Unless AG considers sentence to be unduly lenient;
2. Evidential or termination rulings (by judge/not jury)

And some cases where CPS can request re-trial (but not same as appeal once acquitted)

Question 244

Explain when Attorney-General will be roped in for appeals and what will happen?

Who can give permission?

Sentencing powers?

Answer 244

AG can apply appeal on behalf of CPS if AG considers CC sentence ‘unduly lenient’

AG can only apply if:
- offence triable on indictment or specified either-way offence; and
- CA grant permission

CoA can quash and pass sentence considers appropriate

CoA can only pass sentence which CC would have power to pass

(think on cps website specified either-way is too long to revise and not worth it tbh)

Question 245

For what specified offences can CPS appeal from CC to CA for a retrial following acquittal?

Answer 245

1. Murder and attempted murder
2. Manslaughter
3. Certain sexual offences inc rape
4. Certain class A drug offences e.g. importing
5. Kidnapping
6. Arson with intention to endanger life 🔥

Question 246

What 2 tests must CPS pass if seeking retrial to CoA regarding limited number of offences?

(explain both parts)

Answer 246

So if it’s a retrial, instead of usuall evi and PI - it is (new) evi and IoJ

1. Evidential test
   - must be new and compelling evi
   - compelling = reliable and probative
2. Interests of justice test
   - consider these factors, inter alia:

(a) can there be a fair trial in the circumstances?
(b) time that has elapsed
(c) would the new evi have been at original trial if CPS/police acted with diligence
(d) have CPS/police acted with diligence since earlier proceedings

(actually relatively interesting R v Dunlop D admitted to killing wife, had been acquitted of murder, brought case after reforms came in, argued made confessions before case, court said don’t care as new and compelling evi)

Question 247

Are offences that occur whilst in prison usually consecutive or concurrent?

(e.g smack officer whilst on remand)

Answer 247

Consecutive

Otherwise would effectively receive no punishment

Question 248

If D commits offence on bail, will offence usually be charged consecutively or concurrently?

Answer 248

Consecutively if new offences whilst on bail

(and if done multiple offences on bail - they will only run concurrently if they are related/same circumstances)

Question 249

time limit to appeal to crown court?

when is good practice to submit appeal?

Answer 249

15 working days from date sentenced

if want to appeal after 15 working days, must ask CC for permission

can appeal immediately - good practice

(remember need to lodge notice of appeal with mags and CPS)

Question 250

Ground to appeal conviction mags to CC?

What will happen at hearing itself - new Ws?

Can witnesses be called?

Answer 250

• Error fact and/or law by mags
• full rehearing so need to call all witnesses
• new Ws may be called and new / diff points of law may be relied on

Question 251

D appealing sentence mags to Crown Court

What ground?

What will hearing be like?

How will court decide sentence?

What powers CC have?

Answer 251

• ground = excessive
• full hearing of the issues
• take independent viewon what sentence should be instead of review of the sentence passed
• but will be limited to sentencing powers of mags

RVC (Rach v cool)
Reverse
Vary
Confirm

Question 252

Time limit for appealing from Crown Court to CA - and who send appeal to?

Can this be extended - who by?

Answer 252

Serve application for permission to appeal on the Registrar of Criminal Appeals at CoA within 28 days

Yes can request CoA to extend

Question 253

what should u be careful not to include in trial bundle? (civil)

Answer 253

WP correspondence

eg part 36 offers (to settle)

Question 254

A man has been found guilty of three theft offences. He is sentenced in the Crown Court. He receives four months of imprisonment for each of the three unrelated offences of theft, which are ordered to run consecutively. He has no previous history of offending.

How long will the man have to serve in prison before he is released on licence?

Answer 254

Total of 6 months

they run consecutively so add up to 12 months

generally released after serving half sentence

Question 255

principal aim of youth justice system?

and other aim?

Answer 255

Prevent youth offending

And youth welfare

Question 256

What will the Youth Offending Team assist the court with?

Answer 256

1. Attend each sitting in youth court
2. Investigate and confirm personal circumstances and previous convictions
3. Provide support to juveniles on bail
4. Prepare pre-sentence reports
5. Administer any non-custodial sentences imposed by youth court

(usually a trained member of Probation Service)

Question 257

Juveniles under what age are required to be supported by parent or guardian during each stage of proceedings?

Any exception?

What about over this age?

Answer 257

Under 16
(fairs at college !)

Unless court satisfied would be unreasonable to require such attendance

16-18 y/o: court discretion re whether to make order requiring their attendance

Question 258

Parents or guardians attending youth court must play ____ role in proceedings.

Answer 258

Active

eg court wants to hear their views on sentencing / may ask them Qs

Question 259

Who are allowed to attend a hearing in the youth court?

Answer 259

1. district judge or youth justices
2. juvenile
3. their parent or guardian
   (inc someone part-time respond eg social worker)
4. representative from youth offending team
5. court staff
6. member of CPS
7. defence lawyer
8. members of press

Question 260

press restrictions on reporting in youth court?

any exceptions?

Answer 260

can’t report name/address/school or anything which would likely allow identify juvenile D or other child involved

but court can lift to avoid INJUSTICE

OR following conviction, if in public interest

• only if real community benefit
  e.g. prolific offender
• not as extra punishment

Question 261

how long does protection from reporting restrictions last in youth court?

(eg does it stop when they reach 18?)

Answer 261

for juvenile D - automatically end when reach 18

witnesses and victims - lifelong protection from reporting

Question 262

the youth court is in which court’s jurisdiction?

which judge’s will hear in youth court?

Answer 262

mags

district judge or bench of youth justices

Question 263

youth court deals with cases involving Ds between what ages?

Answer 263

10 and 17

Question 264

explain meaning of children and young people for youth court purposes?

explain meaning of juveniles in context of youth court vs police station?

Answer 264

children = 11 - 13

young people = 14-17

(agan would agree w this feel liek 14 diff point)

juveniles in youth court = IS under 18

juveniles in police station = is or APPEARS TO BE u 18

Question 265

what are PYOs?

explain when will be classified as this and impact.

Answer 265

persistent young offenders

sentenced on 3 separate occasions for one or more recordable offences (i.e. which juvenile could receive custodial sentence for)

will have their case expedited so youth court may deal with them quickly

(kda typci nghti kdz get sfm from f advv whult gd onez hv to waight)

Question 266

difference in youth court procedure compared to normal court?

(inc for D’s, witnesses, court layout0

Answer 266

• all sit at same level
• D usually sits on chair in front of CPS representative and own solicitor, in full view of the mags
• straightforward language enc
• solicitors remain seated when addressing court
• witnesses (even if adults) PROMISE rather than swear to tell the truth
• witnesses under 14 give unsworn evidence (same if they are in mags)
• emphasis on communication with mags/juvenile/guardian
• mags special training in youth justice
• same standard directions as if adult mags (unless PYO - revised directions so expedited)

Question 267

differences in terminology used in youth court compared to mags?

Answer 267

• juveniles/child witnesses referred to by first name
• enc use straightforward language
• ‘finding of guilt’ rather than a conviction
• ‘order upon finding of guilt’ rather than sentence

Question 268

will trial in youth court follow same procedure as mags?

clue: is one key diff

Answer 268

same procedure

mags issue same standard pre-trial directions in both

only difference is if juvenile is PYO, mags issue revised directions to ensure expedited trial

Question 269

what happens if child commits offence before turn 18, but turns 18 PRIOR to start of trial?

(eg which court and how dealt with)

Answer 269

only the adult mags has jurisdiction to deal with it

if convicted, subject to full range of sentencing powers

(so only a young offender if under 18 on date of first appearance before court)

Question 270

what happens if turns 18 DURING trial in youth court?

(eg what court and powers)

Answer 270

youth court has jurisdiction

YC may remit case to adult mags or retain it

if retains it, will have sentencing powers that adult mags dealing w case would

Question 271

which court should trials of juveniles begin in as a starting point?

when can this be varied (in summary/ for what types of offences)?

Answer 271

youth court

but either must or may be sent to adult court (mags or CC) if:

1. homicide
   (murder or manslaughter)
2. firearms
3. grave crimes
4. specified offences
5. jointly charged with adults

have fun, give some joy

Question 272

if homicide offence committed by a juvenile, which court should deal with it?

must or may deal with it?

Answer 272

Crown Court

must

(murder or manslaughter)

Question 273

if firearm offence committed by juvenile, which court should deal with it?

must or may?

Answer 273

Crown Court

must if 16 at time of alleged offence

Question 274

what are grave crimes and which court should they be dealt with if committed by a juvenile?

Answer 274

if offender 21 years or older, may receive custodial sentence of 14 years or more

e.g. robbery, rape, assault by penetration, GBH, sexual assault

youth court MAY accept jurisdiction or send to CC if prison sentence likely to be substantially **longer than 2 years **

YC only send if considers sentencing powers insufficient

Question 275

specified offences - what are they and which court should it be in if committed by juvenile?

Answer 275

charged with a violence or sexual offence

MAY send to CC

but only if regarded as ‘dangerous offender’
- i.e. could impose automatic or discretionary life imprisonment, or an extended sentence

(that is all u need to know about a dangerous offender - that a court MUST impose automatic/discretionary life sentence or extended sentence)

Question 276

If juvenile jointly charged with an adult, which court will there case be dealt with in?

Answer 276

if adult tried in CC - MAY also send to CC, but only if INTERESTS OF JUSTICE

If adult tried in mags, MUST be jointly tried in adult mags

But mags usually send to youth court for sentencing, unless intend to just fine or discharge (then will just sentence themselves)

Question 277

For which cases MAY juvenile be sent to CC?

Answer 277

• Grave crimes
• Specified offences
• jointly charged with adult D whose case being dealt with in CC

Question 278

If juveniles case MAY be dealt with in CC, what will happen if at plea before allocation hearing they indicate:

A) guilty

B) not guilty

?

Answer 278

**(plea before allocation hearing will take place at youth court)

A) Guilty
- YC will sentence the juvenile; or
- send to CC if consider powers inadequate

B) not guilty
- YC only decline jurisdiction if think own powers would be inadequate
- youth has no right to elect trial to be in CC
^ that is the diff between adult mags

Question 279

Youth Court has power to remand a juvenile via what 3 ways?

(remand usually means bail or custody/put somewhere)

Answer 279

1. on bail;
2. into local authority accommodation; or
3. if 17 or over, into custody

Question 280

if bail refused, where may juvenile be remanded?

if certain age, must be remanded into which?

presumption that will be remanded into which?

Answer 280

a) local authority accommodation
(non-secure)

b) youth detention accommodation
(secure)

-under 12 = cannot remand into youth detention
(may remand if reach 12 during course of remand/sep card)

• presumption remand into local authority

Question 281

what information will youth court use in considering whether to grant bail for juvenile?

Answer 281

report from the YOT providing their records from previous bails

home situ and school/work attendance

Question 282

what conditions must be met for juvenile to be remanded into youth detention accommodation?

(long but imp) (checked all thsi get off textbook!)

Answer 282

(rare they end up here)

1. 12 - 17 y/o
2. legally represented (usually)
3. either

A) offence:
- violent or sexual; or
- adult could be imprisoned for 14 years or more; and
- v likely child receive custodial sentence

OR

B) recent and significant history of absconding whilst in LAA or youth detention accommodation

OR

C) recent and signif history committing IMPRISONABLE offences on bail/remanded LAA/YDA

4. For all:

• necessary protect public from death or serious physical or psychological injury; or
• prevent committing further imprisonable offences; and
• can’t manage in community

Question 283

what must court balance when sentencing a juvenile

Answer 283

seriousness of offence / previous record

principal aim preventing further offending

welfare child

Question 284

sentencing procedure in youth court

Answer 284

(similar to mags)
assuming pleaded guilty

CPS give facts
D plea in mitigation
Likely hear from juvenile’s guardians

Question 285

role of pre-sentence report in Youth Court?

(who prepares, is it always required, what will it consider, is it important to court, when will it be prepared?)

Answer 285

prepared by YOT.

youth court must usually always obtain before sentencing

court is likely to indicate the type of sentence it has in mind when it orders a report

report will address juvenile suitability for that type sentence.

will place great emphasis on report

may adjourn the sentencing hearing to enable the YOT to prepare report, or ask YOT to prepare a ‘stand down’ report so can sentence w/o adjourning case itself

Question 286

when sentencing young people, what general approach must court take according to sentencing guidelines?

Answer 286

• starting point = seriousness of offence, BUT:
  INDIVIDUALISTIC rather than offence focused / rehabilitation
• custodial sentence last resort / so serious that nothing else apt
• enc to take responsibility and re-integrate into society rather than punish
  (restorative justice instead of ‘criminalising’)
• consider underlying factors and anything diminish culpability
  eg fact young, not fully matured / understand decisions and risks / peer pressure
• don’t just consider their actual age but also their emotional and developmental age
• where poss give opportunity to learn from mistake / avoid stigma court sanction

Question 287

key elements to consider when determining sentence for a juvenile?

(sentencing guidelines)

Answer 287

• principal aim of YJS (prevent re-offending by children)
• welfare of juvenile
• age (actual, developmental and emotional)
• seriousness of offence
• likelihood future offences
• harm caused by future offences

Question 288

starting point when sentencing young people?

what will help in assessing this (clue: there are 2 things)?

Answer 288

seriousness of offence

assess by considering
CULPABILITY and
physical/psychological HARM caused/intended/foreseeable (inc to property)

Question 289

in assessing culpability of a juvenile, what should court consider?

(sentencing guidelines)

Answer 289

• planned offence?
• their role (if committed as part of group)
• level of force
• awareness of actions / consequences
• mental health probs/learning difficulties
• emotional and developmental age
• external factors

Question 290

if court is sentencing juvenile, when should mitigating and aggravating factors not be considered (in assessing seriousness of offence)

Answer 290

if the aggravating or mitigating factors are already included in the definition of the offence

(so consider aggravating or hit factors that may inc or reduce overall seriousness - but do not take into account if the relevant factors already inc in definition of the relevant offence)

Question 291

when/on who will referral order be imposed?

Answer 291

juvenile
- plead GUILTY
- offence carries possible custodial sentence; and
- never been convicted or bound over by a court

MUST be made ^ UNLESS court proposes custodial sentence or full discharge

If mixed plea, court has power to make referral order but not obliged.

(checked htis trust meh)!

Question 292

can court ever make a second referral order?

Answer 292

‘exceptional circumstances’

Question 293

what happens if court makes referral order for a juvenile?

Answer 293

refer juvenile to youth offender panel

at meetings, panel of YOT and others speak to juvenile and their family with a view to:

• stop further offending
• make right their wrong to victim; and
• help w any probs they have

panel and juvenile agree a ‘youth offender contract’, lasting 3 - 12 months / designed to prevent re-offending

Question 294

What is a youth rehabilitation order?

how long last and most severe?

Answer 294

]equivalent of a generic adult community order

court imposes requirements to punish/protect public/ reduce re-offending

period up to 3 years

most serious requirement is intensive supervision surveillance requiement

attach similar requirements to adult community order

e.g. educational requirements

Question 295

What is name for only custodial sentence youth court can impose?

Answer 295

Detention and trading order

Question 296

When should youth court impose a detention and training order?
(just a few v imp words)

Conditions?

important

Answer 296

so SERIOUS fine or com sentence not JUSTIFIED

Considers YRO even with intense supervision inappropriate

Pre-sentence report considered custody as possible option

If 12 - 14, persistent young offender (ie 3 imprisonable offences)

No limtis if 15+
Can’t impose if 10/11

Question 297

Age restrictions on imposing detention and training order?

(juvenile custodial sentence)

Answer 297

not if 10 or 11

12 - 14 (inclusive): only if ‘persistent young offender’
(sentenced 3 separate occasions for recordable (ie custodial) offences)

15 or over, no restrictions

Question 298

how long can detention and training orders run for?

minimum and maximum / what should court consider in determining length

Answer 298

at least 4 months

max 24 months

shortest time considering seriousness of offence

Question 299

What is a detention and training order?

(ie how does it operate once been given?)

Answer 299

juvenile held in detention in youth offenders institute for one half of the period of the order

then released into community under supervision for second half

likely electronic tagging and intensive supervision

(so same adults except YOI)

Question 300

What rights of appeal does juvenile convicted or sentenced at youth court have?

Answer 300

exact same as adult at mags

(since youth court is a type of mags)

(remember the earlier queue cards say that also x)

Question 301

what will properly constituted youth court look like?

(eg what type of judges and how many)

Answer 301

3 mags
(2 sufficient - but online/gov web says 3) ; or

a district judge

(youth mags need training in youth justice)

Question 302

sentencing guidelines - how much court tend to give youths off compared to adults for an offence?

Answer 302

MAY give between half to two thirds of adult sentence if 15 - 17

or allow greater reduction for those aged under 15.

ROUGH GUIDE

reduction should be applied before any reduction for a plea of guilty.

Question 303

is youth bail opposed on same grounds as adults?

Answer 303

yes

diff comes when in remand

(whole LAA vs YDA stuff where can only get certain situs)

Question 304

Referral order - does it show on police checks?

Answer 304

Once completed, it becomes spent, so will not show on most police checks

• can have a clean slate

Question 305

What is a reparation order?

Answer 305

Youth court

Allows court to make D do up to 24 hours of reparation

Often if cause injury to specific group/person (eg graffiti)

(not technically community sentence)

(not in textbook - in video)

Question 306

Youths - what is intensive supervision surveillance requirement?

• what type of order is it a requirement to?

Answer 306

Youth Rehabilitation Order

Most intense attachment to referral order

Seen as direct alternative to detention

Question 307

what section should you use to challenge identification procedure evi where improper

Answer 307

section 78 Police and Criminal Evidence Act 1984

Significant and signif breach of Code D of Codes of Practice of the 1984 Act mean unfair allow CPS to rely

Question 308

Concurrent vs consecutive sentences when applied

Answer 308

totality p = reflect overall seriousness.
just prop.

1. consider sentence for each individual offence
2. concurrent or consecutive
3. test overall against totality
4. reasons

concurrent
- same facts
- against same person
- similar kind of offences
e.g.
- diff drgs same trans
- small thefts employer

Consecutive:
- aggravating even tho same incident.
- e.g.
- theft V on one and assault another
- pervert course justice
- threas to kill separate to an assault
- domestic abuse same individual