Crim Litigation missing bits Flashcards

1
Q

When can a solicitor be removed from interview by the police?

A

Only if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded e.g. answering questions on a suspect’s behalf or providing written replies for the suspect to quote

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2
Q

What are the 7 bad character gateways? Which require leave of the court to admit? Which gateways does the fairness test apply to?

A

101(1):
(a) Agreement (all parties agree to admit evidence) - leave of court not required
(b) Blurts it out (adduced by D himself) - leave of court not required
(c) Context (important explanatory evidence which has a substantial value in understanding case as a whole and without it would be impossible or difficult to understand other evidence of case) - leave of court required
(d) Done it before (show propensity to commit offences of same kind (same description or category), or propensity to be untruthful). Judge job to ascertain whether evidence capable of establishing propensity + jury job to ascertain whether actually shows a propensity)- leave of court required
(e) E did it - evidence adduced by co-defendant or witness who was invited by co-defendant to give evidence. - leave of court is required
(f) false impression - undermine impression given by D themselves or a witness. Leave of court is required.
(g) gets at a witness - makes attack on another person’s character living or dead, including evidence of dishonesty (only prosecution evidence allowed) - leave of court required

Fairness test (the court MUST NOT admit evidence if such an adverse effect on proceedings that court ought not to admit it (s78 can also apply but this test should go first as not discretionary) applies to: (d) and (g) only

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3
Q

What is the test for hearsay? What is not considered hearsay therefore?

A
  1. Identify relevant matter it is sought to prove
  2. Is there a statement of that matter in the communication?
    -If no - not hearsay
  3. If yes - was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true?
    -if yes - hearsay
    -if no - not hearsay

Not hearsay: private diary, CCTV, questions (i.e. asking D for drugs), to show effect of words rather than truth of words (e.g. ‘if you don’t do what I say, I shall harm you’ - show threat was made rather than maker of threat would cause harm), legally significant words (offer of sexual services for money - show premises is brothel), falsehoods (asserting it was not true - e.g. false alibi)

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4
Q

What hearsay is admissible under CJA?

A
  1. Witness is unavailable (dead, unfit to be witness, outside UK + not reasonably practical to secure attendance, cannot be found after taking reasonable practicable steps, fear - consider special measures to help this issue)
  2. It is a business doc (received by person in course of trade, business, profession or other occupation) e.g. statements written down by police officer
    -If prepared for contemplated criminal proceedings must either satisfy one of conditions in (1) above or person who supplied cannot reasonably be expected to have any recollection of matters dealt with in statement.
    -Can exclude evidence if its reliability is doubtful
  3. Interests of justice to admit it - e.g. value, reliability, circumstances - should be approached with caution and not used to circumvent other exceptions
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5
Q

What are the common law exceptions to hearsay?

A

-Public information e.g. public registers, maps
-evidence of reputation e.g. to prove character
-res gestae
-confessions
-statements of furtherance of common enterprise e.g. from one of the parties to the other
-body of expertise e.g. expert evidence

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6
Q

Are previous inconsistent and consistent statements admissible? Multiple hearsay?

A

Admissible - previous inconsistent statement that witness admits to having made, or previous inconsistent statement which witness proved to have made.

Admissible - previous consistent statements (e.g. to rebut suggestion of recent fabrication)

Multiple hearsay NOT admissible unless -business doc or
-previous consistent or inconsistent statement, or
-all parties agree, or
-value is so high that its in interest of justice

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7
Q

What are the 6 ways a youth can be sentenced including restrictions/requirements? (apart from no. 4 -covered in another card)

A
  1. absolute or conditional discharge
  2. Youth rehab order: unpaid work and residence requirement only possible for those aged 16 or 17. Intensive supervision or surveillance and fostering requirement - only be imposed if imprisonable offence. Only on those under 15 if persistent offender.
  3. Referral order: programme of behaviour. Mandatory if not previously been convicted of offence and youth pleads guilty to imprisonable offence (unless court intends to pass custodial sentence, hospital order, discharge). Min term 3 months, max term 12 months.
  4. DTO
  5. Long term detention - guilty of grave crime and neither DTO or community is suitable
  6. Other - Minimum 12 yrs for murder, extended detention/for life for dangerous offenders, young offenders institution those aged 18-21
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8
Q

When is a DTO imposed?
Who can it not be imposed on?
Minimum and maximum length?

A

If so serious neither fine or community sentence can be justified.
No DTO can be imposed on those aged 10 or 11
Only those 12-14 if persistent offender
Min length - 4 months, max - 24

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9
Q

What youth sentences can youth court NOT pass, MC court NOT pass, CC court NOT pass?

A

Youth: other detention sentences e.g. for murder
MC: Reparation order, youth rehab order, and DTO. And other detention sentences e.g. for murder
CC: referral order, parental bind over

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10
Q

If a youth turns 18 before first hearing, what happens?

A

Youth court doesn’t have jurisdiction

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11
Q

What cases are sent straight to CC with youths?

A

Homicide, firearms with min 3 yr sentence, served with a notice in a serious fraud or child case, specified offence and dangerous offender (significant risk of harm to public from committing further offences + offence warrants sentence of at least 4 yrs)

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12
Q

What is the test for s78? s76? What does each one relate to?

A

s78: admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it (general evidence, including confessions)

s76: oppression (torture, inhuman or degrading treatment, and use or threat of violence)
or anything said or done which was likely in circumstances to render unreliable any confession. (just confessions)

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13
Q

What will not be taken into account when considering whether to exclude a confession under s76?

A

Something where it was the D’s conduct that created the unreliable circumstances (e.g. drug withdrawal) - doesn’t mean that it wouldn’t be excluded but just not on this basis

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14
Q

What repeated offences carry higher min sentences? If plead guilty?

A

7 years for 3rd Class A drug trafficking offence (final sentence at least 80% if plead guilty)
3 years for 3rd domestic burglary (final sentence at least 80% on guilty plea)
5 years for certain firearms offences
6 months for second offence of possessing a weapon
6 months for threatening with a weapon

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15
Q

When must the court obtain a pre-sentence report? What must the court obtain if it is considering sentence under the Mental Health Act?

A

Before passing a custodial or community sentence, unless it considers it unnecessary to do so

Evidence from 2 medical practitioners that D is suffering from mental disorder

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16
Q

When is spouse/civil partner compellable?

A

Offence charged against partner is:
Assault/injury/threat of injury on that spouse or civil partner
Assault/injury/threat of injury to child under 16
Sexual offence against someone under 16
Attempts, conspiring, aiding, abetting above

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17
Q

When may a court take evidence from a witness without an oath?

A

Children + those of ‘unsound mind’

Relevant test: whether they have sufficient appreciate of solemnity of occasion and particular responsibility to tell the truth which is involved in taking an oath

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18
Q

What is a hostile witness?

A

A witness who was supposed to give evidence for the prosecution but then refuses to or gives an account with is inconsistent with their original statement - can apply to judge to create them as hostile and therefore cross-examine them

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19
Q

What is included on the Preparation for Effective Trial form?

A

*the defendant’s and legal representative’s contact details;
*names, numbers, types of witness and which party requires their attendance at court;
*the estimated length of trial;
*identification of trial issues;
*advance warning whether any applications are to be made (e.g. special measures, bad character and hearsay);
*whether any prosecution statements can be read;
*whether any special arrangements need to be made (e.g. interpreter, wheelchair access, hearing loop system) for anyone attending the trial, and
*that the defendant advocate has advised D of credit for early guilty plea and that trial will go ahead in D’s absence if D fails to attend on the trial date.

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20
Q

Where D is charged with an offence to be tried in CC, what summary only offences can be tried in CC which are connected to indictable offence?
What if they are not on this list?

A
  • Common assault
  • Assaulting a prison or secure training centre officer
  • Taking a motor vehicle or other conveyance without authority
  • Driving a motor vehicle while disqualified
  • Criminal damage

Then once trial for indictable offence is over, D will be asked to enter plea in relation to summary-only offence:
IF pleads guilty - CC deals with offence in any way open to MC
IF not guilty = CC no further power to deal with offence

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21
Q

When can the defence make an opening speech?

When can the prosecution make a closing speech?

A

Has to be in CC, and only if one or more defence witnesses (other than D in person) will be called to give factual (as opposed to character) evidence

Prosecution can make a closing speech where D is legally represented or at least 1 defence (other than D) has been called to give factual evidence, or where court otherwise permits

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22
Q

What is the order of trial in CC?

A
  1. Legal arguments
  2. Jury selection and swearing in
  3. Judge’s preliminary instructions to jury
  4. Prosecution opening speech
  5. Defence identify matters in issue
  6. Prosecution evidence
  7. Conclusion of prosecution case
  8. Submission of no case to answer
  9. Right to give evidence & adverse inferences
  10. Defence opening speech
  11. Defence evidence
  12. Legal discussions
  13. Prosecution closing speech and then defence closing speech
  14. Judge summing up
  15. Jury retire
  16. Verdict
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23
Q

What is the only route for prosecution appeal from MC?

A

Appeal by way of case stated to HC

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24
Q

On a re-hearing at CC, what sentence can CC pass?
Can D appeal if he pled guilty via this route?
Who is the appeal heard by?
If D does not turn up?
Costs orders?

A

Any sentence which MC could have passed, including one which is more severe
No - appeal against sentence is only option unless D can prove appeal was equivocal
1 judge and 2 lay magistrates (or 1 lay magistrate if delay otherwise)
Will be abandoned unless they are represented (will go ahead in their absence)

if successful - may get defence costs order
if unsuccessful - may have to pay prosecution costs
Abandoned - costs awarded against appellant is abandoned within 24 hrs

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25
Q

What are the grounds for appeal by way of case stated from MC to HC?
Who is it heard by?
If D appeals to CC and it is upheld, can they appeal to HC?
Powers of HC regarding sentence?
Can D appeal to CC after HC?
Where is an appeal from HC heard by way of case stated?

A

Wrong in law or in excess of jurisdiction
At least 2 judges and usually 3
Yes they can appeal by way of case stated from CC
Any order it sees fit - reverse, affirm, amend, send back with opinion
No appeals to CC are lost
Straight to Supreme Court

26
Q

For appeals from CC to CofA, what sentence can be passed?

A

Impose any sentence available to CC, but NOT a sentence which is more harsh than original.

27
Q

Can the D appeal to CofA where they pled guilty?

A

Yes - however if as a result of own free will then unlikely to be interfered with

28
Q

What is the test for conviction and sentence for appeal to be heard in CofA?

Who are appeals in CofA heard by first? What decision can they make?

If decision is refused, who is it then heard by?

Costs orders? Form? Effect?

A

Where conviction was unsafe
Whether would be sentenced differently

A single judge who considers case on the papers alone - grant application, refuse application, refer it to CofA without granting leave

Renewed application heard orally by full court - 2/3 judges

Marked box on Form SJ by single judge for loss of time order - where wholly without merit = time spent in prison during appeal will not count toward sentence

29
Q

What are the 8 grounds for appeal from CC to CofA?

A

(a) Appeals against conviction on indictment;
(b) Appeals against sentence passed following conviction on indictment;
(c) Appeals against sentence passed on committal for sentence;
(d) References by the Attorney-General of unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary (sentence could be increased);
(e) References by the Attorney-General for opinions on points of law following acquittal on indictment (does not affect acquittal - just clarifies law);
(f) References by the Criminal Cases Review Commission (is there real possibility court will quash original conviction or sentence);
(g) Prosecution appeals against terminatory rulings (ruling made before summing up and prosecution will enter an acquittal agreement with defence);
(h) Appeals against rulings made at preparatory hearings in serious fraud cases.

30
Q

When can delay of right to consult solicitor and informed of arrest never be delayed?

A

Summary-only offences (has to be indictable)

31
Q

What rank does the investigation officer have to be?
Identification officer?
Custody officer?

A

Can be any rank
At least inspector
Sergeant

32
Q

What is the relevant time for detention review? What about detention clock (and what if arrive voluntarily)?

A

When first authorised by custody officer
When first arrives at police station or 24 hours after arrest - whichever is sooner. If arrive voluntarily - detention clock begins from their arrest.

33
Q

Who cannot act as appropriate adult?

A

a) Suspected of involvement in offence
b) Victim or witness of offence
c) Involved in investigation
d) Has received admissions from person detained before acting as AA
e) Low IQ + cannot appreciate gravity
f) estranged parent who juvenile specifically objects to

34
Q

What are the grounds to delay right to consult a solicitor? Right to have someone informed of arrest? Right to appropriate adult? Right to interpreter?

A

Indictable offence

Solicitor (superintendant): Interference/harm to evidence
Inference/harm to others
Alerting of other people suspected
Hinder recovery of property

Someone informed (inspector): same as above

Appropriate adult: Same as above + serious loss or damage to property

Interpreter (superintendant): interference/harm to evidence, interference/harm to other people,
Serious loss/damage to property

35
Q

What must happen before a juvenile is interviewed or asked to sign something?

A

Can only take place in absence of appropriate adult if authorised by superintendent or above

36
Q

What can an AA do on behalf of a juvenile?

A

Instruct a solicitor, right to consult juvenile in private at any time

37
Q

What is used and unused material? Examples of unused material? Where is the unused material listed in MC and CC?

A

Used - material prosecution will rely upon at trial to prove it case
Unused - not being relied upon by prosecution
e.g. -statements from witnesses which prosecution is not relying on
-Records of previous convictions of prosecution witnesses
-Disciplinary findings against police officers

CC - schedule know as MG6C
MC- where NG plea anticipated on a streamlined disclosure certificate

38
Q

What does the prosecution not need to disclose?

A

Material which is supportive of prosecution (and they are not relying on it)
Material which is neutral
Evidence which has not yet been inspected or is not yet under prosecution control

39
Q

What should the prosecutor do if important information is held by third parties and may undermine their case/assist accused?

A

Should take appropriate steps to obtain it (can consider seeking a summons if permission refused)

40
Q

What is public interest immunity? What must be done?

A

Where prosecution does not want to disclose material because there is a real risk of prejudice to an important public interest

Must apply to judge for non-disclosure

41
Q

In MC, is the indication of sentence binding?

What is the D required to do in the CC before an indication?

A

Only if the D then goes and pleads guilty

-Either accept prosecution facts or written basis of plea must be agreed
-Give clear instructions to their counsel that D wishes to ask for indication

42
Q

What is the max reduction for guilty plea at 1st stage?
After 1st stage?
First day of trial?

A

1/3
1/4
1/10

43
Q

In MC, what is the max sentence for summary-only offence? What about if there are multiple? Either-way?

A

6 months for summary only offence (regardless of how many committed at one time)
6 months for single either-way
12 months for two or more either-way

44
Q

What is the test to pass a custodial sentence?

A

So serious that neither a fine alone nor a community sentence can be justified for the offence

45
Q

What is the min and max fines for MC and CC?

A

MC - £200 to unlimited
CC - any amount

46
Q

For community sentence, what are the requirements?
What is the max length?
What is the max unpaid work requirement?
What is the max curfew requirement?
Max exclusion requirement?
Max foreign travel?
Max alcohol abstinence and monitoring?
Attendance centre?

A

Over 18 and punishable with imprisonment
3 years
40-300 hrs within 12 months
2-16 hours in any 24 hours (max 12 months)
2 years
1 year
120 days
18-24 olds only (disciplined learning environment) - hours between 12 and 36

47
Q

What if breach community sentence?

A

Community order can be extended up to 6 months beyond max 3 year period
(also fine up to £2500, amend order, re-sentence)

If wilful and persistent breach - can impose max 6 month sentence (even for offences not punishable by imprisonment)

48
Q

What are the grounds of appeal from MC to CC?

A

There are none - it is an automatic right

49
Q

Who is considered a child? Young person? Persistent young offender?

A

Under 14
14-17
Guilty of 3 offences in last 12 months which were imprisonable!!

50
Q

What is non-defendant bad character? When is it admissible? Court leave?

A

Bad character of anyone other than D

Admissible only if:

S100(1)(a): Important explanatory evidence (leave required):
-impossible or difficult to understand other evidence in case
-Value for understanding case as a whole is substantial

S100(1)(b): Substantial probative value and substantial importance in context of case as whole (leave required)
-Can include adducing evidence of another’s persons (e.g. complainant) propensity to commit offence (to prove D did not do it but V did it - self-defence)
-Recent misconduct likely to have greater probative value than misconduct long ago

S100(1)(c): Agreement of parties (leave not required)

51
Q

What is a collateral matter? Example? When are courts more lenient?

A

Prevents trials splintering into multiple insignificant disputes
e.g. witness to bank robbery asked whether lied on mortgage application and say no - cannot adduce evidence of this, the no is final

More lenient when witness potentially biased - counter-evidence will be admissible if deny

52
Q

Form of questions in re-examination?

A

No leading questions (like in evidence in chief)

53
Q

Who are eligible for special measures?

A

All those under 18 automatically eligible

-Mental disorder, impairment of intelligence, physical disability where likely to diminish evidence
-Fear or distress where likely to be diminished
-All adult complainants of sexual offences
-All adult complainants under Modern Slavery Act (e.g. forced labour + human trafficking)
-All witness involved in serious offences e.g. homicide or firearms or knives

54
Q

When is a court likely to reject changing plea from guilty to not guilty?

A

Where D represented properly:
-proper advice given to D
-no undue pressure exerted on D
-D’s plea was unequivocal

55
Q

Who has the burden for proving that they had a reasonable cause for not surrendering to custody?

A

Defendant to prove on balance of probabilities

56
Q

What is the test for activating a suspended custodial sentence where another offence been committed?

A

Must activate the custodial sentence unless it would be unjust in all the circumstances to do

57
Q

Along with the witness unavailable exceptions, what is also required for hearsay?

A

That the maker of the statement is identified to satisfaction of court (can’t be used to introduce anonymous hearsay)

58
Q

What is the gateway for propensity?

A

Important matter in issue between D and prosecution

59
Q

When is it more likely youth will be sent to CC in IOJ?

A

Closer age gap between D and adult, more mature, whether have previous convictions, would cause injustice to witnesses to have separate trials

60
Q

What is a Newton hearing? Who is is heard by in MC, CC? How does it run? Burden of proof? What happens if P successful?

A

D pleads guilty on a basis that will make a material difference to sentencing - must hold Newton hearing to decide factual basis

MC- Mags or district judge (like regular trial)
CC- without a jury

Prosecution makes opening speech and calls evidence. P witnesses can be cross-examined by defence.
D able to give evidence and call witnesses

Both parties entitled to closing speech

P needs to prove beyond reasonable doubt to sentence on their facts
- If P successful, D lose credit for guilty plea (usually 1/2 of what allowed at that stage of proceedings)