Criminal

Question 2

definition of common assault

Answer 2

Intentionally or recklessly (subjective) cause another person to apprehend immediate (or imminently) and unlawful violence
S39 CJA - legislation but also comes from common law
Mens rea - Intend to cause victim to apprehend harm or be reckless as to apprehension occurring.

Question 3

What does and doesn’t amount to assault

Answer 3

Does - silent phone calls. Failure to say about something that would cause assault eg needles in pocket. Not necessary to feel fear to apprehend, rather an expectation.
Doesn’t -if does not apprehend and if not unlawful violence

Question 4

definition of battery

Answer 4

Actual intended use of unlawful force to another without consent
MR - Intended or was reckless as to touching applying force to the victim

Question 5

Act must be unlawful, what isn’t and what unlawful acts are implied as lawful?

Answer 5

1) jostling on train, sports, surgery, rough horseplay
Implied = everyday shaking of hands
Express= opening arms for cuddle and visiting doc check up

Question 6

ABH - definition

Answer 6

AR - intentionally or recklessly inflicts physical force upon another
Harm must be more than transient or trifling and can include hair cutting and loss of consciousness, broken nose.
MR - same as for assault or battery
Max 5 years

Question 7

Is Psychiatric harm ABH?

Answer 7

Yes but not mere emotions
Depression is but only where falls short of serious injury.
Need not be foreseen just need MR in respect of assault or battery

Question 8

malicious wounding or inflicting GBH s20- definition

Answer 8

AR -
Either wound or inflict GBH
Wound - break of skin
GBH - really serious harm - permanent disability, broken bones, substantial loss of blood, serious psych injury
MR- Malicious infliction - intentionally or recklessly as so cause some harm- not necessarily serious harm that resulted.
Max 5 years

Question 9

wounding or causing GBH W/I - s18 - definition

Answer 9

AR - same as 20 - requires legal and factual causation
MR - difference to s20 is s20 intentionally or recklessly s18 - intentionally
Intention to cause GBH or GBH W/I to prevent lawful apprehension of another

Question 10

Theft
Robbery
Burglary
Agg Burglary
What sections

Answer 10

Theft s1
Robbery s8
Burg s9
Agg Burg s10

Question 11

Theft - definition

Answer 11

dishonest appropriation property belonging to another with the intention of permanently depriving the other of it
AR - appropriating ((assumed any one right) property of another
Appropriation- can be at later time- omission - if keeps property after innocently taking. No appropriation during thinking time
Ongoing - jurisdictional - hires car moves one country to another

Question 12

MR - Theft

Answer 12

Dishonesty Must have subjectively honest belief, does not have to be reasonable.
Common law test for dishonesty applied Ivy v Genting casinos civil case so obiter in crim cases but confirmed by CT of appeal in Barton v Booth that this is also appropriate test for criminal dishonesty

Question 13

What offences cannot be attempted

Answer 13

summary offences

Question 14

What is the 2 stage test in Ivy & Gentings

Answer 14

Stage 1 - Subjective test -
-actual state of defs knowledge or belief as to facts. IE what led accused to act as they did
-belief need not be reasonably held but must be genuinely held (reasonableness is however a factor when considering this
Stage 2 - Objective test -
-dishonest according to the standards or ordinary decent people.
- no requirement that def must subjectively appreciate that what he has done, by these standards, was dishonest.

Question 15

What are the 3 circumstances when defendant not regarded dishonest

Answer 15

1) genuine belief in law that had right to take eg fight and took money owed, not liable for robbery
2) genuine belief party would have consented - drank wine in shared flat
3) Owner of property cannot be discovered by taking reasonable steps eg taking car genuinely believe abandoned

Question 15

Intention to permanently deprive (s6)- keep on permanent basis - what is and isn’t required.

Answer 15

-NO requirement to succeed
-MUST be more than temporary
-NO requirement that def intends to make a gain

Question 16

If and only if clear def wanted to keep the property should you consider:
s6(1) intention to treat the thing as defs own to dispose of.
What are the 2 definitions of this?

Answer 16

1) deal with definitely to get rid of, to get done with, finish. To make over by way of sale or bargain, sell; or
2) dealing with property in manner that D knows is risking its loss” eg gambling with clients money even though intends to replace that lost.

Question 17

Definition and 2 distinct forms of burglary

Answer 17

Burglary S9 -to enter building as a trespasser with intent to commit GBH or criminal damage or having entered any building, attempt to steal or commit GBH
S9(1)(a) - entering W/I to steal inflict GBH or commit unlawful damage - INTENT MUST BE AT TIME ENTERED
s9(1)(b) - having entered as a trespasser stealing or inflicting GBH
MUST ACTUALLY GO ON TO STEAL OR INFLICT GBH (DAMAGE IS NOT INCLUDED, SO THE OFFENCE IS COMMITTED WHEN THIS ULTERIOR OFFENCE IS COMMITTED
**WHEN APPROACHING MCQ CONSIDER 9(1)(A) THEN CONSIDER 9(1)(B)

Question 18

9(1)(A) & 9(1)(b) enters building, part of, as trespasser same (AR) what is and isn’t -ENTRY, BUILDING OR PART OF, TRESPASSER

Answer 18

ENTRY - any part of body, need not be substantial, fingers through letterbox would not suffice
- may use tool or innocent agent to enter
BUILDING OR PART OF - inc dwellings, sheds/outhouses, modular buildings caravans, houseboats if inhabited. Can move to part of building prohibited from entering
TRESPASSER - w/out permission or in excess of permission - going to prohibited area.
If invited in and then go on to steal - NOT burglary - must be trespasser at point of entry, it is theft.

Question 19

AR -9(1((a) Knowing or being reckless as to entry - what is and isn’t

Answer 19

-must know or be reckless about facts that make them a trespasser
-don’t need to know in law that trespassing
- if honest belief but mistaken that has permission then can’t be liable for burg. Belief need not be reasonable BUT less reasonable =less likely to be reasonably held.

Question 20

MR -9(1)(a) INTENTION TO =

Answer 20

to commit one of 3 ulterior offences
1) Steal
2) Inflict GBH
3) Damage building or anything inside

-Intention must be at POINT OF ENTRY, not before or after entry
- irrelevant if conditional intent - ie will only steal if something there they want to steal

Question 21

AR S9(1)(b) - MUST commit AR of ulterior offence - what are these and what do they exclude?

Answer 21

1) Theft - app prop belonging to another
2) Attempt Theft - more than merely preparatory
3) Inflict GBH - AR for s18 or s20
4) Att GBH - more than merely prep to s18 or s20

EXCLUDES - Criminal damage is not sufficient- BUT intention to cause crim damage at point of entry is sufficient for s9(1)(a)

Question 22

MR - S((1)(b) - Intention must match AR of ulterior offence above - what are these?

Answer 22

1) Theft - Dishonest intention to permanently deprive
2) Att Theft - as above
3) Inflict/Att GBH - Intention s18 or s20. Some say NO MR required, just simple act of GBH - this is contentious

Question 23

Aggravated Burg s10 - what is additionally required = use of aggravated article to commit the burglary
Article - 4 types?

Answer 23

W - Weapon of offence
I - Imitation firearm
F - Firearm
E - Explosive

Question 24

What are the requirements for Agg burg
1)
2)

Answer 24

1) commits 9(1)(a) or 9(1)(b) burg
2) At the time has with them any weapon. At the time depends on type of burg:
9(1)(a) - point of entry
9(1))(b) - at point steals att to steal or inflicts GBH

Question 25

What are firearm, weapon of choice or explosive defined as

Answer 25

something made. adapted or intended for causing injury incapacitation
Only has to have it, no requirement to use

Question 26

Robbery s8 - definition- AR

Answer 26

theft and use of force, or put in fear immediately before or at time of theft to effect the theft.

-Degree of force =matter for jury . Push –has been sufficient
-Put in fear - apprehension suffices
-problems if force after theft
-appropriation can be continuing

Question 27

Robbery s8 - MR=

and when is it not robbery, 2 instances

Answer 27

1) Intention to use force to steal, or escape or escape after stealing with MR of theft

Not robbery if:
1) force used to escape but not steal
2) theft afterthought to force.

Question 28

What offences are relevant in the Criminal Damage Act 1971 - 4

Answer 28

1) Crim dam s1(1) CDA
2) Agg Crim Dam S1(2) CDA
3) Arson SS1(1) &(3) CDA
4) Agg Arson SS1 (2) & (3)

Question 29

Definition of Crim Dam

Answer 29

Without lawful excuse, destroy or damage property belonging to another, intentionally or recklessly

Question 30

AR- Destroy or damage=
(3)

Answer 30

1) Damage given common sense meaning - Fact & Degree. Courts deem as rendering imperfect or inoperative
2) Destruction - requires permanent outcome, become permanently useless, finality.
3) Can be by omission if duty of care found duty to rectify dangerous situation

Question 31

AR - Property=
(3)

Answer 31

1)Tangible - can be seen or touched
2) Includes wild animals if tamed/kept in captivity or reduced into possession
3) Plants & Funghi NOT Property

Question 32

AR - Belonging to another
(2)

Answer 32

1) CAN’T be liable for SIMPLE crim dam on own property. Different for AGG Crim Dam
2) CAN damage property owned with another

Question 33

MR - Unlawful Excuse - only applies to SIMPLE CRIM DAM
2 x defences =

Answer 33

1) Honest belief in consent- substantive test - objective.
- He “has” or “would have” been provided with consent = mistaken belief
- immaterial if belief justified or not as long as honestly held
- Intoxication- self induced - will not prevent honest belief being relied upon - decision in Jaggard - not extended past lawful excuse in simple crim damage

2) Property in need of protection =
- only in relation to property in need of protection NOT person in need of protection
- belief in immediate need of protection ,subjective- must have honest belief that means adopted were reasonable. Then moves to objective - that property was in need of immediate protection.

Question 34

MR Intentionally or recklessly =

Answer 34

• Property not person
• Irrelevant if def doesn’t believe what he does amounts to damage or destruction - fact is did def intend to do act that amount to the damage
• must know or believe belonged to another - belief honestly held - need not be reasonable or justified.

Question 35

When tried summarily?

Answer 35

If damage under 5K. But still EW offence

Question 36

Aggravated Criminal Damage s1(2) CDA 1971- definition

Answer 36

destroy property with intent or reckless as to whether life of someone else would be endangered

Question 37

AR Agg Crim damage - what it can and can’t be =

Answer 37

• Same AR as Crim dam
• statutory defence unlawful excuse - DOES NOT Apply
• can destroy own property - need not belong to another
  -Endangerment of life must result from damage or destruction of the property and not merely the danger itself - eg shooting through window not Agg crim damage as as danger was from the bullets and not the damaged window

Question 38

MR Agg Crim Damage - Intention or reckless to endanger life =

Answer 38

• Focuses on state of mind fo def doesn’t need to be actual endangerment of life
• no offence if endangering OWN life, must be life of another.
  -Specific intent charge - as ulterior MR of endangering life
  specific intent charge - requires proof defendant had specific intention or purpose when committing AR**

Question 39

Can intoxication act as a defence to agg crim damage??

Answer 39

yes as s1 offence- Pros must prove defendant formed MR for offence despite intoxicated state

Question 40

Arson & Aggravated Arson - AR?

Answer 40

Arson - same as for simple criminal damge
Agg Arson - same as Agg damage - additonal element of endangering life

Question 41

What is added requirement of AR for Arson & Agg Arson? =

Answer 41

-Damage must be caused by fire - raging or simple flame
-smoke DOES NOT suffice
- should add arson to indictment BUT damage by fire is acceptable

Question 42

What are the 7 types of homicide offences

Answer 42

1) Murder
-AR - unlawful killing of a human under kings peace
MR - Intention to cause death or Grievous bodily harm with malice aforethought

2) Voluntary manslaughter - Loss of control- Intentionally killed or killed W/O to do harm, BUT experienced loss of control form qualifying trigger and reasonable person would have acted in same or similar way.

3) Voluntary manslaughter - diminished responsibility - kills as with Loss of control - but experienced abnormality of mind arising from recognised medical condition- impairing their ability to understand the nature of their conduct, form rational judgement or exercise self control and in doing so provides explanation for killing

4) Involuntary manslaughter -unlawful act manslaughter- def commits act, not omission, that is objectively dangerous and causes death of victim

5) Involuntary Manslaughter - gross negligence manslaughter- def owes duty of care to victim and breaches this in a manner that poses risk of death and def’s act or omission in bringing about death categorised as gross negligence

6) Involuntary manslaughter - subjective recklessness - where killed someone but did not commit unlawful dangerous act, will be convicted where recognised risk of death, or serious injury but went ahead with risk anyway

7) Involuntary manslaughter -corporate- organisation organises activities that caused death and amounts to gross breach of care

Question 43

Murder- can you murder a foetus

Answer 43

No - must be reasonable person in being, must be born and then die

Question 44

Murder - Killing generally unlawful - what would be deemed lawful - 3 situations

Answer 44

1)In battle
2) death penalty
3) a self defence situation considered lawful

Question 45

Murder - caused death=

Answer 45

results crime - looking for acceleration in death - brain dead

Question 46

What does under Kings peace exclude

Answer 46

war

Question 47

Murder - intention to kill or cause death =

Answer 47

With malice aforethought- no premeditation or ill will required. Just an intention to kill or cause GBH

Question 48

Types of intention in murder
Direct intention =

Answer 48

direct aim or purpose to kill

Question 49

Type of intention in murder
Direct intention to cause GBH=

Answer 49

No intention to kill, but does intend to cause serious harm and as a result dies

Question 50

Type of intention in murder
Oblique intention to kill=

Answer 50

no intention to kill but death virtual certainty as a result of defs conduct and def appreciated certainty

Question 51

Type of intention in murder
oblique intention to cause GBH =

Answer 51

no intention to cause GBH but as with oblique intention to kill- virtual certainty & appreciated certainty

Question 52

What is voluntary manslaughter and when does it arise?

Answer 52

Same definition as murder, occurs when defendant successfully presents one of the 4 partial defences to murder, can only happen when charged with murder.
Complete defence = acquittal
Partial defence = manslaughter

Question 53

What are the four (6 mentioned 2 very little) potential defences to murder?

Answer 53

1- Self-defence
2 - Intoxication
3 - Loss of control
4 - Diminished responsibility
(5 = Suicide pact)
(6= Infanticide)

Question 54

What is a basic intent crime?
Name some crimes

Answer 54

Requires recklessness as a potential alternate form of MR
ABH, GBH, Rape & sexual offences, s9(1)(b) burglary. damage where recklessness alleged, strict liabilty & reckless negligence

Question 55

What is a Specific Intent crime?
Names some crimes

Answer 55

Requires intent as MR- intent to achieve certain consequences
GBH with unlawful or malicious intent, theft, robbery, s9(1)(a) Burg, damage where damage property or life endangered, incohate offences - not completed

Question 56

Defence of intoxication (to murder)
is it available for basic and specific offences?

Answer 56

Specific =yes as long as can be said intoxication prevents ability to form MR
Basic - No - involves recklessness as form of MR therefore not available as a defence

Question 57

Does alleging defence of intoxication reverse the burden of proof?

Answer 57

No- requires evidential burden to be met by defence, evidence to support drunk, but doesn’t reverse B of T, more argument not able to form MR. If prove intoxication, burden then on pros to prove went on to form MR despite intoxication.

Question 58

If found to be intoxicated what key questions should be asked? x 3

Answer 58

1) Voluntary or involuntarily intoxicated
2) By Alc or dang drugs, or by non-dang drug
3) Crime basic or specific intent

Question 59

What does “attributable to intoxication” mean?

Answer 59

means both mistake of mind as a result of being intoxicated AT THE TIME and short-term AFTER-EFFECTS which have triggered episodes such as paranoia

Question 60

Does “dutch courage” = voluntary intoxication

Answer 60

NO - no defence, even if specific intent offence

Question 61

Test for whether offence is specific or basic intent offence?

Answer 61

Ulterior offence - MR goes beyond the actus reus eg agg crim damage no req to endanger life in AR but is required in MR - therefore specific intent
Purposive approach - requires proof of purposive element - can only be committed intentionally eg murder = specific intent

Question 62

If find specific intent then go on to consider - Voluntary intoxication

Legally non- dangerous drugs, which means?=

Answer 62

if it is NOT common knowledge that it causes the taker to become aggressive or unpredictable eg paracetamol. This can also apply if prescription is not the defendants -

Question 63

Dangerous drug =

Answer 63

Alc & illegal drugs which have been ingested

Question 64

When will voluntary intoxication be found, in non-dang and dang drugs? in specific intent cases?

Answer 64

Dangerous drugs - where ingested can still prove invol intox if prove no mens rea
Non-dang drugs - where vol taken = defence if suffered total loss of bodily control ie cannot consciously perform the AR of the offence

Question 65

Is voluntary intoxication available as a defence in basic intent offence

Answer 65

Normally no, BUT if voluntarily take non dangerous drug and didn’t appreciate would make him aggressive, unpredictably , or uncontrolled and suffers total loss of bodily control- Def WILL have a defence

If reckless in consumption - remains NO DEFENCE AVAILABLE

Question 66

INVOLUNTARY INTOXICATION means?

Answer 66

without will or conscious control ingested an intoxicating substance. EG - spiked - drugs and alc
- Ingested - in line with medical advice

Question 67

Is Involuntary intoxication available for basic and specific offences?

Answer 67

Yes, irrelevant if specific intent or basic intent- only requirement as with Vol Intox is unable to form MR for offence.

Question 68

Does intoxicated mistake = defence?

Answer 68

Yes, if found to be honest mistake, requirement is honest belief, honestly held.

BUT if mistake induced by defendant’s intoxicated state can’t rely on mistake as a defence

Question 69

Self - defence (murder)
What it includes? -
Requirements? -

Answer 69

Includes - Not just own body but also person. property and others
Requirements
- necessary in circumstances as def believed them to be.
- use of force reasonable in circumstances as def perceived them to be.

Question 70

To establish self-defence what has to be established =

Answer 70

1) Victim posed threat
2) Threat unjustified
3) Use of force must be necessary
4) Degree of force must be reasonable

Question 71

Is it for def to prove self-defence, burden on def?

Answer 71

No- def must raise sufficient evidence of self-defence, BUT not for def to prove for Pros to disprove.

Question 72

What amounts to force necessary in circumstances or unjustified threat, when considering self-defence

Answer 72

Necessity = subjective question - looks at circumstances as def believed them to be
Can only use in protection from victims physical attack, NOT at any time

Question 73

Rules to consider when accessing if force necessary/or unjustified threat
x 5

Answer 73

1) Mistaken belief - Can rely on genuine belief, even if mistaken. Does not need to be reasonable, but reasonableness goes towards whether genuinely held
2) Intoxicated mistake - CANT’T rely upon when invloved def’s voluntary intoxication, even if charged with specific offence. CAN rely on genuine belief if resulted from mental illness caused by long term use of alc.
3) Imminent attack -only in imminent attack- can use pre-emptive strikes to defend imminent attack
4) No duty to retreat - Entitled to stand ground, no requirement to retreat first
5) Original Aggressor - Can claim even if started it, if victim responds with particular aggression

Question 74

What other factors will court take into consideration when considering force necessary/unjustified threat?

Answer 74

• Defendants physical condition, age and frailty
• Psychiatric conditions- delusions, where condition provides strong evidence of defendants honest belief in necessity to use force

Question 75

Self defence - if find necessary to use force, then move to consider was force reasonable.

How is this considered?

Answer 75

• reasonable if proportionate n all the circumstances
  -considered by jury considering
  1) crics as def honestly believed them
  2) objective - in heat of moment not able to judge force needed
  3)if does no more than honestly and instinctually thought necessary - that’s strong but not conclusive that reasonable
• considered case by case
  -Mistake as to reasonable force - this is a mistake as to law and NOT a mistake defendant can rely on.. Therefore this is an objective assessment for the jury
• Psychiatric condition - not relevant to whether force reasonable. They can be relevant to whether force was necessary in the circumstances- if charged with murder defence of diminished responsibility or loss of control may be more appropriate

Question 76

What are the 3 things to be considered when trying to establish self-defence

Answer 76

1) What circumstances force can be used
2) What amounts to necessary use of force
3) What amounts to reasonable force

Question 77

Householder and use of force - Crim justice and immigration act 2008

What is to be considered in these circumstances x 6

Answer 77

1) Def must not be a trespasser
2) Def must be householder
3) self defence must be while in or partly in dwelling
4) Def believed to be a trespasser
5) Use of force necessary in circumstances as def believed them to be
6) Defs use of force not grossly disproportionate in circs as def believed them to be

** def extends to multi use premises ie shops, pub***

Question 78

When is a victim regarded as a trespasser - in householder self defence

If regarded trespasser, move to necessity =

Answer 78

1) Def believed entered as a trespasser
2) where entered lawfully but then regarded as trespasser, went to area of property prohibited from
3) Defendants belief - need not be reasonable and can be mistaken

• necessity to use force is same as test for non householder

Question 79

In Householder self- defence
After:
1) Found trespasser
2) Necessity to use force found

Move then to is force reasonable - what is required=

Answer 79

-force must not be grossly disproportionate, can therefore use more force than non householder
-If grossly disproportionate - no defence
- if not grossly disproportionate, must consider if reasonable in circs a def believed them to be - if yes def available if not - no defence

Question 80

if force slightly excessive in householder defence can the defendant still rely on the defence?

Answer 80

NO - all or nothing defence, slightly excessive will loose defence entirely

Question 81

In householder self-defence is a building just a house?

Answer 81

No includes vehicles and vessels used as a dwelling, & building joined to a dwelling

Question 82

Murder - defence Loss of control, is it a full or partial defence

Answer 82

Partial, if successful defendant liable for voluntary manslaughter
ss54-55 Coroners & Justice Act 2009 replaces old law of provocation.

Question 83

What happens when in judges opinion sufficient to raise defence of loss of control?=

Answer 83

• Burden is on pros to show that L of C DOES NOT apply
• Def must satisfy 3 elements, pros need only prove ONE element missing for defence to FAIL.

Question 84

Loss of control - what are the 3 requirements the defence must fulfil

Answer 84

1) - Def Act/omissions in being party to a killing resulted from loss of control
2) Loss of control qualifying trigger
3)Person of defs, age,,sex, tolerence, reasonable person, might have reacted in same or similar way

Question 85

Loss of control requirement
1)- Def looses self control - what does and doesn’t constitutes this=

Answer 85

-need not be total loss of control
- need not be sudden - could build up over period of time- DV cases
- must be actual loss of ability to act in acc with considered judgement, or loss of normal powers of reasoning
- is NOT a defence - where in considered desire for revenge. This ensures retaliatory killings don’t benefit from this defence
- Greater delay between qual trigger and loss of control = less likely for def to succeed

Question 86

Loss of control requirement
2) Qualifying triggers - what do and don’t constitute these=

Answer 86

1- fear of serious violence - subjective - did def fear violence that was serious - GBH level
2) Anger, things said and done - something said or done extremely grave, or had justifiable sense of being seriously wronged- not defined but considered objective test
3) combination of above

Question 87

Loss of control requirement
3) Reasonable person=

Answer 87

• objective test - sex and age standard characteristics
• ## Same tolerance & restraint as average member of society

Question 88

Diminished responsibility - s2 Homicide Act 1957 - what is it?

Answer 88

• partial defence to murder - partial insanity providing justification for def suffering from abnormality of mind, but not total loss of control

Question 89

If diminished responsibility found, what does that mean?

Answer 89

• Mandatory life sentence does not apply
  -reverse burden of proof - requires def to prove to civil standard- balance of probabilities

Question 90

What are the 4 elements to be established before diminished responsibility found=

Answer 90

1) Abnormality of mental functioning
2) Abnormality must arise from recognised medical condition
3) Abnormality must cause substantial impairment
4) Abnormality provides explanation for killing

Question 91

Diminished responsibility - Abnormality mental functioning - what satisfies this?

Answer 91

• Def = state of mind so different from that of ordinary human being, the reasonable person would term it abnormal
• Easier to spot than define- something less than insanity

Question 92

Diminished responsibility - Arising for a medical condition - what satisfies this?

Answer 92

• evidence needed of physiological of psychological recognised condition.
• physiological = sleepwalker, diabetes
  -Psychological = schizophrenia, depression
• matter for jury
• recognised medical conditions - battered spouse syndrome, psychopathic personality disorder and depression

Question 93

Diminished responsibility - substantial impairment - what satisfies this?

Answer 93

-substantial - given ordinary English meaning ie substantial meal, substantial salary, more than merely trivial
- Examples
1) doesn’t understand nature of conduct- like test for insanity BUT only requires SUBSTANTIAL impairment example = kills but doesn’t understand won’t revive like comp game.
2) Can’t form rational judgement - can’t act rationally after years of abuse, only way to escape, or killing infirm wife can no longer look after, and thinks no one else can
3) Can’t exercise self-control - abnormality limit individuals ability to use self restraint eg brain inj or psychiatric condition may lead to an inability to control temper
Alternative to loss of control - where failed to satisfy as can’t exercise normal degree of tolerance of self-restraint
4) Explanation for killing -
- must be a causal link between abnormality and killing - experts key then left for jury to decide if condition provides explanation for actions

Question 94

What is the effect of intoxication on Diminished responsibility?

Answer 94

• being drunk not abnormality of mental function , therefore no defence
  BUT
• when drinking involuntary and has abnormality of mind which had some effect on killing- eg alcoholism, therefore not drinking voluntarily so defence still available
• If drinking triggers pre existing medical condition can still rely on defence if they satisfy all other elements of the defence

Question 95

What happens if evidence satisfies defence of diminished responsibility?

Answer 95

• If uncontroversial/uncontested evidence and satisfies the defence then murder should be withdrawn from jury.

Question 96

2 other, but rare defences to murder?

Answer 96

Suicide pact - where kill in pursuance of suicide pact = manslaughter Homicide Act 1957
Infanticide -where woman kills child under 12 months , because mind disturbed as hasn’t recovered from birth = infanticide - Infanticide Act 1938

Question 97

Are loss of control & diminished responsibility available as defences to all offences?

Answer 97

NO - only available to murder- if found leads to conviction for voluntary manslaughter

Question 98

What are the 4 main types of manslaughter, other than voluntary - arising from partial defence to murder

Answer 98

1) Involuntary Manslaughter
2) Manslaughter by gross Negligence
3) Subjective Reckless manslaughter
4) Corporate manslaughter

Question 99

Definition of Involuntary manslaughter

Answer 99

• does not intend to kill or cause GBH, but has brought about death of another

Question 100

What are four elements of involuntary manslaughter?

Answer 100

1) Intentionally do an act
2) Act done unlawful
3) Act objectively dangerous
4) The act in fact and law caused death

Question 101

Involuntary manslaughter - intentionally do an act - what amounts to this

Answer 101

• must be intention to do act but not to kill
  -positive act NOT omission
  NOTE - If the death is from failure to act therefore no intention, then offence is gross negligent manslaughter

Question 102

Involuntary manslaughter - Act unlawful- what amounts to this

Answer 102

• Must be criminal offence - not civil wrong, nor offence satisfied by proof of negligence or strict liability offence
• act doesn’t have to be aimed at victim - can be transferred malice
• can apply usual defences -(remember L of C and DR only defences to murder)

Question 103

Involuntary manslaughter - Act dangerous - what amounts to this

Answer 103

• objective test
• reasonable person/bystander (always sober) foresees risk of harm, not necessarily serious harm that occurred.
• Largely objective test left to jury - they consider facts that make act dangerous, that are known to def or reasonable person
• harm must be physical and to victim

Question 104

Involuntary manslaughter - That must cause death

Answer 104

Causation - must have caused outcome in both fact and law
Factual - “but for” test defendants actions factual cause, must be shown but for defs action events would not have occurred.
Legal - actions must have been an operating and substantial cause of the outcome - more than slight or trifling

Question 105

Manslaughter by gross negligence - definition

Answer 105

• no unlawful act; or
• death arises from an omission to act
  -imparts liability for a serious crime where def hasn’t consciously risked harm

Question 106

Gross Negligent manslaughter - what are the 5 elements?

Answer 106

1) Owes a duty of care to victim
2) breaches duty of care
3) breaches involves serious and obvious risk of death, that was reasonable foreseeable
4) Breach of duty causes death
5) Defs conduct can be characterised as grossly negligent

Question 107

Gross Negligent manslaughter - Duty of care - what amounts to this

Answer 107

• Rules of negligence , therefore criminal liability for omissions as well as commissions
• Prosecution MUST establish duty of care owed
  -JUDGE determines if duty has arisen NOT jury

Question 108

Duty of care - Gross Neg Man - where is duty found

Answer 108

-medical professional and patient
- Ship owner and crew
- Landlord and tenant
- Electrician & homeowner

Question 109

Duty of care - Gross Neg Man - what must be considered before a duty is found

Answer 109

• If POSITIVE ACT- court use ordinary principles of negligence to determine if duty of care owed.
• defence of ilegality ex turpi - does not apply in manslaughter eg smuggling immigrants and they die, driver convicted even though immigrants committing illegal act.
  -OMISSIONS - where death from failure to act, must first say if necessary for duty to act, if YES then usually also find duty of care

Question 110

Gross Neg Man - Must breach duty - how is that found?

Answer 110

Objective
- Jury to consider
-Duty below what expected of reasonable person
-special skills of defendants will be considered on basis of reasonable person also.

Question 111

Gros Neg Man - breach involves serious & obvious risk of death - how is this found?

Answer 111

• reasonable person must foresee it would give rise to serious and obvious risk of harm
• must be knowledge at TIME of breach and NOT what is FORESEEABLE - relevant in medical cases
  -obvious = clear, present & unambiguous. NOT what becomes apparent of further inspection

Question 112

Gross neg Man - breach must cause victims death - how found & difficulties?

Answer 112

• causation - “but for” and actions substantial and operating cause
• example where complex - man drugs girlfriend, gets progressively ill, gets no help and she dies. Sig/sub chance WOULD survive BUT NG of manslaughter because pros had to prove medical intervention WOULD have saved her life

Question 113

Gros Neg Man - Breach must be grossly negligent - what amounts to this?

Answer 113

• so bad is a crime and must be punished
• if risk BECOMES apparent - NO liability
• if immediately apparent, striking and glaring - YES liability
• distinct from TORT - so bad it is CRIMINAL
• Jury to consider
• several acts can = 1 act of gross neg
  -LIABLE where is personally responsible even if others PARTLY responsible
  -NOT LIABLE where others wholly responsible
• NO requirement for specific MR - BUT state of mind will be considered when considering breach of duty

Question 114

What are the 3 types of fraud under the FRAUD ACT 2006

Answer 114

1) Fraud by false Rap
2) Fraud by fail to disclose infp
3) Fraud by abuse of position

Question 115

What are
Implied Terms?
Express Terms?

Answer 115

Implied - things so obvious don’t need to be put into writing- fact
Express - Specific terms usually in wiritng

Question 116

Subjective Recklessness manslaughter=

Answer 116

• def killed someone and did not commit an unlawful dangerous act
• will be convicted where recognised risk of death or serious injury but went ahead with risk anyway

Question 117

Corporate Manslaughter=

Answer 117

• organisation manages activities whereby persons death is caused & amounts to breach of care.
  EXCEPTIONS -
  -military activities
  -Police operations dealing with terrorism and serious public order
• penalty isn’t life imp as with other manslaughters its unlimited fine or remedial order

Question 118

Elements of Fraud by false rep (5) =

Answer 118

1) makes rep
2) Must be false
3) Must know rep is or might be false
4) must be dishonest in making this rep
5) must have intended to make a gain or cause a loss as a result of representation

Question 119

Fraud by false rep - 1st element Make a rep (AR) =

Answer 119

• express or implied- words or conduct
• only needs by request MADE , not required that must be received
• MUST be directed at someone or something, not enough to put in diary
• may be about fact, law or state of mind
• can be amde to human or machine

Question 120

Fraud by false rep - 2nd element -False Rep (AR) =

Answer 120

• untrue or misleading and is a matter for the jury
• not enough def believes reps untrue or misleading
  Example = def charges V excessive amount for work - can only be fraud IF position of trust between def and V, BECAUSE that trust implies rep by def that what charges is fair, and if it isn’t then IT IS false rep

Question 121

Fraud by false rep - 3rd element - knowledge rep is or might be false (MR)=

Answer 121

• MUST make with knowledge IS or MAYBE false and intend to make a game personally or for another, cause loss for another or expose another to loss
• BE CAREFUL WITH QUESTIONS THAT SAY OUGHT OR SHOULD - these are not correct as statute says subjective test asking what def KNEW
• includes MISLEADING, MIGHT BE MISLEADING & WILFUL BLINDNESS (closes eye to question)

Question 122

Fraud by false rep - 4th element Dishonesty (MR) =

Answer 122

• Test as in Ivy v Gentings - def’s state of knowledge as to facts and conduct dishonest by standards of ordinary people
• Def cannot argue honest belief

Question 123

Fraud by false rep - 5th element intention to make gain or lass (MR) =

Answer 123

• no actual loss required - conduct crime
• virtually certain would suffer loss as a result of reps and def appreciated that certainty.

Question 124

Fraud by failing to disclose s3 - elements =

Answer 124

AR -
- Withholds info partially or absolutely
- legal duty to disclose - relationship (fiduciary duty)between def and another and obligation to disclose
- matter of fact
MR
- Ivy and gentings test for dishonesty
- need not know owed duty - and if was unaware may effect question of dishonesty
- Intention - to make loss of gain, but not necessary for loss to be borne

Question 125

Fraud by abuse of position s4
5 elements =

Answer 125

1) occupy position
2) position one where def expected to safeguard, or not act against financial interests of another
3) Must abuse his position
4) must be dishonest in abusing his position
5) must have intention to make a gain or cause a loss as result of abuse of position

Question 126

Fraud by abuse of position s4 - occupy position =

Answer 126

• only applies where def expected to safeguard financial interests of another person
  POSITIONS - fiduciary where undertakes to act on behalf of another the principal = fiduciary relationship
  Examples
  Trustee & beneficiary
  Director & Comp
  Lawyer/doctor and client
  Employer & employee

If relationship exists is matter for judge

Question 127

Fraud by abuse of position s4
-position one where def expected to safeguard, or not act against financial interests of another =

Answer 127

= if expected to safeguard financial interests of another or not to act against financial interests of another.

Question 128

Fraud by abuse of position s4 - Abuse of position =

Answer 128

• uses incorrectly, puts to improper use
• matter of fact
  Examples =
  Infringing intellectual property rights, or taking money from a vulnerable person in def’s care

Question 129

Fraud by abuse of position s4 -
4) must be dishonest in abusing his position =
5) must have intention to make a gain or cause a loss as result of abuse of position =

Answer 129

• def not required to know occupies position
• BUT may be relevant to question of dishonesty
• Requires causal link between def intention to make a gain or cause loss and his abuse of position

Question 130

Attempt offences- can you attempt indictable and summary offences

Answer 130

NO - Indicatable EW offences can be attempted, summary offences cannot be. Exception is low value shop theft summary in mags , but EW offence generally so can be attempted.

Question 131

Elements of an attempt offence

Answer 131

1) offence that can be attempted
2) Commits an act
3) must be considered as more than preparatory - matter for jury, so long as judge satisfied in law there is evidence to support the finding
4) Must have intended to commit full offence
- def possesses MR but not AR

Question 132

What offences can’t be attempted

Answer 132

• commit conspiracy
  -A & A procure or counsel
• encourage or assist suicide
• impede arrest or compound (not disclosing required info) an offence

Question 133

Attempt - what is more than merely preparatory? =

Answer 133

YES - confronted with shotgun in victim’s car, victim escaped unharmed. More steps to take to commit offence BUT more than preparatory - gun, in car pointed at victim
NO - outside post office with imitation gun, motorbike helmet and threatening note, never went in. NOT more than merely preparatory, indicative of preparation only
NO - in school toilet, knife, masking tape and rope, caught before in contact with children. no act more than merely preparatory
KEY - note AR of offence then ask if what done m ore than merely preparatory.

Question 134

Attempt MR - intention to commit full offence - what amounts to this=

Answer 134

• intention to carry out all aspects of offence.
  -Must be intention to carry out offence. Even if actual offence can be committed recklessly, for attempt it MUST be intention only
  EG -
• Murder - req int to kill or cause GBH
• Att murder - only committed with intention to kill
  ** note level of intent required greater for attempt**

Question 135

Can you attempt to commit a non existent crime?

Answer 135

NO cannot be convicted of non existent crime- ie defendant thinks crime but in fact its lawful

Question 136

Can you attempt a crime that factually cannot be committed

Answer 136

YES - eg stabbing someone you think is asleep but actually they are dead already. Still liable for attempt murder as intended to kill. Judged according to facts as def believed them

Question 137

Can you attempt a crime by inadequate means i.e due to ineptitude

Answer 137

YES- eg trying to poison someone but what used isn’t actually poison. Intention to kill so still liable.

Question 138

ACTUS REUS - does it require an act? =

Answer 138

• most crimes require positive act
• can be committed by failure to act, but crime must be capable of being committed by omission eg Murder = YES, Unlawful act manslaughter =NO
• must be legal duty to act - examples
  1) no general duty to act
  2) Statutory duty - employers
  3) Special relationship - of control or supervision
  4) Voluntary assumption of responsibility - solicitor and client, banker and client
  5) creation/contribution to a dangerous situation- if creates duty of care arises to protect others

Then must check if duty discharged - someone drowning and lifeguard doesn’t help - DUTY not discharged

Question 139

what is test for causation in criminal law -

Answer 139

Causation - must have caused outcome in both fact and law
Factual - “but for” test defendants actions factual cause, must be shown but for defs action events would not have occurred.
Legal - actions must have been an operating and substantial cause of the outcome - more than slight or trifling

Question 140

Must be no break in causation - novus actus interveniens -to establish causation - what can break chain? =

Answer 140

1) Acts 3rd party & acts of victim -
- acts in way informed and voluntary
- Free and deliberate act by 3rd party
- victim contributes to injuries
- victim neglects injuries
2) Medical treatment - highly unusual, must be palpably wrong. Must be independent potent act
3) unforeseeable natural causes
- struck by lightening - y
- beach and drowns - N
4) Eggshell rule - defendant will still be culpable - must take victim as he finds him.

Question 141

STRICT LIABILITY OFFENCES - what are they and what are and aren’t SL offences

Answer 141

• No MR required
• need to prove actions voluntary - -
  no defence to claim actions from mistake, or that def took reasonable steps to avoid doing what he did therefore no defence
• majority of strict liability offences are statutory. Statute creating offence states if there or isn’t a defence and can reverse burden of proof
• Statutory strict liability offences = regulatory and public danger offences
  EG - regulatory = lesser offences, easy to prove eg no insurance. Some not minor = financial services regulations - FSMA 2000 & H & S - employers not allowed to provide unsafe working environments
  EG - public danger offences= possession firearm - in possession convicted, drugs offences - need some MR but not to every element of AR
• almost ALL common law offences ARE NOT strict liability, those that are =
• outraging public decency
• public nuisance
• contempt of court

Question 142

MENS REA - criminal offences
What is intention?

Answer 142

Direct - aim person to bring about consequence - motive & desire irrelevant
Oblique (indirect) - result virtual certainty and defendant foresees result as virtually certain.

** despite the fact there is an objective element, virtual certainty is a subjective test, keep an eye out for this **

* foresight of virtually certain result IS NOT equivalent to intention, only evidence of intention* Keep an eye for where questions “must find”***

Question 143

What is the test for oblique/indirect intention in R v Woolin

Answer 143

1) was outcome virtually certain following defendants actions - subjective
2) Did defendant realise virtual certainty- state of mind - subjective

Question 144

Meaning of Malice and recklessness=

Answer 144

Malice - not maliciousness, means intention or recklessness.

Recklessness -

Recklessness - 2 definitions
1) R v Cunningham - aware of objectively unjustifiable risk yet goes on to take it. Applies all offences with reckless MR, except crim damage.

2) R V G 2 x test
- at time of committing AR - subjectively aware of the risk
- in circumstances must have been objectively unreasonable for defendant to take risk - characteristics of defendant considered here

R v G is of general application except for MR of crim damage

Negligence = conduct and whether failure to meet standards of reasonable person.

Question 145

Other mens rea issues
1) Mistake=
2) Coincidence AR & MR=
3) Transferred malice =

Answer 145

1- mistake
- mistake as to elements of AR may negate MR = mistakenly takes jacket from restaurant.
- Ignorance no defence in crim law
- mistake in civil law may be - speakers and wires installed in landlords property, tenant takes as doesn’t realise belong to landlord.

2- coincidence AR & MR =
- when has MR should at same time commit AR
- some circs can take place over time = 2 strands of Jurisprudence
- continuing acts =
-force in battery, appropriation in theft or penetration in rape - sufficient to have MR at any point during continuance of AR
- one transaction =
- series of acts that make one transaction, defendant can have AR & MR at some point during that transaction even if don’t coincide.

3- Transferred malice =
- AR of offence, but inflicts on another which defendant never intended to do. However MR one offence can to transferred to another and joined with AR
* MUST be for same offence though, can’t be different offence combined*

Question 146

Parties to a crime;
-Principal - def commits AR & MR of offence
-Innocent agent - liable ?
-What is a secondary offender and what are the 3 ways in which they can be involved in an offence?

3rd way dealt with on next slide

Answer 146

• innocent agent - NO if no knowledge of offence eg courier of bomb
• secondary offender 3 ways:
  1) Joint principal
• equally committed, both necessary AR & MR.
  -CANT mix AR 1 with MR another
• CAN commit same AR but diff MR so commit different offences - eg GBH AR but 1 intends to inflict serious harm and 1 some harm
• one can have defence N/A to other
  2) Joint Enterprise
• 2 or more act with shared common intention, at 1 commits crime
• all involved parties liable for offences committed
• can be expressly agreed or implied by the court
• CT in JOGEE confirmed all to be DW using same principle
  WHEN NOT LIABLE = if act committed fundamentally different from act foreseen by secondary

Question 147

3rd of the parties to a crime:
Accomplice liability, aiding, abetting, counselling or procuring =

Answer 147

• assists commission of offence by principal, but who does not commit AR of offence-
  AID - help support or assistance - before and at time of offence - hold down victim
  ABET - encouraging or inciting - at time of commission of offence - buying illegal ticket
  COUNSEL - Advising soliciting or encouraging - before offence - hiring hit mam
  PROCURE - to produce by endeavour - before and or at time of offence - spiking drink so caught drink driving

**NOTE
- principal offence must have been committed for accomplice to be guilty
- can’t be accomplice after the event
- victims can’t be accomplices
- mere persons at scene not sufficient

Question 148

MR of accomplice liability, aiding and abetting counselling or procuring =

Answer 148

• if strict liability does not need MR even if principal does
  National coal board provides 2 examples of MR required
  1) intention to commit act that assisted/encouraged primary offence
• not intention to commit, intention to do act that aided, abetting , counselled or procured primary offence
• only needs to have delib spoken or acted in way amounted to encouragement even if did not want or intend to assist in the commission of a crime
  2) Knowledge perpetrator is committing or is going to commit relevant principle offence
• does not need to know exact details. merely contemplated a real possibility that principle might commit the relevant offence
• subjective test what ACTUALLY foresaw and not what OUGHT to have foreseen
• may be liable even if principal commits offence different to one intended

Question 149

INCOHATE offences - commenced but not completed
Conspiracy - agreeing to pursue course of conduct which will necessarily amount to the commission of an offence. What is the AR & MR?

Answer 149

AR -
- 2 or more
- more than mere discussion
- no need to agree on upon details
- can’t conspire with spouse or child, can with spouse if 3rd party
- can proceed on one def only
MR
- intention to agree and intention offence to be committed

NOTE
-Can be convicted if play any part, some cases say must be an intention to achieve a result
-Conditional intent also sufficient to commit an offence if certain circumstances arise, is also sufficient to establish both the AR and MR

Question 150

What governs police powers, obligations and detainee rights?
x 4

Answer 150

1) PACE 1984
2) CODES OF PRACTICE
3) Public Order Act 2023
4) National security act 2023 - royal assent 11.7.22 - extends powers national security

Question 151

PACE - police stop & search s1(2), s1(8A)

What can and can’t you do

Answer 151

• no power to make “routine stop” UNLESS under RTA for 24 hr period under terrorism legislation
• police do have power to stop/search person/vehicle for:
  1) weapons, items adapted for crim - s1(2) & s1(8A)
  2) Drugs -misuse of drugs act 1971e -s87 Serious Crime Act 2007
  3)where serious violence anticipated

Question 152

What are the reasons for which a stop search can be made=

Answer 152

-Reasonable suspicion - objective , fairly without discrimination
- reasonable force- when exercising search powers
- Compliance - comply with rules in codes - can’t require to remove clothes in public.
- info must be given to those being searched - if police aren’t in uniform- must take reasonable steps to show warrant card, purpose of search, name and object of the the search

ANY MAJOR BREACH OF ANY OF THE RULES WILL RESULT IN SEARCH BEING EXCLUDED FROM TRIAL

Question 153

Police Powers of arrest - s24 PACE - what are they

Answer 153

Common law -any citizen can arrest where threat of breach of peace
PACE -
- can arrest if guilty of committing, or reasonable grounds to suspect guilty
- MUST believe arrest necessary because:
1) need name and address
2) to protect child vulnerable person
3) allow prompt effective investigation of offence
4) prevent physical injury, damaging property, offence public decency and obstructing highway
5) to prevent disappearance of def to avoid prosecution

Question 154

Police powers of arrest s24 - what is the burden of the pros?

Answer 154

• Low burden - reasonable grounds to suspect
• burden more substantial when arrested, must:
  1) - def told promptly why and reason for arrest, even if obvious. Failure to give reasons can be subsequently rectified.
  2) - taken to police station as soon as practicable. Unless street bailed to told when and when to attend station
  3) - Right to legal advice
  4) - cautioned on arrest & prior to interview

Question 155

Police powers of entry, search and seizure - what are these?=

Answer 155

1) - right to enter premises if - for recapture, execute warrant, arrest, preserve life & limb or property
2) - Warrant from mags - if reasonable suspicion offence committed or material to seize.
3) - can enter occupied or controlled premises - with reasonable, grounds as above
4) power of seizure - with content and any of above

Question 156

Responsibility of custody officer=

Answer 156

• suspect must be brought before as soon as practicable
• responsibilities - authorise detention, risk assess, inform of rights, custody record, search, authorise search, decision charge or bail- must bail unless exceptions

Question 157

Conditions of detention at police station x8=

Answer 157

1) - Clean
2) - 1 suspect per cell
3) - drinks 2 light 1 main mean per 24 hours
4) - medical attention
5) - Juv not in cell with adult
6) - toilet and washing facilities
7) - if practical outdoor exercise
8) - Juv not in cell unless no secure accommodation.

Question 158

Detention periods at police station - when does clock start? =

Answer 158

• when first arrives at station - only in rare circumstances 24 hours after time of arrest, whichever is earliest.
• if attends voluntarily, or accompanies PC to police station WITHOUT being arrested, then arrested t station - relevant time is time of arrest at police station

Question 159

when should detention reviews be carried out, when suspect in a cell=

Answer 159

• if arrested and charged reviews by custody sergeant
• if detained and not charged reviews but by Inspector or above
• all reviews documented in custody record
• first review no later than 6 hours after detention authorised and then every 9 hours thereafter.

Question 160

How long can a suspect be detained, hat extensions are available?=

Answer 160

• detained without charge for 24 hours
• can be extended to 36 hours for IND/EW offences to secure or preserve evidence, or further questioning by rank of SUPERINTENDENT or above .
• can be extended to 72 hours - only by magistrates warrant - on oath and notice -and for IND/EW offences
• can be extended to max of 96 hours with further magistrates warrant for further detention.
• following this charged, released unconditionally or on bail
• Must be listed before each period expires
  -before 2 mags or judge

Question 161

ID procedures- why and when should they be held?=

Answer 161

• held to positively ID or eliminate suspects
• must have where:
  1) witness claims will or has I/D witness
  2) witness not given opportunity of ID parade already
  3) ID issue where suspect disputes being person witness claims
  EXCEPTIONS
• suspect known to witness
• suspect admits at scene

Question 162

TYPES of ID parade - 4 options

Answer 162

1) Video Identification
2) ID parade - in person
3) Group ID
4) confrontation - rarely used

Question 163

Circumstances if suspect known/unknown or unavailable in ID procedures=

Consequences of using to participate in ID procedure?=

Answer 163

Known & available - hold ID parade and if refuses treated as “known but not available”
unknown - may take witness to area to ID suspect, if guidelines complied with could be shown pics
Known and not available - known and available in short time - could carry out covert ID or group ID and in very rare circumstances confrontation.

CONSEQUENCES of not participating -
- may be adduced at trial
- ID may be covertly done

Question 164

Types of ID - video=

Answer 164

• with consent
  -when known and available
• shown series of pictures, all resemble each other
• must be 8 and any distinct features copied or covered
• or known or not available and previous pictures held
  Suspect/sol should see images before shown to witness, and any objections raised then

Question 165

Types of ID - ID parade =

Answer 165

• lined up with similar people -8
  -Must conceal/cover unusual features
• suspect may choose and change position in ID parade

Question 166

Types of ID - Group =

Answer 166

• not same control as ID parade, but ID officer must be satisfied over period of time witness observes group witness will see form time to time a number of others whose appearance is broadly similar

Question 167

Type of ID - Confrontation =

Answer 167

• last resort
• witness confronts suspect
• does not require consent of suspect, less controlled.

Question 168

Is social media ID admissible ?

Answer 168

Yes - R V Phillips (Conner)

Question 169

Actual ID procedure? =

Answer 169

• ID officer separate to investigation, rank of Ins and in uniform
• suspect provided with notice of procedure.
• ID officer must inform suspect:
  1) Right to refuse & consequence
  2) Right to legal advice, sol or friend present
  3) sol provided with initial description given by witness
  4) special arrangements for juveniles or vulnerable people

Question 170

Samples from suspects
Intimate samples - what are they and when can they be taken? =

Answer 170

-Intimate samples =blood, semen, other tissue fluid, urine, pubic hair, dental impression or genitalia swab
- appropriate consent from suspect required. Sol must inform suspect that adverse inference may be made at trial if refuses.
- authority of a least inspector or above required- must have reasonably belief sample will confirm or disprove suspects involvement.

Question 171

Samples from suspects
Non-intimate samples =

Answer 171

• can be taken without consent
• can use reasonable force if:
  1) detained person for recordable offence
  2) suspect informed reason sample needed
  3) detainee informed of powers used
  4) no previous samples taken
• include Hair, nail, saliva, skin impression or non intimate bodily swab

Question 172

Samples from suspects
- Fingerprints=

Answer 172

• taken without consent and with reasonable force if informed reason for sample and powers used

Question 173

Samples from suspects
- footwear impressions=

Answer 173

• without consent and reasonable force used

Question 174

Samples from suspects
Class A drugs - s23 misuse drugs =

Answer 174

• must be authorised by inspector or above
• must be reasonable grounds to believe drugs concealed intimately and search required
• carried out by nurse/doctor, or by PC as last resort
• suspect must consent, appropriate adult for child.
  -Must be informed will cause harm if doesn’t consent

Question 175

Key Detainee rights are:

Answer 175

1) to consult codes of practice
2) consult solicitor in private
- this can be delayed by SUERINTENDENT or above for max of 36 from time suspect arrives at police station - if officer believes speaking to sol will interfere with or harm evidence or person or hinder recovery of property
-can be restricted to telephone advice with solicitor in certain circumstances.
3) right to have someone informed of arrest
-by phone call- relative, friend, someone re welfare.
- can also be delayed by INSPECTOR or above, for max of 36 hours, where believed notification will lead to any of outcomes detailed above

Question 176

Advising suspect at police station
- when is a suspect entitled to free legal advice?=

Answer 176

• when attending a voluntary interview
• on arrival at police station alleged to have committed offence
• commencement or recommencement of interview
• if declines must be noted on custody record.

NOT AVAILABLE FOR NON- IMPRISONABLE OFFENCES

Question 177

Solicitors requirements before attending police station =

Answer 177

• speak to custody officer - ask not to I/V before you arrive, basic information, time of arrest, arrival at police station or detention authorised
• if on phone - check want legal advice, advise to say nothing until you arrive
• consider funding
• look up law

Question 178

Solicitors requirements at police station=

Answer 178

-check client knows there
-obtain details of time of arrest and suspects details and arrest time, PACE compliant.
- disabilities or vulnerabilities
- significant comments made, sample taken?
- obtain custody record
- obtain typed disclosure
- speak suspect ensure fit to be I/V
- advise if should answer questions

Question 179

Advantages and disadvantages of answering questions in interview -

Answer 179

ADVANTAGES answering questions =
-if have defence intend to rely on at trial, better to put on record to avoid adverse inferences
- if believe will be no charge
- 1/3 reduction possible for guilty plea
- if caution available, will need to admit the crime to be considered
DISADVANTAGES answering questions =
- may incriminate themselves
- places suspect at scene
- burden on pros so no answers may result in no charge

Question 180

Advantages and disadvantages - written statement

Answer 180

ADVANTAGES -
- consider what says in controlled environment, won’t incriminate themselves
- has defence but would incriminate in interview
-prevents inferences as long as evidence at trial consistent with prepared statement.

DISADVANTAGES
- may give additional information to the police
- may need to put more than one written statement in

Question 181

Advantages and disadvantages - no comment interview

Answer 181

ADVANTAGES
- maintains control won’t incriminate or give police info
- complicated nature need time to consider
-denies offence and no defence
- inadequate disc not enough to charge
DISADVANTAGES
Adverse inferences may be inferred s34,s36,&s37

Question 182

Advantages and disadvantages - Hybrid - answer some questions

Answer 182

ADVANTAGES
- allow to make important pints without self-incrimination

DISADVANTAGES
- if answers ANY questions then WHOLE interview admissible. Inferences may be drawn from failing to answer some questions. Therefore this rarely advised.

Question 183

What is considered unfit to be interviewed?

Answer 183

• unable to appreciate significance of questions
• can’t understand what is happening - drunk/drugged or illness

Question 184

Interview:
1) Can you ask for legal advice if have said initially that you don’t want it
2) Can a solicitor answer questions for the suspect?
3) if suspect admits guilt to sol can you still represent?

Answer 184

1- Yes, reminded of right to legal rep at start of interview and can delay to obtain
2 - no, but they can interject to clarify or correct inappropriate question
3- only if intends to plead G. If admits guilt to you then enters NG cannot represent.

Question 185

Advising and supporting vulnerable people at the police station

Who is classed as vulnerable?=

Answer 185

• Juveniles
• Unable to speak/understand English
  -Mental health disorder that prevents understanding or communicating
• Blind, unable to read, deaf or speech impeded

Question 186

What additional requirements are there for interviewing vulnerable people?=

Answer 186

-must have appropriate adult present
- unless superintendent or above does not feel will significantly harm person physical or mental state & delay could lead to:
1) interference of harm to evidence or physical harm to people
2) serious loss or damage to property

Question 187

What responsibilities does the custody sergeant have when dealing with vulnerable people=

Answer 187

• ID who is responsible for welfare of vulnerable person and advise of arrest and need to come to police station.

JUVENILE - person responsible, if not -social worker, if not - responsible adult not with police.
VULNERABLE PERSON - relative guardian or other person responsible for care or custody, if not, - someone experiences in dealing with vulnerable people, not police, or if not, responsible adult over 18.

• girls u18 must be dealt with by a woman
• adults and juveniles not to be mixed, unless family member or jointly charged

Question 188

Who cannot be an appropriate adult for a vulnerable person?=

Answer 188

-suspect
-Victim or witness
- involved in investigation
- received admissions from suspect before acting
- solicitor
-estranged parent who suspect doesn’t want

Question 189

What is the role of an appropriate adult?=

Answer 189

• support, advise
• ensure understand proceedings and right to legal rep
• check police fair and appropriate
• assist communications with police and vulnerable person

Question 190

With regards to obtain samples and fingerprints what additional consent is required in respect of juveniles=

Answer 190

Under 14 - only parent and guardian can consent
Over 14 - child consents plus additional consent from parent/guardian

Question 191

What are the 3 alternatives to charging for juveniles

Answer 191

1) community resolution - disposal by informal agreement, therefore no criminal record.
2) youth caution - must be sufficient evidence to charge, must admit and in PI to proceed
3) youth conditional caution - same as caution but conditions added and if not complied with could prosecute.

Question 193

Advantages and disadvantages of alternatives to charging

Answer 193

ADVANTAGES - no charge, court or criminal record
DISADVANTAGES - Record, SOR, samples retained, disclosed to employers, may still lead to prosecution, referred to YOT and may be brought up at subsequent hearings.

Question 194

Bail - Bail Act 1976
police Bail - PACE

Is there a right to bail?=

Answer 194

YES
Unless:
- charged murder - unless no sig risk
-convicted of murder, manslaughter, rape
- charged with one of above and has previous conviction for same offence
- appealing summary conviction or summarily convicted awaiting CC sentencing

Question 195

What are the time limits on remand

Pre-conviction =

Post - conviction =

Custody time limits

Answer 195

Pre conviction -
-3 days in custody to the police
-Then if remanded at court must appear again within next 8 days
-Then if remanded again within next 28 days
-Then if remanded again within 28 days etc etc until trial
-If convicted;
-Adj 3 weeks for PSR and sentence
-4 weeks if on bail
CTL
56 - mags
182 - CC

Once in CC no set dates can be remanded up until CTL expiry

Question 196

Other than main exceptions for denying bail FTS, CFO IWW

What are 5 other exception’s

Answer 196

1 - an indictable/EW offence committed whilst on bail - if realistic prospect conviction
2 - breached bail or FTS when previously granted bail
3 -own protection
4 - DV exception
5 -not enough info to make decision (para 5)

Note only considered if “real prospect” of custodial sentence

Question 197

Factors court consider when considering denying or granting bail

Answer 197

a) nature & seriousness offence
b) character record associates and community ties
c) bail record
d) strength of evidence against D
e) risk of CFO
f) personal factors
g) any other relevant factor

Question 198

What is the procedure in a Murder case re bail=

Answer 198

-Mags cannot grant bail. In mags confirms name and immediately sent to CC to appear within 48 hours, starting day after def appears or brought before mags court.
- CC Judge will only consider bail if there is no significant risk DV ground

Question 199

What is the difference between exclusion and exceptions to bail?=

Answer 199

EXCLUSION
- right to bail doesn’t apply

EXCEPTION
- need not be granted bail if there is a reason to refuse bail.
- used when dealing with grounds for refusing bail

Question 200

If convicted/accused indictable, imprisonable offence when will the exceptions to bail NOT apply?=

Limitations on exceptions apply where?=

Answer 200

• def is 18
• not been convicted of offence in these proceedings
• no real prospect of custodial sentence
• risk absconding, I/W or FO
  -CFO
  -arrested for absconding

Question 201

what exceptions to bail DO NOT apply to summary non imprisonable offences

Answer 201

• on bail date of offence
• not sufficient info

Question 202

What criteria applies to granting bail with conditions as opposed to RIC?

Answer 202

• must be satisfied one of the para 8 factors apply, these being;
  1) one of para 2 factors applies CFO, IWW and FTS
  2) Necessary for own protection
  3) Necessary to enable enquires to be made for PSR

Question 203

What are the two limbs for FTS

Answer 203

1) fail to surrender to court without reasonable excuse
2) having a reasonable excuse, but then subsequently failed to surrender

Sentence
Mags - 3 months up to £5000 fine
Crown - 12 months - unlimited fine
If surety or security in place that would then be forfeited.

Question 204

1) -How many bail application can the defendant make in the magistrates?

2) If RIC in mags can this be appealed and where to?

3) If bailed in mags can prosecution do anything?

Answer 204

1) - 2 unless there is a change in circumstance which allows further application to be made

2) Yes can be appealed to CC within 48 hours of application in MC - Judge in chambers

3) Yes prosecution can bail appeal
Mags to CC
CC to High CT
- only when charged convicted imprisonable offence
- must give oral notice at end of hearing and then formal notice not more than 2 hours later. Defendant remains in custody until bail appeal in CC or high court

Question 205

Representation order - legal aid - what are the two tests to be met and the form to be submitted?=

Answer 205

• Form CRM14 interests of justice CRM15 Means test, to legal aid authority
  Test=
  1) Interests of justice test - merits test Widgery criteria
  2) Means Test

Question 206

REPRESENTATION ORDER _ legal aid
Interests of Justice - Widgery criteria
Must meet 1 but preferably more.

What are the 10 criteria.

Is it more likely if more serious offence.

What is the situation for a youth or CC trials?

Answer 206

1 - Likely to loose liberty inc suspended sentence and hospital orders included
2 - in breach suspended sentence
3 - likely to loose livelihood - linked to offence
4 - serious damage to reputation
5 - involves substantial question of law - must be identified
6 - may not understand proceedings - disability, doesn’t understand English
7 - defence may need to trace and I/V witness
8- involves expert cross examination of witness - prosecution witnesses
9 - Interests of another represented
10 - any other reason

Yes - more serious the charge more likely it is to get legal aid.

If U18,m facing CC trial or committal for sentence, IOJ test automatically met- not met automatically for appeals to CC

If fail IOJ test in mags then sent to CC IOJ will be automatically met

If fails merits test in Mags - can be appealed

Question 207

Representation Order - legal aid- Means Test

1) What is this

2) What does passporting mean?

3 )What are the 2 tests, and why are there 2?

Answer 207

1) check funds and income, to include family circumstances, kids, living cost essentials. Different in mags and CC.

2) Passporting - automatically pass means test if:
- U18
- Receive welfare benefits, income support, need NI to consider

3) Initial means test and then full means test. If result of Initial Means Test- adjusted annual income is more than £12,475 and less than £22,325. Full means test used to assess disposable income

Question 208

Representation order - legal aid
-Initial means test

1) What is considered in Mags and CC?

2) How is it determined?

Answer 208

1) Mags - limited to income of defendant
CC- includes income, capital and equity, may be liable to contribute to funding

2) Gross income & any necessary weighting = adjusted annual income then compared to threshold

Question 209

Thresholds and how adjusted annual income calculated in Initial Means Test?=

Answer 209

AAI OUTCOME
£12,475 or less Yes in Mags & CC

+£12,475 - less Mags - depends on
than £22,325 full means test
CC - as in mags
+may have to
contribute.

£22,325 or more Mags - NO
CC - depend FMT &
may have to cont.

£37,500 of Disp CC - NO
Income Not avail in MC

-If def fails means test or thinks will, but has exceptional financial circumstances a hardship review may be submitted
-No right of appeal if then fails means test.

IF granted solicitor can claim for helping fill in the application form.

Question 210

Representation Order - Full Means Test?=

Answer 210

• used when adjusted annual income (in initial means test) is more that £12,475 and less than £22,325.
• consider annual living allowance -£5,676 together with any necessary weighting
• that gives adjusted living allowance/annual disposable income
  -this is then compared to the threshold set by legal aid agency
• greater than £3,398 but less than £37,500 - Mags- No CC - may have to contribute full or part

Question 211

How is income contribution calculated in a representation order - legal aid

Answer 211

• greater than £3,398 but less than £37,500 - Mags- No CC - may have to contribute full or part
• above £30,000 in capital or equity and convicted may have to contribute towards any remaining balance against defence costs

Question 212

Inferences from silence
s34 - silenced when questioned or charged=

Answer 212

• remains silent in interview, then puts forward fact at trial that could have mentioned in I/V
• silence due to legal advice, not enough unless can show genuinely and reasonably relied upon advice and that was why silent. Take into account ARGENT FACTORS - age, mental capacity, health, sobriety and tiredness
  -its must also be satisfied that, proceedings started, failure was before or on charge, reasonable to mention fact before or on charge.
• if police disclosure poor - may be grounds to remain silent

Question 213

Inferences from silence
s35 - FT testify at trial=

Answer 213

• no obligation to give evidence
• can lead to inferences being drawn.
• “without good cause”, “no answer that would stand up to cross exam”
• inferences if answers some but not all questions
• Must take account of defs physical/mental state - if undesirable to give evidence - no inferences
• Must be made aware of consequences of not giving evidence

Question 214

S36 & s37 Fail to account for objects or presence at particular place

Answer 214

s36 - fail to account for object, substantial mark found on person, clothing, possession or where arrested.

s37 - Account for presence in a particular place

Question 215

What are the inferences drawn from

s34
s35
s36
s37

Answer 215

s34- silence when questioned or charged
s35 - FT testify at trial
s36 - FT account for object mark
s37 - FT account for presence at scene

Question 216

What must and mustn’t be done when drawing inferences from s34,s35,s36,s37

Answer 216

• Inference CANNOT be drawn if def hasn’t been offered legal advice prior to interview.
  -BUT if offered and declines then inferences can be drawn
• In relation to s36 and s37 - def must be be given “special warning” and told:
  1) offence being investigated
  2) what fact is def being asked to account for
  3) the fact may be due to them taking part in the offence
  4) that a court may draw such inferences as appear proper if they fail or refuse to give account for this fact
  5) Told record being made of the interview and may be given in evidence at trial

Question 217

Evidence at the police station -
What is s76?

Answer 217

• relates solely to confessions, permits or excludes confessions
• CONFESSION = made to person in authority or not (can be made to a friend under s82), and made in words or otherwise eg int recorded or gesture.
• A confession is an exception to the general rule that hearsay is inadmissible

Question 218

What are the two forms of confession
Exculpatory=
Inculpatory=

Answer 218

Exculpatory - demonstrates innocence, includes co- defendants and may not be conclusive
Inculpatory - demonstrates guilt

Question 219

S76 - Confession- what permits and excludes a confession

Answer 219

Permit
- if can prove confession admissible beyond all reasonable doubt
- permitted unless shown obtained by oppression, obtained unreliably by police and if will have an adverse effect on proceedings
Excluded
- if obtained by OPPRESSION- torture, degrading, but also police interrupting shouting and swearing, causal link must be shown
- if obtained UNRELIABLY - involves breach of PACE - taking advantage of suspects vulnerability or emotional state, must be causal link

• defendant can seek to adduce confession of co-def - BUT only if not obtained by oppression, bad policing or adverse effect - ONLY needs proved on balance of probabilities*

Question 220

1) How is the question of whether a confession is admissible or should be excluded under s76 decided.

2) Is this the same in relation to s78 - app to exclude other types of evidence

Answer 220

1) by way of a Voir Dire -trial within a trial. If finds obtained by oppression or unreliable - MUST exclude

2) Yes same procedure BUT if found MAY exclude not MUST

Question 221

1) S78 - adverse effect on fairness of proceedings =

2) What will and will not succeed?=

Answer 221

1)
- applies to all evidence
- discretionary - MAY exclude not MUST
-Even where evidence capable of exclusion - eg confession s76- MAY still be excluded under the discretionary power of s78

2) - single breach NOT likely to succeed, breach must be significant and substantial R V Walsh
- must consider how serious the breach is R v Mason - lying saying had fingerprints when didn’t, resulting in confession - confession excluded under s78.
- CT decide if probative outweighs prejudicial

Question 222

Can the prosecution apply to exclude defence evidence under s76 and s78?

Answer 222

NO - Pros can only apply to exclude under common law basis of relevance ie irrelevant

Question 223

How should a question on s76 an s78 be approached?=

Answer 223

1) Was INT properly conducted
2) SIG breaches of PACE?
3) Confession mad - definition and apply criteria
4) confession excluded under s76
5) other evidence may be excluded under s78

Question 224

Visual ID & Turnbull Guidance

1)Where can ID be made?=

2)If dispute re iD what should happen?=

Answer 224

1) Before trial- ID parade etc or Dock ID
- Pros cannot invite a dock ID unless:
a) Impractical, unnecessary for witness to carry out ID
b) Exceptional circumstances

2) Judge must give Turnbull direction, which is
a) warns jury even good CCTV can be mistaken, especially when case rests solely on it- Need for caution
b) Identify how each witness identified the Def
c) invite submissions where ID poor & unsupported. If then appropriate withdraw from jury at close of prosecution case
b) & c) following factors should be considered: ADVOKATE
A- A sustained look or fleeting glance
D - distance between parties
V - Visibility
O -observation impended
K - known to witness
A - Any reason to remember
T - Time elapsed since witness saw suspect
E -Errors discrepancies, defs appearance

** only required when pros case relates solely or substantially on the visual evidence***

Question 225

What is hearsay evidence s114 CJA?=

Answer 225

• statement made by a person:
  a) outside of CT - relaying what told by another person
  b) Where purpose to cause another to believe or act on the content of that statement
  c) statement relied on as evidence of matter stated

Question 226

Is Hearsay admissible or inadmissible? =

Answer 226

• starting point is hearsay is INADMISSABLE
  -there are 4 exceptions which would make hearsay admissible
  1) Parties agree to it being admitted
  2) Common law rule making it admissible s118 inc public info, res gestae.
  3) Court satisfied in interests of justice to admit it s114(2) inc factors such as :
  : probative value of statement
  : what other evidence can be given on the issue
  : reliability of maker of state and circumstances in which made
  4) Admission under another statutory provision, the main provisions are:
  a) - witness missing s116 :
• oral evidence would be admissible
• person who made statement identifiable
• witness unavailable because:
  : Dead
  : Mentally or physically unfit
  : Outside of UK return unreasonable
  : Cant be found and reasonable steps taken to try and find
  : Afraid to testify and CT grants leave
  b) -Business documents s117 ;
• created, received in course of business
• person supplying info had personal knowledge of matters D/W; and
  -everyone informed in course of business
  c) - Evidence previous inconsistent statements s119
  d) Evidence supplementing oral testimony s120

Question 227

1) Procedure for making hearsay application

2) MC - Time to lodge? =
3) CC - Time to lodge? =

Answer 227

1)
a) serve notice - id hearsay, facts relying on, facts proven if disputed, why evidence admissible, attach documents not already served
b) does other side object if not then admissible if rules followed
c) Apply to ct
d) Ct consider if will be hearing or not

2) Mags - no more than 20 days after NG plea

3) CC - no more than 10 days after PTPH

Question 228

What legislation deals with plea before venue x 4

Answer 228

1) ss19-20 MCA 1980
2) S22A MCA 1980 - low value shop theft - summary but if NG can elect & damage under £5000 (this can’t go on own for sentence though)
3) s50A Crime & disorder Act 1998
4) s51 CDA 1998

Question 229

1) What does s51 CDA 1998 do? =

2) What is Better case Management 2016? =

3) what is credit given and at what time for G plea

Answer 229

1) send cases directly to CC - IND only matters

2) BCM - getting it right first time, case ownership, duty direct engagement and consistent judicial case management

3)
- Full credit - G plea 1st opp - 33%
- G plea 1st hearing in CC = 25%
- G through trial - 10%

Question 230

What happens when sent from mags to CC s51?=

Answer 230

• list within 28 days of transfer (serve max 35)
• serve Indictment and principal case I/C 7 days prior to PTPH
• following PTPH only further CMH if complex or need to set ground rules hearing
• If charged with indictable and ew offences can all be sent together as linked offences - s50(A)(3)
• JUV charged with IND offence joint with adult can be also sent to CC if considered in the interests of justice.
• serious complex fraud cases can be sent without allocation - s51(c)

Question 231

What happens in EW offences s19 - 20 MCA?=

Answer 231

• not obliged to enter plea, but no plea taken as NG
  -sol advises def on venue, pros n cons:
  Pro’s mags -
  quicker, cheaper, less stress, less publicity, can appeal without leave to cc
  Pro’s CC
  Juries sympathetic, more time to prepare, disclosure compulsory, questions law better DW.
  -Decision then made under s19 - CC - allocate under s21, mags - retain under s20
• Def before deciding on venue and after mags have retained jurisdiction can ask for Goodyear direction = indication of sentence, not held by this, but if indication no prison can’t then be given prion by any court. ONLY APPLIES if changes plea to guilty. Def can be asked following this if want to reconsider plea

Question 232

Case Management in Magistrates - key points?=

Answer 232

-governed CrPR Par 15 & CPIA 1996
- pros under continuing duty re disclosure
- if def dispute what disclosed, to apply for disclosure must serve defence statement first
- No duty in mags for defence to serve defence statement but if do, pros have 14 days to respond
- In CC must serve defence statement within 28 days of pros initial disclosure
- defence statement must include - what takes issue with and why, law intends to rely on, defs involvement, any alibi and details.

Question 233

Bad character s101 (1)CJA 2003

1)What are the gateways - 7 a-g

2) Time limits for service and response

3) What gateway does the court exclude under

Answer 233

1- Gateways
a- agreed by parties
b - def adduces evidence himself in CT which automatically puts his bad character in
c - Important explanatory evidence
d- relevant to important matter in issue between def and Pros ie - propensity to commit same crime or propensity to be untruthful
*HANSON FACTORS - History from pre cons, strength case
e - substantial probative value
f - evidence to correct false impression given by def
g - def has made an attack on another persons character

2)
Mags - 20 days following NG plea
CC - 10 days following NG plea
Response to both within 10 days
App can be in CT or in private

3) App & app to exclude served CT can exclude under s101(4) - must consider length of time since conviction and facts which form basis of B/C app.
- s101(3) - Fairness
can also be under s78 - fairness but NOT in relation to evidence admitted under s101(1)(e)
- s107 - contaminated evidence

Question 234

What are the gateways of applying to admit bad character of person other than defendant- s100(1)

Answer 234

a- important explanatory evidence
b- substantial probative value
c - all parties agree to evidence being admissible

Question 235

Unreliable witnesses, what can the judge do

Answer 235

• Judge can give warning to jury in respect of:
• accomplice given evidence for prosecution
• Complainants in sexual cases
• Children
• Mentally unstable witness
• Witness made previous false statement
• witness clear ulterior motive for making statement

Question 236

Sentencing - key points

1) Purpose of sentencing

2) Max sentence in mags & update re ass EW

Answer 236

1) - Punishment, Protection of public, reduction of crime, reparation by def and rehabilitation.

2)
-12 months for 2 x 6 months.
- PCSA 2022 increased ass EW from 12 - 2 years
- child grooming scope of offences increased
- add damage to memorial
- whole life order murder child

Question 237

Suspended sentences
1) Appropriate?=
2) Not appropriate?=
3) What happens when breach suspended sentence?=
4) When can you pass a Community Order?=

Answer 237

1)
- realistic prospect rehabilitation
- strong personal mitigation
- custody result in significant harm & impact on others

2)
- risk to public/community
- custody only realistic punishment
- poor compliance with court orders

3) the sentence is imposed or lesser sentence, or fine not exceeding £2,500

4) only when sufficiently serious offence- punishable by imprisonment and defendant suitable for requirements.
- 1st breach of CO - warning, if warning within last 12 months may bring back to CT and resentence

Question 238

Appeals

Magistrates - who can and can’t and in what format

Answer 238

• only defendant can appeal to CC
• PROS & DEF can appeal by way of Case stated.
  APPEAL TO CC
• can be appeal conviction or sentence
• Appeal conviction - total retrial - no obligation on Pros to put case as they did in Mags, can introduce new evidence. - Judge and 2 - 4 mags
• Appeal sentence -complete rehearing of sentence hearing in mags.
• No right to bail awaiting appeal. If wants to make bail app must be lodged with appeal notice
• notice no more than 15 days after defer/pass sentence. Told within 80 days of date of hearing
• If lodged within time no leave required, automatic right to appeal
• notice can be made to abandon appeal , but if do that no right to restart appeal
• CC can vary, reverse or remit decision

Question 239

What are the reasons an appeal can be lodged in mags (3 which includes two that remains in mags)

Answer 239

1) Mistake/Incorrect Procedure
- can ask to set aside conviction vary or rescind sentence.
- If thinks serious mistake or correct steps not followed
- court consider if in interests of justice
- no time limit to re-open- delay ill be taken into account

2) Unaware of case
- mainly in traffic cases if convicted and not aware of case can make statutory declaration to CT or commissioner on oath within 21 days of finding out
- if accepted proceedings start again and conviction set aside.

3) where disagree with decision
- need to appeal to CC
- governed by part 34 Criminal Procedure Rules

Question 240

1) What is the alternative to appeal form MC - CC

2) What is the procedure for this

Answer 240

1) By case stated to Divisional CT of Queens Bench Division part 35 CPR

2)
- restricted to appeal based on law
- heard by admin CT sitting as divisional CT of queens bench - High CT as appeal CT
- Grounds are 2 fold
* wrong in law - misapplied, admitted what shouldn’t have been
Decision in excess of jurisdiction
* FACTUAL DISPUTE NOT SUITABLE
A) App must apply within 21 days of acquittal, conviction or sentence
B) within 21 days of application LA prepares statement of case in consultation with
* outlining facts called into question
*stating facts as found by mags
* state mags findings on point of law being challenged and question divisional CT being asked to answer
C) final form of case stated sent to appellant to lodge at royal CTS of Justice
London, serve notice and copy case stated on respondent
D) appeal heard by divisional CT NO evidence, merely on basis of legal argument on facts of case stated
E) divisional CT may review amend or affirm or remit decision with opinion and direction

NOTE
-Once defence apply to state a case APPEAL to CC LOST
- If appeal to CC & loose CAN THEN apply to case state.
- CAN FURTHER appeal to SUPREME CT if involves point of law of general public importance, leave is obtained from HC or supreme court
- Costs can be awarded to either party out of central funds

Question 241

Appeals from CC Part 39 of CPR

1) Do you need leave? -

2) Can you bring forward new evidence?

3) Time limits and who heard before?

4) Can you have more than one appeal

5) What can Pros appeal from CC and where to?
6) when can defence appeal to supreme court - Part 43 Cr PR

Answer 241

1)
- YES - granted by CC or following application. Needs to be lodged within 28 days
- Conviction unsafe
- sentence not proportionate with seriousness of crime
- lower CT made error on point of law

2)
APPEAL CONVICTION - Yes can introduce fresh evidence if in Interest of justice to do so- will consider if credible, affords a ground of appeal and would have been admissible at trial and whether reasonable explanation for the failure to adduce it at trial
APPEAL SENTENCE - NO - for appeal sentence must show wrong in law, manifestly excessive or wrong in principle.

3)
- Leave to appeal can be granted by trial judge in Court at time of guilty verdict
- Or for appeal conviction - within 28 days of conviction
- Or for appeal sentence - within 28 days of sentence
- Heard before uneven number of judges in divisional CT or Appeal CT ( Crim division)

4) NO - must appeal up a court, with leave, if want to appeal again

5) Pros can appeal from CC to Criminal division of court of appeal. BUT only in limited circumstances
- NOT where acquitted
- CAN where against termination ruling - where judge accepted no case to answer submission
- CAN where applying for retrial of qualifying offence
- qualifying offences = Murder, attempt murder, manslaughter and aggravated arson.
- must obtain DPP consent and and be new and compelling evidence

6) - Defence can appeal to Supreme court but only if CT of appeal certifies the decision is on a point of law of general public importance, and defendant gets leave to appeal from either the court of appeal or the supreme court - within 28 days of decision.
- when permission granted - defendant must serve notice within 14 days

Question 242

YOUTH CT
1) what are the key aims

2) what are the ages relevant to the youth court and what do they mean

3) Where are youths sent if given imprisonment

Answer 242

1) Delivery meaningful consequences for offending, Crime Prevention, Rehab & reintegrate offenders.
2)
- Age criminal responsibility in England & Wales is 10
- Youth/JUV = U18
- Young Person/Young offender = 14-17 (inc)
- Child =10-13 (inc)
- general rule is youth tried summarily in youth court unless:
* Age at time
* Offence charged
* youth jointly charged adult
- If 17 when charged then 18 when 1st appears at CT - D/W as adult Youth CT not jurisdiction
- If 17 when charged & turns 18 after 1st appearance - D/W in youth CT but may remit for sentence to adult CT with all options
- if 17 when charged & 18 during but not before end of trial - Youth CT has jurisdiction can D/W as youth OR has option to remit to adult CT

3) Aged 18-25 YOI - holding only people within that bracket, secure centres not prisons

Question 243

YOUTHS
1) what offences are sent straight to CC?

2) What are Dangerous offenders and how dealt with?

3) What is a Grave crime and procedure for dealing with?

Answer 243

1)
- Murder, manslaughter & attempts
- firearms offences - minimum term 3 years BUT only where 16 or over
- Fraud or cases involving children- must be authorised by DPP.

2)
- Covered by Dangerous Offenders Provisions
- CT MAY send to CC where:
*charged with specified offence - violent, sexual or terrorism offence
*court considers dangerous offender - if of opinion significant risk to public of serious harm caused by child /young person committing further specified offence. Risk MUST be more than mere possibility
* a custodial sentence of at least 4 years would be imposed.
- If found MAY send to CC - if difficult to make decision will remain in Youth court with option to then commit to CC for sentence.

3) GRAVE CRIME -
- serious offence, punishable with sentence of 14 years or more if offender 21 or over
- serious offence = Robbery, GBH/wounding W/I s18, Agg crim damage and Agg arson
- A plea before venue hearing must be heard and if:
- G plea proceed to sent and commit to CC if necessary
- NG or no plea, proceed to allocation
TEST is - real prospect receive sentence in excess of 2 years
- Youth has NO right to elect

Question 244

Youth charged jointly with an adult

1) How do they appear in court and how must they be dealt with if:
- Adult pleads NG and tried in mags
- Adult pleads NG and allocated
- Adult G and committed for sentence

2) how do the magistrates consider if in interests of justice.

Answer 244

1) If charged jointly adult always D/W first
- Youth and adult appear together in adult court
- Adult NG & trial in mags = Youth will be tried will adult in adult CT, if convicted or adult pleads guilty, case remitted to youth court
- Adult NG and allocated = if charge with offence that should be sent forthwith then send, if not PBV hearing conducted, youth usually dealt with separately in youth court UNLESS in interests of justice to send to CC
- Adult G and committed for sentence,
youth remitted to youth court

2) IOJ consider
- separate trials result in injustice to case and witnesses
- Age, younger they are more likely youth court
- Age gap youth and adult
- Lack of maturity
Culp of youth as opposed the adult
- lack of pre cons

Question 245

1) What is considering when determining sentence for a youth

2) What are the 3 types of orders available for a youth

Answer 245

1)
- Age ,seriousness, likelihood reoffending, extent harm from Further offending & adult principles sentence including:
- avoid criminalising young people aim for rehabilitation, maturity, scaled approach taking into account Youth offending team intervention

2)
Referral Order- youth agrees contract with youth offending panel, must comply to prevent reoffending
- can be made in YC or AC BUT NOT CC.
- MANDATORY where:
*have no pre cons
*G pea imprisonable offence
*proposing custody CD or discharge
*not offence where sentence fixed by law
- BUT MAY impose:
*G non imprisonable offence
*G some offences but not others then convicted of those after trial
*Has pre cons but never had RO
- YOT recommends further RO
RO Max = 3 - 12 months
Less serious 3-5
Serious -10-12

Detention & training orders
- form of custody - held in YOI
- Only make if fine or community sentence not sufficient
- IF 10-11 - CANNOT make DTO
- IF 12-14 - DTO ONLY if persistent offender
- 15-17 - can make
- Made for fixed term 4,6,8,10,12,18,or 24 months- can only be longer if in CC
- Must be represented unless refuses to apply for Legal aid or funding withdrawn

YOUTH REHABILITATION ORDER
-community based
- Discretionary order made up of:
* Activity requirements up to 90 days
*Supervision requirement
* Unpaid work 40- 240 hrs
- requirements must be proportionate and not onerous to make breach inevitable
- if 14 when at time of offence and 15 when sentence very rare that will be sentenced as 15 year old.

Question 246

how to address in magistrates and judges:
- Lay bench
- DJ
- Circuit judge

Answer 246

• lay bench - your worships sir/madam (letter Mr& MRs)
• DJ - Sir madam or Judge (DJ…
• Circuit judge - your honour (his/her honour… QC)
• Hight CT Judge - My Lord/My Lady (the honourable)

Question 247

Competence and compellability

1) Competent (and when not) =
2) Compellable =

3) When and how is competence and compellability decided

4) who is competent and compellable

Answer 247

1) Competent
- may be called to give evidence
- Generally all competent unless:
* Intelligible testimony test - unable to understand questions, or give answers that can be understood

2) Compellable
- lawfully required to give evidence

3) Objection to competence before give evidence in absence of jury. PART CALLING must PROVE competence on BALANCE OF PROBABILITIES

4)
FOR PROSECUTION
- DEF - Not competent
- Co-defs - NOT Competent or Compellable unless jointly charged and pleads guilty
- Spouse/civil partner - Competent, NOT compellable. UNLESS offence includes children DV or sexual offence (or attempts THEN Competent
FOR DEFENCE
- DEF - competent but not compellable, adverse inference can be drawn if doesn’t give evidence
- CO-DEF - as above
- Spouse - Competent and compellable

Question 248

Leading and non- leading questions and where permitted

Answer 248

Leading - suggest answer or assume facts not yet in evidence
Non- leading - don’t suggest answer or adduce facts not in evidence

Examination in chief - leading questions not permitted
Cross Exam - leading questions permitted
Re- Examination - leading questions not permitted

Question 249

Special Measures=

Answer 249

• support pros and def witnesses
• limited help for defendant - only where suffer mental disorder, significant impairment of intelligence and social function
• automatic pros witnesses in sexual offence, violence (DV) knife/gun crimes, child witness
• Jury directed no prejudice to def by use of special measures

Question 250

Submission of n o case to answer R V Galbraith. How made and in what circumstances.

Answer 250

• Submissions usually at end of pros case where:
• no evidence crime committed - no difficulty case stopped
• Judge concludes pros evidence at highest is such properly directed jury would not convict - case stops
• strengths and weaknesses of pros witnesses SHOULD be matter left for jury.

In murder, attempt murder, manslaughter, s18 or s20 submission is not made at end of pros case BUT IS MADE at close of all evidence.