crime Flashcards
when does the suspect have an ABSOLUTE right to remain silent.
when it is interviewed without legal advice
no adverse inferences may be drawn from their silence
who can allow for a suspect to be interviewed without legal advice?
an officer not below rank of inspect needs to enquire about it and note down reasons + get suspect to confirm iin wiritng this is their decision
They also need to confirm in writing/give authority in writing that they are satisfied with it
when can the right to legal advice be delayed?
only in indictable offences
by an officer at least superintendent
- when it will harm evidence or physical harm to people
- maybe alert other people who have not been detained yet
- hinder the recovery of property that may be evidence
when can the right to having someone informed be delayed?
by an officer not least inspector, for both indictable and eithr-way offences
For the same reasons as right to legal advice being delayed
what is the difference between detention and review clock?
the detention clock may start at different times, depending how the suspect was arrested.
The review clock will start at the time of their detention
If a suspect is arrested at 10:20, arrives at the police station at 10:40 and are detained at 11:15, when will the detention and the review clock start?
detention clock: 10:40
review clock: 11:15
what type of caution is given to a suspect if they refuse to speak to a solicitor (or if they accept but then change their minds)
a normal caution = no absolute right to silence = adverse inference may be draw
what type of caution is given to a suspect where they dont speak to a solicitor before an interview because waiting for the solicitor would cause unreasonable delay?
a special caution = absolute right to silence = no adverse inferences drawn from silence
what type of caution is given to a suspect where the suspect has asked to speak to a specific solicitor (unavailable) and has declined speaking to the duty solicitor?
a normal caution = no absolute right to silence = adverse inference may be draw
what type of caution is given to a suspect where the suspect has their right to legal advice delayed and the police decides to do the interview anyway?
a special caution = absolute right to silence = no adverse inferences drawn from silence
what’s a juvenile
anyone between 10-17 inclusive, but anyone who appears to be under 18 should be treated like one (in the absence of clear evidence)
can the means test be appealed?
no
can the interest in justice test be appealed?
yes
when is a newton hearing required?
when the def enters a plea but disputes allegations/evidence for CPS
separate hearing to determine validity of those
max limit of remand in custody
8 clear days
can remand in custody be extended?
to 28 days if:
a) def has already been remanded for same offence
b) are before court
c) there is a date to remand them on which next proceedings are expected to take place
example: first hearing is remanded for 6 days. At second hearing, trial is allocated for in 28 days - he can be remanded in custody for that duration until the trial (as he was before court; has a date fixed, and was already remanded in custody for same offence)
total max time in remand in custody before trial
70 days for either-way offence
56 days for summary only offence
can the total max remand in custody period be extended?
CPS can apply to court to extend it, but will need to show that on balance of probabilities there is good and sufficient reason to do this and they have acted with due diligence and expedition.
how can an application for remand in custody extension be made?
orally or in writing
BUT written notice of intention needs to be served on court and def not less than 2 days before hearing at MC
what happens once the remand in custody time limit has expired?
unless CPS has had a successful extension case, def must be released on bail
can CPS appeal if MC refused to extend remand in custody time?
yes, to CC
can def appeal if MC extends their remand in custody period?
yes, to CC
how long can a def be remanded in custody AFTER conviction?
successive period of no more than 4 weeks
is there a presumption of bail
yes, but not absolute and limited to exceptions
when does the presumption of bail apply
- all defs
- defs who have been convicted but case has been adjourned for court to obtain reports before sentencing
- defs breaching community service
where does the presumption of bail does not apply
- defs convicted committed to CC for sentencing
- defs who are appealing against conviction or sentence
- defs charged of most serious offences
grounds for not allowing bail
substantial grounds for believing that on bail, def will:
- fail to surrender
- commit an offence
- interfere with a witness or obstruct justice
how does CPS objects to bail?
1- provide to def and court all info as soon as practicable
2- state their objection and apply to MC for def to remand in custody, outlining grounds
3- def’s solicitor makes application for bail and objecting to CPS grounds in turn or suggest appropriate conditions
4- MC hears evidence from other people like prospective employers, someone prepare to give them accomodation etc
5- MC makes their decision and if any conditions
record of MC is given to def (also record reasons if they refuse bail) (certificate of full argument)
what happens if bail is refused at first hearing?
MC will be under a DUTY to reconsider question of bail at the subsequent hearing
what can def do if bail is refused?
At 1st hearing after the hearing where bail was refused, can make a full application again, using SAME arguments of fact or law
But then any subsequent hearings after that will not hear application if doesn’t have new fact or law (= only if they can raise new arguments)
Can the decision against bail be appealed? (by def)
yes, to the CC
although, in practice, solicitors usually wait to have done the 2 applications to the MC (maximises chances of being granted bail)
how is a decision against bail appealed? (by def)
def completes a notice of application as soon as practicable and sends to the CC, MC and CPS explaining reasons, further info, each previous offence, any condition suggestions,… at least 24hrs before hearing
when is the appeal against bail heard? (by def)
no less than 1 day after the notice of application was served on the CC (judge hears it in their chamber)
Judge then hears representation form CPS and def’s advocates
can the CPS appeal decision to grant bail?
yes, if the def has been charged with an imprisonable offence
how can the CPS appeal against a decision to grant bail?
1- make oral notice at the end of hearing where bail is granted, before def is released from custody
2- confirm notice in writing and serve on def no more than 2 hours after court’s decision
3- CC must hear apeal as soon as possible and in any event no later than 2 days after notice was served (takes place as a re-hearing)
–> def is remanded in custody until appeal is heard
basic requirements court needs to be satisfied in relation to evidence?
1- relevant to case
2- admissible
= direct evidence of def’s guilt or circumstancial evidence from which def’s guilt may be inferred
when does the legal burden of proof fall on the def?
when he wants to prove the defence of insanity or duress (only on the balance of probabilities though)
