Crim 2 Flashcards
Describe the recent addition to the law regarding bail considerations.
A final filter has been added stating that bail should not be removed if the defendant is charged with an offence where there are ‘no real prospects’ of receiving a custodial sentence.
Describe the maximum penalty for criminal damage by way of graffiti with low value of damage.
The maximum penalty is three months imprisonment.
Give two examples of bail conditions
Conditions may include signing on at a police station regularly and adhering to a curfew to ensure D’s attendance and to keep D out of trouble.
Describe the importance of remand in custody for a defendant’s own protection.
A remand in custody for a defendant’s own protection is considered an important ground for denying bail, as it ensures the safety of the defendant.
Define the term ‘pre-con’ in the context of bail.
‘Pre-con’ refers to a previous conviction that D has prior to the current charge. The presence of a qualifying pre-con can affect the assessment of bail.
Define the conditions under which a defendant ‘need not’ be granted bail.
A defendant ‘need not’ be granted bail if any of the following conditions exist: they require protection, there is insufficient information to assess bail, or they are already serving a sentence in custody.
List the offences that could prevent D from being granted bail.
The offences that could prevent D from being granted bail include murder, attempted murder, rape, serious sexual offences, and any offence carrying a life imprisonment sentence.
Describe the factors considered when objecting to bail.
The factors are not grounds themselves but help the court determine if the grounds for objecting to bail are valid. They include the nature and seriousness of the offence, the character of the defendant, and the defendant’s community ties.
can the seriousness of an offence alone be enough to deny bail?
While the seriousness of an offence may be a relevant factor, it cannot solely justify the denial of bail without a legitimate ground for objection.
What happens if a resident breaches the rules of a bail hostel?
If a resident breaches the rules of a bail hostel, they may be required to leave, which would result in a breach of the court-imposed bail condition of residence.
Define the offence of failing to surrender to custody.
Failing to surrender to custody, commonly known as failing to surrender (‘FTS’), is a criminal offence that occurs when an individual does not return to custody without reasonable cause.
How does the Bail Act address the situation of a defendant about to breach bail conditions?
The Bail Act allows for the arrest of individuals who are about to breach bail conditions, not just those who have already done so.
What happens once the defendant is arrested for breaching bail conditions.
After an arrest for breaching bail conditions, the defendant must be brought forthwith to a magistrates’ court to determine whether they should be granted bail going forward.
What happens if a defendant is found in breach of a bail condition before the specified time?
If a defendant is found in breach of a bail condition, such as being in a location other than specified before the time, the officer can arrest them without waiting for the specified time.
How does the Bail Act 1976 empower law enforcement regarding bail breaches?
The Bail Act 1976, s.7 provides a power of arrest for officers to arrest individuals who are in breach of bail conditions or who are about to breach them.
Is breaching a bail condition a criminal offence
Breaching a bail condition is not considered a criminal offence; there is no offence of ‘breaching a bail condition’.
What happens if the parties agree on the variation of bail conditions?
If the parties agree on the variation, the court may decide to vary a bail condition without a hearing.
To which court should applications to vary bail conditions be made?
Applications should be made to the court which granted bail or the Crown Court if the accused has been sent for trial or committed for sentence.
How does a bail hostel assist defendants who lack a fixed address?
A bail hostel provides a residence and a curfew for defendants without a fixed address, helping to ensure they comply with bail conditions.
Define the condition of surrendering a passport in bail situations.
Surrendering a passport is a condition that may be imposed by the court to prevent a defendant from absconding, ensuring they cannot leave the country.
What must the court consider before attaching a condition of bail?
The court must consider if the condition is relevant, proportionate, and enforceable.
Describe the purpose of bail hostels in the context of bail conditions.
Bail hostels are used to provide residence for defendants who do not have a fixed address, aiming to prevent them from absconding, interfering with witnesses, or committing further offences while on bail.
Define electronic monitoring in the context of bail conditions.
Electronic monitoring, or tagging, involves tracking a defendant’s location to ensure compliance with bail conditions, such as curfews, and to prevent further offences or witness interference.
When is security deposited in bail cases?
Securities are deposited with the court or the police before the defendant is released on bail.
Describe what security entails in the context of bail.
Security involves the defendant or someone on their behalf putting up money or a valuable item to be forfeited if the defendant does not answer bail and attend court.
Explain the difference between surety and security in bail.
Surety can only be provided by a third party, while security can be provided by either a third party or the defendant.
Describe the role of a surety in bail proceedings.
A surety agrees to forfeit a sum of money if the defendant absconds, but cannot stand as a surety in their own case.
Define surety in the context of bail.
Surety is the offer of money made by someone with influence over the defendant to secure the defendant’s return to court, usually required when there is a risk of the defendant absconding.
Define the purpose of reporting to a local police station as a bail condition.
Reporting to a local police station at specified times helps ensure the defendant is still in the area, reducing the risk of them absconding.
How does a curfew function as a bail condition?
A curfew requires the defendant to remain indoors during certain hours to prevent further offences, particularly for crimes that typically occur at night, such as burglary.
Define the conditions under which the prosecution can appeal a bail decision.
The prosecution can appeal if they originally opposed bail, the offence is punishable by imprisonment, they indicate orally at the hearing their intention to appeal, confirm it in writing within two hours, and the appeal is heard within 48 hours.
What bail options does a defendant have after their first appearance in the magistrates’ court?
The defendant can make another bail application after their first appearance.
What can a defendant consent to regarding onward remands?
A defendant can consent to onward remands being conducted in their absence, meaning they do not need to appear in court.
How often must a defendant be brought back to court after a second appearance in the magistrates?
A defendant must be brought back to court every 28 days or fewer for onward remands to their trial.
Describe the process of a second appearance in the magistrates’ court.
A second appearance can be conducted via video link, allowing the defendant to be considered ‘present in the courtroom’ despite appearing on a screen.
How often must a defendant be brought back to court if remanded in custody for a trial in the magistrates’ court?
A defendant must be brought back to court within eight clear days for another bail application.
Define the remand period for a defendant in the magistrates’ court at their first hearing.
At their first hearing, a defendant remanded into custody must be remanded for no more than eight clear days.
Describe the significance of the custody time limit in a trial.
A trial must commence before the expiry of the custody time limit; if it expires, the defendant is released unless the prosecution can justify an extension.
What is the custody time limit for trials in the Crown Court?
The custody time limit for trials in the Crown Court for indictable only or either-way offences is 182 days, minus any days spent in custody prior to the case being sent to the Crown Court.
Define the custody time limit for trials in the magistrates’ court.
The custody time limit for trials in the magistrates’ court for summary only or either-way offences is 56 days.
Describe the general rule for a defendant seeking bail in the magistrates’ court.
A defendant can have two attempts at getting bail in the magistrates’ court and one attempt on appeal to the Crown Court.
Define the conditions under which a defendant can reapply in the magistrates’ court after appealing to the Crown Court.
A defendant can only reapply in the magistrates’ court if there has been a change in circumstances after appealing to the Crown Court.
How does appealing to the Crown Court affect a defendant’s rights in the magistrates’ court?
If a defendant appeals to the Crown Court after only one application in the magistrates’ court, they lose the right to make a second application in the magistrates’ court.
What is required for a bail application to be made after crown court rejected bail?
A change in circumstances
When are bail appeals heard after an appeal notice is served to the crown court?
Appeals are heard one business day after an appeal notice is served.
What must the defendant secure to appeal to crown court after their bail applications?
The defendant must secure a ‘certificate of full argument’ from the magistrates’ court, which summarizes what transpired in the court below.
Describe the process a defendant goes through to apply for bail in court.
The defendant attends court for the first time the case is listed and applies for bail. If unsuccessful, the case returns to court a week later (8 clear days) for a second bail application without restrictions.
How does the bail application process differ between the magistrates’ court and the Crown Court?
In the magistrates’ court, a defendant has two attempts at bail, while in the Crown Court, they have one attempt at the magistrates’ court and a further application in the Crown Court.
Explain the options available to a defendant after a second bail refusal in the magistrates’ court.
The defendant can either appeal the bail decision to the Crown Court or present new evidence or points, such as a surety that was not available before.
Define the bail process for a defendant whose trial will be heard in the Crown Court.
The defendant has one attempt at bail at the first hearing in the magistrates’ court and a further application as of right in the Crown Court.
Describe the process that occurs at a first hearing for an offence that is triable either-way.
At a first hearing, the defendant is asked to indicate their plea after being supplied with initial details by the prosecutor. The charge is read out, and the defendant can indicate guilty, not guilty, or give no indication, which is treated as a not guilty plea. This process is known as ‘plea before venue’ and is outlined in s 17A of the Magistrates’ Courts Act 1980.
Define an unequivocal guilty plea.
An unequivocal guilty plea is one that is free of any suggestion or statement indicating that the defendant is not guilty, such as relying on a defense or denying an element of the offense.
What is the maximum imprisonment a magistrates’ court can impose for an either-way offence?
A magistrates’ court cannot impose more than 12 months imprisonment for any either-way offence.
Describe the options available to the court when deciding on a sentence.
The court can either pass sentence immediately or adjourn for the preparation of a pre-sentence report (PSR).
Define a pre-sentence report (PSR).
A pre-sentence report (PSR) is a document prepared to provide the court with information about the offender to assist in determining an appropriate sentence.
What must the court clarify regarding sentencing options when adjourning for a pre-sentence report?
The court should make it clear that all sentencing options, including committal to the Crown Court for sentence, remain open.
What factors might lead a magistrates’ court to order a pre-sentence report before sentencing?
A magistrates’ court may order a PSR if there is a realistic alternative to a custodial sentence, if the defendant may be a dangerous offender, or for any other appropriate reason.
Describe the process that follows a not guilty plea in court.
After a defendant indicates a not guilty plea, the court considers where the trial will be held, a process known as allocation.
Explain the circumstances under which either-way offences should be tried in the Crown Court.
Either-way offences should be tried in the Crown Court if the court’s sentencing powers would be insufficient or if there are unusual legal, procedural, or factual complexities.
How does a guilty plea affect the allocation of a trial?
A potential reduction for a guilty plea is considered when assessing the sufficiency of the court’s sentencing powers during allocation.
Describe the role of the defence in the allocation hearing.
The defence can make submissions regarding the venue of the trial. If they agree with the prosecution, their submission may be brief. However, if they disagree with the prosecution’s suggestion to hold the case in the Crown Court, they must provide more detailed and persuasive arguments.
What does the prosecution do at the beginning of the allocation hearing?
The prosecution opens with the facts of the case and outlines the defendant’s offending history, if applicable.
What factors does the prosecution consider when making submissions about the trial venue (allocation)?
The prosecution considers the nature and seriousness of the offence, along with any particular aggravating and mitigating features.
What does the court explain to the defendant if it retains jurisdiction?
The court explains that summary trial is more suitable, the defendant can consent to be tried summarily or by a jury, and if convicted in a summary trial, the defendant may still be committed to the Crown Court for sentencing.
Describe the process a defendant can follow to seek an indication of sentence.
The defendant can ask the court for an indication of sentence if they were to plead guilty. The court has the discretion to provide this indication.
How can the court give an indication of sentence?
It can only inform the defendant whether the potential sentence would be custodial or non-custodial.
How does a defendant proceed if they receive an indication of sentence and choose to plead guilty?
If the defendant receives an indication and decides to plead guilty, the process will proceed as if they had pleaded guilty from the beginning.
Define the binding nature of a non-custodial sentence indication.
If a non-custodial sentence is indicated, that indication is binding on any later magistrates’ court.
Why is trial election in the Crown Court recommended?
It is often recommended to elect trial on indictment in the Crown Court due to a higher acquittal rate and the advantages of separate tribunals of law and fact.
How do voir dire procedures function in the Crown Court?
Voir dire procedures allow the judge to hear arguments to exclude evidence in the absence of the jury.
Is it true that Crown Court judges always sentence more harshly than magistrates’ court judges?
No, it is not always the case that a Crown Court judge will sentence more harshly than a magistrates’ court.
What are the advantages of a summary trial in a magistrates’ court?
Advantages of a summary trial in a magistrates’ court include less formality, shorter waiting times, quicker trials, no requirement for a defence statement, and lower costs compared to the Crown Court.
Do proceedings in a magistrates’ court require a defence statement from the defendant?
No, proceedings in a magistrates’ court do not require a defendant to serve a defence statement.
Are magistrates required to provide reasons for their decisions.
Magistrates are required to provide reasons for their decisions, unlike juries, which do not have to give reasons.
Describe the process when a defendant elects for a trial at the Crown Court.
The defendant will make their next appearance at the Crown Court, and the court will complete the ‘Case sent to the Crown Court for trial – case management questionnaire’.
Describe the circumstances under which criminal damage can be dealt with at the Crown Court.
Criminal damage can be dealt with at the Crown Court if the damage is over £5000 or if it is caused by fire (arson).
What is the maximum sentence for low value shoplifting?
The maximum sentence for low value shoplifting is 6 months.
Where do cases involving complex fraud and children witnesses get heard?
Section 50A provides that cases involving complex fraud or where children may be called as witnesses should be sent directly to the Crown Court.
Define complex fraud.
Complex fraud is characterized by the presence of at least two specific criteria, such as exceeding £500,000 in alleged amounts, having a significant international dimension, requiring specialized knowledge, involving numerous victims, substantial fraud on a public body, or being of widespread public concern.
Describe what is meant by ‘facts in issue’.
Facts in issue are the specific facts that any party must prove to establish their case in a legal proceeding.
Identify the roles of tribunals of fact and tribunals of law
Tribunals of fact determine the facts of the case based on the evidence presented, while tribunals of law interpret and apply the law to those facts.
Describe the process of agreeing a witness statement as true under the Criminal Justice Act 1967, s.9.
The witness’s statement can be agreed as accurate and true in its written form, read out in court, and carries the same weight as if the witness had attended in person and given evidence. This is only done if there is no challenge to the evidence.
What happens if evidence is disputed?
If the evidence is disputed, the witness must be called to give oral evidence so that the court can assess the dispute openly.
Define the process of agreeing a fact between parties
Advocates in a case can agree on a fact, which is then reduced to writing and signed by both parties’ lawyers, establishing that the fact is accepted as true.
Describe the concept of judicial notice in a legal context.
Judicial notice allows a judge or jury to accept certain facts as true without requiring formal evidence, based on the understanding that some facts are widely known or easily verifiable.
Define the term ‘on enquiry’ in relation to judicial notice.
‘On enquiry’ refers to a judge’s ability to take judicial notice of a fact that they may not know offhand but can easily verify from a reliable source.
What restrictions are placed on jurors regarding personal knowledge in a trial?
Jurors cannot take notice of personal matters they know that are not generally known; they must inform the court of any relevant personal knowledge.
Can jurors conduct their own research during a trial?
Jurors are prohibited from conducting their own research at any time, as it could compromise the integrity of the trial and the evidence presented.
Explain the difference between direct evidence and circumstantial evidence.
Direct evidence directly proves a fact, such as eyewitness testimony, while circumstantial evidence relies on inference to connect it to a conclusion of fact.
How can a train ticket serve as circumstantial evidence in a legal case?
A train ticket found in the defendant’s pocket, showing a train arriving just before midnight at the station, can infer the defendant’s presence at the station, thus serving as circumstantial evidence.
What is meant by a ‘view’ in a legal context?
A ‘view’ refers to a situation where juries can visit a crime scene or inspect an object that cannot be brought into court, and their observations become part of the evidence in the case.
Define the fundamental principle of evidence.
The fundamental principle of evidence is that for any evidence to be admissible, it must be relevant.
What happens to evidence that is deemed irrelevant?
If evidence is irrelevant, it is considered inadmissible.
Define hearsay in the context of legal evidence.
Hearsay refers to a statement made outside of court that is presented as evidence to prove the truth of its contents, which is generally not admissible in court.
How do exclusionary rules affect the admissibility of evidence?
Exclusionary rules can render relevant evidence inadmissible if it was obtained in a manner that violates legal standards, thereby ensuring that the trial remains fair.
Discuss the implications of using evidence obtained illegally in court.
Using evidence obtained illegally can lead to its exclusion from court proceedings, as it undermines the fairness of the trial and violates legal protections.
What is an implication of the magistrates tribunal structure?
The same magistrates who rule on the admissibility of evidence also determine the defendant’s guilt, which can lead to bias if they have prior knowledge of inadmissible evidence.
What is S78 pace of PACE?
Section 78 of PACE allows for the exclusion of evidence if its admission would have an adverse effect on the fairness of the proceedings.
Identify the conditions under which an application for dismissal can be made.
An application for dismissal of charges can be made only after:
(1) the defendant is sent by the magistrates’ court for trial to the Crown Court,
(2) the defendant has been served with the evidence relating to the offence, and
(3) before the defendant is arraigned (Arraignment refers to the stage where the offence is put to the defendant and the defendant pleads guilty or not guilty)
What is the significance of section 76 PACE in legal proceedings?
Section 76 PACE is significant because it allows for the exclusion of confessions that are deemed to have been obtained through oppression or in circumstances that make them unreliable.
Define the circumstances under which a defendant can apply to be tried separately from a co-defendant.
A defendant can apply to be tried separately if significant unfairness would result from a co-defendant’s evidence.
Can abuse of process applications be made in magistrates’ court?
Yes, but only on the ground that a defendant is unable to have a fair trial.
Where are abuse of process applications primarily dealt with?
Abuse of process applications are mainly dealt with in the Crown Court.
Who must prove an abuse of process application and to what standard?
The defense must prove abuse of process on the balance of probabilities.
Can delay amount to an abuse of process?
Delay can amount to an abuse of process if the prosecution has deliberately delayed proceedings to gain a tactical advantage.
What role does police conduct play in abuse of process claims?
If the police act in a way that undermines public confidence in the criminal justice system, such as deliberately destroying evidence that could assist the defence, it may support an abuse of process claim.
How can a promise from the prosecution lead to an abuse of process claim?
If a defendant is prosecuted despite an unequivocal promise from the prosecution that they would not be prosecuted, this can lead to an abuse of process claim.
Describe the two categories of cases where a court can stay proceedings according to R v Maxwell.
The two categories are:
(i) where it is impossible to give the accused a fair trial, and
(ii) where trying the accused offends the court’s sense of justice and propriety.
What does s.76 PACE address in terms of confessions?
Section 76 of PACE addresses the exclusion of confessions that are deemed to have been obtained unfairly.
Describe the test applied for dismissal of a case according to R v Galbraith.
The test involves determining whether (a) there is no evidence that the crime has been committed by the defendant, or (b) the prosecution evidence, even at its strongest, is insufficient for a properly directed jury to convict.
What are abuse of process applications?
Abuse of process applications are requests made to the court to halt proceedings due to fundamental unfairness or impropriety that would compromise the trial’s integrity.
How can the defense respond to an abuse of process in court?
The defense can apply to stay proceedings as an abuse of process of the court.
What is the obligation regarding reasons for rejecting a submission of no case to answer in court?
There is no obligation for the magistrates’ court or the Crown Court to provide reasons when rejecting a submission of no case to answer.
What happens if a submission of no case to answer is unsuccessful?
If the application is unsuccessful, the jury will not be informed that such an application has been made.
How does the process of a submission of no case to answer differ in the Crown Court compared to other courts?
In the Crown Court, the application is made in the absence of the jury.
Explain when a submission of no case to answer is typically made.
It is typically made at the close of the prosecution case, after the entirety of the prosecution’s evidence has been presented but before the defense case begins.
Explain the role of jury reliability in the context of a judge’s decision to allow a case to proceed.
If the strength or weakness of the prosecution evidence depends on the reliability of a witness or other factors typically assessed by a jury, and there is a possible view of the facts that could lead to a guilty verdict, the judge should allow the case to be tried by the jury.
List the types of applications a defense can make to challenge evidence in a trial.
The types of applications include submissions of no case to answer, applications to exclude evidence under s.78 PACE, applications to exclude confessions under s.76 PACE, applications to exclude evidence under s.82(3) PACE, and abuse of process applications.
What section of PACE deals with the exclusion of confessions?
Section 76 of PACE deals with applications to exclude confessions.
How can evidence be excluded during a trial according to PACE?
Evidence can be excluded under s.78 PACE, which allows applications to exclude evidence that was obtained unfairly.
In which courts can the defence submit a no case to answer application?
The application can be made in the magistrates’ court and the Crown Court.
Explain how the defence can use the Codes of Practice in court.
The defence can use the content of the Codes of Practice to demonstrate that proper procedures were not followed, which may support their argument for excluding evidence.
What is the standard of proof in criminal cases relevant to a s.78 application?
The normal burden and standard of proof in criminal cases apply, requiring proof beyond reasonable doubt.
How does a voir dire differ from a regular trial?
A voir dire is a type of mini-trial that occurs within a trial, focusing solely on legal arguments and evidence related to specific disputes, often without the presence of a jury.
What is the role of witnesses during a voir dire?
Witnesses in a voir dire testify under a special oath or affirmation, committing to provide truthful answers to the court’s questions.
Can non-verbal actions be considered confessions?
Depending on the context, a nod, sign, or gesture can be sufficient as a confession, as it does not have to be articulated in words.
Who has the burden of proof in a Section 76 PACE claim
If there are representations that the confession was obtained by oppression or in circumstances likely to render it unreliable, the court will not allow it unless the prosecution proves beyond reasonable doubt that it was not obtained in such a manner.
Does the exclusion of a confession affect the admissibility of facts discovered as a result of that confession?
The exclusion of a confession does not affect the admissibility of any facts discovered as a result of the confession.
Define ‘oppression’ in the context of confessions.
In this context, ‘oppression’ includes torture, inhuman or degrading treatment, and the use or threat of violence.
Explain the defense’s options if a confession is deemed admissible by the judge.
The defense can still seek to discredit the confession during the trial through cross-examination and by referencing it in their closing speech.
How does PACE Code C protect the rights of suspects?
It includes provisions such as the right not to be held incommunicado, the right to legal advice, and the right to be cautioned before questioning.
What does the right to appropriate rest entail under PACE Code C?
The right to appropriate rest ensures that suspects are given adequate breaks during their detention at the police station.
Discuss the role of sleep deprivation in the context of confession reliability as seen in R v Trussler.
In R v Trussler, sleep deprivation played a critical role in undermining the reliability of the confession, as the defendant’s lack of rest was considered a significant factor that affected his mental state during the interview.
Describe the relationship between sections 76 and 78 of PACE 1984 in the context of confessions.
Section 78 can exert a broader protective sweep than section 76, acting as an override protection for a detainee, allowing courts to exclude confessions based on overall fairness rather than just reliability.
What is the difference between S76 and S78
While there may be substantial overlap in the analyses of sections 76 and 78, they are not identical; section 76 focuses on reliability, whereas section 78 emphasizes overall fairness.
Define ‘verballing’ in the context of police questioning.
‘Verballing’ refers to the practice of police inaccurately recording or fabricating the words used by a detained person during questioning.
How does Code C ensure the integrity of a confession made outside a formal interview?
Code C requires that a record of the confession is made, timed, and signed by the maker, and that the suspect is asked to read and sign the record as correct or indicate inaccuracies.
What information is necessary for the court at the first hearing according to the prosecution’s initial details?
The information necessary includes details to allow the court to take an informed view on plea, venue for trial, case management, and sentencing.
In which court is providing a defence statement mandatory?
Providing a defence statement is mandatory in the Crown Court and optional in the magistrates’ court.
How long after a case is sent to the Crown Court does the PTPH typically occur?
The PTPH usually takes place 28 days after the case is sent to the Crown Court.
What happens if the prosecution has not complied with its initial disclosure at the first hearing?
If the prosecution has not complied with its initial disclosure of unused material at the first hearing, the court will give a date for this to be completed.
Describe the process that occurs at the first hearing in the magistrates’ court when a defendant pleads not guilty.
At the first hearing, if the defendant pleads not guilty and the case is adjourned for summary trial, the court will set a date for any further prosecution evidence to be served and will also set a date for the prosecution to complete its initial disclosure of unused material if it has not already done so.
Identify the circumstances under which a prosecutor should consider advance disclosure of material.
A prosecutor should consider advance disclosure of material that might assist the defense with early preparation of their case or at a bail hearing.
What is the default position regarding the timing of initial disclosure under CPIA section 13?
The default position under CPIA section 13 is that the prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure arises.
Explain when the initial duty of disclosure occurs in the Crown Court.
In the Crown Court, the initial duty of disclosure occurs when a defendant is sent for trial or when a Voluntary Bill of Indictment has been preferred against a defendant.
Describe the initial duty of disclosure under the CPIA in the magistrates’ court.
The initial duty of disclosure arises in the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial.
How does the House of Lords view the duty to disclose unused material in criminal cases?
The House of Lords emphasizes that fairness requires the prosecution to disclose any material that weakens its case or strengthens the defendant’s case, even if it is not part of the formal case against the defendant.
How must the prosecution serve the initial details of the case before the first hearing?
The prosecution must serve the initial details of the case no later than the beginning of the day of the first hearing.
What should Disclosure Officers do with unused material?
They must ensure it is clearly listed and brought to the attention of the prosecutor.
What is the retention requirement for material if the defendant is convicted?
Material must be retained at least until the defendant is released from custody or discharged from hospital, or for six months from the date of conviction if there was no custodial sentence or hospital order.
How long must material be retained once proceedings are commenced?
All material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.
What role do experts’ reports play in the retention of relevant material?
Experts’ reports and communications between the police and experts must be retained for the purposes of criminal proceedings.
How should witness statements be handled in terms of retention?
Witness statements must be retained along with any drafts that differ from the final version.
What is the role of the disclosure officer in a criminal investigation?
The disclosure officer is responsible for examining retained material and revealing it to the prosecutor and the defense at the prosecutor’s request.
Describe the four stages of disclosure in legal proceedings.
The four stages of disclosure are: (1) the investigation stage, which involves the duty to record and retain material during the investigation; (2) the initial duty of disclosure on the prosecution; (3) defence disclosure; and (4) the continuing duty on the prosecution to keep disclosure under review.
What is public interest immunity
Public interest immunity is a legal principle that allows the withholding of certain evidence from disclosure if revealing it would harm the public interest.
What are applications for specific disclosure?
Applications for specific disclosure are requests made by the defense to the prosecution for the release of particular evidence that is deemed necessary for the defense’s case.
Who can make applications for specific disclosure?
Applications for specific disclosure can be made by the defence to request particular evidence that the prosecution has not disclosed.
What is the relationship between the Defence Statement and the prosecution’s duty of disclosure?
The Defence Statement serves as a trigger for the prosecution to reassess and review their disclosure obligations in light of the issues raised.
Describe the purpose of a section 8 application for specific disclosure
A section 8 application allows the defense to request the court to disclose prosecution material that should have been provided under section 7A(5) CPIA but has not been disclosed.
What is the role of third-party disclosure in legal proceedings?
Third-party disclosure involves obtaining evidence or information from individuals or entities that are not directly involved in the case but may possess relevant material.
How should a defendant apply for specific disclosure of unused prosecution material?
The defendant must serve the application on the court and the prosecution, describing the material sought and explaining why there is reasonable cause to believe the prosecutor has it and that it should be disclosed under the CPIA.
What is the time frame for the prosecution to respond to a specific disclosure application?
The prosecution has 14 days to respond in writing to any specific disclosure application.
Describe the consequences of the prosecution’s failure to disclose relevant material in criminal cases.
The consequences can include: a defense application to stay the indictment due to abuse of process, potential quashing of a conviction on appeal, delays and wasted costs from unnecessary hearings, and possible exclusion of evidence due to unfairness.
Explain the duty of disclosure under the CPIA for third parties.
No duty of disclosure under the CPIA rests upon third parties.
Define the criteria for making inquiries to third parties regarding relevant material.
There must be a reason to believe that the third party holds relevant material; speculative inquiries are not required.
How can prosecution seek material from a third party if access is refused?
If access or disclosure is refused, the prosecution can seek a summons.
What action must the prosecution take if it believes disclosing material would risk serious prejudice to public interest?
The prosecution must apply to the judge for non-disclosure in the public interest, known as a Public Interest Immunity (PII) Application.
How does the court balance the interests of the public and the defendant regarding sensitive material?
The court balances these interests by considering the necessity of withholding disclosure to protect the public interest while ensuring that the defendant(s) receive a fair trial.
Is defence disclosure required?
Defence disclosure does not require the defence to serve material that may be helpful to the prosecution; it focuses solely on clearly outlining the defence case.
What must a defence statement include?
A defence statement must indicate the matters of fact on which the accused takes issue with the prosecution.
Describe the requirements for a defence statement that discloses an alibi.
A defence statement must include particulars of the alibi, such as the name, address, and date of birth of any witness who can support the alibi, or as many details as are known to the accused. It should also include any information that might help identify or locate such witnesses if their details are not fully known.
Describe the requirement for a defence statement in the Crown Court.
A defence statement is compulsory in the Crown Court and must be served on the prosecution and the court within 28 days of the prosecution’s initial disclosure.
How can the time limit for serving a defence statement in the Crown Court be extended?
The time limit can be extended if an application is made within the original time limit and the court is satisfied that it would not be reasonable to require the defendant to provide a defence statement within 28 days.
Define the obligation for a defence statement in the magistrates’ court.
In the magistrates’ court, a defence statement is not compulsory, but if a defendant chooses to serve one, it must be done within 10 business days of the prosecution’s initial disclosure.
Explain the initial duty of disclosure in relation to defence statements.
The initial duty of disclosure requires the prosecution to provide information to the defence, which triggers the timeline for serving a defence statement.
What is the deadline for submitting the Notice of Intention to Call Defence Witnesses in the magistrates’ court?
The Notice must be given within 10 business days of the prosecution complying or purporting to comply with initial disclosure. (Same as deadline for defence statement)
What is the deadline for submitting the Notice of Intention to Call Defence Witnesses in the Crown Court?
The Notice must be given within 28 days of the prosecution complying or purporting to comply with initial disclosure. (Same as deadline for defence statement)
Describe the consequences of failing to serve a defence statement in the Crown Court.
Consequences may include adverse inferences drawn by the court, potential dismissal of the defence, or limitations on the evidence that can be presented.
What should prosecution do regarding the adequacy of defence statements
The A-G’s Guidelines state that prosecutors should challenge inadequate defence statements in writing and seek court directions for adequate statements.
Can the court preventa defendant from calling an alibi witness if not included in the defence statement
the court cannot prevent a defendant from calling an alibi witness not included in a defence statement.
What happens if a defence statement is served late in the magistrates’ court?
An adverse inference could be drawn if a defence statement is served out of time, similar to the Crown Court.
Define the consequences of not serving a defence statement in the Crown Court.
If a defence statement is not served in the Crown Court, the defendant cannot apply for specific disclosure under s.8 CPIA.
Define the term ‘PTPH’ in the context of pre-trial matters.
PTPH stands for ‘Pre-Trial Preparation Hearing’, which is a hearing that occurs after the first hearing and before the trial date to address pre-trial matters.
When can pre-trial matters be resolved?
Pre-trial matters can be resolved at a first hearing, at a hearing after the first hearing but before the trial date, or on the day of the trial before it starts.
Describe the resolution of pre-trial matters in simple cases at the magistrates’ court.
In simple, summary only cases in the magistrates’ court, many if not all pre-trial matters can be resolved at the first hearing.
How does the procedure in the magistrates’ court differ from that in the Crown Court regarding pre-trial matters?
While the focus is predominantly on the Crown Court, the magistrates’ court has its own procedures for handling pre-trial matters, which may differ in terms of formality and scope.
Describe the role of the Preparation for Effective Trial (PET) form in magistrates’ court cases.
The PET form is a case management form that parties are expected to complete before the first hearing in a magistrates’ court, addressing case management issues.
What happens at the first hearing in a magistrates’ court?
At the first hearing, the court gives directions for the service of documents, resolves legal matters or sets a timetable for their resolution, and sets a trial date.
Do parties need to prepare any documents before the first hearing in a magistrates’ court?
Yes, parties are expected to complete the Preparation for Effective Trial (PET) form and prepare any necessary documents before the first hearing.
Describe the process that the magistrates’ court must follow when sending a case to the Crown Court.
The magistrates’ court must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days, complete a ‘sending sheet’ specifying the offences, and ensure evidence is served within 50 days if the defendant is in custody or 70 days if on bail.
Explain how evidence is submitted to the Crown Court.
Evidence is uploaded onto the Crown Court Digital Case System, which includes copies of the documents containing the evidence on which a charge is based.
What is the deadline for the prosecutor to serve the draft indictment (document listing charges against the accused) after serving prosecution evidence?
The draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence.
How soon must the PTPH be scheduled after a case is sent forthwith by the magistrates’ court?
The PTPH must be scheduled to take place within 28 days after the case is sent forthwith.
Describe the process that occurs if the defense wants to dismiss charges before a plea is taken.
The defense must make an application to dismiss the charges before the plea stage begins.
What is the next step if the defendant pleads not guilty to all counts on the indictment?
If the defendant pleads not guilty to all counts, the court proceeds to the trial preparation hearing.
Describe the process when a judge determines a defendant is unfit to plead.
If a judge determines that a defendant is unfit to plead after hearing medical evidence, no plea is taken, and a trial with a jury is held to determine if the defendant committed the act (actus reus) without considering mens rea.
Define the possible outcomes for a defendant found unfit to plead after a jury trial.
A defendant found unfit to plead can only be subject to an absolute discharge, a supervision order, or a hospital order.
Explain the witness requirements that the defense must fulfill at the PTPH.
The defense must inform the prosecution of the witnesses they require to attend court, estimate the time needed to question each witness, and provide details of any defense witnesses they intend to call.
What is required when a witness summons is needed?
Details must be provided, and the application for a witness summons can be made at the Plea and Trial Preparation Hearing (PTPH) or a timetable for making the application must be established.
Describe the purpose of a Turnbull direction in legal proceedings.
A Turnbull direction is intended to guide judges when the case against the accused relies ‘wholly or substantially’ on the correctness of visual identification evidence.
What are the implications of the Turnbull guidelines for jury instructions?
The Turnbull guidelines dictate that judges must provide specific instructions to juries regarding the evaluation of identification evidence, especially in cases of disputed identification.
How does a Turnbull direction apply to cases of alleged recognition?
A Turnbull direction should be given even in cases of alleged recognition, as witnesses may mistakenly believe they recognize someone they have seen before.
What should judges and advocates discuss regarding Turnbull directions before jury involvement?
Judges and advocates should discuss the necessity of a Turnbull direction in the absence of the jury prior to speeches and summing up.
What are the three key elements of the Turnbull warning that a judge should provide to the jury?
The three key elements are:
1) instructing the jury on the reason for the warning,
2) directing the jury to examine the circumstances of each identification, and
3) reminding the jury of any specific weaknesses in the identification evidence.
How can the accused’s previous convictions impact the identification evidence?
The accused’s bad character or previous convictions can be admissible as evidence that supports the identification.
How does a judge assess the quality of identification evidence?
The judge considers factors such as lighting, distance, length of time of observation, and the witness’s qualities, including their eyesight.
Define the circumstances under which a judge may withdraw a case from the jury.
A judge may withdraw a case from the jury if the identification evidence is deemed poor and unsupported.
Describe the purpose of the mnemonic ADVOKATE in assessing visual identification evidence.
ADVOKATE is used to summarize the required checks to evaluate the strengths and weaknesses of visual identification evidence.
How does scientific evidence relate to weak identification evidence?
Scientific evidence can serve as supporting evidence that allows the judge to leave the weak identification to the jury for assessment.
Identify the potential impact of dock identification on a trial’s fairness.
Dock identification can impact a trial’s fairness by creating bias against the defendant, as it suggests to the witness that the defendant is the perpetrator.
What are the two pre-conditions for identification to be considered a live issue?
- The defendant (D) disputes the identification evidence.
- The identification evidence is wholly or substantially the only evidence implicating D.
How does the presence of CCTV or forensics affect the identification issue in a trial?
If there is CCTV, forensics, or witness statements implicating D, then identification may not be a live issue, especially if D disputes being at the scene.
Define what is meant by a ‘live issue’ in the context of identification in a trial.
A ‘live issue’ refers to a disputed matter that is actively contested in court, such as whether the defendant was present at the crime scene.
List some examples of indictable only offences.
Examples of indictable only offences include murder, attempted murder, manslaughter, causing grievous bodily harm with intent (GBH S18), and robbery.
Who are the judges that sit in the Crown Court?
The judges in the Crown Court include Circuit Judges, Recorders, and High Court Judges.
How are Recorders referred to in the Crown Court?
Recorders are referred to as ‘Your Honour’.
What is the role of Recorders in the Crown Court?
Recorders are barristers or solicitors who serve as part-time judges.
What distinguishes High Court Judges in the Crown Court?
High Court Judges are distinguished by their red robes and are referred to as ‘My Lord, My Lady’.
What is the common term used for High Court Judges in the Crown Court?
High Court Judges are often referred to as ‘red’ judges due to their red robes.
Describe the process of jury selection in a Crown Court trial.
Twelve jurors are required to start a Crown Court trial. A jury panel of about 16 people is brought into court, from which 12 will be chosen at random. Each juror is called from the panel to take their place in the jury box, and the defendant has the right to object to any juror before they are sworn in.
What is the purpose of the defendant’s ‘record of taped interview’ (ROTI) in court?
The ROTI is produced in an edited form containing salient questions and answers, and a copy is given to the jury while the prosecution reads the interview out in court.
What happens if the defendant has made a ‘no comment’ interview?
If the defendant has made a ‘no comment’ interview, the prosecution often presents agreed written admissions instead of a ROTI, stating what the defendant was asked and that they replied ‘no comment’ to all questions.
Explain the role of the prosecution in closing speeches.
The prosecution has the opportunity to make a closing speech first, summarizing the evidence and arguments presented during the trial.
What follows the prosecution’s closing speech in a trial?
The defence is entitled to make a closing speech after the prosecution’s closing speech.
What conditions allow the prosecution to make a closing speech?
The prosecution can make a closing speech if the defendant is legally represented, has called at least one defence witness, or if the court permits it.
Describe the type of verdict that a judge can accept from a jury.
The judge can only accept a unanimous verdict from the jury.
How does the jury communicate with the judge during deliberation?
The jury can ask questions of the judge by writing a note and giving it to the jury bailiff, who will then pass it to the judge for further directions.
Define the term ‘majority verdict’ in the context of the Juries Act 1974.
A majority verdict is a decision reached by a jury when not all members agree, permitted after a specified period of deliberation.
Describe the minimum deliberation time required for a jury to give a majority verdict under the Juries Act 1974.
A jury must deliberate for at least 2 hours, although in practice, the minimum period is 2 hours and 10 minutes as per the Criminal Practice Direction VI Trial 26Q Majority Verdicts.
What is the significance of intent in distinguishing between s 20 and s 18 offences?
The key difference is that s 18 requires intent to cause grievous bodily harm, while s 20 does not.
What happens to a defendant who is found guilty in court?
A defendant who is found guilty will either be sentenced immediately or the case will be adjourned for sentencing at a later date if reports are required.
What is the purpose of a pre-sentence report in a guilty verdict scenario?
A pre-sentence report is used to provide the court with information that assists in determining an appropriate sentence for the defendant.
What is the judge likely to order the defence to serve in respect of S76 And S78 arguments?
The judge reviews the Defence Statement and is likely to order the defence to serve a skeleton argument in support of any s.76/78 arguments, with time limits for both the defence and prosecution to respond.
Define the standard case preparation time limits in a magistrates’ court for defence skeleton arguments in support of s76/78 arguments and prosecution responses.
The standard case preparation time limits require the defence to serve a skeleton argument at least 10 business days before trial, and the prosecution must respond 5 business days after that.
Describe the legal burden in a court case.
The legal burden is the requirement to prove an element of a case to a prescribed standard, which varies between prosecution and defense.
Define the term ‘evidential burden’ in the context of self-defence.
Evidential burden refers to the responsibility of the defence to present enough evidence to raise the issue of self-defence, prompting the prosecution to counter it.
Explain the significance of ‘passing the judge’ in a self-defence case.
‘Passing the judge’ means that the defence has presented the self-defence argument sufficiently to require the prosecution to address and disprove it in their case.
Does the defendant carry the legal burden when raising self-defence?
The defendant must call some evidence before raising ‘self-defense’ with the jury, but self-defense does not create a legal burden.
Explain the jury’s role in a case involving an alibi defense.
In a case of alibi, the judge must instruct the jury that while the defense has raised the alibi, it is not the defense’s responsibility to prove it. The prosecution retains the burden of disproving the alibi to ensure the jury is convinced.
Describe the seven gateways for admissibility of bad character evidence according to the Criminal Justice Act 2003.
The seven gateways are: a) Agreement, b) Blurts it out, c) Context, d) Done it before, e) ‘E did it, f) False impression, g) Gets at the witness.
How is evidence of bad character admissible in court?
Evidence of bad character is admissible if it falls within one of the seven gateways
Describe the process for adducing evidence in court regarding a defendant’s bad character that is in agreement
There is no need to make an application to the court for leave to adduce evidence through this gateway, and no formal requirements exist for recording the agreement or how it is reached.
Why might gateway B be used - evidence adduced by the defendant
• To come clean about an old conviction in order to receive a modified good character direction
• To show that D has never been convicted of an offence of the type with which D is now charged
• To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence
• To show why police officers might have a bias against D
Is court permission required for a defendant to introduce evidence through gateway b?
No.
Describe the purpose of the gateway C for adducing bad character as important explanatory evidence
The gateway allows the prosecution to present evidence of a defendant’s past misconduct to explain the prosecution’s case, particularly to clarify the relationships between individuals involved in the trial.
What is required to adduce evidence through gateway c
Leave of the court is required to adduce evidence through this gateway.
What is gateway D used for
the matters in issue include the defendant’s propensity to commit similar offences and their propensity to be untruthful.
Describe how a defendant’s propensity to commit offences can be established
A defendant’s propensity to commit offences may be established by evidence of prior convictions for either an offence of the same description or an offence of the same category as the one charged.
Define what is meant by ‘same description’ of offences in the context of subsection (4).
Two offences are of the same description if the statement of the offence in a written charge or indictment would be in the same terms for each case.
Explain the conditions under which gateway D may not apply
Subsection (2) does not apply if the court is satisfied that it would be unjust for it to apply, due to the length of time since the conviction or for any other reason.
What are offences of the same category
Two offences are of the same category if they belong to the same category of offences as prescribed by an order made by the Secretary of State.
When must bad character under gateway D not be admitted
if it would adversely affect the fairness of the proceedings.
What questions should be posed when applying to admit bad character evidence to show propensity?
The court formulated the following questions:
1. Does the defendant’s history establish a propensity to commit offences of the kind charged?
2. Does that propensity make it more likely that the defendant committed the offence charged?
3. Would it be unjust to rely on previous offences of the same description or category?
4. Would proceedings be unfair if evidence were admitted?
Describe the principle regarding the number of previous convictions needed to establish propensity.
There is no minimum number of previous convictions required to establish propensity; however, fewer previous convictions may weaken the evidence of propensity.
Explain the judge’s role regarding bad character evidence in certain cases.
In cases where striking similarity is evident, the judge may not need to give the usual warning against convicting solely or mainly on bad character evidence.
What must a jury establish to lawfully use evidence from one case in another related case?
The jury must be sure that the defendant is guilty in respect of the first case and that this conviction establishes a propensity to offend in a manner relevant to the second case.
What is required for evidence to be admitted to show propensity?
Leave of the court is required to admit evidence through this gateway.
What is gateway E
Section 101(1)(e) states that evidence has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant.
How does gateway E to evidence admissibility regarding a defendant’s truthfulness?
Section 104 CJA 2003 allows evidence relevant to whether a defendant has a propensity to be untruthful to be admissible under section 101(1)(e) if the nature of the defense undermines the co-defendant’s defense.
Explain the significance of s.78 PACE Act 1984 in relation to evidence in gateway E
Evidence that comes in through the gateway of s.101(1)(e) is not considered prosecution evidence, thus s.78 PACE Act 1984, which governs the exclusion of prosecution evidence, does not apply.
Can a defendant exclude bad character evidence introduced by a co- defendant
It is very difficult for a defendant (D1) to exclude evidence of their bad character when it is a co-defendant seeking to introduce it, as the fairness test does not apply.
What is required for a court to admit evidence through gateway E
Leave of the court is required to admit evidence through the gateway of s.104.
What is gateway F.
Section 101(1)(f) is intended to provide evidence that corrects a false impression given by the defendant.
How does Section 105 define a false impression given by the defendant?
Section 105 defines a false impression as an express or implied assertion made by the defendant that misleads the court or jury.
Describe the conditions under which a defendant is considered responsible for an assertion.
A defendant is treated as responsible for an assertion if:
(a) the assertion is made by the defendant in the proceedings,
(b) the assertion is made during questioning under caution or when charged,
(c) the assertion is made by a witness called by the defendant,
(d) the assertion is made by any witness in cross-examination in response to a question from the defendant, or
(e) the assertion is made by any person out of court and the defendant presents evidence of it.
How can a defendant disassociate from an assertion they made?
A defendant can disassociate from an assertion by withdrawing it or explicitly stating that they no longer associate themselves with it.
What is required to admit evidence through the gateway F
Leave of the court is required to admit evidence through this gateway.
What is gateway G.
An attack on another person’s character occurs when the defendant makes statements or presents evidence that undermines or damages the reputation of another individual.
Describe the conditions under which a defendant is considered to have attacked another person’s character according to Section 106.
A defendant is considered to have attacked another person’s character if they adduce evidence attacking that person’s character, ask questions in cross-examination intended to elicit such evidence, or provide evidence of an imputation about the other person made during questioning under caution or when charged with an offense.
How can a defendant’s questioning in cross-examination be interpreted under Section 106?
Questions asked in cross-examination can be interpreted as an attack on another person’s character if they are intended to elicit evidence that undermines that person’s reputation or are likely to do so.
Describe the purpose of the s.101(1)(g) gateway in legal proceedings.
The purpose of the s.101(1)(g) gateway is to allow the jury to assess the likelihood that an attack on another person’s character is true, by admitting evidence of dishonesty.
What is required for evidence to be admitted through the s.101(1)(g) gateway?
Leave of the court is required to admit evidence through the s.101(1)(g) gateway.
Explain the fairness test in relation to the s.101(1)(g) gateway.
The fairness test in s.101(3) CJA 2003 applies to the s.101(1)(g) gateway, ensuring that the admission of evidence does not compromise the fairness of the trial.
What does the jury need to know when assessing an attack on a person’s character?
The jury is entitled to know the character of the person who makes the allegation to assess the credibility of the attack.
What caution should be given to the jury about using bad character evidence?
The jury must be warned not to use bad character evidence to support a weak case or to bias their judgment against the defendant.
What must a defendant do to challenge the admission of bad character evidence under Section 101(3)?
The defendant must make an application to the court to exclude the evidence, arguing that its admission would adversely affect the fairness of the proceedings.
Describe the purpose of Sections 101(1)(d) and 103(3) of the CJA 2003.
These sections allow the court to exclude evidence of a defendant’s previous offences of the same type as the charged offence if it would be unjust to admit such evidence due to the time elapsed since the earlier conviction or other reasons.
What is the purpose of S73 of PACE
Where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, s.73 provides that the conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place.
What is required to accompany a certificate of conviction when proving a past conviction?
The certificate must be accompanied by evidence that verifies the identity of the person named in it.
Define the burden of proof as it relates to Section 74 of the PACE Act 1984.
The burden of proof in Section 74 requires the person whose conviction has been established to demonstrate, on the balance of probabilities, that they did not commit the offence.
Describe the time limit for bad character evidence in a Magistrates’ court after a defendant pleads not guilty.
Prosecution evidence must be presented not more than 20 business days after the defendant pleads not guilty.
What is the time limit for bad character evidence in the Crown Court after a defendant pleads not guilty?
Prosecution evidence must be presented not more than 10 business days after the defendant pleads not guilty.
How soon must co-defendant’s evidence be provided after the prosecutor discloses the relevant material?
Co-defendant’s evidence must be provided as soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material.
Describe the conditions under which non-defendant bad character evidence is admissible in criminal proceedings according to Section 100 CJA 2003.
Non-defendant bad character evidence is admissible if:
(a) it is important explanatory evidence,
(b) it has substantial probative value related to a matter in issue that is of substantial importance in the case, or
(c) all parties agree to its admissibility.
Describe the conditions under which non-defendant bad character evidence may be admissible.
Non-defendant bad character evidence may be admissible if it shows a person’s misconduct, suggests that person is responsible for the charged misconduct, and the identity of the person responsible is disputed.
Explain the significance of obtaining court leave for evidence admission under section 100.
Obtaining court leave is significant because it ensures that evidence is only admitted when necessary and agreed upon, maintaining the integrity of the judicial process.
What happens if all parties agree to the admission of evidence under section 100?
If all parties agree, then leave of the court is not required for the admission of the evidence.
How does a change of plea differ from other further applications?
A change of plea is unique as it cannot be made at the PTPH, unlike other further applications that can be addressed during pre-trial hearings.
How does the use of screens assist witnesses in court?
Screens allow witnesses to give evidence without being directly seen by the defendant and the public, helping to reduce anxiety.
Explain the function of a live TV link in court proceedings.
A live TV link enables a witness to provide testimony from a separate room, away from the courtroom, which can help alleviate stress.
What is the significance of giving evidence in private during a trial?
Giving evidence in private involves clearing the public gallery, which can protect the witness’s privacy and reduce intimidation.
How do the removal of wigs and gowns by barristers and judges impact the courtroom environment?
Removing wigs and gowns can create a less formal and intimidating atmosphere for witnesses, making them feel more comfortable.
What is the purpose of video recording evidence in chief?
Video recording evidence in chief allows for a witness’s initial testimony to be captured and used in court, potentially reducing the need for them to testify multiple times.
Describe the eligibility criteria for special measures under the YJCEA.
Eligibility for special measures is outlined in sections 16 to 18 of the YJCEA, including: all witnesses under 18, witnesses with mental disorders or significant impairments, witnesses in fear or distress, adult complainants of sexual offences, adult complainants in certain offences under the Modern Slavery Act 2015, and witnesses in cases involving serious offences.
What measures are in place to prevent defendants from cross-examining certain witnesses?
The Youth Justice and Criminal Evidence Act (YJCEA) sections 34 to 38 prohibit defendants from cross-examining complainants in sex cases and child witnesses in specific violent and sexual offense cases.
List some special measures available to protect witnesses in legal proceedings.
Special measures include Witness Anonymity Orders, automatic anonymity for complainants in sex cases, prohibition of cross-examination by defendants in person, and restrictions on reporting witnesses’ identities.
What is the relationship between intermediaries and the court?
Intermediaries are independent professionals who owe their duty to the court, ensuring fair communication for vulnerable individuals.
Identify the courts that have the power to issue a witness summons.
Both the Crown Court and magistrates’ court have the authority to issue a witness summons.
Explain the consequences of disobeying a witness summons.
If a witness disobeys a summons without a ‘just excuse’, the court can issue a warrant for their arrest and failure to comply can be punishable as contempt of court.
Describe the process a defendant follows to change their plea from not guilty to guilty.
A defendant can request to change their plea at any time before the jury returns their verdict by asking through their Counsel for the ‘indictment to be put again.’ The clerk will then read the indictment, allowing the defendant to plead guilty.
Explain the significance of the jury’s role when a defendant changes their plea in the Crown Court.
If the trial is in the Crown Court and the jury has already been put in charge of the case, they must be directed to return a formal verdict of guilty when the defendant changes their plea to guilty.
Describe the process a defendant must follow to change their plea from guilty to not guilty before sentencing.
A defendant can apply to the court for leave to change their plea from guilty to not guilty at any time before sentencing, but judges should exercise their discretion judicially and sparingly..
Define the conditions under which a court would typically reject an application to vacate a guilty plea.
A court would typically reject the application if the defendant was properly represented, meaning they received proper advice, were not under undue pressure, and their plea was clearly unequivocal.
What is the usual practice if Counsel is criticized after a guilty plea?
The usual practice is for Counsel or both Counsel and the solicitor to withdraw from the case, allowing the defendant to seek fresh representation.
Describe the general rule regarding witnesses giving evidence in court.
All witnesses must either take an oath or make an affirmation before giving evidence, with no legal difference between the two.
What is the significance of hostile witnesses during examination in chief?
Hostile witnesses are those who may not be cooperative or may provide unfavorable testimony, requiring special handling during examination.
What does res gestae refer to in legal terms?
Res gestae refers to statements made spontaneously or contemporaneously with an event, which can be admissible as evidence during examination.
Exemption to hearsay
How is questioning different for hostile witnesses.
Hostile witnesses are those who may not be cooperative or may provide unfavorable testimony, allowing for the use of leading questions during examination.
How does memory refreshing play a role in legal examinations?
Memory refreshing is a process used to help witnesses recall details that may have been forgotten, ensuring accurate testimony.
Describe the hearsay rule in relation to out of court statements.
Out of court statements are considered hearsay if they seek to prove the truth of their contents.
How should evidence be presented after a witness refreshes their memory from their statement?
The evidence should be given from a recovered memory rather than by simply reading out the statements.
Describe the process a witness can follow to refresh their memory during a trial.
A witness can withdraw to a quiet room to read their statement without having to do so in the witness box, which may be undesirable for some, such as a dyslexic witness.
How can a judge view a witness who provides inconsistent testimony?
If a witness gives an account inconsistent with their original statement to the point that the judge believes the witness is not ‘desirous of telling the truth’, the judge may treat that witness as hostile.
What can a party do if a witness is deemed hostile by the judge?
A party can cross-examine a hostile witness and present their previous statement as the truth of the matter.
Explain the implications of a witness retracting their statement before a trial.
When a witness retracts their statement, it can complicate the prosecution’s case, as their credibility may be questioned and they may be treated as hostile in court.
How does the concept of res gestae relate to hearsay evidence?
Res gestae is a legal principle that allows certain spontaneous statements made during or immediately after an event to be admissible in court, despite being hearsay, because they are considered reliable due to their immediacy.
How are responses to police allegations treated in court?
Responses to police allegations are admissible in court, whether they are confessions or self-serving denials, and can help the jury assess the defendant’s overall conduct and consistency.
What is meant by recent fabrication in legal terms?
Recent fabrication refers to claims that a witness’s testimony has been altered or created after the fact, which can be challenged by presenting evidence of prior consistent statements.
How can a witness respond to allegations of recent fabrication during testimony?
A witness can respond to allegations of recent fabrication by providing evidence of earlier consistent statements that support their current testimony.
What type of opinions can witnesses give in court?
Witnesses can give opinions on very everyday matters, such as whether someone appeared drunk.
Describe the general admissibility of police witness statements in court.
Police witness statements are generally classified as hearsay and are not admitted into evidence.
How can a police witness statement become admissible in court under the Criminal Justice Act 2003?
A police witness statement can become admissible if the witness giving live evidence materially departs from the statement, either by contradicting it or adding new information.
What can be done if a witness’s live testimony contradicts their original statement?
The original statement can be produced and shown to the witness to challenge the discrepancies in their accounts.
How does the rule of finality affect the admissibility of evidence regarding a witness’s past actions?
If a witness denies having lied on a mortgage application during cross-examination, the defense is prohibited from introducing evidence about that mortgage application, as it is deemed collateral to the main issues.
Describe the exceptions to the rule against hearsay in the Criminal Justice Act 2003.
Hearsay may be admissible if the witness is unavailable (s.116), it is a business document (s.117), or it is in the interests of justice to admit it (s.114(1)(d)).
Describe the conditions under which a statement not made in oral evidence is admissible in criminal proceedings according to Section 116.
A statement is admissible if:
(a) oral evidence from the person who made the statement would be admissible,
(b) the person is identified to the court’s satisfaction, and
(c) any of the five conditions in subsection (2) is satisfied.
Describe the requirements for a statement to be admissible under Section 116.
The maker of the statement must be identified, and it cannot introduce anonymous hearsay. Additionally, it does not allow evidence that would have been inadmissible in live evidence, such as bad character evidence not admissible through specific gateways.
List the conditions under which a statement can be admitted as evidence according to Section 116.
The conditions are:
(a) the relevant person is dead;
(b) the relevant person is unfit to be a witness due to bodily or mental condition;
(c) the relevant person is outside the UK and it is not practicable to secure attendance;
(d) the relevant person cannot be found despite reasonable efforts;
(e) the relevant person does not give oral evidence due to fear, and the court permits the statement to be used.
Describe the conditions under which business documents are considered valid according to the subsection.
The conditions are:
(a) the document was created or received by a person in a trade, business, profession, or office;
(b) the relevant person supplying the information had personal knowledge of the matters;
(c) any intermediary who supplied the information also did so in a professional capacity.
What is required for the information to be considered credible in business documents?
The information must be supplied by a person who has personal knowledge of the matters and must be transmitted through individuals acting in a professional capacity.
Explain the significance of personal knowledge in the context of business documents.
Personal knowledge is significant because it ensures that the information provided is based on firsthand experience or understanding, which adds credibility to the document.
Describe the scope of s.117(2)(a) regarding document coverage.
s.117(2)(a) has a wide wording that ensures it covers many documents beyond just business documents, including medical records and statements written by police officers in the course of duty.
Summarize the general rule regarding hearsay evidence.
The general rule is that hearsay evidence is inadmissible in court.
What are the four exceptions listed in Section 114(1) that allow hearsay evidence to be admissible?
The four exceptions are:
(a) statutory provisions making it admissible,
(b) rules of law preserved by section 118,
(c) agreement by all parties, and
(d) court satisfaction that it serves the interests of justice.
Describe the test established in R v Twist for determining hearsay.
The test consists of three parts:
1. Identify the relevant fact sought to be proved.
2. Determine if there is a statement of that matter in the communication. If not, hearsay does not arise.
3. If there is a statement, ask if it was one of the purposes of the maker for the recipient to believe or act upon it as true. If yes, it is hearsay; if no, it is not.
Describe why a private diary cannot be considered hearsay.
A private diary cannot be considered hearsay because the writer did not intend for anyone else to read it, meaning there is no intention for others to believe the statements made.
Explain the significance of hearsay in relation to CCTV evidence.
Section 115(2) states that hearsay issues do not arise when evidence is created entirely by a device, such as a CCTV system, without any human input.
How does the case of Twist relate to hearsay and questions?
In the case of Twist, the court determined that asking a question does not constitute a statement of a matter, and therefore, no hearsay issue arises from text messages that only asked for drugs.
Provide an example of original evidence that does not involve hearsay.
An example of original evidence that does not involve hearsay is a recorded conversation where one party expresses a threat, used to show that the threat was made.
What distinguishes hearsay evidence from non-hearsay evidence?
Hearsay evidence is typically defined as statements made out of court that are offered to prove the truth of the matter asserted, while non-hearsay evidence is used to show the effect of the words or has legal significance.
Explain the significance of statements in furtherance of a common enterprise as a hearsay exception.
Statements in furtherance of a common enterprise are admissible as they are made by participants in a joint venture, reflecting the shared intent and actions of the group.
How does CJA 2003, s.126 impact the admissibility of hearsay evidence in court?
CJA 2003, s.126 can be used to exclude hearsay evidence proffered by either the prosecution or the defence if it would lead to an undue waste of time.
Define the time frame for the prosecution to serve notice of hearsay after a not guilty plea in the magistrates’ court.
The prosecution must serve notice no more than 20 business days after a not guilty plea in the magistrates’ court.
Define the time frame for the prosecution to serve notice of hearsay in the crown court
The prosecution must serve notice no more than 10 business days after a not guilty plea in the Crown Court.
When does a defendant have to serve notice of hearsay
A defendant must serve notice as soon as reasonably practicable.
List the components that must be included in the notice for hearsay evidence.
The notice must include identification of the hearsay evidence, the facts making it admissible, an explanation of how those facts will be proved if disputed, and a justification for its admissibility.
Describe the timeline for objecting to hearsay evidence in court.
A party must serve an application to object to hearsay evidence as soon as reasonably practicable, and no later than 10 business days after the latest of the following events: service of the notice to introduce the evidence, service of the evidence objected to (if no notice is required), or the defendant pleading not guilty.
Define the competency of spouses or civil partners in legal testimony.
A spouse or civil partner of a defendant is competent to give evidence for any party in the case.
What is required for deaf or speech-impaired witnesses to be considered competent?
Deaf or speech-impaired witnesses are considered competent if they understand the solemnity of taking the oath or affirmation and can give evidence using interpreters, handwriting, sign language, or a combination of these.
Do defendants have the ability to testify on behalf of co-defendants?
Yes, defendants are competent to give evidence on behalf of a co-defendant.
How does the status of a defendant affect their ability to give evidence?
The defendant is not competent for the prosecution, meaning they cannot be compelled to testify against themselves, but they may choose to give evidence on their own behalf.
What is the relationship between competence and compellability for children and persons with disabilities?
Children and persons with a disorder or disability can be compellable witnesses if they are deemed competent to provide evidence.
Identify the primary exceptions to witness compellability.
The primary exceptions to witness compellability include the defendant, certain diplomats, sovereigns, and bankers.
Define the circumstances under which spouses or civil partners can be compelled to give evidence for the prosecution.
Spouses or civil partners can be compelled to give evidence for the prosecution if the offence charged against their partner involves:
a) Assault on, or injury, or threat of injury to that spouse or partner (domestic violence),
b) Assault on, or injury, or threat of injury to a child under 16,
c) A sexual offence against someone under the age of 16,
d) Attempts, conspiring, aiding and abetting any of the above.
How is opinion evidence derived from observed facts viewed in legal settings?
Opinion evidence derived from observed facts is viewed as admissible in legal settings, as it reflects the witness’s perceptions and inferences based on their observations.
What is the jury’s obligation regarding expert evidence?
The jury is not obliged to accept expert evidence, even if it is uncontradicted.
When should a jury be directed to accept an expert’s opinion as correct?
A jury should only be directed to accept an expert’s opinion when it and all other evidence lead inevitably to one conclusion.
Define the privilege against self-incrimination.
The privilege against self-incrimination allows a witness, other than the defendant, to refuse to answer questions or disclose documents if doing so would make them liable to incriminate themselves.
Explain how substance influence is treated in statutory factors.
Commission of an offence while under the influence of alcohol or drugs is considered an aggravating factor that can lead to more severe penalties.
How does the timing of a guilty plea affect the sentence reduction?
The amount of sentence reduction varies: a guilty plea at the first stage can yield a maximum of 1/3 off the sentence, while a plea after the first stage offers a maximum of 1/4, and a plea on the day of trial offers a maximum of 1/10.
Discuss the implications of a defendant having a partner and children in a legal context.
Having a partner and children may evoke sympathy and be considered a mitigating factor during sentencing, as it highlights the impact of the defendant’s actions on their family.
How does being in full-time employment affect a defendant’s case?
Being in full-time employment may be viewed positively by the court, suggesting stability and responsibility, which can influence sentencing decisions.
Explain the significance of fleeing from the scene after an incident.
Fleeing from the scene can be interpreted as an attempt to evade responsibility and may be viewed negatively by the legal system, indicating guilt or a lack of accountability.
How does lack of remorse impact legal outcomes in violent crime cases?
Lack of remorse can lead to harsher legal consequences, as it may suggest a disregard for the victim’s suffering and a potential for reoffending.
Identify a type of personal circumstance that may act as a mitigating factor.
Any personal mitigation, such as family responsibilities or personal hardships, can be considered.
Explain the significance of good character in the context of mitigating factors.
Good character and/or lack of previous convictions can lead to more lenient treatment in legal proceedings.
Explain the implications of the presence of others during an offence.
The presence of others, especially vulnerable individuals like children or partners, can exacerbate the severity of the offence due to the additional emotional and psychological impact.
How does committing an offence against public sector workers impact its severity?
Offences against those working in the public sector or providing services to the public are often viewed as more serious due to the violation of trust and safety in public roles.
What is meant by a sustained assault on a victim?
A sustained assault refers to a prolonged or repeated attack on the same victim, which can lead to greater physical and psychological harm.
Discuss the significance of the location of an offence.
The location, such as an isolated place, can affect the severity of the offence by increasing the vulnerability of the victim and the potential for harm.
How does planning an offence affect sentencing?
Planning an offence is viewed as a serious aggravating factor, indicating premeditation and intent, which can result in harsher sentences.
How does the court assess the seriousness of an offence?
The court assesses seriousness by considering the offender’s culpability and the harm caused, intended, or foreseeably caused by the offence.
