Criminal Flashcards
1
Q
key points in a defence statement (draft)
A
a) simply just say defence (!! if there’s explanation for part of accusation, this is part of nature of defence)
b) state everything that is disagreed, not just the things you will challenged the CPS on
c) give explanation for both of a (if no person to say alibi just say he says he was at X place) (if explanation for part of accusation - lay it out)
d) this is where you expand on s76 and s78
!! if there is identification procedure being challenged, make sure to say that if it is admitted will be challenged under Turnbull
QUIRK: if gives explanation for accusation, say in a para that s36 adverse inference should not/cannot be raised
2
Q
quirks to remember about raising s76/s78 in defence statement (quirk)
A
1) every time want to challenge confession start w s76 (unreliable) and conclude saying thus substantial and significant breach so unfair (s78)
2) if challenging identification procedure under s78 always add para saying that if allowed will challenge under Turnbull
3) if def raised explanation for something say will challenge any adverse inferences that could be drawn
3
Q
code for interview procedure
A
code C
4
Q
code for ID procedure
A
code D
5
Q
s76
A
unrealibility
only for confession
MUST exclude
6
Q
s78
A
susbtantial + significant = unfair to let adduce
DISCRETION to exclude
7
Q
adverse inferences sections
A
s34: inference from silence when being questioned
s36: adverse inference to not answering about mark
s37: failing to account for particular place at particular time
s35: silence at trial when reasonably expected to raise defence/explanation
8
Q
s34 inference
A
remaining silence during interview
before being charged: failing to say something they later rely on
after being charged: fail to mention something could be expected to mention
–> need to have been cautioned for it to apply
9
Q
s36 inferece
A
not accounting for mark or object (or fingerprints!!) which the constable believes was caused by participating in the offence
–> needs special caution
–>arises even if def doesn’t raise a defence later (s34)
10
Q
s37 inference
A
not accounting for place or time
–> like s36 (and unlike s34), operates even if def doesnt raise a defence or any new facts later
11
Q
s35 inference
A
Def who fails to give evidence on his own behalf at trial may be subject to an adverse inference being draw by the court or jury
–> there is no obligation to give evidence, but court can draw inferences especially if its something def would be reasonably expected to answer
- will not apply if no case to answer
- will not apply if theres a medical reason that explains why its undesirable for def to give evidence (low mental age is not enough)
12
Q
what’s a goodyear indicaiton
A
indication of sentence in CC PTPH
in MC is just called indication
12
Q
CJA (criminal justice act)
A
hearsay and bad character ev
13
Q
CJPOA (Criminal Justice and Public Order Act)
A
adverse inferences
14
Q
what evidence is usable
A
must be related to the facts in issue and admissible (not bound to s78 PACE 1984 or s76 PACE 1984)
15
Q
how does burden work
A
usually only claimant has legal + evidential burden beyond reasonable doubt
If defendant is raising a defence, has evidential burden on balance of prob (i.e only need to give evidence)
EXCEPT where def is raising defence of INSANITY and DURESS where def also had legal burden (balance of probs)
16
Q
what should you do to challenge identification evidence?
A
1) s78 PACE 1984
2) Turnbull guidelines
1) admissibility of X will be challenged by virtue of s78 PACE 1984 on the grounds that it contravened procedural requirements. LIST THEM. This is a significant and substantial breach which would make it unfair to allow the CPS to adduce such evidence.
2) If X is ruled to be admissible, the quality of the evidence will be challenged following the principles of the Turnbull Guidelines
17
Q
when do turnbull guidelines apply
A
1) witness gave evidence and identified defendant (either formally or informally, or def was previously known to them)
2) def identifies that they were at the scene or that they were seen
18
Q
when do Turnbull guidelines NOT apply
A
1) def admits being at the crime scene but has a defence
2) def admits being at the crime scene, argues misidentification but no one else matches description
3) witness is describing the def as criminal but no direct evidence - no other ID procedure or evidence
19
Q
s78 PACE 1984
A
provides court with DISCRETION to exclude evidence if the way it was obtained did not follow procedural requirements and such breach was so substantial and signficant that it would be unfair to allow the prosecution to adduce the evidence
20
Q
code for interview
A
Code C
21
Q
code for id procedure
A
code D
22
Q
what’s the point of the Turnbull guidelines
A
it requires the court to assess the conditions and the quality of the sighting to basically indicate how much weight should be placed on it
(whats their relationship, where did it take place, what distance, obstructing view?, what time of the day)
23
Q
what’s the Turnbull warning
A
ask jury to closely take into consideration the factors cited when considering the quality of the evidence and remind them that it is a notoriously unreliable and should exercise caution
- if quality not good: also draw attention to the flaws in the identification and direct them to the other evidence available
- if no other evidence: dismiss case
24
how does turnbull procedure vary in each court
MC: its the def's solicitor that draws magistrates' attention to it in closing speech
CC: the judge will assess the quality and THEN direct the jury (the jury doesnt assess anything)
25
pro and con of making a written statement and no answer interview
pro: as long as you account for everything, rules out possibility of raising adverse inference from failing to mention something should have/give explanation + prevents inference against late fabrication
con: does not prevent inference that thought defence was weak and would not stand up to scrutiny
26
is saying that your silence is from solicitor's advice rule out every adverse inference?
no, court can still draw adverse inference if its something that you would reasonably be expected ot mentioned (only blocked if reliance on advice to stay silent was genuine and reasonable)
27
can court raise adverse inferences from silence before obtaining legal advice?
no
28
if def stays silent because of legal advice can police ask what the advice was?
no, unless the def says WHY the advice was given or something about the advice, in that case the priviledge is waived
29
what's the special caution needed before any inference section
1) what the offence under investigation is
2) what fact the suspect is being asked to account for
3) that officer believes suspect may have been involved in offence
4) that court may raise adverse inferences
5) that a record is being made of the interview
30
how to challenge admissibility of adverse inferences?
s78 PACE 1984
claim entrapment only by inviting court to think of it as an abuse of process
31
general rule of hearsay
not admissible (dif from civl which is admissible if its to prove truth of matter, unless inadmissible opinion or irrelevant)
32
how to use hearsay
needs to fall under one of the conditions of s114 CJA 2003
most relevant:
1- falls under a statutory provision
2- preserved by rule of law (made by def + res gestae)
3- all parties agree
4- its in the interest of justice
33
is a diary hearsay?
NO! because was not produced with the intention for someone else to hear it/act on it
34
what are the statutory provisions to adduce hearsay
s114(a)(e) CJA 2003
1- witness is unavailable
2- its a business document
35
what are the grounds to adduce hearsay if witness is unavailable
s116 CJA 2003
1- witness is dead
2- witness is outside of country and impracticable to summon it
3- witness cannot be found and all practical steps have been taken
4- witness refuses to testify through fear (in connection or not of the subject matter) and the party has obtained leave of the court (+ its in the interest of justice)
5- witness is unfit to be a witness because of bodily or mental conditions
--> and overall its in the interest of justice to adduce it
--> this only applies to first hand hearsay!
36
imagine you have a witness coming to trial and they die the day before - can you adduce the evidence as hearsay??
DEPENDS because the gateway 'witness is dead' only applies to first-hand hearsay
so if it was their info, yes
if it was repeated from someone else, no
37
what satisfy the ground s114(a)(e) CJA 2003 of 'business and other documents' to adduce as hearsay
1) can be multiple hearsay
2) was created or received in course of business, trade, profession
3) the person who created (supplied the info) had personal knowledge of the matters
4) each person to whom the info was supplied received it in the course of trade, business, profession...
= this allows receipts, ledgers
** further requirement if document was PRODUCED for the purpose of criminal proceedins!
38
how to adduce hearsay if the doc was produced for the purpose of criminal proceedings?
1) needs to satisfy the requirements for adducing business and other docs (personal knowledge, produced in course of bsiness, supplied to everything in course of business)
+
2) witness cannot attend court because either cannot be reasonably expected to recollect the events
39
how do you adduce hearsay if it was business doc prepared for the purpose of criminal proceedings?
1) need the leave of the court
2) need to serve notice on CPS with intention to use
40
what are the common law grounds to adduce hearsay evidence?
preserved by s118 CJA 2003
1) def confession (even if mixed statement)
2) made by someone in res gestae (made contemporaneously with the event and spontenously)
3) all parties agree
41
how to decide whether hearsay adducement is in the interest of justice?
Apply s114(2) CJA 2003 guidelines
(generally not in the interest to admit anonymous witness evidence)
1) how valuable is it for understanding matter in case
2) what other evidence has been or can be given
3) how important is it in the context as a whole
4) how reliable is the maker
5) how reliable is the evidence
6) can it be given in oral evidence? why not?
7) how difficult is it for other party to challenge statement
8) how much would it prejudice the other party?
--> overall, usually say doesn't cary much probative value but would have an adverse effect on the case
42
hearsay checklist
1) fall within s114 CJA 2003
2) be either statutory or common law
3) statutory is for witness unavailable (5 options) only first hand, or business docs + made for purpose of criminal proceedings (first or multiple)
4) common law is confession, res gestae or all parties agree
5) must be in interest of justice
43
how do you admit hearsay evidence?
1) needs to fall in one of the grounds
need to give notice: witness unavailable (s116), interest of justice, multiple hearsay, written witness statement
dont need to give notice: business doc and common law (confession evidence + res gestae + all agree)
--> will usually have pre-trial hearing to deal with disputes about admissibility
MC: case management or pre-trial
CC: PTPH or specific pre-trial hearing
44
what is a confession
anything the def says that is against his own case
made to anyone - doesnt have to be someone with authority
--> its an exception to the general rule that hearsay is not admissible, because confession is essentially admissible
45
how does confession of 1 def in 2 def trials affects the other?
- if confession made before trial: not admissible against other def, only against themselves
- if def has plead guilty or makes confession at trial, admissible against himself and the other def
46
how to challenge a confession
1) s76 PACE 1984 (unreliable)
2) s78 PACE 1984 (susbtantial and significant breach + unfair)
47
how to exclude confession by s76 PACE 1984
1) did not make confession (person mistake)
2) made confession but was obtained by oppression or by a way that casts doubt on reliability
--> there needs to be a link between breach and unreliability
--> if this is the case, court MUST EXCUDE unless CPS can DISPROVE beyond reasonable doubt
48
main diffrence between s78 and s76
s78 discretionary, s76 MUST
s76 just for confession (unreliability)
s78 unfairness
49
how to draft s76
1) X should be excluded by virtued of s76 this is because of the things said and done by the police officer cast doubt on the reliability of the evidence. Namely XXX (long pauses, didn't give water...)
(additionally, admissibility of the evidence will also be challenged under s78 on the grounds that the things said and done mentioned above amount to such substantial and significant breach of procedural requirements of Code C that would be unfair to allow CPS to admit it
50
additional (v specific) ways can challenge confession under s78
when def claims police did not record confession accurately, asked def to sign/contest record of their comments or failed to put confession to def at the start of interview
51
whats the burden like when challenging confession evidence
def has evidential burden
CPS must persuade judge beyond reasonable doubt that evidence ought ot be included
--> even if admisisble, def should still try to attack credibility under cross-exam
52
in what way (type of hearing) challenges to confession evidence is done?
MC: s76 voir dire
s76 + s78 voir dire
s78 at the close of CPS case or at the end of trial
CC: s76 voir dire
s76 + s78: voir dire
s78: voir dire
53
whats the effect of an confession being held inadmissible on the facts discovered as a result?
they are not ruled out if there is no link between breach and discovery (illegal entry and find heroin = admissible because heroin was there regardless. Told someone found their fingertips and they confess, not admissible because confession just because of pressure)
but CPS must not tell court how the facts were discovered
54
what is bad character evidence
previous convictions but also anything that shows evidence or disposition towards misconduct
55
how can the def raise bad character evidence of a CPS WITNESS
1) both parties agree
2) important explanatory evidence needed to understand other evidence and has substantial value for understanding case as a whole (s100)
3)substantive probative value regarding a matter in issue and its important to undertsand the case as a whole
(matters in issue: credibility of witness, witness has propensity to do something)
--> likely to do this to seek previous conviction to show witness is lying, lacks credibility because has been charged with offences where lying was key element or have been charged with offence where pleaded not guilty)
!! where thye have a previous conviction regarding dishonesty, can bring them regardless of whether they involve untruthfulness!!! (this is different for def) (eg theft is dishonest but not untruthful)
56
section to adduce bad character evidence
s101 CJA 2003
57
s101(c) CJA 2003
CPS adduce evidence because important explanatory evidence
a) jury/magistrates would find it impossible or difficult to understand case
b)value of evidence for understanding case is substantial
--> court has discretion to allow or not
57
how can the CPS raise def's bad character evidence?
s101
a) all parties agree
(b) raised by def himself)
c) important explanatory evidence
d) relevant to an important matter in issue between def and CPS (propensity)
e) this is for co-def only
f) to correct false impression given by def
g)def made an attack on another persons' character
58
s101(d) CJA 2003
CPS adduce bad character evidence because its relevant to an important matter between cps and def, namely
--> propensity makes def more likely to have committed offence
a) show propensity to commit offences of the kind he is charged (same description = same terms) (same category = theft offences) (factual similarities)
b) propensity to be untruthful (offence involving actual untruthfulness (dishonesty eg in plain theft is not enough) or plead non-guilty and found guilty
--> offence being spent or big lapse of time usually annuls this
--> court MUST exlude if inclusion would have such adverse effect on fairness that it ought not be admitted (jury will convict solely based on past conviction, not probative value, more prejudicial than useful, because used to support and otherwise weak case)
(and if don't will challenged under s78)
59
what's court approach to s101(d) and s101(g)
they MUST exclude it if admitting it would have such an adverse impact on the fairness of proceedings --> 'it is likely that the prejudicial effect of the jury finding out about such X would outweight the probative value of such X determining guilt'
--> this is because weak case otherwise, jury would prosecute just based on this evidence, no probative value, have been spent, no factual similarties
--> if its a theft offence, say he was dishonest but NOT untruthful
60
s101(e) CJA 2003
co-accused can adduce bad character evidence to show propensity to commit offences of the same kind or to be untruthful
61
which gateways must the court exclude evidence if found unfair? re bad character evidence
101(d) and 101(g): propensity and attacking anothers characters
for the rest, its up to court's discretion, but def could still challenge it under s78 and also in cross-examination
62
what are the guidelines when establishing propensity (s101(d)) for bad character ev
1) does def's history of offending show a propensity to commit offences?
2) does that propensity make it more likely they committed this offence?
3) is it just to rely on convictions of same description/category keeping in mind overriding principle of fairness?
63
relevant situations that might make propensity (same description/character)
- same description = exactly the same offence
- same category= same group (theft, sexual offences)
- otherwise factual similarities
--> if fewer number of convictions, less likely to show propensity unless there's a specific distinguishing factor (eg always using a bottle)
- untruthful: its about manner in which the offence was committed (not necessarily because offence has dishonesty in MR - need to have actively sought to mislead or deceive person)
64
s101(f) CJA 2003
prosecution can raise this to correct a false impression given by defendant
- if def makes a false/misleading impression (eg you say i would never do this im a good christian but you have previous convictions or bad things)
65
s101(g) CJA 2003
prosecution can adduce evidence on this ground if its because the def attacked another person's character
- attack can be anytime and literally on anyone
- essentially because attacking is evidence they have committed offence or that they behave/dispose to in reprehensible way
--> court MUST exclude if adverse effect on fairness of proceedings
66
what do you say when you want court to exclude bad character evidence (s101(d)(g))
it is likely that the prejudicial effect of the jury finding out about X would outweigh the probative value of such conviction in determining X's guilt
--> because:
a) weak case
b) relying solely on this evidence
d) its spent
67
what happens if bad character evidence is found to have been contaminated?
in CC judge can direct jury to acquit def/retrial
not the case in MC
68
what's the procedure for admitting bad character evidence
1) needs to fall under one of the s101 CJA 2003 grounds
2) CPS must give notice to court and all parties(prescribed form + written record of previous convictions seeking to adduce)
- CC and MC will impose limits
3) def denies: applies to court and notifies all parties
69
how much time is given in preparation of trial
8 weeks but 14 if will be using expert
--> this is given at the case management hearing, which is when def gives plea (and for either way offence, its after plea indication but before venue allocation)
70
what are the def obligations to serve on cps
1) wanting to call witness: must serve CPS with notice, setting out name and details of witness (MC+CC) (= you dont serve the statement, like in civil, UNLSS its an expert)
b) should do a witness summons (write to court requesting) to ensure witness will come
2) defence statement: must serve it in CC, discretionary in MC (28d from IDPC (failure can lead to adverse inferences)
71
what happens if the witness cannot attend court
should serve a s9 statement = allows you use a written statement in court, instead of oral evidence
- signed and dated
- with statement of truth
- served on other parties and no one objects within 7d
- contains evidence which would be admissible if giving oral evidence
- only contains evidence NOT in dispute
72
do you have to serve witness statement on CPS?
no - only witness notice
unless the witness is an expert, then yes
73
whats the timetable of an indictable offence?
1) first hearing at MC to just for venue allocation, the def will NOT indicate plea (unless they want to?)
2) crown court PTPH or a preliminary hearing in CC is set
a) def is remanded in bail/custody until then
b) preliminary hearing should be within 10business days from MC hearing
c) PTPH within 20 business days from MC hearing --> this is where def can enter plea and if plead guilty can be sentenced immediately or adjourned
+ can ask for indication of sentence
74
what happens to a def being sent to CC but also have a summary offence?
the summary offence will also be trialed in the CC if
a) punishable with imprisonment or driving ban
b) related to same facts or series of offences
--> if def pleads guilty to SO: CC can sentence but only to the extent of the MC powers
--> def pleads not-guilty to SO/acquitted from either way offence: SO goes back to MC
75
whats the point of PTPH
its the Plea and Trial Preparation Hearing
its effectively the first hearing in the Crown Court (if no preliminary hearing) where the def will enter his plea and if guilty sentenced immediately or postponed
the def can ask for a goodyear indication of sentence, and if following which the def pleads guilty, the judges indication will be binding
--> if def has more than 1 charge = arraignment = jury not told about the ones he plead guilty to + sometimes charges can lie on file
76
why do preliminary hearings sometimes take place
only if
1) there are case management issues that need to be resolveed
2) trial is likely to exceed 4 weeks
3) desirable to set an early trial date
4) def is under 18
5) likely to be a guilty plea and the def could be sentenced at preliminary hearing
77
whats arraignment
in PTPH when def has been charged with several counts, he indicates which he pleads guilty to and not
- jury not told of the ones he's plead guilty
- CPS may agree for some counts to lie on file = can be restarted at later date but v unlikely + need to ask judge's permission
78
what's the CPS intial disclosure duty
any material which might undermine the CPS' case or assist the defence
79
what can def do if they think CPS disclosure is incomplete?
apply for specific disclosure, but must have filed defence statement
80
can CPS refuse to disclose info.
only if they plead its within public interest immunity, but will have to apply to court for it (reveals identity of police, relates to matters of national security or intelligence, relates to child witnesses, reveals techniques)
81
when should the defence statement be served?
- MC: 10 days from CPS disclosure
- CC: 20 d
82
what does a defence statement include
- particular defences
- matters of fact the defendant takes issue with
- facts and law defence will rely on
- information about alibi witnesses
--> adverse inferences can be drawn from faults (incomplete, inconsistent, late)
83
trial procedure in MC
1) CPS opening statement
2) CPS witnesses (under 14 no aoth)
3) possible submission of no case to answer
4) def testifies (must otherwise can't call in def witnesses)
5) CPS MAY make closing speech only if def is represented or has introduced external evidence
6) def makes closing speech (choice - but usually does)
7) usually bench of 3 magistrates who decide on verdict, but need not be unanimous
84
trial procedure in CC
1) jury sworn in
2) CPS opening speech
3) evidence
4) voir dire?
5)no case to answer?
6) def's case
7) CPS closing speech
8) def closing speech
85
gailbraith test
when def submits that CPS has no case to answer
1) failed to put forward evidence to prove essential element of alleged offence
2) evidence produced by CPS has been so discredited in cross-exam or so unreliable that can't safely convict upon it
- judge himself decides this in CC
86
bail presumption for def convicted but not yet sentenced?
in favour of bail!
87
jury decisions
always 1 or 2 can disagree, can never be lower than 3
11-1 or 10-2
if 1 dismissed:
10-1
if 2 dismissed:
9-1
if 3 dismissed:
need unanimity
88
def's compellability
for CPS: not competent and not compellable
*unless formally acquited, plead guilty and give evidence against co-accused
for co-def: competent but not compellable
for themselves: competent but not compellable
89
spouse of def compellability
CPS: competent but not compellable (unless divorce) UNLESS its a violent or sexual offence to the spouse or someone UNDER 16 (16 on the dot no))
co-accused: competent but only compellable in same circumstance as CPS
for def: compellable
--> if divorce before trial = like they were never married
90
who may request special measures
- under 18
- mental or physical disorder/impairment
- fear or distress
- victim in sexual offence
- witness in specific gun and knife crimes
need court's approval
91
example of special measures
- screens
- give evidence outside court through TV link
- clearning people from court
- witness examined in chief and play recording in court
- communication aids
- intermediary
92
what must court do if using special measure
warn jury that they are in place and should not in any way prejudice against def or give rise to any inference/suggestion that def behaved improperly towards witness@
93
must judge always follow sentencing guidelines?
not if its against interest of justice
94
checklist sentencing
1) harm
2) culpability
3) aggravating factors (+ statutory aggravating factors)
4) mitigating factors
5) did def assist CPS
6) reduction for early guilty plea
7) totality principle
** court must always give reasons for sentencing + can impose concurrent sentence even if dont arise from same incident
95
purpose of sentencing
- punish
- deter
- rehab
- protect public
- reparations to victim
96
purpose of SG
to ensure court passes sentence in structure and consistent way (England and Wales)
97
statutory aggravating factors (SC)
- offence committed whilst on bail
- offence motivated by race/religion/sexual/disability
- previous convictions
98
what are the early guilty plea reductions
1st hearing: 1/3
PTPH: 1/4
up to 1/10 at first day of trial
99
structure plea in mitigation of sentence
1) harm
2) culpability
3) statutory mitigating and aggravating
4) personal mitigating factors of def + circumstances of the offence that might mitigate
5) early plea reduction
6) totality principle ?
7) suggested sentence
100
whats a pre-sentence report
its available to adults sentenced in MC
includes all CPS facts and suggested sentence, basically to aid judges in sentencing to see whether custody threshold has been passed (particulalry importnat because should only give custodial sentence if lower sentence not enough) + length of sentence + what requirements should be imposed on communiy order
--> court's discretion to use it, can ignore it
--> can request it anytime from first hearing
101
what does it mean to pass the custodial threshold
important test to see whether a custodial sentence should be imposed - aka only if lower sentences (fine/community order/suspended sentece) are not enough
BUT passing the threshold doesn't automatically make it a custodial sentence
102
types of sentences available to court
1) discharge
2) fine
3) community sentence
4) suspended custody
5) custody
103
breach of community sentence
1) warning
2) if another one within 12m and no reasonable excuse, must appear before court
* court has discretion as to what to order:
- maintain the same
- more onerous terms
- revoke order and impose custodial, even if original offence was not custodial
104
breach of suspended sentence/how it works
can be imposed if custodial sentence is between 2w and 2y - can be suspended between 6m and 2y (have an operational period and supervision period, but means operational period might be longer than og custodial sentence itself)
breach during operational period: sentence can be reactivated and custodial period will be served
1) og custodial sentence takes effect
2) custodial sentence takes effect for less time (uncommon)
3) amend order making it more onerous
4) extend operational period of original order
(could never extend custodial period though but if you get custody, this new sentence will be CONSECUTIVE to your original suspended sentence)
MC: MC or CC
CC: CC
105
big issue of breaching suspended sentence
might be imopsed a custodial sentence (same period as og or shorter) and then suspended sentence continues valid but runs consecutively (ie once youre out)
otherwise might just increase operational period of suspended, or make terms more onerous
106
appeal in MC to CC
dont need to ask permission, have right for full re-hearing
+ can call any new evidence without needing permission
SENTENCE: excessive
CONVICTION: error of fact or law
--> 15 days from day of sentence
--> no presumption of bail, but def can apply to CC for such
--> will need new legal aid
CC: reverse, affirm or impose any sentence within MC powers
107
appeal MC to HC
by way of case stated
- both def and CPS can appeal (but not much point for def, quicker in CC)
--> magistrates were wrong in law or have acted outside jurisidction
- have 21d
- no evidence from witnesses, just legal arguments from statements of case
HC: reverse, affirm or remit back to MC to be heard again/with order to convict or acquit
108
CC to CoA
both def and CPS
need permission!
- has 28d from conviction
CONVICTION: unsafe (requires major abuse of process) (incorrect directions to jury, innapropriate intervention, errors when summing up)
--> if lacks merit, judge can make order for loss of time
--> new evidence: needs to have good reason why wasant used at trial
SENTENCE: wrong in law, wrong in principle, unsafe, manifestly excessive, wrong approach
- needs certificate
- appeal confined to legal arguemnts
CoA cannot increase sentence
CoA: quash and acquit, quash and order retrial, find it guilty and re-sentence, dismiss appeal
109
what to focus on if youre distinguishing from previous offence (saying shouldnt admit bad character evidence - propensity)
1) when the offence occured (day? night? what were the circumstances)
2) one used weapon of offence the other didn't?
3) did one have witnesses and the other not?
4) is the level of injury sustained by each victim similar?
110
flag if someone is trying to introduce bad character evidence on the basis of reputation
! that make no reference to ever observing the defendant being violent
a generalised accusation of being a trouble maker, without actually witnessing any scene; does not demonstrate propensity to commit offences of violence
-
111
big flaw when trying to not get bad character evidence introduced
saying its not relevant because the def was never actually convicted - this is terrible faux pas because bad character evidence is not just about conviction but also misconduct!
so if someone is claiming misconduct, lack of conviction is irrelevant! you should find reason why 'misconduct' doesnt prove anything (maybe because accuser never saw actual events and its just reputation)
112
previous conviction showing propensity to be untruthful
it needs to be about MANNER IN WHICH OFFENCE WAS COMMITTED
AND
PLEADING NOT-GUILTY BEING GUILTY
113
key thing to remember if CPS want to adduce previous conviction for propensity but you had actually pleaded guilty
good to bring this up - you didn't plead non-guilty and then was found guilty (untruthful) but rathr you were 'convicted on your own' (= not untruthful)
114
how to conclude when you don't think such evidence demonstrates propensity to be untruthful
- say very little probative value in determinining propensity...
- but that admitting it suffers the risk that jury will convict on basis of this evidence alone and not the actual merits of the case
115
application to introduce bad character evidence - what do you write in 'facts of misconduct'
1) what it was (reputation, convicted of X, Y years ago)
2) this will be used to demonstrate
a) propensity to be untruthful
b) commit offences of (violence)
c) commit offences of (violence) by (say details eg - hitting victims head, using a knife, using a fire gun)
116
what to include in def's written statement at police station
(given if do a no comment interview) (say no more than what's necessary to avoid adverse inferences)
title it: Written Statement of X
1) details of arrest (when, where, what's the alleged charge)
2) give most relevant details
3) account for any marks or objects you may have on you
4) account for why you were at the location
5) account for any significant statements you may have made (maybe the PC was mistaken)
6) pre-empt any questions they may ask and answer it
117
what not to include in written statement at Police station
- irrelevant stuff
- previous convictions (you don't want to hand more evidence to the police) or certain conducts (like if they were consuming alcohol, previous fighting history etc)
- too many details about people like where they work and their name (you don't want police to go question them and check your story too easily)
- do not say why they're giving this statement
118
draft grounds for appeal (formal)
regina v (def's name) (refer to him as Appelant in doc)
title: grounds of appeal
INTRODUCTION
set out details of conviction/sentence being appealed (date, court, before which juge, indictment number. what were they convicted at at which count (unanimous, 2/3..)
SUMMARY OF FACTS
- date was identified by victim in ID parade
- interviewed and confessed
- briefly state the defence
- state whether Applicant gave evidence in court or not
SUMMARY OF GROUNDS
The Applicant applies for leave to appeal against X on the ground X in that the learned Judge:
1. say all the things judge did bad
2. errer in directing jury burden of proof
3. inadequately...
4; wrongly directed jury...
GROUND 1 (and so it goes)
- re write which ground it is (erred in directing...)
- summary of facts relevant (Judge said... (quote it))
- say why its wrong in law and what's the issue (leaves open the possibiity that jury thought... In that sense verdict is unsafe-)
119
does the judge tell the jury if they found confession admissible
no ! should not tell jury if they think its admissible
should say its for the jury to decide its evidential value, if any (not if they believe in it or not)
120
do the jury have to decide whether they believe in confession
no, but whats the evidential value, if any
judge should not say if its ruled admisible
121
whats wrong in judge telling jury 'prosection started being required to prove guilt'
omits facts that has to be beyond reaosnable doubt - risks that jury finds def on balance of probabilities = unsafe
+ high risk that jury would think at some point Applicant would have burden of proving its innocence
122
what's wrong with judge telling jury 'def needs to prove its defence of alibi'
it doesnt - it just has evidential burden which shoul dbe mentioned its discharge when give evidence
high risk of thinking def needs to prove their defence, unsafe verdict
123
what to remember when appealing on grounds of unsafe of judge's directions
standard of proof is different to burden of proof!!!
standard = balance of prob/beyond reason
burden= who has it
often judge errs in both!!! make it 2 separate grounds for appeal
124
draft application to refuse introducing hearsay
go through the interest of justice s142 CJA 2003 guidelines
1) probative value in proving involvement is not high
2) there is direct evidence from X who can give evidence and we can test it as opposed to the hearsay one
3) its not important - fairness of admitting untested evidence outweighs proseuctions's desire to put evidence before court
4) say why its not reliable
5) focus on amount of difficulty in challenging (even if oyu mention in other parts as well)
6) contended that admitting would be extremely prejudicial - unfair to put def in pisition of having to deny it, given the unreliability
+ further, ask to exercise discretion under s78 adverse effect on fairness
+s126(1) CJA 2003 case for excluding substantially outweighs case for admitting it
125
s126(1) CJA 2003
exclude hearsay
126
draft basis of plea
R v def
title: BASIS OF PLEA
BASIS
def pleads guilty to charge XXX. However, def disputes XX
PLEA
The following basis of plea is offerd
1.
2.
3. The defendant is very sorry for his actions that evening and also accepts that ...
127
how to finish basis of plea
'The defendant is very sorry for his actions X and accepts that he shouldve (helped)'
sign:
date
defendat
defendant's legal advisor
prosecutor
128
what are the appeals the CPS can d
1) by way of case stated to High Court or Supreme Court (21d, issue in law or out of jurisdiction)
2) from the CC to the CoA (jury acquitted defendant but judge made termination on evidential rullings which effective ended trial/significantly weakned CPS case) + (appeal sentence on grounds was unduly lenient)
3) from High Court to Supreme Court (by way of case stated)
need permission for all
129
CC appeal to CoA
1) conviction if acquitted because judge rullings weakened case
- retrial in CC
- unless its murder or drug or agggravated or sexual offence, then CoA can quash and order retrial
--> need leave of AG and must be offence triable on indictment or if its either way offence, CoA has given permission
2) sentence: unduly leniet (CoA willl quash and pass their own, within CC's powers)
need permission
130
what juvenile cases MUST be sent to adult court
1) homicide (CC)
2) firearm offence juvenile 16 over (CC)
3)charged jointly with adult = in CC (although sentencing normally remitted to youth court powers)
131
in what cases MAY a juvenile be sent to adult court
1) grave crimes (robbery, rape, sexual, s18 GBH) for which an adult could receive a 14y sentence - if youth court considers their max sentence (24 months detention + training order) to be insufficnet
3) violent/sexual offences, if juvenile is dangerous offender
4) charged jointyl with adult and its in the interest of justice
132
youth court max sentencing powers
24m detention + trainin gorder
133
what happens if juvenile turns 18?
if turns 18 before 1st court appearence, MUST go to adult court
if turns 18 during proceedings, magistrates can keep case and use adult sentencing powers or send it to the adult MC
134
how do grave crimes alllocation work for juveniles
1) indicate their plea at the youth court
2) if guilty, youth court sends them to adult court for sentencing
3) if not-guilty, youth court decides if they have jurisdiction to deal with the case (ut juvenile has no power of election)
135
what are the bail options for juveniles
1) local authority: MUST if they are UNDER 12
2) youth detention accommodation: presumption is that juveniles go to local authority, but will be sent here if:
- 12-17
- have legal rep
- offence MUST be violent or sexual assault where addult would be sentenced 14y
- necessary to protect public from death or serious personal injury
(need to satisfy all criteria)
136
what's the aim of the youth court
prevent reoffending and safeguard welfare
+ more individual approach in sentencing; although still guidelines
137
types of sentences that can be imposed on youth
1) youth rehabilitation order = like a generic community order, up to 3y
2) Referral order: MUST be made when J pleads guilt + potential custodial sentence + never convicted before
J is then referred to Youth Offender Panel and agrees to Youth OFfending Contract
3)Detention and Training Order
- only type of custodial order that can be imposed
- must state why YRO is not appropriate
- only on 12 above and must be PYOs
- pre sentence report must specifically address custody as possible
- held in detention for half then released under supervision
138
what's the consent required in juveniles ID procedure
under 14: just need from parent
over 14: parent and J
mental condition: from J in presence of parent
139
can police delay juvenile's right to inform someine?
no
140
who authorises detention
custody officer - should not be involved with investigation
141
can items be confiscated when you arrive at police station?
yes if reasonably believe they may be used in evidence or may cause injury, damage, harm evidence or aid escape
142
police's right to delay legal advice
need superintendent
up to 36h if reasonably believe exercising right will harm another, alter someone, hinder recovery of property
- must be in writing + only for indicatable offence
143
can police delay right to inform someone of arrest
yes, inspector or higher
for 36h if reasonably believe exercisign right will alert someone, harm someone, hinder recovery of evidence
can be oral but made in writing as soon as practicable
144
review clock
6h after being detained, then every 9h
--> by inspector or above, not involved in investigation
145
detention clock
1) voluntary attended: when youre detained
2) charged outside or came from bail: when you arrive at the station
146
what can solicitor inspect when arriving at the station
detention log
custody record
147
who can remove solicitor from inerview
superintendent and above + give reasons + stop interview until they find a new one
148
whats the exception of having to show 8 other people in ID procedure
12 if its photos
12 if there are 2 who are similar
149
test for legal aid
1) interest of justice test (automatically satisfied in CC)
- lose my liberty
- lose my livelihod (employment-
- damage to my reputation (certain jobs and no previous convictions)
- substantial q of law
- not understand proceedings (mental/phys disability, age...)
- witnesses needed
- expert cross-exam
- someone else's interest (need to cross examing claim/victim of CPS)
--> can be appealed
2) means test (universal credit, income support, state pension credit, under 18 automatically satisfy)
- will need to send CRM15 + evidence (pay slips; tax returns, bank statements, mortgage statements) --> takes into consideration income and expenses but not capital
--> cannot be appealed (but can re-submit)
150
what happens if a def got legal aid in MC and then case is sent to CC?
order will automatically be extended to cover CC proceedings
151
diff between Legal Aid in CC and MC
MC: totally covered
CC: might be asked to contribute towards their costs
152
what basically happens at first hearing
1) charge read out; and any past convictions
2) classification of offence
3) initial prosecution details (unless its indicatable offence! then no need, first hearing literally just sending it to CC)
4) indicate plea + can ask for indication of plea
153
whats the quirky thing about theft in allocation
low value theft (under 200) usually summary but def can still elect!
154
what's the totality principle
wants to ensure that when being sentenced for more than one offence, the overall sentence should reflect all offending behaviour and overall harm and culpability, ensuring it is just and proportioante
155
how much evidence should the CPS disclose in IDPC?
depends
- if def was in custody before hearing, only need to give criminal record and summary of circumstances
- if def was released on bail before first hearing, also need an account of interviews, written witness statement and victim impact statement
156
what happens if def is charged with 2 offences (or co-def) and one go to the CC?
must go as well
157
when can CPS appeal bail decision?
if its an imprisonable offence only
- to the CC
158
breach of bail condition
not criminal offence
- magistrates will issue warrant for arrest
159
failure to attend court/absconding
criminal offence
- warrant for arrest
- need genuine explanation and also need to make sure they attend/surrender as soon as practicable
160
appeal not getting bail (def)
MC: can do another full application in next hearing (notify CPS+ court 24h before) but any further need new facts/law
- once get certificate of full argument, can appeal to the CC (judge probs hears it in chamber)
CC: can still make the same as MC but in the CC however probably quicker to go straight to judge's chambers and then wait for PTPH where you can appeal at the hearing
161
how to exclude co-def confession.
s76 (unreliable/oppression)
162
how to exclude confession done outside police station
s78!! quirk
