Crim 1 Flashcards
Describe the rights of a person arrested and taken to a police station.
A person arrested has the right to consult privately with a solicitor, the right to have someone informed of their arrest, and the right to consult the Codes of Practice (COP). Additionally, there may be rights to an appropriate adult and/or an interpreter.
Define the role of the custody record in the context of a suspect’s rights.
The custody record documents that the suspect has been informed of their rights and any responses made by the suspect, such as the name of the solicitor or person to be notified.
How must a detained person be informed of their right to legal advice?
A detained person must be informed of their right to free legal advice immediately before the commencement or recommencement of an interview, being asked to provide an intimate sample, undergoing an intimate drug search, or participating in an identification parade or video identification procedure.
List the rights of a detained person under s.58 PACE.
The rights of a detained person under s.58 PACE include the right to consult a solicitor, the right to have someone informed of the arrest, the right to an appropriate adult, and the right to an interpreter.
How long can a suspect’s right to legal advice be delayed?
A suspect’s right to legal advice can be delayed for a maximum of 36 hours.
Explain the restrictions on drawing adverse inferences if a suspect is interviewed without legal advice due to a delay.
If a suspect is interviewed before consulting with a solicitor because their right has been delayed, there are restrictions on drawing adverse inferences at court regarding their silence or responses.
Describe the criteria for delaying the right to consult a solicitor according to s.58.
The criteria include: the person must be in detention for an indictable offence (INDICTABLE + EITHER WAY OFFENCES) , the authority to delay must be granted in writing by a police officer of at least the rank of superintendent, and the superintendent must have reasonable grounds to believe that exercising the right will lead to interference with evidence, harm to others, alerting suspects, or hindering property recovery.
What are the potential consequences that justify delaying the right?
The potential consequences include interference with or harm to evidence, harm to others, alerting other suspects, and hindering the recovery of property obtained from the commission of an indictable offence.
Describe the circumstances under which the right to legal advice might be delayed.
The right to legal advice may be delayed if a person has been detained for an indictable offence (INDICTABLE+ EITHER WAY OFFENCE) and has benefited from their criminal conduct, potentially concealing property that could be confiscated under the Proceeds of Crime Act 2002.
How does the Proceeds of Crime Act 2002 relate to the delay of legal rights?
The Proceeds of Crime Act 2002 allows for the confiscation of property obtained through criminal conduct, which may lead to a delay in the right to legal advice if there are concerns about the suspect concealing such property.
Define the conditions under which police may delay access to a solicitor.
Police may delay access to a solicitor if there are grounds to believe that the solicitor might pass on a message or act in a way that could lead to the concealment of evidence
Describe the criteria necessary to delay the right to have someone informed of their arrest under s.56 PACE.
The criteria to delay the right include: the person must be in detention for an indictable offence (INDICTABLE + EITHER WAY OFFENCES), the authority to delay must be granted in writing by a police officer of at least the rank of inspector, and the inspector must have reasonable grounds to believe that delaying the right will lead to interference with evidence, harm to others, alerting suspects, or hindering the recovery of property.
Who is entitled to have an appropriate adult present during police procedures?
Anyone under 18 or anyone whom a police officer suspects may be mentally disordered or otherwise mentally vulnerable.
Describe the criteria for an appropriate adult for a mentally disordered detainee.
An appropriate adult for a mentally disordered detainee can be a parent, guardian, relative, or someone with experience in dealing with such individuals, provided they are 18 or over and not a police officer or police employee.
Define who cannot act as an appropriate adult in a police station setting.
A person cannot act as an appropriate adult if they are:
a) suspected of involvement in the offence;
b) the victim of, or a witness to, the offence;
c) involved in the investigation;
d) a person who has received admissions from the detained person before acting as appropriate adult;
e) of low IQ and unable to appreciate the gravity of the situation; or
f) an estranged parent whom the arrested juvenile does not wish to attend and specifically objects to.
Explain why a person who has received admissions from a detained individual cannot act as an appropriate adult.
A person who has received admissions from the detained individual before acting as appropriate adult cannot fulfill that role due to potential conflicts of interest.
Describe the primary responsibilities of an appropriate adult in a detention scenario.
The appropriate adult ensures that the detained person understands what is happening and why, supports and advises the detained person, observes police conduct, assists with communication between the detained person and the police, and ensures the detained person’s rights are understood and respected.
What can an appropriate adult do regarding legal representation for a detained person?
An appropriate adult can request a solicitor or legal representative on behalf of the detained person, although the detained person is not obligated to see the solicitor if they do not wish to.
Describe the circumstances under which a young or vulnerable detainee can be interviewed without an appropriate adult present.
An interview can proceed without an appropriate adult if delaying the interview would likely lead to interference with or harm to evidence, physical harm to others, serious loss or damage to property, alerting other suspects, or hindering the recovery of property related to the offence.
AHIH
Describe the conditions under which a suspect can be interviewed without an interpreter.
A suspect can be interviewed without an interpreter only if authorized by an officer of the rank of superintendent or above, who must be satisfied that delaying the interview will lead to interference with or harm to evidence, interference with or physical harm to other people, or serious loss of or damage to property.
Describe the conditions of detention as outlined in COP C 8.
Conditions include: no more than one detainee per cell, cells must be heated, cleaned, and ventilated, bedding must be supplied, toilet and washing facilities must be available, replacement clothing must be provided if necessary, and meals must include two light meals and one main meal every twenty-four hours.
How does a detainee’s comments factor into the custody record?
Any comments made by the arrested person must be recorded in the custody record to ensure a complete account of the detention process.
Explain the time limit for summary-only offences regarding detention.
For summary-only offences, the time limit for detention cannot be extended beyond 24 hours.
What is the maximum detention period allowed on a second application?
On a second application, the maximum detention period allowed is up to 96 hours.
How long can the magistrates’ court authorize continued detention on a first application?
The magistrates’ court may authorize continued detention for a further 36 hours on a first application.
Describe the process for police to detain a suspect beyond 36 hours.
The police must apply to the magistrates’ court for a warrant of further detention under sections 43 and 44 of PACE.
Define the criteria for extending detention under Section 42 PACE.
For detention to be extended, an officer of at least the rank of superintendent must authorize it, there must be reasonable grounds for believing detention is necessary, the offence must be indictable, and the investigation must be conducted diligently and expeditiously.
What must be explained to the suspect when extending detention under Section 42 PACE?
The grounds for the extension must be explained to the suspect and noted in the custody record.
When must the authorization for detention extension be given according to Section 42 PACE?
Authorization to extend must be given before the expiry of the initial 24 hours but after the second review has occurred.
Describe the authority provided by Section 42 PACE regarding detention extension.
Section 42 PACE allows for detention to be extended for a further 12 hours, making the maximum period of detention in a police station 36 hours from the relevant time.
What must happen before the 24-hour limit on detention expires?
Before the 24-hour limit expires, the suspect must either be charged or released.
How is the ‘relevant time’ determined in the context of police custody?
The ‘relevant time’ begins at the moment the suspect arrives at the police station, as indicated on the custody record.
Describe the maximum period a suspect can be kept in custody under s.41 PACE.
The maximum period a suspect can be kept in custody before being charged is 24 hours from the ‘relevant time.’
Explain the roles of the custody Officer and review officer
The custody officer authorizes the initial detention, and the review officer must ensure that the grounds for this detention remain valid during subsequent reviews.
Define the rank and role of the review officer in the detention process.
The review officer must be at least the rank of inspector, not connected to the investigation, and is responsible for determining if the grounds for detention are still valid.
How often must reviews of detention occur and from which event is time calculated from?
The first review must occur no more than six hours after the detention is authorized, followed by periodic reviews every nine hours thereafter.
Describe the process that usually follows an arrest.
A person arrested must be taken to a police station as soon as practicable, unless their presence is needed elsewhere for immediate investigations.
What is the role of a solicitor in relation to a custody record?
A solicitor has the right to consult their client’s custody record as soon as practicable after arriving at the police station and at any time while their client is detained.
What actions does the custody officer take if there are grounds to detain a suspect?
The custody officer will authorize detention, open a custody record, inform the detainee of the reason for their arrest, inform them of the reason for their detention, and advise them of their rights.
List the two reasons that may justify the continued detention of a suspect.
The two reasons are to secure or preserve evidence, or to obtain such evidence by questioning.
What happens if the custody officer is not available?
If the custody officer is not available, another officer may perform their role, but that officer must not normally be involved in the investigation of the offence.
Under what condition must the custody officer order the release of a detained person?
The custody officer must order the release if they become aware that the grounds for detaining the person have ceased to exist.
What is the role of the custody officer?
The custody officer can authorize the detention of the person arrested.
What must the custody officer be informed of upon the arrival of a detainee?
The custody officer must be informed of the reason for arrest.
Does the custody officer have a role in the investigation of the offence?
The custody officer must be unrelated to the process of the investigation of the offence.
Define the rank requirement for a custody officer.
A custody officer must be a police officer of the rank of at least sergeant.
Describe the role of the custody officer when a detainee arrives at the police station.
The custody officer must authorize the continued detention of the detainee.
How long can a person be detained at a police station without being taken to a designated station?
A person can be taken to any police station unless it is anticipated they will be detained for more than 6 hours in which case they will need to be taken to a designated police station
Define ‘street bail’ in the context of an arrest.
Street bail refers to the option of granting an arrested person bail to attend a police station at a later date, rather than being taken immediately.
What are some exceptions to taking an arrested person to a police station?
Exceptions include being searched, being taken to premises being searched, or being taken to check their alibi.
What options are available to a detainee after the interview?
A detainee may be released under investigation, released on police bail, charged and released on police bail, or charged and remanded in police custody.
Define the possible outcomes for a detainee after being charged.
After being charged, a detainee may be released on police bail to appear at the magistrates’ court later or remanded in police custody to appear at the magistrates’ court the following day.
Describe the hierarchy of police ranks.
The hierarchy of police ranks includes: Constable, Sergeant, Inspector, Chief Inspector, Superintendent, and Chief Superintendent.
Define the rank and role of the Investigating Officer (IO).
The Investigating Officer (IO) can be a police officer of any rank and is usually in charge of investigating a particular offence, also known as the Officer In the Case (OIC).
From whom would a suspect’s legal representative obtain pre-interview disclosure from?
The Investigating Officer
Identify the rank that typically leads the interview in a police investigation.
The Investigating Officer (IO) typically leads the interview in a police investigation.
When may an interview not be conducted in a police station?
In urgent situations, the requirement for conducting an interview at a police station can be waived if delay could result in harm to evidence, persons, property, or alerting other suspects.
Define a significant statement in the context of police interviews.
A significant statement is one that appears to be capable of being used in evidence, particularly any direct admission of guilt, such as a confession.
How should police handle significant statements made during an interview?
Any significant statement made by the person interviewed in the presence of a police officer or member of police staff must be put to them.
What is required for interviews under caution for indictable offences?
They must be audio recorded.
Identify an exception to the general rule of recording interviews.
The interview can be recorded in writing if it relates to minor offences, the person has not been arrested, and it takes place outside a police station.
Define the circumstances under which a person should not be interviewed.
A person should not be interviewed if they cannot appreciate the significance of the questions and their answers, or if they cannot understand what is happening due to drink, drugs, or any illness.
Who can authorize an interview if a person is unable to understand the situation?
An officer of the rank of Superintendent can authorize an interview in these circumstances.
How should a solicitor prepare for an interview with their client?
The solicitor should obtain pre-interview disclosure and have a private consultation to discuss the case and advise on options.
List circumstances in which a solicitor should consider intervening during a police interview.
A solicitor should consider intervening if: information or evidence is produced that was not disclosed before the interview; clarification is required; there is inappropriate questioning; there is inappropriate behavior; further advice to the client is needed; a break is required; or the circumstances require it.
How does the court handle evidence related to oppression or unreliability under Section 76(2) PACE 1984?
The existence of either oppression or unreliability does not automatically exclude such evidence; the court must grant the defence’s application.
Compare the functions of Section 76 and Section 78 PACE 1984.
Section 76 deals specifically with confessions and their admissibility based on oppression or unreliability, while Section 78 can exclude any evidence, including confessions, regardless of Section 76.
What should a lawyer do if two clients are involved in the same matter who blame each other?
The lawyer should avoid taking instructions from both clients if one might blame the other, to prevent conflicts of interest.
How can a client respond during a police interview?
A client has three options: answer questions, don’t answer questions (‘go no comment’), or provide a written statement and ‘go no comment’.
Define the risks associated with relying on a prepared written statement.
The risks include the possibility that any fact not mentioned in the statement could lead to adverse inferences, making it difficult to ensure sufficient information is included.
How can insufficient disclosure by police affect a suspect’s legal advice?
If the police disclose little or nothing about the case against the suspect, the legal advisor may be unable to provide useful advice, potentially leading to the recommendation for the suspect to remain silent.
What might a solicitor remind an investigating officer regarding insufficient disclosure?
A solicitor can remind the investigating officer that courts are often reluctant to draw adverse inferences when there has been insufficient disclosure.
Define compellable witnesses in the context of criminal justice.
Compellable witnesses are those who can be legally required to give evidence in court, although some witnesses may not be compelled.
Identify potential issues that may arise with witness testimonies in court.
Issues may include the compellability of witnesses, the reliability of their statements, and whether any statements were obtained unlawfully.
Define ‘Argent factors’ in the context of police interviews.
‘Argent factors’ refer to conditions such as ill-health, confusion, intoxication, or shock that may affect a suspect’s ability to participate in a police interview, as established in the case of R v Argent [1997] 2 Cr App R 27.
What should a lawyer check on the custody record before a police interview?
A lawyer should check the custody record to see if the forensic medical examiner has certified the suspect as fit for interview, ensuring that the suspect is in a suitable condition to participate.
Do courts draw inferences from a suspect’s silence under certain conditions?
Courts should not draw inferences from a suspect’s silence if there are concerns about the suspect’s condition, such as mental health issues, confusion, intoxication, or shock.
No adverse inferences for argent factors
Define a significant statement in the context of police interviews.
A significant statement is one capable of being used in evidence against the suspect.
What is the role of the interviewing officer concerning significant statements?
The interviewing officer is responsible for putting any significant statement or silence to the suspect at the beginning of the interview.
What is section 34 of the Criminal Justice and Public Order Act 1984.
if a fact is later relied on at trial and it would have been reasonable to have mentioned it now.
Explain the significance of Section 36 of the Criminal Justice and Public Order Act 1984.
Section 36 addresses the failure to account for a mark, object, or substance, which can lead to negative inferences during legal proceedings. (MOS)
How does Section 37 of the Criminal Justice and Public Order Act 1984 affect suspects?
Section 37 pertains to the failure to account for one’s presence at the scene of a crime, which can be used to infer involvement in the offense.
What does Section 38 of the Criminal Justice and Public Order Act 1984 state
Section 38 ensures that no defendant may be convicted solely based on an adverse inference.
Identify the importance of the custody record in relation to Section 36 of the Criminal Justice and Public Order Act 1984.
The custody record is crucial as it helps ensure that all relevant marks, objects, or substances are accounted for, preventing surprises during interviews.
Define the term ‘ambush defence’ in the context of a defendant’s silence.
It refers to the situation where a defendant withholds their account during an interview because they believe it would not withstand police questioning.
Explain the significance of a suspect’s failure to account for their presence as per Section 37.
A suspect’s inability to explain their presence at a crime scene can lead to inferences about their involvement in the alleged offence under Section 37.
Define the term ‘special warning’ in the context of sections 36 and 37.
A ‘special warning’ is an ordinary language caution given to the defendant, informing them of the investigation, the fact they need to account for, the implications of failing to do so, and that a record of the interview will be made.
Explain the difference between sections 34 and sections 36 & 37 regarding inferences.
Section 34 involves a failure to mention facts, while sections 36 and 37 allow for inferences to be drawn immediately upon a failure to account for possession or presence, without needing a prior failure to mention.
How does access to legal advice affect adverse inferences in criminal cases?
No adverse inference can be drawn if the suspect has not been allowed access to legal advice.
Can adverse inferences be drawn if a defendant pleads guilty?
If a defendant pleads guilty, adverse inferences become irrelevant, as there is no trial to draw such conclusions.
What must happen for a suspect to be subject to inferences under the Criminal Justice and Public Order Act?
The suspect must be cautioned (for section 34) or given a special warning (for section 36 and 37)
List examples of summary only offences.
Examples of summary only offences include assault, battery, and simple criminal damage where the value is £5,000 or less.
Explain aggravated arson.
Aggravated arson involves intentionally causing damage to property by fire, with the intent to endanger life.
What constitutes aggravated criminal damage?
Aggravated criminal damage involves intentionally or recklessly damaging property, with the intent to endanger life.
Differentiate between involuntary manslaughter and unlawful act manslaughter.
Involuntary manslaughter occurs without intent to kill, while unlawful act manslaughter arises from committing a dangerous and unlawful act.
What type of offence is arson?
Arson is a specific type of criminal damage caused by fire and is always classified as an either-way offence, regardless of the value of the damage.
Describe the court’s consideration when multiple offences are involved.
The court must determine whether the offences form part of a series, which allows for the aggregation of the damage value in relation to the £5,000 threshold.
How is the value of damage assessed when property is destroyed?
The value of damage is assessed as the cost of replacement for the destroyed property.
What is the method for assessing damage when property is damaged but not destroyed?
The value of damage is determined as the lesser of the cost of repair or the cost of replacement.
What is the maximum sentence for criminal damage valued at £5,000 or below?
The maximum sentence is three months’ imprisonment or a fine at level 4 on the standard scale.
Explain the implications for a defendant when the value of criminal damage exceeds £5,000.
The offence is triable either way, and if tried in a magistrates’ court, the maximum sentence is six months’ imprisonment or a fine at level 5 on the standard scale.
Define the maximum sentence for criminal damage when tried on indictment.
The maximum sentence on indictment is ten years’ imprisonment.
Describe the legal classification of low value shoplifting.
Low value shoplifting, where the value does not exceed £200, is classified as a summary only offence.
What options does an adult defendant have when charged with low value shoplifting?
An adult defendant can elect to have their trial in the Crown Court despite it being a summary only offence.
Explain the relationship between shoplifting and theft in legal terms.
Shoplifting should be treated as theft, which is classified as an either-way offence.
Do magistrate’s courts have jurisdiction over low value shoplifting cases?
Yes, magistrate’s courts have jurisdiction, but they cannot decline it at the mode of trial hearing.
Who makes the charging decision when it is left to the police?
The custody officer makes the charging decision when it is left to the police.
Explain the process of ‘written charge and requisition’.
Written charge and requisition involves formally documenting the charges against an individual and requesting their appearance in court.
What does ‘laying an information’ mean in criminal proceedings?
Laying an information refers to the process of submitting a formal accusation to a court, initiating legal proceedings against an individual.
What are the different forms of commencing criminal proceedings mentioned?
The different forms include arrest and charge, written charge and requisition, and laying an information.
Describe the circumstances under which pre-charge police bail can be imposed.
Pre-charge police bail can be imposed in circumstances such as insufficient evidence to charge a suspect, where the suspect is released pending further investigation, or when there is sufficient evidence to charge but the matter must be referred to the CPS for a charging decision.
Explain the role of the CPS in the pre-charge bail process.
The CPS is involved when the police consider there is sufficient evidence to charge a suspect, but the matter must be referred to them for a charging decision.
Describe the method of commencement created by s.29 of the Criminal Justice Act 2003.
It allows a public prosecutor to commence proceedings by issuing a written charge against a person without the need for that person to be arrested.
How must the charge and requisition be served in the written charge and requisition method?
They must be served on both the person charged and the magistrates’ court where that person is to attend.
Describe the process for commencing proceedings in a magistrates’ court.
Proceedings can commence when the prosecutor serves an information alleging an offence on a magistrates’ court, which then issues a summons or an arrest warrant for the accused to attend.
Define ‘laying an information’ in the context of criminal proceedings.
Laying an information refers to the formal process of presenting allegations of an offence to a magistrates’ court to initiate legal proceedings.
Explain the difference between a summons and an arrest warrant.
A summons requires the accused to attend court voluntarily, while an arrest warrant authorizes law enforcement to arrest the accused and bring them to court.
List the two main requirements for a summons or requisition regarding offences.
A summons or requisition must specify each offence in respect of which it has been issued and include a notice of when and where the accused must attend court.
How does the time limit for indictable offences differ from summary offences?
There is no time limit for charging the accused with any indictable offence, unlike summary offences which have a six-month limit.
Describe the circumstances under which an identification procedure must be held
An identification procedure must be held when an offence has been witnessed and an eye-witness has identified a suspect, is available to identify the suspect, or has a reasonable chance of identifying the suspect, or when the suspect disputes being the person the eye-witness claims to have seen.
Define when an identification procedure is not required.
An identification procedure is not required if it is not practicable or would serve no useful purpose in proving or disproving the suspect’s involvement in the offence, such as when the suspect is already known to the eye-witness.
Describe video identification in police procedures.
Video identification involves showing the eyewitness moving images of a known suspect alongside similar images of others who resemble the suspect.
Explain the purpose of an identification parade.
An identification parade allows the eyewitness to see the suspect in a line-up of individuals who resemble the suspect, aiding in the identification process.
What is group identification in the context of police procedures?
Group identification involves the eyewitness seeing the suspect among an informal group of people to help confirm their identity.
A police officer of which rank is responsible for the arrangements and conduct of identification procedures?
An officer not below the rank of inspector, who is not involved in the investigation, is responsible for the arrangements and conduct of identification procedures.
Define the role of the identification officer in police identification procedures.
The identification officer is responsible for overseeing the arrangements and conduct of identification procedures, ensuring they are carried out fairly and properly.
Describe the initial step regarding a suspect in a video identification procedure.
The suspect shall be invited to participate in a video identification procedure unless it is not practicable or an identification parade is deemed more suitable.
What happens if a suspect refuses to participate in a video identification procedure?
If the suspect refuses, then an alternative identification method can be considered.
Define the circumstances under which covert procedures may be used in identification.
Covert procedures should be used as a last resort and only if all other identification procedures have been considered and refused.
What is the priority order for identification procedures involving a suspect?
The priority order is to first invite the suspect to a video identification procedure, then consider an identification parade, and lastly, use covert procedures if necessary.
What rights does a suspect have regarding legal representation during identification procedures?
The suspect has the right to have a solicitor or friend present during the identification procedures.
Explain the purpose of the notice given to a suspect before identification procedures.
The notice must explain the purpose of the procedure, their entitlement to free legal advice, the procedures for holding it, their right to have a solicitor or friend present, and that they do not have to consent to or cooperate in the procedure.
How does a suspect’s refusal to cooperate in identification procedures affect subsequent trials?
If a suspect does not consent to or cooperate in a procedure, their refusal may be given in evidence in any subsequent trial.
What can police do if a suspect refuses to consent to identification procedures?
If a suspect refuses to consent to and cooperate in a procedure, police may proceed covertly without their consent or make other arrangements.
Describe the process of video identification as outlined in Code D Annex A.
Video identification involves filming the suspect from multiple angles (right, left, and center) and selecting lookalikes from over 10,000 video clips on the VIPER system. A video clip is then produced with the suspect among at least eight other individuals who resemble them.
Describe the steps that can be taken if a suspect has an unusual physical feature.
Steps may include concealing the location of the feature on the images or replicating that feature on the images of other people.
What must be provided to the suspect and their representatives before showing images to an eyewitness?
They must be given a reasonable opportunity to see the complete set of images.
What will the suspect be asked when expressing their objections to the set of images?
The suspect shall be asked to state the reasons for their objection.
What information should be given to the eyewitness before showing them the images?
The eyewitness should be told that the person they saw may, or may not, appear in the images.
How must the video identification procedure be recorded?
The procedure must be recorded on video with sound, showing all persons present, the statements of the eyewitness, and the interactions between the eyewitness and the identification officer.
How can a suspect or their solicitor view the video identification procedure?
A supervised viewing of the recording of the video identification procedure may be arranged on request, at the discretion of the investigating officer.
In what types of locations can an identification parade take place?
An identification parade may take place in a normal room or in a room equipped with a screen allowing witnesses to see the parade members without being seen.
How should the identification parade process ensure the suspect’s rights?
The identification parade process should ensure the suspect’s rights by allowing them to have a solicitor or friend present and conducting the proceedings in their presence.
Describe the requirements for a video recording or photograph during an identification parade.
A video recording or color photograph must normally be taken of the identification parade and supplied, on request, to the suspect or their solicitor within a reasonable time.
How many people should be included in an identification parade?
The identification parade shall consist of at least eight people, in addition to the suspect (total 9) who resemble the suspect in age, height, general appearance, and position in life.
What options does a suspect have regarding their position in the identification parade?
The suspect may select their own position in the line during the identification parade.
What can a witness request during the identification parade?
A witness can ask to hear any identification parade member speak, adopt a specified posture, or move.
Describe the arrangements for group identification as outlined in Code D Annex C.
The arrangements for group identification include conducting identifications with the suspect’s consent and cooperation or covertly without their consent. The location should have people passing by or waiting informally, allowing the suspect to join a group visible to the witness.
What should be done if practicable during group identification?
A color photograph or video should be taken of the general scene to provide an impression of the scene and the number of people present.
Describe the process that an eye-witness must go through before a confrontation.
Before the confrontation, the eye-witness must be informed that the person they saw on a previous occasion may or may not be the person they are about to confront, and they should indicate if the person is not the one they recognized.
Where should the confrontation by an eye-witness typically take place?
The confrontation should normally take place in a police station, either in a regular room or in one equipped with a screen that allows the eye-witness to see the suspect without being seen.
Define the purpose of informing the eye-witness about the possibility of misidentification before a confrontation.
The purpose is to ensure that the eye-witness understands that the person they are about to confront may not be the same individual they observed previously, encouraging accuracy in their identification.
What may necessitate a voir dire in the context of a breach of Code D?
A voir dire (trial within a trial) may be required if evidence around the alleged breach is disputed.
What is the role of the judge during a voir dire related to a breach of Code D?
The judge will have to hear evidence under oath.
What is the remedy for a defendant if a breach of Code D is established?
The remedy is to apply to exclude evidence obtained in breach of the code under s 78 PACE 1984.
Does a breach of Code D automatically lead to the exclusion of evidence?
No, a breach of the code does not automatically lead to the exclusion of the evidence.
What must a judge consider if they determine there is prejudice to the accused?
The judge must decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Describe the circumstances under which identification evidence may be excluded.
Identification evidence will usually be excluded when important safeguards have been flouted, such as the right to a formal identification procedure.
How can defense advocates address breaches of Code D during a trial?
Defense advocates are permitted to comment on the breach in their closing speech.
How can suspects access free legal advice at the police station?
Suspects can access free legal advice at the police station through the Defence Solicitor Call Centre (DSCC), which provides telephone-only advice for non-imprisonable offences.
What entitlement do all suspects have regarding legal advice at police stations?
All suspects are entitled to free legal advice at the police station, regardless of their financial means.
Define the two tests a defendant must pass to obtain a representation order.
A defendant must pass the means test and the merits test (the ‘interests of justice’ test) to secure a representation order for public funding.
Explain the merits test related to obtaining public funding.
The merits test, also known as the ‘interests of justice’ test, evaluates whether it is in the interest of justice to provide public funding for the defendant’s legal representation.
Who qualifies as ‘passported’ defendants for legal aid?
Defendants under 18 years of age and those receiving specified welfare benefits, such as Universal Credit and income-based jobseeker’s allowance, qualify as ‘passported’ defendants and automatically pass means test meaning they don’t need to complete the Financial Statement for Legal Aid in Criminal Proceedings (CRM 15) form.
Describe the initial assessment in the means test for magistrates’ court.
The initial assessment calculates the applicant’s weighted gross annual income by adding their gross annual income to any partner’s income, unless the partner is the complainant, a prosecution witness, or a co-defendant in conflict with the applicant. A weighting is applied based on the number of people living in the household.
Define the lower threshold for public funding eligibility in the means test.
The lower threshold for public funding eligibility is currently set at a weighted gross annual income of £12,475 or less.
What happens if an applicant’s weighted gross annual income is above the upper threshold?
If an applicant’s weighted gross annual income is above the upper threshold, which is currently £22,325 or more, they will be ineligible for public funding.
How is the full means test conducted for applicants between the lower and upper thresholds?
Applicants whose weighted gross annual income is between £12,475 and £22,325 are required to undertake a full means test using form CRM15, which will establish their annual household disposable income.
What is the current threshold for annual household disposable income to qualify for funding?
The current threshold for annual household disposable income to qualify for funding is £3,398 or less.
Explain the options available to an applicant who fails the means test.
An applicant who fails the means test can apply for an eligibility review or a hardship review if they have unusually high outgoings or defense costs.
Describe how an applicant’s financial situation is assessed for defence costs in the crown court
The applicant is assessed on their income and capital, including any equity in properties owned by them.
What is the capital and equity allowance for applicants?
The combined capital and equity allowance for applicants is £30,000.
What is the means test for crown court cases
• ineligible for public funding- if above the eligibility threshold i.e. £37,500 or more at present.
• eligible for public funding without any contribution- if below the threshold i.e. £3,398 or less at present.
• eligible for public funding with a contribution- if in between the thresholds i.e. between £3,399 and £37,499.99 at present. The income based-contribution is 90 percent of disposable income for a maximum of six months in instalments and subject to a maximum based on the type of offence (refunded with interest if the defendant is acquitted).
Identify the circumstances under which a defendant automatically passes the interests of justice test.
A defendant automatically passes the interests of justice test if they are charged with an indictable-only offence or if an either-way offence is later sent to the Crown Court.
What is the 10 propositions that constitute the merit test
- I will lose my liberty (if a custodial sentence)
- I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence.
- It is likely I will lose my livelihood
- It is likely I will suffer serious damage to my reputation
- A substantial question of law may be involved
- I may not be able to understand the court proceedings or present my own case
- Witnesses may need to be traced or interviewed on my behalf
- The proceedings may involve expert cross examination of a prosecution witness
- It is in the interests of another person that I am represented
- Any other reasons
Describe the options available to a defendant who fails the means test.
If a defendant fails the means test, there is no right of appeal, but they can submit another form if their circumstances have changed.
What can a defendant do if they fail the merits test in the magistrates’ court?
If a defendant fails the merits test in the magistrates’ court, they can submit an interests of justice appeal online to the Legal Aid Agency.
How can a defendant consult with a duty solicitor?
A defendant can consult with the duty solicitor if they are charged with an imprisonable offence, but the duty solicitor can only represent them on one occasion, usually the first hearing at court.
What is the court of first appearance for adults?
All adult defendants have their first hearing before a magistrates’ court, regardless of the offence they are charged with.
Describe the timeline for the first hearing if the defendant is on bail and anticipates a guilty plea.
The first hearing must be within 14 days of being charged.
What is the timeline for the first hearing if the defendant is on bail and anticipates a not guilty plea?
The first hearing must be within 28 days of being charged.
Describe the consequences if a defendant fails to attend the first hearing after being bailed by the police.
The court can issue a warrant for the defendant’s arrest if they fail to attend after being bailed.
How does the court handle a situation where a defendant does not attend a hearing for an either-way offence?
The court will usually not be able to proceed with the hearing if it deals with the allocation of an either-way offence or sending an indictable case to the Crown Court.
Are there any implications for a defendant not showing up to court for non-imprisonable offences?
If a defendant is summoned to court for non-imprisonable, minor, or road traffic offences, they do not commit an offence for non-appearance, and the case can proceed in their absence if the prosecution has served statements and the defendant was warned.
When must the prosecution serve the initial details?
The prosecution is obliged to serve the initial details on the court officer as soon as practicable and no later than the beginning of the day of the first hearing.
How must the prosecution respond to a defendant’s request for initial details?
The prosecutor must serve the initial details on the defendant as soon as practicable and no later than the beginning of the day of the first hearing.
What is the typical response of the court if initial details are not supplied by the prosecution?
The usual remedy is for the court to adjourn a first hearing and/or award costs to the defence for the prosecution’s failure to serve.
Describe what the initial details must include
Initial details must include a summary of the circumstances of the offence, any account given by the defendant in interview, any written statements and exhibits that are available and material to plea and/or mode of trial or sentence, victim impact statements, and the defendant’s criminal record.
What must the initial details include when the defendant is in custody immediately before the hearing?
If the defendant was in police custody immediately before the first hearing, the initial details need only include a summary of the circumstances of the offence and the defendant’s criminal record.
Define the Preparation for Effective Trial (PET) form.
The PET form is required to be available and must be completed by the parties when there is to be a summary trial.
Describe the Court process for a defendant charged with an indictable only offence.
A defendant charged with an indictable only offence makes a brief first appearance in a magistrates’ court, where the court handles bail and legal aid. The defendant indicates their plea on the Crown Court sending form and is then sent to the Crown Court to enter a plea, with the hearing occurring three to four weeks later based on bail status.
Describe the exception to the rule regarding summary only offences in Crown Court.
Summary only offences typically do not go to Crown Court, but an exception occurs when a defendant is charged with an indictable offence and a connected summary only offence is present at the same hearing in magistrates’ court.
Explain the relationship between summary offences and indictable offences in the context of the Crown Court.
When an indictable offence is tried in the Crown Court, related summary offences that are on the section 40 CJA 1988 list can be included on the indictment, allowing the jury to consider them and return a verdict.
what are the related summary matters that must be sent for trial and included on an indictment
• Common assault
• Assaulting a prison or secure training centre officer
• Taking a motor vehicle or other conveyance without authority
• Driving a motor vehicle while disqualified
• Criminal damage
MAD
MOTOR ASSAULT DAMAGE
What happens to summary offences not listed in section 40 of the CJA 1988 during an indictment trial?
Summary offences not listed in section 40 will not appear on the indictment and will be addressed separately after the trial of the indictable offence.
Define the implications of pleading guilty to a summary only offence in the Crown Court.
If the defendant pleads guilty to a summary only offence in the Crown Court, the court may deal with the offence in any manner that would have been available to a magistrates’ court.
How does the Crown Court handle a not guilty plea for a summary only offence?
If the defendant pleads not guilty to a summary only offence, the Crown Court has no further power to deal with the offence, and it is remitted to a magistrates’ court for trial.
Define ‘remand’ in the context of a court case.
Remand refers to when a defendant is sent away and instructed to return to court on another day, with the obligation to continue with the case.
Explain the term ‘adjournment’ as it relates to court cases.
Adjournment refers to the postponement of a case when it cannot be concluded in a single hearing, and it specifically applies to the case itself, not the defendant.
How does remand differ from adjournment in legal terms?
Remand involves the defendant being required to return to court, while adjournment refers to the postponement of the case proceedings.
Where do bail decisions take place
Magistrates
Who grants bail in murder cases?
In murder cases, only a Crown Court Judge can grant bail, unlike other cases where the magistrates’ court has the authority.
Who can appeal bail decisions?
Both the defence and the prosecution have the right to appeal decisions on bail made by the magistrates.
Define conditional bail and its significance in court decisions.
Conditional bail can be granted subject to specific conditions, which the defence advocate must consider to alleviate the court’s concerns about the defendant’s behaviour.
Describe the principle of the ‘right to bail’.
The ‘right to bail’ is a legal principle that presumes a defendant is entitled to bail unless the prosecution properly objects and applies for remand into custody.
Describe the circumstances under which the right to bail does not apply.
The right to bail does not apply to those appealing their conviction or sentence, and to defendants being committed for sentence from the Magistrates’ Court to the Crown Court.
Why would the presumption of bail not be applied when the magistrates commits the defendant to the crown court for sentencing?
- Likelihood of Custody: The defendant is now very likely to receive a significant custodial sentence.
- Low Risk of Unfair Remand: There’s little risk the defendant will spend more time in custody on remand than the sentence they will ultimately receive, as the sentence is expected to exceed that time.
- Increased Risk of Absconding: Knowing that a serious sentence is probable, the defendant may be more tempted to abscond.
Define the ‘big three’ grounds for objecting to bail.
The ‘big three’ grounds for objecting to bail are:
(a) failure to attend a subsequent hearing,
(b) committing further offences on bail, and
(c) interfering with witnesses or obstructing the course of justice.
What type of evidence is permitted in bail hearings?
Hearsay evidence is permitted, meaning statements made out of court can be presented as proof of their contents.
