Crim lit

Question 1

What is the sentencing procedure after the defendant has been found guilty after a trial?

Answer 1

Prosecutor will:
1. read any victim impact statement to the court
2. refer the court to the defendant’s previous conviction(s)
3. ask for ancillary orders (eg: prosecution’s cost or compensation to the victim)

Defence will:
Make a plea in mitigation: then the prosecution will provide specific details of the previous conviction

Question 2

A plea and trial preparation hearing takes place how many days after the case was sent from the Magistrates’ Court?

Answer 2

28 days

Question 3

How many days does the prosecution have to give disclosure?

Answer 3

50 days

70 days if the defendant is out on bail

Question 4

Can access to legal advice be delayed?

Answer 4

Yes, by 36 hours (same time limit for suspect’s right to inform someone of arrest)

Delay in accessing legal advice is permitted only when:

(1) the suspect is arrested on an indictable only or either way offence,
(2) a police officer of the rank of superintendent or above has authorised the delay in writing, and
(3) the officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence.

Question 5

When should a formal identification process be carried out?

Answer 5

An identification procedure must be held when:

(1) a witness has identified or purported to identify a suspect;

(2) a witness expresses an ability to identify a suspect; or

(3) there is a reasonable chance of a witness being able to identify a suspect.

Question 6

A defendant is standing trial in the Crown Court on a charge of burglary. A witness has identified the defendant’s car at the scene of the crime.

What is the judge’s duty in relation to the warning they must give to the jury?

Answer 6

The judge should not give any direction in relation to the identification of the car.

Turnbull warnings relate to the identification of people, not objects or cars

Question 7

When is a preliminary hearing held in Crown Court?

Answer 7

When an indictable only matter is sent to the Crown Court, a preliminary hearing will take place within 14 days of being sent if:

(1) the trial is likely to last more than four weeks,

(2) there are case management problems to address,

(3) an early trial date is needed,

(4) one of the defendants is under 18, or

(5) there is likely to be an early guilty plea.

Question 8

When can a Court refuse bail?

Answer 8

Defendants have a general right to bail. The court can refuse bail and remand a defendant into custody if it finds:

(1) there is an exception to the right to bail, (substantial grounds)

and

(2) there is a real prospect of a custodial sentence being imposed if convicted

Question 9

What kind of offences does the CC deal with?

Answer 9

Crown Courts deal with:
(1) indictable only offences;
(2) either way offences when the Magistrates’ Court has declined jurisdiction or when the defendant has elected Crown Court trial;
(3) either way or summary offences which are related to another offence being heard by the Crown Court, if it is punishable by imprisonment and/or disqualification from driving; and
(4) appeals against conviction and sentence from the Magistrates’ Court.

ABH and criminal damage are both either way offences.

Question 10

What kind of evidence is prosecution obligated to disclose?

Answer 10

All evidence that supports defence or undermines prosecution’s case

Question 11

What are the main advantages of trial in the Magistrates’ Court over CC?

Answer 11

court’s limited sentencing powers (no more than 12 months’ imprisonment for a single either way offence),

the relative speed and low cost of conducting a trial (which may mean a lower contribution towards costs if convicted),

and less stringent disclosure requirements on the defence (there is no obligation to serve a defence case statement).

Question 12

What are the exceptions to the compellability of a defendant’s spouse/civil partner by the prosecution?

Answer 12

the offence involves assault, injury, or threat of injury to them or a child under 16; a sexual offence on a child under 16; or attempting, conspiring, aiding, or abetting those offences

Question 13

What is the test for exclusion of evidence?

Answer 13

The evidence may (discretion) be excluded if it will have an adverse effect on the fairness of the proceedings

Question 14

What kind of good character evidences can be taken into account?

Answer 14

Defendant’s propensity to commit an offence (person less likely to commit offence)

AND

credibility (more likely credible when asserting innocence)

Question 15

If the defendant proceeds on the appeal from Magistrate’s Court to the Crown Court, could the sentencing outcome be worse for the defendant?

Answer 15

Yes, the Crown Court could increase the sentence imposed,

but it is restricted to the Magistrates’ Court sentencing powers (12 months for either way and summary offences)

Question 16

When is a prelim hearing held in CC?

Answer 16

1. if trial will last more than 4 weeks
2. case mgmt probs to address
3. early trial date is needed
4. one of the def is under 18
5. likely to be early guilty plea

Question 17

When must the pros serve its evidence and notice to adduce bad character evi in Mag Court?

Answer 17

within 28 days

Question 18

When must defence serve its def statement (if any) in MC?

Answer 18

within 14 days after pros evi

Question 19

When must def notify the pros witnesses required to attend trial and indicate intention to object to bad character evi in MC?

Answer 19

within 7 days of pros evi

Question 20

When must def give notice of intention to adduce hearsay evi and or bad character evi of pros witnesses and st of def witnesses who will not be called in MC?

Answer 20

within 14 days after pros evi

Question 21

When must points of law be raised at a MC trial?

Answer 21

21 days before trial

Question 22

When is certificate of readiness served in an MC trial?

Answer 22

7 bs days days before trial

Question 23

When does a plea and trial prep hearing take place in CC?

Answer 23

28 days after case is sent from MC

Question 24

What is a Goodyear indication?

Answer 24

an indication of sentence in CC

An indication before entering a plea of the sentence the court is likely to impose

Question 25

How long does the proc have for disclosure?

Answer 25

50 days

70 if def is out on bail

Question 26

When must def file disclosure?

Answer 26

14 days after pros disclosure

Question 27

What are the admissible categories of hearsay evi?

Answer 27

1. by statute (witness unavail, bs docs, expert evi, previous consistent or inconsistent evi etc)
2. by rule of law (confessions by def, st made contemporaneous to offence, res gastae)
3. agreement of all parties
4. interest of justice (probative value, other evi, imp to case as a whole, circumstances, reliability, likely prejudice etc)

Question 28

What are the admissible categories of multiple hearsay evi?

Answer 28

1. business doc
2. inconsistent statement
3. consistent statement
4. all parties agree
5. value of evi is so high that it is in the interest of justice

Question 29

On what basis can the def challenge confession statements?

Answer 29

1. mistake
2. untruth (oppression or things said or done render the confession unreliable)

if these found then court MUST exclude evi

Question 30

On what basis can a court exclude confessional statements?

Answer 30

if it appears that considering all the circumstances, that admission of the evi would have an adverse effect on the fairness of the proceedings

Court has DISCRETION here
breaches need to be significant and substantial and have rendered the evi unreliable

Question 31

What are the grounds for admitting character evi?

Answer 31

7 gateways:
1. all party agreement
2. evi adduced by def
3. imp explnatory evi
4. relevant to an imp matter in issue b/w pros and def
5. matter in issue b/w co-defs
6. correct false impression by def
7. def attacked another’s character

Question 32

What is the procedure for introducing a bad character evi?

Answer 32

Pros to provide notice

MC: within 20 days of entry of not guilty plea

CC: within 10 days of entry of not guilty plea

Question 33

When does the court have discretion to exclude bad character evi?

Answer 33

ONLY in 2 gateways:
1. an imp matter in issue b/w pros and def
2. def attacked another’s character

AND

it appears to the court that it will have an adverse effect on the fairness of the proceedings

Question 34

What is a good character direction?

Answer 34

If def has no previous convictions then they are entitled to have the judge give a good character direction to the jury. It has 2 parts:

1. propensity direction
2. credibility direction

Question 35

What kind of a witness is a defendant?

Answer 35

NOT competent or compellable for pros

Competent but NOT compellable for defence

Question 36

What kind of a witness is a defendant?

Answer 36

NOT competent or compellable for pros

Competent but NOT compellable for defence

(jury/bench may draw adverse inference from no evi by defendant)

Question 37

What kind of a witness is the def’s spouse or civil partner?

Answer 37

For pros or co def: competent but NOT compellable (unless assault, injury or threat of injury to them or a child under 16, a sexual off on a child under 16 or attempting, conspiring, aiding or abetting those crimes)

For def: competent and compellable (unless jointly charged)

Question 38

What kind of a witness is a co-defendant?

Answer 38

Pros: NOT competent and compellable

Def: competent but NOT compellable

Question 39

How much a sentence reduction does a def receive for pleading guilty at teh earliest opportunity?

Answer 39

1/3

Question 40

What is the max duration of suspended sentences?

Answer 40

MC: 6 months

CC: 2 years (max)

Question 41

What happens when a sentence of license is breached?

Answer 41

def is sent into custody for the remainder of the period

Question 42

What happens when a suspended custodial sentence is breached?

Answer 42

Court may:
1. activate custodial sent
2. activate reduced term
3. amend requirements of the sent
4. extend the period of suspension

Question 43

What happens when a community sentence is breached?

Answer 43

1. order can be amended or more terms added
2. revocation of order
3. immediate custody sentence

Question 44

What is a Newton hearing?

Answer 44

A Newton hearing occurs when the defendant has pleaded guilty to the offence, but on the basis of a different version of facts from that of the prosecution and the Court has concluded that the factual differences would make a material difference to the sentence imposed

If pros wins then guilty plea credit is lost
if def wins then guilty plea credit is retained

Question 45

How long does a def have to appeal a MC sentence?

Answer 45

15 working days (by written notice)

MC cant deny appeal and the appeal is ONLY against sentence (unless case stated)

Question 46

What appellate rights does a prosecution have?

Answer 46

From MC to CC: no appeal

From MC to HC (divisional court): legal pts/juris (21 days)

From CC to CoA: appeal on ONLY rulings made by the judge

Question 47

On what grounds can an appeal to the CoA from CC be made?

Answer 47

1.wrong in law
2. wrong in principle
3. manifestly excessive

Question 48

When can a Youth Court decline jurisdiction?

Answer 48

1. max sentence is insufficient (sentence powers are similar to adult court)
   AND
2. a sentence of long-term detention will be appropriate

MUST conclude a real prospect of custodial sentence of substantially more than 2 years

Question 49

Who all are entitled to free legal advice?

Answer 49

ALL suspects are entitled to free telephone legal advice (unless they choose to pay)

BUT DSCC decides if in person advice is needed

Question 50

When does a Court have discretion to exclude evidence?

Answer 50

When it would have an unfair effect on the proceedings

Breaches that may lead to evidence excluded for unfairness include illegal searches, improperly obtained identification evidence, and improperly conducted covert surveillance

Question 51

What elements are included in the caution that should be administered at the outset of the interview?

Answer 51

The caution sets out the three fundamental facts relating to interviews:

the suspect has the right to silence,

exercising that right may result in an adverse inference being drawn at trial,

and the interview is recorded in order for it to be used as evidence

“You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”.

Question 52

When can adverse inferences be drawn?

Answer 52

1. fact upon charge (lack of explanation of fact-triggered on putting forward explanation on charge)
2. Evi at trial
3. Object, substance or mark (found on def at time of arrest)
4. Presence at scene

Question 53

To impose a custodial sentence, what must the court find?

Answer 53

The offence is so serious that neither a community order nor a fine can be justified

Question 54

What are the tests for a legal representation order?

Answer 54

1. Means test
2. Interest of justice test (seriousness and nature of offence)

Question 55

Cna a sol ask leading qs in examination in chief?

Answer 55

Yes

ONLY on background and agreed matters.

It is not generally permissible to ask leading questions during examination-in-chief. However, on background matters (like the defendant’s address) and agreed issues, it is permissible to ask leading questions. An advocate can settle a witness into giving evidence by starting them with some of these agreed issues before moving into contentious areas.

Question 56

How many bail applications can a def make?

Answer 56

A court must consider bail at each hearing, but a defendant may make only one further bail application based on the same facts and submissions (so two applications in total)

EXCEPTION: a defendant may make an additional request for bail if there is a change of circumstance (for example, new evidence that weakens the prosecution case or a new bail address)

Question 57

When can referral orders for youth offenders be made?

Answer 57

Court MUST make ref order: guilty plea to imprisonable offences and no conviction for imprisonable offences before (unless bench intends to impose custodial sent or absolute discharge)

MAY: guilty plea to some but not all offences or def has previously received ref order

CANNOT: pleads NOT GUILTY to ALL offences and is convicted after trial

Ref orders are avail to def b/w 10-17 years

Question 58

What is the age threshold for detention and training order?

Answer 58

A detention and training order is the custodial sentence available to the Youth Court.

12-14: ONLY for persistent youth offenders

15-17: seriousness + custodial sent likely

CANNOT be imposed on def aged 10-11

Question 59

What is the max duration for which a def can be kept in police custody?

Answer 59

96 hours (4 days)

(relevant time is when the suspect arrives at the police station)

the suspect may be held for no longer than an additional 36 hours if a warrant for further detention is obtained from the Magistrates’ Court and an additional 24 hours if a second application is made and granted

Question 60

When is there a presumption against granting release on bail?

Answer 60

In murder cases

defendants generally have a right to bail, the presumption is reversed for defendants charged with murder-the presumption is against release instead of in favour of release

Question 61

In which court is a bail application on charges of murder heard?

Answer 61

before a CC judge ONLY

Question 62

Can CoA increase a sentence by CC?

Answer 62

No

The Court of Appeal can quash any sentence imposed by the Crown Court and impose any sentence it deems appropriate. However, the Court of Appeal cannot exceed the sentence imposed by the Crown Court on an appeal against sentence by the defendant

Question 63

A defendant is standing trial in the Crown Court on a charge of actual bodily harm (‘ABH’) against her partner. The defendant has a history of domestic violence convictions. As a result, the prosecution seek to adduce her relevant previous convictions. The defence have made a counter application that the evidence should be excluded.

How will the court decide whether to grant the defence application to exclude the previous convictions?

Answer 63

When evidence is sought to be adduced under the bad character evidence gateways of ‘an important matter in issue between the prosecution and defence’ or ‘the defendant attacked another’s character’, the court MUST not admit the evidence if: (

1) the defence make an application to exclude it, and

(2) it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it.

The gateway of ‘an important matter in issue between the prosecution and defence’ permits admission of bad character evidence on the basis of propensity to commit similar types of offences.

Question 64

How long can a right to inform someone of arrest be delayed?

Answer 64

36 hours

The suspect is arrested an either way or indictable only offence.

A police officer of the rank of inspector or higher (note difference with legal advice delay where Supri or above approves) approves the delay.

There are reasonable grounds to believe exercise of the right will lead to interference with evidence, interference with others, alerting other suspects, or hindering the recovery of property related to the offence.

Question 65

Which conditions must be satisfied to extend the time within which a suspect must be charged by 12 hours?

Answer 65

A police officer of the rank of superintendent or higher approves the continued detention (same as legal advice delay cond)

The suspect is arrested an either way or indictable only offence.

There are reasonable grounds to believe further detention is necessary to secure or preserve evidence or obtain evidence by questioning (note diff)

The investigation is being conducted diligently and expeditiously (extra condition)

Question 66

What is a special caution?

Answer 66

their failure to explain their presence at a crime scene or an object in their possession at the time of their arrest or a mark found on them at the time of arrest can give rise to an adverse inference at trial

Question 67

At the police station, who decides whether a suspect should be remanded to custody whilst waiting to appear in court?

Answer 67

The custody officer

Question 68

What is the standard for determining whether a condition placed on bail is appropriate?

Answer 68

Whether it is relevant, proportionate, and enforceable

(RPE)

Question 69

Is breaching bail an offence?

Answer 69

No

But not surrendering to bail is an offence

Question 70

In a Crown Court criminal trial, when must the defence serve its defence case statement?

Answer 70

Within 28 days after the prosecution has made disclosure

Question 71

In a Crown Court criminal trial, when must the defence serve its defence case statement?

Answer 71

Within 28 days after the prosecution has made disclosure

Question 72

Which of the categories of hearsay evidence are admissible in a criminal trial under statute?

Answer 72

Statements prepared for use in a criminal trial when the relevant person cannot be expected to recall the matter.

Previous consistent or inconsistent statements by a witness.

Confessions made by the defendant.

Business doc

Expert evi

Question 73

Which statements made outside of court under rule of law are admissable?

Answer 73

(1) contemporaneously to the offence,

(2) when a person is emotionally overpowered by an event, or

(3) relating to physical or mental state are admissible in a criminal trial even though they are hearsay.

Question 74

Is a court required to exclude evidence of a confession if it is shown to be based on mistake, untruth, oppression, or unreliability due to things said or done?

Answer 74

Yes, exclusion is mandatory if any of these reasons is present

(discretion only w.r.t evi that may have an adverse effect on the fairness of the proceeding)

Question 75

Which are aggravating factors that a court MUST take into account when deciding a sentence if relevant?

Answer 75

Relevant previous convictions.

That the offence was committed whilst the defendant was out on bail.

That the offence was motivated by racial or religious hostility.

That the offense was motivated by the victim’s sexual orientation, transgender identity, or disability

(other factors MAY be taken into account)

Question 76

What is the totality principle in relation to sentencing an offender?

Answer 76

The sentence imposed must not be disproportionate to the overall seriousness of the offending behavior

Question 77

Under the totality principle, in which cases is a court more likely to impose consecutive sentences rather than concurrent sentences when a defendant is found guilty of multiple offences?

Answer 77

When the offences did not arise out of the same conduct

Question 78

What are the shortest and longest periods of imprisonment that can be suspended?

Answer 78

Shortest: 14 days; Longest: two years

Question 79

If a defendant seeks leave to appeal from the Court of Appeal, how long does a defendant have to lodge the appeal?

Answer 79

28 days from the conviction or sentence.

Question 80

On what grounds can a defendant appeal a conviction from the Crown Court?

Answer 80

Only on the ground that the conviction was unsafe

Question 81

How can a conviction be deemed unsafe?

Answer 81

if evidence was wrongly admitted or excluded,

the trial judge demonstrated bias,

discretion was wrongly exercised,

or there were problems in summing up or with the jury

Question 82

For how long may a youth rehabilitation order be in place?

Answer 82

For no more than three years

Question 83

Can a youth rehabilitation order include a requirement of unpaid work?

Answer 83

Yes, for up to 240 hours within one year

Question 84

A defendant is charged with theft of a case of wine worth £100 from a grocery store. The defendant plans to plead not guilty.

Where will the case be heard?

Answer 84

Magistrates’ Court or Crown Court, depending on where the defendant elects trial

Whilst theft is ordinarily an either way offence, theft under the value of £200 is treated as summary only in that the Magistrates’ Court cannot decline jurisdiction. However, the defendant is able to elect Crown Court trial

Question 85

An 18-year-old student is arrested on suspicion of assault after he threatened one of his classmates. He arrives at the police station at 3pm on Monday afternoon. He is taken into custody and is kept there until 3pm on Tuesday afternoon. The investigating officer has been busy with other cases and has not been able to finish her investigation. She wants to keep the student in custody for a further period before deciding whether to charge him.

Is the investigating officer able to extend the student’s detention until 3pm on Wednesday afternoon?

Answer 85

The investigating officer cannot extend the student’s detention because he cannot be kept in custody for longer than 24 hours.

As the student is charged with a summary only offence, he can be detained for 24 hours only. A further extension of 12 hours can be granted by an officer of the rank of superintendent or above for indictable offences and either way offences, and a further 36 and 24 hours can thereafter be authorised by the Magistrates’ Court for indictable and either way offences.

However, as assault is summary only, the student can be kept for only 24 hours

Question 86

When is an index search required?

Answer 86

an index map search is undertaken to reveal whether the title to the property is already fully or partially registered. This will be done whether the use of the property is residential or commercial.

(it is done only in the case of unregistered title)

Question 87

A trainee has just started working in the conveyancing department. They are assisting with a purchase file and have received a note from their principal to report a breached covenant to the lender ‘in accordance with the Handbook’. The trainee is not sure what their principal means.

What Handbook is the principal referring to?

Answer 87

Most mortgages are handled under the terms of the UK Finance Mortgage Lender’s Handbook and the Building Societies Association Mortgage Instructions. Note that the handbook used to be called the Council for Mortgage Lenders (or ‘CML’) Handbook, but that name is out of date.

Question 88

For which instances can an adverse inference be drawn?

Answer 88

An adverse inference can be drawn for a failure to answer questions in interview, a failure to comment upon charge, or a failure to give evidence at trial.

Question 89

A defendant is charged with grievous bodily harm (‘GBH’) after a stabbing incident outside a nightclub where some 500 people were in attendance. The defendant was arrested at the scene. She was found with a shard of glass in her possession and some blood marks on her shoes. The defendant has not explained her presence at the scene or provided an account on why she was holding a shard of glass and had blood on her shoes.

Which of the defendant’s failures to provide an explanation can lead to the drawing of an adverse inference at trial?

Answer 89

An adverse inference can be drawn from a failure to account for an object in her possession (here, the glass), a substance or mark (here, the red smear on her shoe), and for her presence at the scene

Question 90

A man reported a domestic burglary to the police. He had an injury to the head, and some expensive artwork was missing from his home. The next day in a bar, the man had too much to drink and admitted to his friend that he faked the burglary himself in order to claim on his insurance. Another customer in the bar also overheard this admission. The man is charged with fraud offences. Both the friend and other customer are ready to give evidence at trial.

Is the man’s admission in the bar admissible?

Answer 90

The man’s admission is admissible, despite being hearsay, because it is a confession.

Hearsay is a statement made out of court which is adduced to prove the truth of its content. Thus, although the witnesses are coming to court to give evidence, they will be giving evidence about a statement made out of court to prove the truth of its content, and it is therefore hearsay

Question 91

Can an interviewing officer exclude the solicitor?

Answer 91

A solicitor can be excluded only if they are obstructing the interview and only if removal is authorised by a superintendent. Obstruction includes answering for the client or telling the client what to say.

Question 92

When is it mandatory for the Court to exclude evidence for unfairness?

Answer 92

Exclusion based on mistake, untruth, oppression or unreliability due to things said or done

(in other cases, the Court MAY exclude evidence i.e. has discretion)

Question 93

Robbery is which category of offence?

Answer 93

Robbery is an indictable only offence and can be tried only in the Crown Court.