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SQE 1 (Mine) > Crim Practice > Flashcards

Crim Practice Flashcards

1
Q

Who do custody officer call as soon as suspect requests legal advice

A

Defence Solicitor Call Centre - even if requested private

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2
Q

Who to call if need free advice

A

Criminal Defence Direct

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3
Q

Who can authorise delaying in receiving legal advice and for how long

A

Superintendent, if charged with indictable offence, for 36 hours. Can be verbal but put in writing ASAP.

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4
Q

Grounds for deferring legal advice?

A
  1. Grounds to believe will tip off other suspects;
  2. Lead to harm/destruction of evidence
  3. Hindering recovery of taken due to offence
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5
Q

Who can delay someone being informed of your arrest?

A

Inspector, either way or indictable, 36 hours, orally but put in writing asap

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6
Q

Detention time limits, who can extend and why?

A

24 hours from arrive, super intendant can extend for 36 hours if:

  1. Indictable offence (inc either way);
  2. Preserve evidence or obtain evidence by questioning;
  3. Investigation carried out expeditiously and diligently
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7
Q

Who decides what needs to be disclosed to detainee and if it is sufficient for the person to be able to understand the nature of the offence?

A

Investigating officer

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8
Q

How old does a youth need to be to be given a youth caution without an appropriate adult?

A

17

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9
Q

Who needs to carry out detention reviews?

A

Inspector

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10
Q

If you are attending the police station voluntarily, who can you have with you?

A

Friend or solicitor

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11
Q

Who does the solicitor gather info from when they arrive at the police station?

A

1 custody officer (custody record, detention log)
2 investigating officer
3 client

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12
Q

When can Solicitor/ appropriate adult request copy of custody record?

A

When suspect leaves police station or is taken before court

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13
Q

What does the solicitor need to find out from custody office and investigating officer?

A

CO - details of detention and basic info (inspect custody record and detention log). IO - disclosure, statements and or silence, next steps

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14
Q

Who can remove solicitor from interview?

A

Superintendent - need to give option to consult another

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15
Q

Process if suspect doesn’t want legal advice anymore

A
  1. Inspector enquires and makes reasonable attempts to contact solicitor
  2. Records reasons in custody record
  3. Suspect gives authority in writing.
  4. Inspector is satisfied the interview cns continue and gives authority in wiring
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16
Q

Who can remove appropriate adult ?

A

Super intendant (if not available - inspector). Replace before interview continues

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17
Q

Who needs to consent to identification procedures for juvenile:

A
  1. Over 14? Juvenile and parents
  2. Under 14 - parent / guardian
  3. Mental health condition or disorder - CONSENT GIVEN IN PRESENCE OF appropriate adult
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18
Q

Who can decide to authorise youth caution or youth conditional

A
  1. Indictable onnly - CPS
  2. First time sun/either way - police
  3. Second or more times - police and Youth Offendjt Tema
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19
Q

What is a community resolution?

A

Start of out of court disposal - no last crim record, informal agreement, non statutory. Resolution of minor offence of anti social behaviour - been and admission of guilt. Not part of crim record

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20
Q

When can youth caution be given

A
  1. Enough evidence to charge
  2. Admission of guilt
  3. Police don’t consider should be prosecute or it’s not in the public interest to deal with it in another way.

17 or under? In front of appropriate adult.

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21
Q

When can a youth conditional caution be given

A
  1. Enough evidence to charge
  2. Admission of guilt
  3. Explain to offender if breach condition may result in pros of original offence
  4. Offender sign doc contains details of offence, admission and consent to be given youth conditional caution
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22
Q

How long for conditions for youth caution if summary offence?

A

Must be with view to rehabilitate, reparation or punishment. Must be capable of completing in 16 weeks

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23
Q

Conditions for youth caution - either way or indictable only

A

Must not exceed 20 weeks

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24
Q

Disadvantages of youth cautions

A
  1. Record on police file
  2. Caution will form part of crim record and may be seen by employer
  3. Police must refer offender to youth offending team who arranges rehab unless inappropriate
  4. Pros of OG crim offence (maybe) if breach conditions
  5. Youth cautions and failure to rehab can be cited in crim proceedings like a conviction
  6. If a sexual offence will be on sex reg
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25
Q

What identification procedure should be used first?

A

Video - unless not practicable or a group identification or parade is more practicable

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26
Q

How many photos should witness be shown?

A

12

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27
Q

Can witness who identified suspect in identification procedure (but first photos) say the photo hit in court ?

A

No

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28
Q

How many images in a video identification procedure

A

1 suspect - 8 who all resemble eachotjer in age and walks of life and appearance. Must be doing same movements.
If 2 suspects who resemble eachotjer - 12

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29
Q

What happens in an identification parade if witness only picks them out because of their voice ?

A

Judge will give very strong warning to the jury to treat evidence with UTMOST CAUTION

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30
Q

Who deals with identification procedures

A

ID officer (inspector) - must be in uniform, be present throughout - not involved in investigation

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31
Q

What must identification officer explain to suspect:

A
  1. Purpose of ID procedure
  2. Entitlement to free legal advice
  3. Procedure - suspect can have a solicitor or friend present
  4. Consent refused can do covert video or group ID or worst case a confrontation
  5. If significantly altered appearance can be used as evidence in court (and maybe be able to use other types of IDENTIFICATION)
  6. If witness saw photos or artistic likeness
  7. Details of suspect as first given by witness
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32
Q

Either way offences

A

Theft, fraud, most forms of burglary, handling stolen goods, equipped to steal, inflicting GBH/wounding, ABH, sexual assault, affect, threats to kill, crim damage, dangerous driving, possession of offensive weapon, possession and p with intent to supply and supply of controlled drugs

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33
Q

If guilt at plea at first hearing, when you be sentenced. When is trial if plead not guilty (Mag)

A

Either straight away or not if need pre sentence report (Nag)

Not guilty - trial issues worked out and set date for 6 weeks - 8 weeks

Cps should provide sufficient info at first hearing to ensure effective

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34
Q

When is crim damage summary

A

Less than £5000 unless caused by fire

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35
Q

How to price advice at police station

A

Fixed fee - claim from Police Station Advice and Assistance Acheme

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36
Q

How to get paid for work after charged

A

Duty solicitor - from LAA from Advocacy Assistance (Court Duty) Soliciotrs Scheme

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37
Q

Rep order - tests?

A
  1. Interests of justice test
  2. means test
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38
Q

Factors for interests of justice

A
  1. Likely I will lose my liberty
  2. If have Suspended sentence
  3. Likely Lose my livelihood (teacher)
  4. Serious damage to repretation
  5. Substantial Q of law (adverse inferences, pros evidence in dispute, inadmissible evidence, argument confession should be excluded, bad character evidence)
  6. Might not be able to understand Court proceedings or present my own case (mental, foreign, age etc)
  7. Witness needs to be traced / interviewed
  8. Cross examine pros witness
  9. Someone else’s interest in case I.e sexual assault victim
  10. Any other reason
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39
Q

Means test rep order ?

A

INCOME NOT CAPITAL! Disposable income. Can’t appeal if fail means test - satisfy if benefits or under 18

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40
Q

What can a suspect apply for if can’t afford legal fees but didn’t satisfy means test ?

A

Ask thag their entitlement be reviewed on the grounds of hardship

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41
Q

What will be deducted from gross annual income to work out disposable ?

A
  1. Tax and NI
  2. Annual housing costs
  3. Annual childcare costs
  4. Annual maintenance to former partners and children
  5. Adjusted annual living allowance
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42
Q

If got rep order in Mag court, can D be required to contribute to their defence costs?

A

No - maybe in CC

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43
Q

What does rep order in Mag cover?

A

May cover appeal in CC, if Mag decline jurisdiction may cover Cc

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44
Q

Can you appeal against interests of justice test?

A

Yes - adding further details to form and resubmit or requests appeal

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45
Q

What happens at first hearing for summary only?

A
  • usually required to give plea
  • if guilty, CPS tell Mag facts of case and give record of convictions
  • Solicitor give plea of mitigation
  • either sentence or adjourn for pre sentence report from probation service
  • if dispute facts but pleads guilty need. NEWTON HEARING

if plead not guilty, set a date for trial (6-8 weeks)

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46
Q

What happens at first hearing for either way ?

A
  • guilty? Mag decide if have sentencing power (if not send to CC)
  • may be adjourned for pre sentence report
  • not guilty ? Mag must decide where be tried (plea before venue and allocation procedure)
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47
Q

Role of solicitor in first hearing

A
  • obtain funding
  • details of case from CPS
  • statement from client
  • advise on strength of evidence so client can enter plea
  • Advise on which court
  • application for bail
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48
Q

When will an allocating hearing take place ?

A

Either way offence when D has pleaded NOT guilty

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49
Q

What offence is Robbery

A

Indictable only

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50
Q

Do kids automatically satisfy interests of justice test?

A

No

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51
Q

If both CC and Mag if convicted, he I’ll D have to contribute to Ps Legal costa (rep order)

A

Yes likely

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52
Q

To refuse bail on the grounds of committing further offences, what must CPS believe?

A

Substantial grounds to believe he will commit offences whilst on bail - the fact he May is not sufficient !

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53
Q

What sum is low value shoplifting and where can this be heard ?

A

Under £200 - treated as summary only (and Mag cannot send to CC) but D must be asked whether they wish to have their trial in CC

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54
Q

When must an appeal of a bail app by CPS in Mag court be heard?

A

48 hours from Mag decision in CC

55
Q

Means test requirements CC

A
  1. Financial eligibility test - house hold disposable income under £37,500
  2. If pass - do means test of capital and income
56
Q

Plead not guilty in CC but lying?

A

Solicitor can’t asset any positive defence - even though can cross examine and put pros to proof. Can do submission of no case.

If submission of no case failed, and D insisted on entering witness box, would have to resign

57
Q

What types of remands ?

A
  1. In custody
  2. On bail with conditions
  3. Bail unconditional
58
Q

What is being remanded ?

A

A remand is when Court adjourns and court wants to ensure D attends the next hearing

59
Q

Remands before conviction / general rules

A

No more than 8 CLEAR DAYS at a time - brought before Mag every 4 remands if consents and have legal rep. Can remand up to 28 days if:
1. Previously remanded for same offence
2. They are before court
3. It can set a date to remand them which it expects the next stage of proceedings to take place

60
Q

Max time can be remanded in May (custody time limit)

A

70 days before trial for either way, 56 days for summary only (unless EW and allocating hearing is in 56 days)

61
Q

CPS can apply to extend custody time limit - how?

A

Show on balance of probs there is good and sufficient cause and it has acted with due diligence and expedition. App made in writing or oral but written notice of intention must be served on court and D not less than 2 days before hearing

62
Q

What happens if win or lose application to extend time?

A

If CPS win, D has right of appeal to CC. If lose / once expired release on bail until trial. Cps May appeal to cc

63
Q

How long can D be remanded at police station

A

3 days for enquiries re offences other than this one

64
Q

Remand after conviction - how long,

A

In custody - 3 weeks. On bail? 4 weeks

65
Q

Presumption in favour of bail for?

A

1 all Ds prior conviction
2 convicted but adjourned for reports
3 breach of community sentence

66
Q

Presumption not in favour of bail?

A

1 conmittted to CC for sentence
2 appealing conviction or sentence

67
Q

Who can grant bail for murder ?

A

Crown court judge - must be no significant risk of D committing an offence to cause physical or mental injury - Mag transfer to Cc and must in 48 hours make decision

68
Q

Exceptions to ‘substantial grounds’ for not granting bail

A
  1. At least 18
  2. Not convicted
  3. No real prospect of custody

Then MAGISTRATES will have no power to remand D before case is dealt with

69
Q

Indictment and either way - when need court not grant bail (CPS Grounds to rely on)

A

Substantial grounds for believing if released on bail D would
1. Fail to surrender to custody
2. Commit an offence on bail
3. Interfere with witnesses

For own protection / welfare of young

Court satisfied not been practicable to obtain sufficient info

Previously been released on bail in connection with proceedings and D had been arrested

70
Q

Factors court MUST consider for bail (CPS supporting arguments)

A

1 nature of offence
2 character and associations of community ties
3 D’s record in respect of previous grants
4 strength of evidence against them

71
Q

If committed (now or previously) specified offences when can Court grant bail

A

If exceptional circumstances exist

72
Q

What are the 2 bail offences

A
  1. Absconding s 6(1) (without reasonable cause);
  2. Absconding s 6(2) (reasonable cause to abscond but don’t surrender to bail as soon as reasonably practicable)
73
Q

When can police arrest under a 7(3)

A

Police officer can arrest if reasonably believes
1. Not likely to surrender the bail;
2. Has broken (or is likely to break) their bail conditions

74
Q

Magistrates - how long to prepare for trial

A

8 weeks or 14 if need expert evidence

75
Q

When will Mag issue witness summons

A
  1. Witness can give material evidence and
  2. Interests of justice to issue witness summons
76
Q

In CC and Mag, when to serve a notice on CPS with witness name, address and DoB

A

Within 28 days of CPS complying with non material disclosure - no need to serve witness statement like in civil (only expert report)

77
Q

S9 CJA says WS from witness admissible at trial instead of coming to court in what instances (evidence not in dispute )

A
  1. Signed and dated
  2. Declaration of truth
  3. A copy has been served before hearing on other parties
  4. None of the other parties objected in 7 days
78
Q

When is IDPC given ?

A

Summary and either way offences - evidence being relied upon at trial will be supplied

79
Q

When can sunmary offences be sent to CC

A
  1. Related to indictment offence and
  2. Imprisonable or disqualification from driving
80
Q

When does prelim hearing take place in CC

A

10 BUSINESS DAYS from day sent to CC

81
Q

When do you get prelim hearings in CC

A

1 case management issues need sorting
2 defendant under 18
3 guilty plea likely and could be sentenced at prelim hearing
4 desirable to set an early trial date
5 trial likely to last MORE THAN 4 weeks

82
Q

If no prelim hearing, what is the first hearing in CC?

A

Plea and Trial Prep Hearing - give plea. Not guilty ? Directions for trial

83
Q

If no prelim hearing then when is trial set

A

Set at PTPH - take place 20 BUSINESS DAYS after sending to Cc

84
Q

What is a Goodyear indication

A

D can request indication of sentence, if then plead guilty is binding

85
Q

When can CPS without non material disclosure that satisfied s3 CPIA

A

If it is protected by public internet immunity (sensitive). Make application to court to confirm not obliged to disclose - often without notice (ex parte)

86
Q

When to issue defence statement ?

A

10 business days of initial disclosure of non material in Mag and 20 business days in CC

87
Q

What happens if defence statement not issue in CC?

A

Adverse inferences

88
Q

What is the 2 requirements for evidence in crim court

A
  1. Must be relevant
  2. Must be admissible
89
Q

When is a witness a turnbull witness?

A

CPS visually identifies D as person who committed crime and D disputes.

  1. Witness picks out D informally;
  2. Witness picks out D at formal identification procedure
  3. Witness claims to recognise the D as someone previously known to him.

Known as Turnbull witness - Turbull guidelines will apply only if D disputes the visual identification made by the witness

90
Q

Specific defences - what standard of proof ?

A

Alibi and defence - evidential burden on D the normal legal burden on P

91
Q

What defences does D have to prove on the balance of probs

A

Insanity or duress

92
Q

Challenging disputed identification evidence under s 78 of PACE?

A

Court has discretion to exclude evidence that has such an adverse effect on fairness of proceedings - breach of PACE significant and substantial breach of code D - ex 1. Images not resembling D, 2. Witness not segregated 3. Failed to hold identification procedure when should have.

If court won’t exclude, undermine in cross examine

93
Q

After considering relevant factors, if judge says ID good quality then what does he do?

A

Give Turnbull warning - ‘dangers of relying on ID evidence, special caution, easy for honest witness to mistake, jury should examine closely the circumstances’

94
Q

Poor ID evidence but other evidence too (confession, DNA, stolen prop found on D, adverse inferences from silence) what does judge do?

A

Turnbull warning but point out specific weaknesses

95
Q

Mag - poor ID evidence with no additional evidence. What does D do?

A

Make a submission of no case at end of cps case

96
Q

Conditions to be satisfied if relying on adverse inferences from silence in police interview

A
  1. Interview had to be UNDER CAUTION
  2. Before charged
  3. Qs to find out if, or by why, offence was committed,
  4. Failed to mention fact later relied on
  5. Reasonable to expect fact to be mentioned
97
Q

Adverse inferences - can they be drawn if D has mental or physical state that makes it undesirable to give evidence

A

It’s courts discretion to say no AI drawn

98
Q

Can s78 be used to exclude evidence due to breaches of pace ?

A

Yes - discretionary. Ex -
1. Evidence through illegal search
2. ID evidence
3. Confession evidence
4. Covert listening evidence
5. Under cover police operations

Can exclude only if SIGNIFICANT AND SUBSTANTIAL BREACHES

Right on to fair hearing - can also if would lead to unfair hearing.

99
Q

Can evidence be excluded for entrapment ?

A

No such defence but can ask court to use discretion to dismiss evidence under s 78 for abuse of proceed. Look at police conduct:

  1. Pushing v hard (acting like a normal customer?)
  2. Nature of case (drug trafficking needs to be covert)
100
Q

Hearsay evidence - what is it?

A

Not made in oral evidence and relied on as evidence - sketch, photo, statement etc purpose must be to make another believe something (e.g sexual assault victims diary wasn’t written for anyone so allowed)

101
Q

When is hearsay admissible under CJA s 116

A

When a witness is unavailable
1. First hand
2. Person Identified to courts satisfaction
3. Any of following must be satisfied: a dead b outside uk can’t reasonably be expected to attend c can’t be found d fear of court and court gives leave

102
Q

When is hearsay admissible under CJA s 117

A

First hand hearsay:
1. Doc made in course of business
2. Person supplying info had personal knowledge
3. Passed through only ppl in business or trade
4. If made for crim proceedings any above must apply or can’t be expected to remember due to length of time

103
Q

Common law exemptions to hearsay?

A
  1. Evidence of confession
  2. Res Gastae - statement made right after event (man says name of who stabbed him right before death)
  3. All parties agree
  4. Court finds it is in interests of justice

Common law exemptions doesn’t need part 20!

104
Q

What is part 20 hearsay notice guidelines

A

Only for the statutory exemptions.
1. Give notice to adduce hearsay
2. In writing to other side and court
3. Court can allow oral notice (discretion)

105
Q

If D claims confession made by opression or is unreliable, what is the burden of proof on CPS and what are factors for these defences

A

Beyond reasonable doubt

Oppression needs the threat of violence
Unreliable : breach of PACE codes (inducement, no refreshments, no legal advice) - need link between breach of PACE and confession - no legal advice hard to show for seasoned criminal.
Druggie in custody 18 hours, no rest, no legal advice - confession excluded

106
Q

A as

A
107
Q

When can do defendnst adduce co Da confession?

A

Both plead not guilty and tried jointly

108
Q

Co D argues confession unreliable / opression - when must court exclude?

A

Must be satisfied on balance of probs - this standard of proof is only for co Ds confessin

109
Q

What discretionary tool does court have to exclude confession evidence ?

A

S78 - such adverse fairness on proceedings should be excluded.

D denies confession is true

Outside police station if:
1. Accurate record not made
2. Not let D review and sign and lost opportunity to deny accuracy
3. Not put to D at start of interview to confirm or deny

110
Q

Mag - exclude evident under s76(2) - unreliability- what must be held?

A

Voir dire - trial in trial

111
Q

What are the 7 gateways for admissibility of character evidence ?

A

1 D talks about someone’s character
2 Evidence to correct a false impression made by D
3 parties agree
4 evidence adduced by D, or gave answer in cross examination
5 explanatory evidence (needed to understand case - limited - think nonce example with uncle and niece)
6 relates to important point in dispute in proceedings (most commmon - relates to propensity to comit crimes or propensity to be untruthful)
7 substantive probative value

112
Q

When MUST court use s101(3) to dismiss bad character evidence in gateway d?

A

Gateway d - propensity to commit similar offence - e.g jury likely to convict just because of the offence e.g nonce, rape

CPS seeking to adduce just because their case is weak

Previous convictions are spent !

113
Q

Who can use gateway e - probative value between D and Co D?

A

Not CPS! Co D

Showing offences of similar kind co D did to show they did offence and not them

Must be more than marginal reference!

Case: 2 ppl accused of GBH with intent, one use e to show other had committed previous violent crimes whereas this guy claimed to be non violent

Propensity to be untruthful - cut throat defence - blaming eachotjer

If this gate away is satisfied COURT HAS NO DISCRETION

114
Q

Gateway f - correct false impression. Who can use and does Court have discretion ?

A

Only CPS - no discretion if established but can use s78

115
Q

Gateway g - attack on another persons character. When must court exclude under 101(3)?

A

Court MUST exclude under s101 (3) if would have such adverse effects on fairness. I.e if jn theft trial adduced was a nonce!

116
Q

What is courts powe under s107 for contaminated bad character evidence

A

Court can order jury to acquit D or order a retrial of for example jury colluded in order to fabricate evidence - CC ONLY!

117
Q

What age do you not need to swear in evidence ?

A

Under 14

118
Q

Test for no case to answer ?

A
  1. Pros failed to put forward evidence for essentially element of alleged offence; or
  2. Evidence so discredited (cross examination) or so unreliable no READONABLE TRIBUNAL could SAFELY CONVICT
119
Q

Who can be on jury?

A

18-75, on electoral roll, in uk 5 years, no mental disorder, on bail, served custodial sentence

120
Q

Ag the end what does the court direct jury in?

A

1 directions on law (burden and standard of proof, legal requirements of the offence, other legal issues (e.fTurnbull warning, adverse inferences)
2 summary of evidence

121
Q

Where does a bail appeal take place ,

A

Crown court judges chambers

122
Q

When is a person not competent ?

A
  1. not able to understand QS put to them
  2. Can’t give answers that are understood

Children sometimes do but not alin always (think or rape case where v
4 year old to give evidence)

Maybe defective intellect - may be able to given unsworn evidence

123
Q

When can CPS call Co-accused as a witness ?

A

1 attorney general file nolle prosequi (formal notice abounding Pros)
2 order May be made for second trial but only co accused from first trial can go second
3 con accused formally acquitted e.g cps no evidence
4 co accused May plead guilty then csn give evidence (usually desirable
To wait for sentence)

124
Q

Can the accused be a witness for the co accused ?

A

Competent not compellable

125
Q

D as witness in own defence?

A

Competent not compellable

126
Q

Spouse of accuse for crown ?

A

Only compellable in limited classes :
1 involves assault or injury or threat of injury on minor under 16 or in spouse
2 sexual offence or attempted murder under 16 or Aiding and betting

Same as for the co accused

127
Q

Spouse for the accused

A

Compellable

128
Q

Spouses are co accused?

A

Never compellable unless not married at time (like never married)

129
Q

What is s76(2)?

A

Court MUST exclude unreliable evidence (breach of PACE - substantial and significant) if pros can’t prove beyond reasonable doubt that it was not obtained in such a wag

130
Q

which witnesses can wait inside the court room before giving their evidence

A

A witness waiting to give evidence must not wait inside the court room unless. The witness is a party or an expert witness.

131
Q

Can the courts legal advisor ask questions of the witness?

A

Yes, if the defendant is unrepresented and in the defendants interest

132
Q

May a witness refer to a record of their recollection of events

A

Eyewitness may refer to a record of their recollection of events, provided a witness needs to refresh the memory by referring to a previous record, and that records that recollection of events at the earlier time I’m at the recollection is likely to have been significantly better than it is now

133
Q

When is a voir sore most likely to take place

A

During the pros’ presentation of case - raised at point it becomes relevant

134
Q

If the defendant remain silent at trial, when can the court direct the adverse inferences are drawn?

A

When the court is satisfied, there is a case to answer there is evidence of the defendant silence on which I find of guilt can be made, and the only sensible explanation for the defendant silence is that he had no answer or none that would’ve stood up to cross-examination 

SQE 1 (Mine) (8 decks)

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