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SQE - Elmina M > Criminal > Flashcards

Criminal Flashcards

1
Q

What summary only offences are there?

A

Assault & Battery
Minor criminal damage (less than £5000)
Low value shoplifting/theft (less than £200)

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2
Q

What either way offences are there?

A

Burglary
Theft
S47 assault occasioning actual bodily harm
S20 wounding/GBH
Fraud
Criminal damage (over £5000)
Arson

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3
Q

What indictable only offences are there?

A

Robbery
Murder/attempted murder
Manslaughter
S18 Wounding/GBH with intent
Aggravated criminal damage

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4
Q

What elements make up criminal liability for assault?

A

Actus Reus: causing victim to apprehend immediate unlawful personal violence
Mens Rea: intentionally or recklessly causing the victim to apprehend such

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5
Q

What is the meaning of ‘recklessly’ re mens rea?

A

Sees a risk that their actions will cause said actus reus and in the circumstances known to them, it’s unreasonable to that risk

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6
Q

What elements make up criminal liability for battery?

A

Actus Reus: application of unlawful force
Mens Rea: intentionally or recklessly applies unlawful force

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7
Q

What does ‘application’ mean for battery actus reus?

A

Can be direct, indirect or by an omission

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8
Q

What does ‘force’ mean for battery actus reus?

A

Can be physical touch or force
The merest touch (even of clothes) is enough
If results in harm more than trivial, liable for more serious offence under s47

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9
Q

For unlawful force for battery, where is consent implied?

A

A certain amount of physical contact must be accepted to move around in society e.g. jostling in supermarket, underground and busy street

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10
Q

What elements make up a s47 actual bodily harm offence?

A

Actus Reus: assault (either assault or battery actus and mens rea) occasioning actual bodily harm
Mens Rea: the mens rea either for assault or battery

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11
Q

What does ‘actual bodily harm’ mean for ABH?

A

Any hurt or injury interfering with health or comfort of the victim
Need not be serious/permanent but must be more than trifling
Includes psychiatric injury but not fear/distress
Momentary loss of consciousness counts

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12
Q

What elements make up a S20 OAPA offence?

A

Actus Reus: wounding OR infliction of GBH
Mens Rea: intend or be reckless as to the causing of some harm

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13
Q

What does ‘wound’ mean for s20?

A

Must be break in continuity of both layers of the skin
Need not be severe, any breaking of the skin will suffice

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14
Q

What does ‘intention’ mean for S20?

A

Intention or recklessness as to causing some bodily harm.

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15
Q

How is GBH defined?

A

Serious harm

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16
Q

What is oblique intention?

A

Where the offence is a virtually certain consequence (objective) AND D knew it (subjective).

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17
Q

What are the elements that make up a theft offence?

A

Actus Reus: appropriation of property belonging to another
Mens Rea: dishonestly with intention to permanently deprive

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18
Q

What is ‘appropriation’ for theft?

A

Any assumption of rights of the owner, even if they don’t intend to permanently depirve
Includes later appropriation after getting property without stealing

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19
Q

How is ‘property’ defined for a theft offence?

A

Money and all other real and personal property, that’s tangible

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20
Q

What exceptions are there to the property definition for a theft offence?

A

Land: if sell more than entitled
Wild mushrooms, flowers, fruits & foliage if picked for purpose of rewarding, selling or other commercial purposes
Animals: tamed, those kept in captivity and in course of being reduced into possession

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21
Q

What is the definition of ‘belonging to another’ for a theft offence?

A

Someone else having possession or control of it
- If property given for a particular purpose, it still belongs to another - person is under a legal obligation to use it in that way, even in domestic/social situations
- If obtained property by mistake, must restore it
- Can steal your own property

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22
Q

What is the test for ‘dishonesty’ for a theft offence?

A
  1. What was D’s knowledge and belief as to the facts?
  2. Given that, was D dishonest by standards of ordinary decent people?
    Looking for their genuine belief, not if it was reasonable or not
    Dishonesty must be formed at time goods belonged to another
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23
Q

When will a D not be held as acting dishonestly for a theft offence?

A

Right in law to deprive the other of property
Would have other’s consent if they knew
Person to whom the property belongs can’t be discovered

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24
Q

What is the meaning of ‘intention to permanently deprive’?

A

Includes, to dispose of (e.g. rendering property useless, using for ransom), treating it in manner which risks its loss, and more than ‘dealing with’ it
Still intention where they aim to replace it with equivalent property e.g. notes and coins

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25
Q

What elements make up a robbery offence?

A

Actus Reus: actus reus of theft; force on any person; use or threat of force immediately before or at the time of stealing
Mens Rea: mens rea of theft; intent to use force to steal

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26
Q

How can ‘force’ be satisfied for robbery?

A
  1. Use of force
  2. Cause apprehension of force
  3. Seeks to cause apprehension of force
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27
Q

What are the 2 types of burglary offences?

A

S9(1)(a): trespass w intent to (1) steal, cause GBH, commit criminal damage. Burglary committed on entry, no need to commit additional offence

S9(1)(b): Theft/GBH/Criminal damage following trespass. Burglary committed on commission or attempted commission of offence. No need to show intention prior to trespass. *excludes criminal damage

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28
Q

What are the elements for a s9(1)(a) burglary?

A

Actus Reus: enter a building or part of a building as a trespasser
Mens Rea: knowing or being reckless as to entry as a trespasser; at the time of entry D intended to:
- steal
- inflict GBH
- damage unlawfully

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29
Q

How can someone be a trespasser for a burglary offence?

A

Without consent
In excess of authority

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30
Q

For a s9(1)(b) offence, what is different in comparison to s9(1)(a)?

A

Must have actually done one of the following:
- Stole
- Attempted to steal (if this or stole, must prove actus reus and mens rea elements of theft/attempted theft)
- Inflict GBH
- Attempted to inflict GBH

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31
Q

What elements make up an aggravated burglary offence?

A
  1. Commits any burglary
  2. Has with him at the time any firearm or imitation firearm, weapon of offence, or explosive
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32
Q

What kind of weapon establishes agravated burglary?

A

Firearm, imitation firearm, weapon (article made/adapted to cause injury) explosive

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33
Q

What are the elements that make up a criminal damage offence?

A

Actus Reus: destroy or damage property belonging to another without lawful excuse
Mens Rea: intention or recklessness

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34
Q

What are the elements that make up an aggravated criminal damage offence?

A

Actus Reus: destroy or damage (by fire for arson) property belonging to another without lawful excuse
Mens Rea: intention or recklessness as to destruction/damage PLUS intention or recklessness as to endangerment of life by the damage or destruction

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35
Q

What are the elements of a murder offence?

A

Actus Reus: unlawful killing (factual & legal causation) of a human being under Queen’s Peace
Mens Rea: intention to kill or cause GBH

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36
Q

How can a murder offence be reduced to voluntary manslaughter?

A

Loss of control or diminished responsibility defences are present

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37
Q

What are the 2 types of involuntary manslaughter?

A

Unlawful act: kills someone while committing an unlawful act (but no mens rea for murder)
Gross negligence: D breached DoC to V causing death

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38
Q

What requirements are there to prove unlawful act manslaughter?

A
  1. D intentionally (voluntarily) did an act
  2. Act was unlawful: criminal act, intrinsically unlawful, an act rather than an omission
  3. Unlawful act was dangerous: what a sober & reasonable person would appreciate
  4. Unlawful act caused death of victim: factual & legal causation
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39
Q

What requirements are there to prove gross negligence manslaughter?

A
  1. Existence of a DoC
  2. Breach of that DoC (act or omission)
  3. Breach caused death (factual & legal)
  4. Risk of death (obvious & serious risk of death, NOT just injury/serious injury)
  5. Breach was so bad as to amount to gross negligence (amounts to criminal act or omission)
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40
Q

What elements make up a fraud by false representation offence?

A

AR: express or implied representation, as to fact, law or state of mind, which is untrue or misleading
MR: dishonesty, mens rea for false statement, intention to make a gain or cause a loss

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41
Q

Does pure silence count as an implied representation?

A

No

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42
Q

Can you be liable for fraud by false representation against a machine?

A

Yes - can be held to be deceiving a machine by falsely representing e.g. for an ATM, that you are entitled to withdraw that money

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43
Q

What is the test for dishonesty?

A
  1. D’s knowledge a
  2. Given that, was D’s behaviour dishonest by the objective standard of reaonable and honest people?
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44
Q

What is the mens rea for a false statement, for fraud by false representation?

A

Intent or recklessness

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45
Q

Is an actual gain or loss required for fraud?

A

No

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46
Q

When can fraud by false representation arise in cases of overcharging?

A

Generally held that a person can charge whatever sum they consider appropriate
But in circumstances of mutual trust, where a party takes dishonest advantage of the other by representing a fair charge which he knows, but other doesn’t is dishonestly excessive

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47
Q

What are the elements that make up a fraud by abuse of position offence

A

AR: occupies a position in which he’s expected to safeguard, or not act against financial interests of another person; abuses that position (uses incorrectly or puts to improper use)
MR: dishonesty; intention to make a gain or cause a loss

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48
Q

What are the elements of a fraud by failure to disclose offence?

A

AR: existence of a legal duty to disclose; failure to disclose
MR: dishonesty; intention to make gain or cause loss

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49
Q

What 4 types of actus reus are there?

A

Conduct
Result: action must lead to specified consequences e.g. murder
Circumstances
Omissions

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50
Q

For determining legal causation, when will the acts of third parties act as a NAI? (remember this is criminal)

A

Where they are ‘free, deliberate and informed’

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51
Q

For determining legal causation, when will medical negligence act as an NAI? (remember this is criminal)

A

Only if the second cause is so overwhelming as to make the original wound merely part of the history

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52
Q

In fright and flight cases, for determining legal causation, when will the acts of victim be an NAI? (remember this is criminal)

A

Question arises if the escape was foreseeable by reasonable person
If not, D entitled to an acquittal as it will break the chain
Must be some proportionality between gravity of the threat and the action of the deceased in seeking to escape from it

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53
Q

For determining legal causation, if a victim refuses medical treatment, will this act as an NAI?

A

No - Ds must take victims as they find them, in mind and body

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54
Q

For determining legal causation, when will natural events act as an NAI? (remember this is criminal)

A

If they are extraordinary and not reasonably foreseeable

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55
Q

When will a victim’s suicide break the chain of causation?

A

If the injuries inflicted by D have healed but victim goes on to commit suicide
If it was a voluntary and informed decision of the victim e.g. a person who supplies a drug to another has not caused that drug to be administered if V injects it

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56
Q

When will a victim’s suicide not break the chain of causation?

A

V nonetheless dies from original wound
If act was reasonably foreseeable
The D’s unlawful act was a significant and operation cause of death, and at time of attack, it was reasonably foreseeable that the V would die by suicide as a result of their injuries

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57
Q

What is the general rule regarding omissions and criminal liability? What must be proven to rebut this?

A

D can’t be criminally liable for a failure to act
1. Crime is capable of being committed by an omission
2. D was under a legal duty to act
3. D breached that duty
4. Breach caused the actus reus of offence to occur
5. Should the offence so require, D had required mens rea

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58
Q

When will D be under a legal duty to act (for omissions)?

A

Statute
Special relationship (e.g. doctors & patients, parents and children, spouses)
Voluntary assumption
Contractual
D creates a dangerous situation
Public office

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59
Q

What are the 5 types of mens rea?

A

Intention: direct (wholly subjective) or indirect/oblique
Recklessness: somebody takes an unjustifiable risk, aware of the danger that the prohibited harm may occur
Knowledge and belief
dishonesty
Negligence

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60
Q

What is oblique intention?

A

Consequence is not the D’s purpose but a side effect that D accepts as an inevitable or certain accompaniment to D’s direct intention
Only used in rare circumstances, when intention is only form of mens rea

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61
Q

What is the principle of coincidence of AR and MR?

A

D must have the relevant mens rea for offence at precise moment when D commits the actus reus

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62
Q

What is the principle of transferred malice?

A

D’s mens rea is transferred from the intended harm to the actual harm
Both offences must have the same mens rea!

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63
Q

What is the principle of mistake?

A

Where D makes a mistake, effect on criminal liability will depend on type of mistake
Ignorance of the law won’t prevent criminal liability but if meas rea is not fulfilled, can escape criminal liability

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64
Q

What 2 principles can help interpretation of the requirement for coincidence between AR and MR?

A

Continuing Act Theory: if they form MR for offence at some point during committing AR
One Transaction Principle: court sometimes categories actions of accused as series of acts

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65
Q

In what 2 ways can the defence of intoxication work?

A

A way to negate the mens rea of an offence
An influencing factor on another legal principle/defence

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66
Q

When can intoxication operate to negate the mens rea?

A

If taken involuntarily
If intoxication caused by drugs taken voluntarily, but in bona fide pursuance of medical treatment
Where intoxication caused by non-dangerous drugs taken voluntarily
Where specific intent is necessary (i.e. offence can’t be committed recklessly)

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67
Q

What does not count as involuntary intoxication?

A

Where D is aware they’re drinking alcohol but mistaken as to its strength

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68
Q

What 3 questions might be asked when considering if intoxication negated the mens rea?

A
  1. Is intoxication voluntary or involuntary?
  2. Was it dangerous drugs/alcohol or non-dangerous drugs?
  3. Was it a basic or specific intent crime?
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69
Q

If someone was voluntary intoxicated by dangerous drugs/alcohol, and committed a specific intent crime, is intoxication defence available?

A

Yes: ask if D still formed the necessary mens rea?

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70
Q

If someone was voluntary intoxicated by dangerous drugs/alcohol and committed a basic intent crime, is intoxication defence available?

A

Less likely: ask would D have formed the mens rea if sober

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71
Q

How do intoxication and self-defence interact?

A

D cannot rely on a drunken mistake as to need for self-defence

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72
Q

How does intoxication interact with loss of control defence?

A

Loss of control defence cannot be approached with reference to intoxication
But, if D is taunted as to his intoxication, can take it into account when consider gravity of qualifying trigger
If D is addicted, this characteristic given to normal person test but normal person still has normal levels of tolerance/self-restraint and is sober

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73
Q

How does intoxication interact with diminished responsibility?

A

Depends on if the intoxication is:
a) independent of abnormality
b) as a result of ADS

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74
Q

If intoxication is independent of mental abnormality, what is asked?

A

If despite intoxication, a) he was suffering from mental abnormality and b) his mental abnormality substantially impaired his mental responsibility

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75
Q

If intoxication is a result of ADS, what is considered?

A

Whether ADS was a significant factor in leading D to consume the alcohol, even if there was an element of choice
If it was, D’s responsibility was impaired
Attempts to rely on voluntary/temporary drunkenness even if based on habitual binge drinking, is not sufficient

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76
Q

What can self defence only be used to protect against?

A

Imminent attack of physical force (not a threat to one’s peace of mind)

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77
Q

What is the test for self defence?

A
  1. D honestly believed use of force was necessary
  2. Level of force D used was objectively reasonable in the circumstances as D believed them to be
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78
Q

What kind of defence is self-defence?

A

A complete defence against all crimes

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79
Q

Is anticipatory self-defence allowed?

A

Yes

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80
Q

Can self-defence be used by an antagonist?

A

Yes

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81
Q

Can force be used against an innocent party?

A

Yes to prevent a crime being committed by someone else or to protect themselves

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82
Q

What is the test for proving self-defence?

A
  1. D honestly believed use of force was necessary
  2. Level of force used was objectively reasonable in the circumstances as D believed them to be:
    - Non-Householder Cases: not reasonable if disproportionate
    - Householder Cases: not reasonable if grossly disproportionate: (i) was force grossly disprop in circumstances as D believed them to be (ii) whether level of force was reasonable
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83
Q

Who holds the burden of proof for loss of chance?

A

The prosecution: they must disprove, beyond reasonable doubt, that the D was acting under a loss of control

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84
Q

What are the 3 requirements for loss of control defence?

A

D must have lost self-control
Due to fear and/or anger qualifying trigger
A normal person might have acted in a similar way

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85
Q

When can the defence of loss of control not be used?

A

In an act of ‘considered desire for revenge’
As an excuse to use violence
If the thing said/done constituted sexual infidelity and it’s the sole qualifying trigger
If the D is charged with attempted murder

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86
Q

What is the difference in burden/standard of proof for loss of chance and diminished responsibility?

A

Loss of Chance: burden on prosecution to disprove it once defence raises it; standard is beyond reasonable doubt
Diminished Responsibility: burden on defence to prove on balance of probabilities that D was acting under diminished responsibility

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87
Q

What are the requirements for proving diminished responsibility?

A
  1. Abnormality of mental functioning
  2. Must arise from undiagnosed recognised medical condition
  3. Must have substantially impaired D’s ability to understand the nature of C’s conduct, form a rational judgement and/or exercise self-control
  4. Abnormality must provide an explanation for D’s conduct - there’s a causal link
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88
Q

What is the definition of a principal?

A

Person who, with appropriate mens rea, commits the actus reus
Can have more than 1

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89
Q

What is an ‘innocent agent’?

A

Where the person who performs the actus reus is not the principal

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90
Q

What is withdrawal with regard to accessory liability?

A

Where secondary party changes their mind
Must do sth to unequivocally communicate withdrawal before act of assistance - can’t just change mind
In acts of spontaneous violence, test is less onerous

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91
Q

When could conviction of a secondary party but acquittal of the principal happen?

A

Where the principal has been acquitted due to insufficient evidence or principal couldn’t be found but it’s clear someone committed the offence to which D was a secondary party
Or where principal did it but has a defence

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92
Q

What is the general rule and exception where it can’t be proved which of 2 people committed the crime?

A

Both must be acquitted
Exception: if it can be proved that the one who did not commit the crime as the principal was a secondary party to the crime, both can be convicted

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93
Q

Can you ‘attempt’ to be an accessory to an offence?

A

No
But it is an offence to be an accessory to an attempt to commit an offence

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94
Q

What are the 5 ways in which someone can be an accessory to a crime and what do they each mean?

A

Aid: give help, support or assistance
Abet: incite, instigate or encourage
Counsel: give advice or encourage
Procure: produce by endeavour
Party to a Joint Enterprise: 2 or more people committing crime together

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95
Q

Expand on ‘aiding’ a crime:

A

Giving help, support or assistance
Can be before or during commission of offence
No need for causation or consensus

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96
Q

Expand on ‘abetting’ a crime:

A

Instigating, inciting or encourage a crime
Must be at time offence is being committed
No need for causal link but must be communication
Mere presence at scene doesn’t count
If they deliberately refrain from controlling P’s actions when they have a right/duty to do so, can count

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97
Q

Expand on ‘counselling’:

A

Giving advice or encouragement
No need for causal link but must be contact between the parties and the counselling must have connection with offence

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98
Q

Expand on ‘procure’:

A

Produce by endeavour
Must be causal link between D’s act and commission of offence (only one where causation is needed)

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99
Q

Expand on being a ‘party to a joint enterprise’:

A

Where 2 Ds have common intention to commit crime A
As an incident of committing crime A, one of the Ds commits crime B

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100
Q

What key principles are there for joint enterprises?

A
  1. No need to show the D who didn’t do crime B aided or encouraged the offence; just that they were party and had relevant mens rea as an accessory
  2. Crime B must be committed in course of crime A
  3. Party isn’t liable for offences committed before they join JE
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101
Q

What is the mens rea necessary for accessory liability?

A
  1. Intention to assist or encourage the principal’s conduct
  2. If crime requires mens rea, an intention that the principal does actus reus with necessary mens rea (not for procuring)
  3. Knowledge of existing facts/circumstances necessary (don’t need exact details but must know type of crime)
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102
Q

What is an attempted offence?

A

Where D hasn’t completed a crime but has taken enough steps that the behaviour becomes criminal

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103
Q

If you think about committing an offence, have you committed an inchoate offence?

A

No - inchoate offence occurs once you have taken steps to do so

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104
Q

What are the necessary elements for an inchoate offence?

A

AR: act more than merely preparatory
MR: intention to commit full offence - must be intention! Not recklessness

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105
Q

Is intent to cause GBH enough for attempted murder?

A

No

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106
Q

What is impossibility by a non-existent crime? Is it a valid defence to an inchoate offence?

A

Where accused believes that what they are doing is an offence, but it’s actually lawful
It is a valid defence

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107
Q

What is impossibility through inadequacy? Is it a valid defence to an inchoate offence?

A

D adopts/seeks to adopt a method that can’t work
Not a valid defence

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108
Q

Is impossibility in fact a valid defence to an inchoate offence?

A

No

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109
Q

What action should be taken following arrest?

A

Usually, person must be taken to a police station as soon as practicable
Exceptions: where presence at place other than police station is necessary to carry out such investigations as is reasonable to carry out immediately e.g. being searched, taken to premises being searched

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110
Q

To which police station can a person be taken to?

A

Any police station
Unless it’s anticipated that they’ll be there for more than 6 hours, in which case, they must be taken to a designated police station

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111
Q

What is ‘street bail’?

A

Where a person arrested can be granted bail to attend a police station at a later date

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112
Q

What happens when an arrested person arrives at a police station?

A

Detainee sees the custody officer who must authorise continued detention
Detainee will be informed of their rights
If detainee requests, they’ll speak to a solicitor
Detainee may be interviewed

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113
Q

What may happen after the interview regarding the detainee?

A

They may be released under investigation or go on police bail
May be charged and released on police bail to appear at MC at a later date
May be charged and remanded in police custody to appear at the MC on the following day

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114
Q

What is the role of the custody officer?

A

Responsible for the handling and welfare of suspects in detention at the police station

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115
Q

Who must a custody officer be?

A

Must be a police officer of the rank of at least sergeant
Must be unrelated to the process of the investigation of the offence

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116
Q

What procedure does the custody officer take?

A

Authorise detention of the person arrested
Must order the release of the detainee if they become aware that the grounds for detention have ceased to exist
They will determine whether there’s sufficient evidence to charge the detainee, if not they must be released unless reasonable ground for believing detention is necessary

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117
Q

Why may a custody officer believe detention remains necessary if there isn’t sufficient evidence to charge the detainee?

A

Reasonable grounds for believing detention is necessary to:
- Secure or preserve evidence, or
- Obtain such evidence by questioning

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118
Q

If there are grounds to detain, what will a custody officer do?

A

Authorise detention
Open a custody record
Inform detainee of the reason for their arrest
Inform detainee of the reason for their detention
Advise the detainee of their rights

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119
Q

As they are responsible for the welfare of each detainee, what do the custody officer do?

A

Conduct a risk assessment procedure for each detainee
Make special arrangements, if necessary, for detainees who may be physically or mentally incapacitated
Arranging for interpreters if necessary
Dealing with detainee’s property
Contacting healthcare professionals if necessary

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120
Q

What happens if the custody officer is not available?

A

Their role may be performed by another officer, but that officer must not normally be involved in the investigation of an offence for which the person is in detention

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121
Q

What is the custody record?

A

A record opened as soon as practicable for any detainee including info on:
- Requirement to inform person of reason of their arrest
- Circumstances of the arrest
- Why the arrest was necessary
- Any comments made by the arrest person

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122
Q

Who must view the custody record?

A

The solicitor attending the police station as it contains everything that has happened to, been said to, or been said by the detainee

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123
Q

What continuing rights does a suspect have? When can these be exercised?

A

Right to consult a solicitor and to free independent legal advice
Right to have someone informed of their arrest
Right to consult the Codes of Practice
Right to an appropriate adult and/or interpreter if necessary
- Can be exercised at any stage during custody

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124
Q

If a suspect’s continuing rights are given, where is this recorded?

A

In the custody record - notes any response made by the suspect

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125
Q

What is the right to an interpreter?

A

Where a custody officer determines that a suspect requires an interpreter, the suspect mustn’t be interviewed without one unless authorisation is given by an officer of the rank of superintendent or above whose satisfied that delaying the interview will lead to:
- interference/harm to evidence
- interference with/physical harm to others
- serious loss of, or damage to, property

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126
Q

When must a person be told of the right to free legal advice?

A

Immediately before:
- the commencement or recommencement of an interview
- being asked to provide an intimate sample
- an intimate drug search
- an identification parade or video identification procedure

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127
Q

What rules are there for this right to consult a solicitor?

A

If legal advice is declined, should be noted on the custody record
Where legal advice is sought, must be provided as soon as practicable
Police should usually wait solicitor’s arrival before starting an interview
Nothing should be done to dissuade the suspect from obtaining legal advice
If a detained person initially declined legal advice but later changes their mind, the interview should cease and recommence once the detainee has exercised this right

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128
Q

Can the right to consult a solicitor be delayed? If so, for how long?

A

Yes
Up to a max of 36 hours

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129
Q

If a suspect has been interviewed before being able to consult a solicitor as the right was delayed, what restrictions are imposed?

A

Restrictions are imposed on the drawing of adverse inferences at court

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130
Q

What criteria must be met to delay the right to a solicitor?

A
  1. Person must be in detention for an indictable offence
  2. Authority granted in writing by police officer of at least rank of superintendent
  3. Superintendent has reasonable grounds to believe that the exercise of the right will lead to any of:
    - Interference with/harm to evidence
    - Interference with/harm to others
    - Alerting of other people suspect but not yet arrested
    - Hinder recover of property
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131
Q

Can authority to delay right to legal advice be given on grounds to believe the solicitor might pass on a message or act in some other way that would lead to grounds required?

A

Not usually - suspect must be allowed to choose an alternative solicitor

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132
Q

What is the right to have someone informed of their arrest?

A

Detainee has right to have a friend, relative or other person told that they are under arrest
It is at public expense
Can be exercised every time the suspect is taken to a different police station

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133
Q

Can the right to informing someone of their arrest be delayed and if so, for how long?

A

Yes - up to max of 36 hours

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134
Q

What criteria must be met to authorise a delay of right to have someone informed of your arrest?

A
  1. Person must be in detention for indictable offence
  2. Authority granted in writing by at least rank of inspector
  3. Inspector has reasonable grounds it will lead to:
    - Interference with/harm to evidence
    - Interference with/harm to others
    - Alerting other people suspected but not yet arrested
    - Hinder recovery of property
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135
Q

What additional ground can the right to legal advice, and right to have someone informed of their arrest, be delayed upon?

A

If the detainee detained for indictable offence and has benefitted from their criminal conduct

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136
Q

What is the ranking of police officers?

A

Constable
Sergeant
Inspector
Chief Inspector
Superintendent
Chief Superintendent
3 variation of Chief Constables

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137
Q

What are reviews of detention?

A

Carried out during a suspect’s detention, where a review officer must be satisfied that detention is still necessary

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138
Q

Who carries out reviews of detention?

A

Must be at least rank of inspector, not connected to investigation, and not the custody officer

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139
Q

When do the reviews of detention take place? What must be done at the time of review?

A

1st: not more than 6 hours after detention first authorised by CO
Then periodically, every 9 hours thereafter
At time of review, detainee must be reminded of their right to free legal advice, and given right to make representations unless unfit or asleep at time of review

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140
Q

How long can a suspect be kept in custody, before being charged?

A

24 hours from the time the suspect arrives at the police station (indicated by custody record)
- NOT the same as time detention authorised

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141
Q

Can the time limit for keeping a suspect in custody without charge be extended?

A

Can be extended for a further 12 hours, so max of 36 hours from relevant time

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142
Q

What criteria must be fulfilled for a time limit as to detention to be extended?

A
  1. An officer of at least rank of superintendent authorises continued detention
  2. The officer has reasonable grounds for believing detention is necessary to secure or preserve evidence, or obtain evidence by questioning
  3. Offence must be an indictable offence
  4. Investigation must be being conducted diligently and expeditiously
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143
Q

When must the authorisation to extend detention be given?

A

Before the expiry of the initial 24 hours but after the 2nd review

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144
Q

What must the police do to detain beyond 36 hours?

A

Apply to MC for a warrant of further detention
The warrant may authorise it for a further 36 hours on firs application, and another 36 hours on 2nd
Max of 96 hours
Same criteria apply (replace officer with MC)

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145
Q

When are the police under a duty to hold an identity procedure?

A

Where a witness has seen a person committing a crime and there’s a reasonable chance they could pick them out (unless exceptions apply)

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146
Q

When will an identification procedure be held?

A

Where an offence has been witnessed and an eye witness:
- Has identified a suspect or purported to have identified them; or
- Is available who expresses an ability to identify the subject; or
- Has a reasonable chance of being able to identify that subject
Or where the suspect disputes being the person the eye-witness claims to have seen

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147
Q

When does an identification procedure not need to be held?

A

If it’s not practicable or would serve no useful purpose in proving or disproving the suspect was involved

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148
Q

What are the different types of identification evidence?

A

DNA
Telephone
Fingerprint
Testimony from witness

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149
Q

What evidence does NOT constitute visual identification evidence?

A

Mere description of clothing/vehicle
The suspect has a connection to a particular place or others at the scene
A description of the subject

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150
Q

If the suspect’s identity is known to police and they are available, what identification procedures may be used?

A

Video identification
Identification parade
Group identification

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151
Q

Whose responsibility is it to arrange and conduct the identification procedures?

A

An officer not below inspector and who isn’t involved with the investigation

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152
Q

What is the identification procedure of first instance? When is it not used?

A

Video identification
If it’s not practicable or an identification parade is more suitable
Also if the suspect refuses

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153
Q

When should covert procedures be used for identification?

A

At last resort and if all other procedures have been considered and refused

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154
Q

What form does video identification take?

A

VIPER

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155
Q

How can group identification take place?

A

Either with suspect’s consent and co-operation, or covertly without their consent

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156
Q

What are the consequences of breaching Code D (identification)?

A

To exclude evidence obtained in breach of the code
This is not automatic but identification usually excluded when important safeguards have been flouted

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157
Q

What must the trial judge decide when considering a breach of Code D?

A

Whether there’s been any significant prejudice to the accused
If so, if the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

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158
Q

Where identification evidence is admitted into evidence despite a breach of Code D, what should be done at trial?

A

Defence advocates can still comment on the breach in their closing speech
Trial judge should draw jury’s attention to the breach
Jury should assess whether in their estimation the breaches were such as to cause them to have doubts about the safety of the identification

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159
Q

What are the 2 consequences if a suspect refuses to cooperate with an identification procedure?

A

Covert procedure will be used without their consent
Adverse inferences

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160
Q

What 3 options does a client have in a police interview?

A
  1. Answer questions
  2. Don’t answer questions (‘no comment’)
  3. Provide a written statement and ‘go no comment’
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161
Q

What factors should be considered to advise whether a client should answer questions?

A

Amount of disclosure
Admissibility and strength of evidence (both that you are aware of or that might become available)
Client’s account/instructions
The state of your client
Significant statements
Possible adverse inferences

162
Q

What are 2 possible consequences of waiting till trial to put forward a defence? (as opposed to stating in interviews)

A

Adverse inferences
Losing credibility

163
Q

What adverse inferences can be drawn from remaining silent?

A

S34: a fact later relied upon at trial and would have been reasonable to have mentioned it at interview, bearing in mind all the circumstances at the time
S36: failure to account for mark, object or substance
S37L failure to account for presence at the scene

164
Q

What is the right to silence and the main consequence of it?

A

Every suspect has right to not answer questions in a police interview
Court may draw adverse inferences

165
Q

Can a D be convicted solely based on an adverse inference?

A

No

166
Q

When can no s34 inference be drawn for relying on a fact at trial that would’ve been reasonable to bring up at interview?

A

If the suspect wasn’t cautioned

167
Q

What is the effect of an adverse inference?

A

Undermines their defence

168
Q

To draw a s36 or s37 inference, what must be done?

A

D must be given a special warning

169
Q

When can no adverse inferences be drawn?

A

Where the suspect hasn’t been allowed access to legal advice

170
Q

When are adverse inferences actually only relevant?

A

If the D has a trial

171
Q

What strategy is sometimes used to avoid later adverse inferences?

A

Using a prepared written statement at interview setting out defence
But it can still attract adverse inferences and client will still have to answer ‘no comment’ to questions

172
Q

What are mixed interviews and who should they be avoided?

A

Stating ‘no comment’ to some questions and answering others
It’s not a valid option in interview

173
Q

What must interviews be carried out under?

A

Under caution (and should be cautioned again if there’s a break in the interview’

174
Q

Who is the investigating officer?

A

A police officer of any rank

175
Q

Where is an interview located?

A

At a police station or other authorised place of detention subject to exceptions where delay would lead to undesirable consequences

176
Q

What rights are there to disclosure for the solicitor representing detainee?

A

Must see the custody record and if given, a significant statement
Before interview, they must be given sufficient info to understand the nature of such offence and why they are suspected of committing it
But otherwise, no general right to disclosure

177
Q

What is the general rule and exceptions to recording interviews?

A

General Rule: all interviews must be contemporaneously recorded and interviews under caution for any indictable offence must be audio records
Exception: can be recorded in writing where person hasn’t been arrested, takes place somewhere other than a police station, relates to some minor offences

178
Q

When should no person be interviewed?

A

If they can’t appreciate the significance of the questions asked and their answers, or
They can’t understand what’s happening due to drink, drugs, illness etc

179
Q

When and who can authorise an interview where a person is generally not regarded as fit for interview?

A

An officer of rank superintendent

180
Q

What practicalities should be taken before the interview by the solicitor?

A

Obtain pre-interview disclosure
Privately consult with client to discuss the case and advise them on options for interview

181
Q

What is the role of a solicitor in the police station?

A

Protect and advance the legal rights of their client
Actively defence and promote their client’s interests

182
Q

When should a solicitor consider intervening in the interview to protect the client’s interests and advance their case?

A

Info/evidence is referred to/produced that was not disclosed prior
Clarification for any matter
Inappropriate questioning or behaviour
Further advice to client
A break is required
Other circumstances

183
Q

What inappropriate questioning techniques should a solicitor step in and stop?

A

Misrepresenting information
Hypothetical or repetitive questioning
Disruptive listening

184
Q

Who is not a ‘vulnerable’ client?

A

A person under influence of drink or drugs

185
Q

When should a suspect be treated as vulnerable?

A

At the beginning of their detention, custody officer undertakes a risk assessment to identify whether they are
If so, they are provided with access to an appropriate adult who is informed by custody officer on info regarding detention

186
Q

What happens if an officer suspects a person is vulnerable?

A

Person is treated as such until clear evidence to the contrary
Officer should make reasonable enquiries and record such info

187
Q

Who should have an appropriate adult present at the police station?

A
  1. If a person is, or appears to be, under 18
  2. Anyone whom a police officer suspects or has been told in good faith may be mentally disordered/vulnerable
    I.e. where a person is vulenrable
188
Q

Who can act as an appropriate adult for a young detainee?

A

Parent/guardian
Representative of care authority or social worker
Failing these, anyone aged 18 or over who isn’t a police officer/employee

189
Q

Who can act as an appropriate adult for a mentally disordered/vulnerable detainee?

A

Parent/Guardian
Relative
Someone with experience in dealing with such persons
Failing these, anyone over 18 not a police officer/employee

190
Q

Who can’t act as an appropriate adult?

A

A solicitor/legal rep attending police station for the suspect
Someone:
- Suspected of involvement
- Is the victim or witness to the offence
- Involved in the investigation
- Whose received admissions from detainee before acting as AA
- Of low IQ and can’t appreciate gravity of situation
- An estranged parent, whom arrested juvenile specifically objects to

191
Q

What is the role of the appropriate adult?

A

Ensure detainee understand what’s happening and why
Support, advise and assist
Observe whether police are acting properly and intervene if not
Assist with communication
Ensure detainee understands rights

192
Q

Can an appropriate adult request a solicitor on detainee’s behalf?

A

Yes - but the detainee doesn’t have to see the solicitor if they don’t want to

193
Q

How does one proceed without an appropriate adult?

A

Detainee shouldn’t be interviewed or asked to prove a witness statement unless delay would lead to usual undesirable consequences - see notes

194
Q

When can an interview of a vulnerable person take place without an AA?

A

It’s urgent and superintendent or above is satisfied that it wouldn’t significantly harm the person’s physical/mental state, and delay wouldn’t lead to usual undesirable consequences

195
Q

How is a D remanded into custody?

A

Prosecution present objections to bail, due to presumption in favour of bail

196
Q

To whom does the right to bail not apply? I.e. bail can be granted but the presumption doesn’t apply

A

Those appealing their conviction or sentence
To Ds being committed for sentence from MC to Crown Court

197
Q

On what grounds can the prosecution object to bail?

A

Indictable cases
Summary Cases, Imprisonable
Summary Non-Imprisonable

198
Q

What is the test for indictable offences and bail?

A

Are there ‘substantial grounds’ for believing that D would:
a) Fail to attend a subsequent hearing
b) Commit further offences on bail; and/or
c) Interfere with witnesses, or otherwise obstruct course of justice

199
Q

What does ‘substantial grounds’ mean for determining bail?

A

The fears of the behaviour happening have substance and merit

200
Q

When can a ground of objection to bail not succeed however, even if satisfied?

A

Where there are no real prospects of the D receiving a custodial sentence

201
Q

What is the general rule regarding summary offences and objections?

A

Only available if a D, having been given bail, breaches a condition in these proceedings, or has a conviction for ‘failing to surrender’ in their past

202
Q

After the main 3 grounds for not granting bail, what are the next most important grounds to consider?

A

a) remand in custody would be for D’s own protection
b) court has insufficient info to deal with issue of bail, and remands in custody for a short period would produce such evidence
c) D is already serving a sentence in custody
If one of these 3 conditions exist, D need not be granted bail

203
Q

What duty is a person granted bail in criminal proceedings under?

A

A duty to surrender to custody, by attending court at time and date specified

204
Q

What must a condition to bail be?

A

Relevant, proportionate and enforceable

205
Q

Can applications be made to vary bail conditions and by who? What must be done?

A

Yes
By either party on advance notice to the other party
Application should be made to court which granted bail

206
Q

Who applies for bail and when?

A

Defence, once prosecution objection to bail has been raised

207
Q

What custody time limits are there?

A

56 days for trials in MC of summary only or either way offences
182 days for Crown Court rials of indicatable only or either way offences, less any days spent in custody prior to case being sent to Crown Court

208
Q

When must a trial commence by?

A

Before the expiry of the custody time limit

209
Q

What happens if the custody time limit expires without a trial being commenced?

A

D is released, unless prosecution applies to extend time limits, showing they have acted with ‘all due diligence and expidition’ and there’s ‘good and sufficient cause’ to have D further remanded into custody

210
Q

What is the general rule regarding further applications for bail?

A

A D who is having a trial in MC can have 2 attempts at getting bail at MC and one attempt on appeal to Crown Court
A D whose trial is in Crown Court has 1 attempt at first hearing at MC (unless charged with murder) and a further application in Crown

211
Q

For a prosecution to appeal against the granting of bail by a MC, what must they have done?

A

Must have opposed bail originally

212
Q

What type of offence is breach of bail?

A

An arrestable offence
Not a criminal one!

213
Q

What may happen if bail conditions are breached?

A

Could be arrested and D at risk of either having conditions tightened or being remanded in custody

214
Q

Can officers arrest those who are about to be in breach of bail conditions?

A

Yes

215
Q

What is the only breach of bail conditions that is a criminal offence?

A

Failing, without reasonable cause, to surrender to custody

216
Q

Where is the first hearing for all offences?

A

MC

217
Q

Where the D is on bail, when must the first hearing be?

A

If prosecutor anticipates a guilty plea likely to be sentence in MC, within 14 days of being charged
Where D anticipated to plead not guilty, or likely to go to Crown Court for trial or sentence, within 28 days of being charged

218
Q

Does the D have to be present at first hearing?

A

Yes
If they don’t, court will consider if they can proceed with hearing anyway

219
Q

What must the prosecution do regarding the initial details of their case?

A

Must serve initial details on court officer as soon as practicable, in any event, no later than beginning of day of first hearing

220
Q

What happens if the prosecution fail to supply initial details?

A

Court adjourns first hearing and/or awards costs to defence

221
Q

What is committal for sentence?

A

Wher ethe court decides its sentencing powers are insufficient , D committed for sentence to the Crown Court

222
Q

What is the exception to the rule that summary-only offences never go to the Crown Court?

A

Where a D is charged with an offence that is to be tried in Crown Court and there is a summary-only offence connected to the indictable offence

223
Q

What is a representation order?

A

Legal aid - merits and means test

224
Q

What is ‘plea before venue’?

A

At a first hearing, when the offence is one which is triable either-way, D is asked to indicate their plea

225
Q

What can a D indicate at a plea before venue?

A

Indicate guilty
Indicate not guilty
Give no indication - treated as not guilty indication

226
Q

What must a guilty plea be?

A

Unequivocal - if not, treated as a not guilty plea

227
Q

What happens where a guilty plea is entered for an either-way offence?

A

Proceed to sentence, either in MC or Crown Court
MC must consider if they have sufficient sentencing powers

228
Q

What sentencing powers does the MC have?

A

6 months imprisonment: summary only offences
12 months imprisonment: either way offence

229
Q

If a D consents to summary trial for an either way offence, can the court still commit them to the Crown Court for sentence?

A

Yes

230
Q

Why is elect trial on indictment often advised on indictment in the Crown Court? What are the disadvantages?

A

Acquittal rate is higher in Crown Court
Use of the jury can be advantageous
But is more complex, formal and expensive than MC

231
Q

Either way offences should generally be tried summarily unless what?

A

Court has insufficient sentencing powers
For reasons of unusual legal, procedural or factual complexity

232
Q

Does a D have to consent to be tried summarily?

A

No, they can be tried by a jury even if court wants to retain jurisdiction

233
Q

What can a D ask for if they were to plead guilty?

A

An indication of sentence
Court can decline this but if they do, is confined to telling them if custodial or non-custodial

234
Q

If D asks for an indication of sentence and it’s given, what happens if they change their plea to guilty?

A

The process followed will be as if they had pleaded guilty from the outset

235
Q

When is indication of sentence only binding?

A

If the D changes his plea in light of the indication

236
Q

When can criminal damage be dealt with at the Crown Court?

A

When damage is over £5,000 or was caused by fire
If £5,00 or less, it’s summary only

237
Q

Where should cases be held that involve complex fraud or where children may be called as witnesses?

A

Should be sent directly to Crown Court

238
Q

When are pre-trial matters considered?

A

At first hearing
At a hearing on a date after first hearing and before trial date
On day of trial itself before trial starts

239
Q

In Crown Court cases, when a pre-trial matters dealt with?

A

At least one hearing in Crown Court will be had, the PTPH

240
Q

What are parties expected to deal with at the first hearing where a trial take place in MC?

A

Case management issues
A case management form will be expected to have been completed before first hearing commences

241
Q

What is the Plea and Trial Preparation Hearing?

A

Main and often only, pre-trial Crown Court hearing
Parties are required to fill in a PTPH form in advance

242
Q

What is arrainment?

A

At the plea stage, the indictment is put to D and they enter a plea of guilty or not guilty to each count on the indictment

243
Q

If judge determines D is unfit to plead, what happens?

A

No plea is taken
Court must hold a trial with jury to determine if D committed the act (actus reus, not the mens rea)

244
Q

What is dealt with at trial preparation stage?

A

Trial Date
Prosecution evidence
Expert evidence
Witness requirements

245
Q

What are evidence applications?

A

Applications to exclude evidence or introduce otherwise inadmissible evidence

246
Q

What are special measures?

A

Arrangements put in place to assist witnesses in giving evidence before a court
Can be for children, the vulnerable and those in fear or distress about testifying

247
Q

To whom are testifying through an intermediary and aids to communication not available for?

A

Witnesses who are eligible for special measures due to being in fear

248
Q

Who are eligible for special measures?

A

All witnesses aged under 18 at time of trial automatically eligible
Those with mental disorders or physical disability where court considers that the quality of their evidence will be diminished
Those in fear or distress
All adult complainants of sexual offences or serious offences such as homicide

249
Q

For an application for a vulnerable D for special measures, what must the court be satisfied about?

A

It would be in the interests of justice and ‘live link’ would improve the quality of the Ds evidence

250
Q

How can intermediaries help vulnerable Ds?

A

Court has power to direct a vunerable D be assisted by an intermediary to help D understand what is going on
Their role is to assist communication of evidence
Can also be used to assist witnesses

251
Q

What are witness summons and warrants?

A

Where prosecution or defence ask the court to secure the attendance of witnesses where a witness isn’t keen to be one

252
Q

What is the test for the party seeking a witness summons?

A
  1. Witness likely to be able to give material evidence
  2. It’s in interests of justice to issue sommons
253
Q

What happens if a witness disobeys a witness summons and doesn’t attend without a ‘just excuse’?

A

Court can issue a warrant for the arrest of the witness
Failure to do so by summons can be punishable as contempt of court

254
Q

When can a D change their plea from not guilty to guilty?

A

At any time before jury return their verdict
Must ask that ‘indictment be put again’

255
Q

When can a D change their plea from guilty to not guilty?

A

Much more difficult but any time before they are sentenced, they can apply to court for leave to change their plea
Where a D was represented properly, a court would reject it and allow them to enter a fresh not guilty plea

256
Q

What is the prosecutor’s initial duty of disclosure?

A

They must disclose to accused any prosecution material not previously disclose and which might reasonably be considered capable of undermining the case or assisting, or
Give a written statement to accused that there is no material of a description of above

257
Q

Does material which supports the prosecution case but they choose not to rely on it, or is neutral in effect, need to be disclosed as unused material?

A

No

258
Q

What are the time limits on initial disclosure?

A

Prosecution serve initial details of prosecution case (used material) no later than beginning of day of first hearing that are sufficient

259
Q

When does the statutory duty for initial disclosure arise concerning disclosure of unused material by the prosecution?

A

MC: when D pleads not guilty and case adjourned for summary trial
Crown: when D is sent for trial or Voluntary Bill of Indictment preferred against a D

260
Q

When will a PTPH take place after sending disclosure of unused material?

A

28 days after sending

261
Q

What must a defence statement that discloses an alibi include?

A

Witnesses’ name, address and DOB
Any info in accused’s possession which might be of material assistance in identifying/finding any such witness

262
Q

Are defence statements compulsory?

A

Only in the Crown Court - must be served on prosecution and court within 28 days of date prosecution complies with its duty of initial disclosure
Can be extended but application must be made within time limit and must be reasonable
If D chooses to do so in MC, must be done within 10 days

263
Q

If the D chooses not to serve a defence statement in the MC, what will they be unable to do?

A

Make an application for specific disclosure

264
Q

When must the Notice of Intention to Call Defence Witnesses be given?

A

Within 10 business days for MC, and 28 days for Crown Court, of prosecution complying with initial disclosure

265
Q

What consequences can follow for a failure of defence disclosure?

A

Jury may draw such adverse inferences as appear proper
Judge can warn D that failure to comply can lead to comment being made or adverse inferences drawn
Prosecutors should challenge lack of, or inadequate, defence statements in writing, and seek directions from the court

266
Q

Can an adverse inference be drawn against a D for failing to serve a defence statement?

A

No, as there is no duty to do so

267
Q

What is an application for specific disclosure?

A

D can make an application where it has reasonable cause to believe there’s prosecution material which should’ve been disclosed and has not been
D must have served a defence statement
- Seen as last resort: discussion and co-operation is encouraged

268
Q

How long does the prosecution have to respond to an application for specific disclosure?

A

10 business days

269
Q

What are the consequences if the prosecution has failed in its duty to disclose relevant material?

A

D could bring application to stay indictment on grounds that it would be an abuse of process to continue
Conviction could be quashed on appeal due to being unsafe
Likely to result in delay and wasted costs
Could result in exclusion of evidence due to unfairness

270
Q

Where material is requested from a 3rd party but access/disclosure is refused, what can the prosecution do?

A

Seek a summons

271
Q

What is public interest immunity?

A

Circumstances where prosecution under duty to disclose material to defence but don’t want to as they believe it would give rise to a real risk of serious prejudice to an important public interest
Must apply to judge for non-disclosure in public interest
Should be recorded at investigation stage in Sensitive Material Schedule

272
Q

What is a jury or judge taking ‘judicial note’ of a fact?

A

Where facts are generally and widely known, formal proof isn’t required
Judge permitted to take judicial notice of a fact ‘on enquiry’

273
Q

Can jurors take notice on personal matters they happen to know but are not generally known?

A

No - they should let court know and judge can deal with it

274
Q

What is the difference between direct evidence and circumstantial evidence?

A

Direct: evidence a witness gives of having had direct experience of a matter in issue
Circumstantial: evidence from which facts are inferred

275
Q

What is a ‘view’?

A

When juries visit a scene of a crime, or leave court to view an object that can’t be brought into court - their observations become evidence in the case

276
Q

For evidence to be admissible, what must it be?

A

Relevant - tends to prove or disprove a fact

277
Q

In the MC, who is the tribunal of fact and law? And for the Corwn Court?

A

MC: Magistrates both
Crown Court: jury = fact, judge = law

278
Q

Who determines issues of admissibility of evidence?

A

Tribunal of law

279
Q

What is the standard of proof to which the prosecution proof is put?

A

‘So that you are sure of guilt’ i.e. beyond reasonable doubt

280
Q

What is the difference between the legal and evidential burden?

A

Legal: requirement to prove an element of your case to a prescribed standard
Evidential: burden to raise some evidence to satisfy the judge that the matter should be argued

281
Q

When should a Turnball direction be given?

A

When a case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification
I.e. D picked out in formal ID procedure but still dispute their identification
Also in cases of alleged recognition

282
Q

If presence at the scene is admitted, but D disputes their role in the incident, is a Turnbull direction necessary?

A

Unlikely to be but each case turns on its own facts

283
Q

What elements make up the Turnbull warning?

A

Instruct jury as to reason for need for such a warning
Direct jury to examine circumstances in which identification came to be made
Remind jury of any specific weaknesses in the identification evidence

284
Q

What are judges required to do regarding the state of identification evidence?

A

They must examine its state at the close of the prosecution case and stop the case if it’s poor and unsupported

285
Q

What two principal questions must the judge answer in cases of visual identification?

A
  1. Quality of ID evidence
  2. Any other evidence to support correctness of ID?
286
Q

When the quality of the identification is good, what happens with the jury?

A

Jury can be left to assess value of identifying evidence, regardless of whether there is evidence to support it
Must be an adequate warning given about the special need for caution

287
Q

When the quality of ID evidence is poor, what happens with the jury?

A

Judge should consider whether there’s other evidence to support it
If not, judge should withdraw the case and direct an acquittal
If there is, judge can leave it to be assessed

288
Q

What is dock identification?

A

Identification of D by witness for 1st time in court
- exceptional and rare; highly prejudicial

289
Q

What is the general rule regarding hearsay?

A

It’s not admissible (there are exceptions)

290
Q

Where hearsay evidence is critical to the case, what does the question of whether there can be fair trial depend on?

A
  1. Is there good reason to admit the evidence
  2. Can evidence be shown to be reliable
  3. Extent to which counterbalancing measures have been properly applied
291
Q

When is hearsay admissible?

A

All parties agree
Court is satisfied it’s in the interests of justice

292
Q

What is the test to determine if something is hearsay?

A
  1. Identify what relevant fact it’s sought to prove
  2. Ask whether there’s a statement of that matter in the communication (if not, no question of hearsay)
  3. If yes, was it one of the purposes of the maker of the communication that the recipient, or someone else, should believe that as true
    If yes = hearsay
293
Q

What 3 things are definitely not hearsay?

A

Private diary
CCTV
Questiosn

294
Q

What 4 principles are not hearsay?

A
  1. Original Evidence: purpose of party adducing evidence is to show words were spoken, not that they were true
  2. To show effect of words on the person to whom they were said, not their truth
  3. Legally significant words
  4. Falsehoods: where a party adduces evidence of what was said out of court while asserting it’s not true - not hearsay
295
Q

What are the statutory exceptions to hearsay being inadmissible?

A

Witness is unavailable (for good reason)
It’s a business document (incl medical records and any statement written down by a police officer in course of duty)
It’s in the interests of justice

296
Q

When is a person unfit to be a witness?

A

Refers to their ability to give evidence AT COURT (not their ability to attend) e.g. victim of sexual assault

297
Q

When can the court exclude hearsay evidence for business documents?

A

If it’s satisfied that the statement’s reliability is doubtful (contents, source of info, way in which info was supplied/received)

298
Q

Where the Crown has failed to take reasonable steps to find a witness or secure their attendance, can they fall back on arguing it’s in the interests of justice?

A

No

299
Q

What are the common law exceptions to rule against hearsay?

A
  1. Public information: e.g. court records, dictionaries, public documents
  2. Evidence of Reputation as to Character, to prove character
  3. Res Gestae
  4. Confessions
  5. Statements in furtherance of common enterprise
  6. Body of expertise: expert witness can draw on body of expertise
300
Q

What is res gestae?

A

A statement made by person so emotionally overpowered by event that possibility of distortion can be disregarded, accompanied by an act which is evidence only if considered in conjunction with the statement
Where res gestae evidence is admitted, it must be made clear to the jury that the must be satisfied that there was no mistake on the part of the witnesses as to what had been said to them

301
Q

How does the res gestae exception work in domestic violence cases?

A

Proves prosueciton with a way to admit evidence of a complainant who doesn’t give evidence at trial
E.g. what is said by the complainant in a 999 call or to officers immediately after the alleged incident will usually be admissible as res gestae evidence; bodycam footage

302
Q

What is the rule regarding multiple hearsay?

A

A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made
Unless either of the statements are admissible; all parties agree or the court is satisfied that the value of evidence is so high it’s in IOJ

303
Q

When can a judge stop a case regarding hearsay?

A

Where case depends wholly or partly on hearsay evidence and that evidence is so unconvincing that the D’s conviction would be unsafe

304
Q

What can a judge do for superfluous hearsay?

A

Court can exclude hearsay evidence that would otherwise be admissible where the admission of the evidence would result in undue waste of time

305
Q

How is the jury to be directed on hearsay?

A

Must be reminded that a hearsay statement admitted at trial was not given an oath and not tested in cross-examination
Point out risks and advise to scrutinise it
Point out limitations on usefulness of particular evidence

306
Q

What is required where a party intends to introduce hearsay evidence?

A

Notice served on court and every other party with evidence attached (if not already served)
Prosecution must serve notice not more than 20 business days in MC or 10 business days in Crown Court after plea
A D must serve notice as soon as reasonably practicable

307
Q

How can a party object to the introduction of hearsay evidence?

A

Must serve an application on the court and every other party as soon as reasonably practicable, and in any event, not more than 10 business days after either: service of notice; service of evidence objected to; D pleads not guilty - whichever is later

308
Q

What is a confession?

A

Any statement wholly or partly adverse to person who made it, in words or otherwise, to whomever

309
Q

What are the 2 main ways of challenging a confession?

A

S76: confession obtained by oppression i.e. torture, inhuman or degrading treatment, use or threat of violence
S76: anything said or done (can be omission) at time to render confession unreliable (by someone not the D)

310
Q

What must the prosecution prove once the D or court represented that confession was obtained by oppression?

A

Beyond reasonable doubt, it was not
If they can’t, must be excluded

311
Q

Are facts discovered as a result of an excluded confession admissible?

A

Yes

312
Q

What are 4 key aspects to making an application to exclude evidence?

A
  1. Advance notification
  2. Timing: at a pre-trial hearing or just prior to opening case at trial
  3. Voir Dire: hearing where evidence is called as a challenged under s72 and facts on both sides are disputed - judge makes a finding in absence of jury
  4. Submissions
313
Q

What happens if a judge fails to resolve disputed facts on a voir dire before ruling on the admissibility of a confession?

A

Any resulting conviction likely to be quashed

314
Q

When is a voir dire only required?

A

If a factual matter relating to substance of the legal argument requires resolution for argument to proceed
If backgrounds facts are agreed and legal argument can be made on agreed factual basis

315
Q

For bad character to be admissible, what must it be?

A

Relevant and fall within one of the 7 gateways

316
Q

What are the 7 gateways of bad character? (think alphabetically)

A

Agreement: all parties agree it’s admisisble
Blurts it out: D introduces evidence of own bad character
Context: important explanatory evidence (leave of court required)
Done it Before i.e. Relevant to important matter in issue between D and P: propensity to commit offences of the kind with which he is charged or be untruthful
He did it: Important matter in issue between D and co-defendant
False Impression: correcting one (needs leave of court)
Gets at witness: D attacks another person’s character

317
Q

When are previous convictions only likely to be capable of showing propensity of being untruthful i.e. relevant to important matter in issue?

A

They pleaded not guilty
Way in which offence was committed involved being untruthful e.g. fraud

318
Q

What time limits are there for prosecution evidence of defendant bad character?

A

MC: no more than 20 business days after D pleads not guilty
Crown: not more than 10 business days after D pleads no guilty

319
Q

What time limits are there for co-defendant’s evidence of defendant bad character? (and a non-defendant)

A

As soon as reasonably practicable, and in any event, not more than 10 business days after prosecutor discloses material on which notice is based

320
Q

What time limit is there to respond to evidence of bad character? (and a non-defendant)

A

No more than 10 business days after service of the notice

321
Q

What are the principal ways of excluding evidence and/or seeking to bring a prosecution case to an end?

A

Applications for dismissal: pre-trial app to have charges dismissed (for cases sent to Crown Court)
Submissions of no case to answer: during trial, after P presented all its evidence
S78 and S76 applications to exclude evidence
Abuse of process applications: fundamental issue of unfairness or impropriety
Applications to exclude evidence under preserved common law provisions

322
Q

When can an application for dismissal be made?

A

After D sent by MC to Crown Court for trial
After D served with evidence relating to offence
Before D is arraigned

323
Q

When will a judge dismiss a charge?

A

If it appears that the evidence is not sufficient for D to be properly convicted

324
Q

Who can make s78 and s76 applications?

A

Only the D - not prosecution or co-D

325
Q

What is the test to decide whether to exclude prosecution evidence?

A

Whether the admission of evidence would have such an adverse effect on fairness of proceedings that court ought not to admit it

326
Q

Are the Codes of Practice admissible?

A

Yes - D can rely on a significant and substantial breach of the code e.g. to exclude evidence under s78

327
Q

When can a s78 application be made?

A

Before trial
At commencement of trial
Prior to prosecution seeking to admit the evidence which the D wish to be excluded

328
Q

What judges sit in Crown Court and how are they referred to?

A

Circuit Judges: Your Honour
Recorders: Your Honour (barristers/solicitors who sit as part-time judges)
High Court Judges: My Lord, My Lady

329
Q

What are the stages of a Crown Court Trial?

A
  1. Legal Arguments (just prior to commencement of jury trial)
  2. Jury Selection & swearing in jury
  3. Judge’s preliminary instructions to jury
  4. Prosecution opening speech
  5. Defence identify matters in issue
  6. Prosecution evidence
  7. Conclusion of Prosectuon Case
  8. Submission of no case to answer if necessary
  9. Right to give evidence & adverse inferences
  10. Defence opening speech & evidence
  11. Legal discussions
  12. Closing speeches
  13. Judge’s summing up
  14. Jury bailiffs sworn and jury retire
  15. Verdict
330
Q

What is a majority direction?

A

Allows a majority verdict to be given by a jury after they’ve deliberated for at least 2 hours
Shouldn’t be accepted unless jury have had such time for deliberation as court thinks reasonable for the case

331
Q

What is the punishment for refusal to take an oath or affirmation?

A

Contempt of court

332
Q

What form of questioning should examinations in chief take?

A

Non-leading (apart from on issues not in dispute or where witness is deemed hostile)
Evidence adduced from a leading question may be seen as inadmissible or to carry less weight

333
Q

How should the form of questioning be for cross-examination?

A

Can ask leading and non-leading questions

334
Q

How are previous inconsistent statements dealt with in cross-examination?

A

Police witness statements are hearsay and generally not admissible
But can become admissible if witness in box departs materially from the statement - minor discrepancies should be expected though

335
Q

What restrictions are there on cross-examination?

A

Upsetting a witness shouldn’t be done gratuitously and should never be done unless serves a clear and useful purpose
Judge can determine if a matter has been sufficiently explore and put time limits
Questions about victim’s general promiscuity/sexual behaviour not allowed without leave of court

336
Q

What is competence?

A

Whether witness is permitted to give evidence to court - they are if. person can lawfully be called to testify

337
Q

When is the D not competent to be a witness?

A

To be a prosecution witness - where there are multiple defendants, none of them can be prosecution witnesses for the others - proceedings must be completed before

338
Q

What is the test to determine whether children/persons with a disability are competent?

A
  1. Understand questions
  2. Can give comprehensible answers
    Age is not determining
339
Q

Where are deaf or speech impaired witnesses competent?

A

As long as they understand the solemnity of taking oath/affirmation - can give evidence using interpreters, writing, sign language etc

340
Q

Who are those that are not necessarily compellable?

A

D: for prosecution - can give evidence on own behalf but not compelled to do so
Children/persons with disability: if they’re competent, they are compellable
Spouses: can be to give evidence for their partner i.e. D and only for prosecution if partner charged with domestic violence against them, assault to a child under 16, sexual offence against child under 16, or attempts/aids/abets etc any of the above

341
Q

If someone compellable refuses to attend, what can happen?

A

They can be arrested and if they refuse to answer question, can be held in contempt

342
Q

What duty does the solicitor owe to the court?

A

To act with integrity: must not mislead/attempt to, your clients, court or others, either by own acts/omissions or allowing in acts/omissions of others

343
Q

Can summary-only offences be sentenced in the Crown Court, whether plead guilty or not?

A

No

344
Q

What is ‘deferring sentence’?

A

Court can defer sentence for up to 6 months: D allowed this time to prove to court D has changed or offence was a one off

345
Q

When can a D seek an indication of sentence in the MC?

A

Offence is either-way and court has accepted jurisdiction

346
Q

When can a D seek an indication of sentence in the Crown Court?

A

Either before PTPH or at any stage or proceedings before jury returns their verdict

347
Q

What is the role of the sentencing guidelines?

A

To decide on the appropriate sentence: determining the seriousness of an offence and the length of any sentence
Every court must follow any relevant sentencing guidelines unless court considers it would not be IOJ to do so

348
Q

How does determine seriousness of an offence?

A
  1. Consider D’s culpability in committing offence and harm caused, intended to cause or might foreseeable have caused
    Culpability: blameworthiness - role, level of intention/premeditation and sophistication of planning
    Harm: assessment of damage caused to V
  2. Whether either statutory threshold has been passed to justify imposing a custodial or community factor
349
Q

When can a court pass a custodial sentence?

A

When it’s of the opinion that the offence, or combination of offences, was so serious that neither a fine alone nor a community sentence is justified
Court mustn’t make a community order unless it considers the offence(s) was serious enough to warrant the making of such an order

350
Q

What is ‘credit for a guilty plea’?

A

D given credit on sentence if they plead guilty
Depends on stage when guilty plea entered

351
Q

What is totality?

A

When sentencing for more than one offence, court considers what total sentence should be
Must consider whether consecutive or concurrent sentences are more appropriate

352
Q

What non-custodial sentences are there?

A

Bind-Over: keep the peace for a sum of money that they forfeit if fail to do so
Absolute Discharge: lowest form of sentence to MC and Crown - no punishment
Conditional Discharge: specified period must be no more than 3 years
fines
Community Order: required D to comply with requirements to punish and/or rehabilitate a D in the community

353
Q

What are the requirements for a community order to be made?

A

Over 18 and offence punishable with imprisonment
Must avoid conflict with offender’s religion or interference with work/education
Have regard to period spent on remand or curfew
Must have at least one requirement

354
Q

What are discretionary custodial sentences?

A

Court can send D to prison provided custodial threshold is reached
Offence must be so serious that neither a fine or community order can be justified

355
Q

What is a determinate custodial sentence?

A

Immediate imprisonment
Prison sentence for defined period

356
Q

What powers does MC have to impose a determinate custodial sentence? And the Crown Court?

A

6 months: summary only
12 months: either way
Crown Court has unlimited powers subject to statutory maximum for each offence

357
Q

What happens where a D has been remanded in custody for any period prior to sentence with a determinate custodial sentence?

A

That period automatically counted towards their sentence
Time under curfew may also be counted if electronically monitored but not automatic - will count as half days for each day under curfew

358
Q

What happens where a suspended sentence is breached?

A

If they failed to comply with Probation Service or any community order requirement, D must be warned on first breach and then if they commit another one within 12 months of warning, breach proceedings instituted
If commit another offence during operational period, activate custodial sentence

359
Q

What is the slip rule?

A

MC have power to vary a sentence or set aside a conviction if in IOJ to do so
Not intended as an alternative avenue for D to reargue case - it’s a power to rectify mistakes in law and procedure
Most likely to be used where all parties agree there’s a mistake

360
Q

What are the 3 means of challenges magistrates’ court decisions?

A
  1. Appeal to Crown Court, by way of re-hearing (most common)
  2. Appeal to High Court, by way of case stated
  3. Application to High Court for JR of decision
361
Q

Where D complains that MC made an error of fact or mixed fact and law, where should D appeal? What is the procedure?

A

Crown Court
Notice of appeal lodged within 15 business days of sentence (for conviction or sentence appeal), then served on MC and prosecution
If notice served late, must be accompanied by application for extension of time, with reasons

362
Q

Where D complains MC made an error of law or acted in excess of their jurisdiction, where should D appeal?

A

To High Court by way of case stated

363
Q

Where D alleges unfairness, bias or procedural irregularity, where should D apply for appeal?

A

High Court for JR

364
Q

Can the prosecution appeal to Crown Court?

A

No

365
Q

What is abandonment?

A

Appellant may abandon thier appeal at any time

366
Q

What powers are provided to the Crown Court on appeal from the MC?

A

Can confirm, reverse or vary decision
Remit the matter with its opinion to MC
Make any other order court thinks is just

367
Q

Who can appeal by way of case stated?

A

Both prosecution and defence, only after final determination of proceedings at MC
Deadline is 21 days from date of decision

368
Q

What is the Crown Court’s version of the slip rule?

A

Power to rectify mistakes at sentence
Judge can vary or rescind a sentence within 56 days of it being made - must be the judge who passed the sentence

369
Q

How can one appeal against conviction or sentence from Crown Court?

A

Leave require to appeal to CoA
Notice must be served within 28 days of conviction or sentence, but can be extended

370
Q

What is a certificate of a trial judge?

A

In exceptional cases, the trial judge may certify the case as ‘fit for appeal’
If granted, leave is not required but need to comply with rest of appeal procedure

371
Q

What can an appellant do if leave is refused by the single judge of the CoA or granted on some grounds but not others?

A

Can renew the application for leae to appeal
Must serve the relevant form on CoA within 10 business days of receipt of single judge’s decision
Will be heard orally by full court

372
Q

What is the test on appeal for conviction, and for sentence?

A

Conviction: appeal allowed only if conviction is unsafe
Sentence: appeal allowed if D should have been sentenced differently

373
Q

What is a loss of time order?

A

CoA directs that some or all of the time spent in prison between date of lodging appeal and date of its dismissal does NOT count towards the appellant’s sentence
Imposed where application considered to be wholly without merit

374
Q

Can the CoA admit fresh evidence on appeal?

A

Yes if necessary or expedient in IOJ

375
Q

What is the age of criminal responsibility?

A

10

376
Q

If accused is under 16, who must attend the youth at all stages of proceedings? I.e. a Parenting Order

A

Parent or guardian unless unreasonnable
If 16 or 17, they may require a parent or guardian
Any breach by parent amounts to an offence punishable by a fine

377
Q

If a juvenile admits an offence to or in the presence of, a social worker or member of youth offending team, other than during the time that person is acting as the AA, what should be done?

A

Another AA should be appointed

378
Q

Who should be informed of the juvenile’s arrest?

A

Person responsible for the juvenile’s welfare, as soon as practicable
AA must also be contacted if not the same person

379
Q

What is the presumption regarding who deals with youth?

A

Youth court for nearly all offences, even indictable only

380
Q

Will there be a plea before venue/mode of trial in the youth court?

A

Generally no, unless offence capable of being a ‘grave crime’ or charged with an adult for an either-way or indictable-only offence

381
Q

What is the procedure if there is a plea before venue for a youth?

A

Youth asked to indicate plea
If not guilty, youth court considers whether, if convicted, it would be possible to get more than 2 years custody

382
Q

What is the grave crime test?

A

If one was an adult, would you get 14 years or more imprisonment, and then on specific facts, would youth get more than 2 years

383
Q

For dealing with allocation for youths jointly charged with adult, what is the process for guilty pleas?

A

Start in MC
Separate and work out where each one should be tried/sentenced

384
Q

For dealing with allocation for youths jointly charged with adult, what is the process for non-guilty pleas of summary-only offences?

A

Start in MC
Adult must stay in MC
Youth stays with MC for trial
Youth remitted back to youth court for sentence

385
Q

For dealing with allocation for youths jointly charged with adult, what is the process for non-guilty pleas to indictable only offences?

A

Start in MC
Adult goes to Crown Court
For youth:
- is it grave crime? Yes = Crown Court
- if no, apply IOJ test; yes = Crown Court
- If no, remit back to youth court for trial

386
Q

For dealing with allocation for youths jointly charged with adult, what is the process for non-guilty pleas to either way offence?

A

Start in MC
Deal with Youth First:
- Grave crime? Yes = Crown Court and adult automatically joins
- If no, allocation on adult
If adult sent/elects to Crown Court, apply IOJ test and if satisfied, youth goes to Crown, if not, Youth Court
If MC retains case, youth stays with adult

387
Q

For youths jointly charged with adults for specified offences, what is the procedure?

A

Goes straight to Crown Court after first hearing - don’t need to apply above

388
Q

What specified offences are there?

A

Homicide
Firearms with mandatory 3 year minimum sentence
Serious fraud or child case

389
Q

When is it in the interests of justice for youth to be sent to Crown Court?

A

Whether separate trials will cause injustice to witnesses or to case as a whole
The age of child or young person will be considered, their maturity and age gap between youth and adult
Relative culpability
Lack of previous findings

390
Q

For youth sentencing, what must the court have regard to?

A

The principal aim of youth justice system (prevent offending)
Welfare of child/young person

391
Q

What is the significance of age on sentencing?

A

Increase in age can impact max sentence available: 12, 15 or 18
It is age at date of conviction

392
Q

What possible sentences are there for youths?

A

Detention and training order (custodial)
Youth rehabilitation order (non-custodial) - like a community order - offence must be ‘serious enough’
Referral order (non-custodial)

393
Q

If 14 or under, what sentences can a child not get?

A

A youth rehabilitation order or detention and training order

394
Q

What is a referral order?

A

Requires an offender to attend each of the meetings of a youth offender panel and to comply for a period, with a programme of behaviour
Min term is 3 months, max is 12 months
Leaves youth with clean slate

395
Q

When is a referral order mandatory?

A

Young offender’s first offence
Young offender pleads guilty to an imprisonable offence and any connected offence

396
Q

What happens if a young offender breaches a referral order, or is convicted of another offence while subject to a referral order?

A

May be referred back to youth court who may then revoke it or order to pay a fine or extend length

397
Q

What options are available to the court where a child/young person breaches a YRO?

A

Take no action
IMpose a fine
Amend terms
Revoke and re-sentence

398
Q

When should a detention and training order be used for youths?

A

Only as a last resort as it’s custodial - ‘so serious that neither a fine/CO can be justified’
Only for youths convicted of an offence punishable with imprisonment for an adult

399
Q

When can a DTO not be imposed?

A

Any offender aged 10 or 11
Anyone aged 12-14 unless they’re a persistent offender

400
Q

What time length requirements are there for a DTO?

A

Min: 4 months
Max: 24 months
Consecutive DTOs can be imposed up to aggregate of 24 moths

401
Q

What is the overarching guideline for sentencing children and young people?

A

Term of custodial sentence must be shortest commensurate with seriousness of offence

SQE - Elmina M (9 decks)

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