Criminal Flashcards
What is direct intention?
Defendant wanted X to happen
What is oblique intention?
Defendant did not necessarily want X to happen, but had to make it happen for Y to happen, and the result X was an inevitable consequence of result Y.
When will a defendant indirectly intend an outcome?
- Outcome was a virtually certain consequence of their action
AND
- Defendant realises this / should have realised this with the info available to him
What must be shown for recklessness?
- Defendant needs to have foreseen any risk from the act
- In the circumstances subjectively known to the defendant, this an objectively unreasonable risk to take
What value must criminal damage be up to to be considered summary only?
Up to £5,000
(Over £5,000 is indictable only)
What are PACE rules?
A broad set of directions for police that must be exercised reasonably
If police act outside of PACE, what is the consequence?
Any breaches must be substantial
The officer / force will have acted unlawfully.
Can lead to civil / criminal / disciplinary action being taken.
Can lead to the exclusion of evidence obtained by virtue of PACE.
What is a s.76 application?
An application to exclude confession evidence as a result of breach of PACE.
What is a s.78 application?
An application to exclude any prosecution evidence, and is discretionary
Under what two grounds can a police officer stop and search?
- Magistrates Court Warrants
- Reasonable grounds for suspicion
What must be satisfied in order to stop and search somebody under ‘reasonable grounds for suspicion’?
There must be:
- an actual suspicion or belief
- that suspicion / belief must be based on reasonable grounds (if reasonable person looked at the same situation, would they hold the same suspicion)
- officer must have reasonable grounds for believing that they will find lost / stolen articles
On what type of land can a stop and search take place?
Must take place in a public place, or on private land that is readily accessible to the public
When can the Police obtain a MC warrant to enter and search a property?
If MC is satisfied that there are reasonable grounds for believing that:
- an indictable offence has been committed
- there is material on the premises that is likely to be on substantial value (and relevant)
- the material is not subject to legal privilege
must be shown that there is a need for a warrant to permit a search
If stopping and searching a person, what must the police officer do?
Must inform the suspect of the purpose and grounds of the search, and make a record of the search
Under what grounds can a police officer exercise their power to search/enter a premises generally?
To protect individuals
To prevent serious damage to property
Under what grounds can a police officer exercise their power to search/enter a premises occupied / controlled by somebody who is under arrest for an indictable offence?
Reasonable grounds for believing that there is evidence in the property that is related / relates to some other connected / similar indictable offence.
A power of arrest can be made under what two basis’s?
- Made under a valid basis / officer has reasonable grounds for believing this to be the case.
- Made under a MC warrant.
When can an arrest be made immediately?
Where an officer has reasonable,e grounds to suspect that an offence:
- is about to be committed
- is being committed
- has been committed
When can an arrest be made for a past offence?
Officer can lawfully arrest:
- whoever committed the offence
- whoever the officer reasonable believes committed it
What does ‘reasonable’ mean in the context of a basis of arrest?
Objective grounds for the suspicion, based on known facts and information that is relevant to the likelihood.
officer should also consider facts suggesting that the person may not have committed the offence
If addition to reasonable as to making the arrest, what else must be satisfied?
Reasonable grounds for believing the arrest is necessary
E.g., necessary to:
- determine identity
- protect property / persons
- secure evidence
- prevent a person from escaping
What must the person under arrest be told?
Why they have been arrested
What are the main custody officer responsibilities?
- authorising suspect’s welfare
- supervising suspect’s welfare (ensuing they receive appropriate medical attention)
- performing a risk assessment
- determining whether detainee is a juvenile
- informing detainee of their rights
- keeping an accurate custody record
- searching / authorising a search
- making a decision about bail
What is Code C?
The circumstances under which a person should be detained (i.e., adequate food / rest / lighting / heating)
What happens if there are breaches of Code C?
Technical breaches will not invalidate confessions / evidence, but deliberate or sustained breaches could
When should a custody record be started?
As soon as reasonably practicable on the detainee’s arrival at the police station
What should be noted in a custody record?
Requests and complaints made / voluntary comments
Periodic reviews
Risk assessments
Who can see the custody record?
- detainee is entitled to a copy once they are released
- legal advisor has a right to access it at any point during detention
Can a custody record be used after release of a detainee?
The record is admissible as evidence at trial
Can a custody officer question the suspect?
No
If there is insufficient evidence on detention, what options can the detainee be subject to?
- release without charge
- release under investigation (on bail)
- detained without charge (where officer has reasonable grounds for believing detention is necessary to secure / preserve evidence or obtain such evidence through questioning)
On arrival, what searches can be undertaken?
Custody officer should ascertain any property of the detainee.
Non-intimate search can be undertaken.
When can clothing items be seized on arrival?
If it can be used to:
- cause harm to suspect / anyone else
- damage property
- interfere with evidence
- assist an escape
Or
- reasonable grounds for believing items can be used as evidence in an offence
If clothing items are seized on arrival, what should the suspect be told?
The suspect should be told why the items are being taken
When can a strip search be conducted?
If the custody officer reasonably believes that the suspect has items concealed on their person that could be seized.
Must be carried out by somebody of the same sex.
As well as searching, what else can a custody officer do in relation to the suspect on arrival?
Officer can examine a person physically to identify them (e.g., look for distinguishing marks)
If a fuller search is needed, who much authorise this?
Inspector or higher
Must have reasonable grounds for believing that the search is necessary
What are the 5 main suspect rights?
- Be informed of the offence and why they have been detained
- Consult the Codes of Practice
- Have somebody informed of their arrest
- Consult a solicitor in private
- Access interpretation / transaction services
What other rights does a suspect have?
- To access a copy of the custody record
- To access materials / documents to help them challenge their arrest
- To be informed of the time limits for detention
- To medical assistance
- To silence
- (If charged) to access evidence against them before trial
- To information about how interviews should be conducted
What is the right to have somebody informed of the arrest and reason why?
Right to have a single person informed - a detainee is entitled to have writing materials or telephone call with one person for a reasonable time.
Will it always be the detainee informing the person of their arrest?
No, direct contact is not guaranteed
Can conversations in informing somebody of an arrest be used at trial?
Yes, communications are not confidential or privileged
Can a person visit a detainee?
Custody officer has discretion to allow visits / inform those enquiring if the detainee consents.
What is the detainee’s right to access legal advice?
Detainee should be told that they can gain free independent legal advice.
Advice can be given over the telephone or in writing.
When should a detainee be told of their right to access legal advice?
Before each interview
At each review of detention
On charge
When being subject to an identification parade
Can a solicitor be present in interviews?
Yes, if the detainee consents
Who can delay the right to have somebody informed?
Inspector or higher
Who can delay the right to access legal advice?
Superintendent or higher
If an officer would like to delay right to have somebody informed / right to legal advice, what criteria must be satisfied?
It must be an indictable offence,
Authorising officer must have reasonable grounds for believing exercising that right will lead to:
- interference with / harm to evidence
- interference with / harm to people
- altering of people connected with the offence
- hindering the recovery of property
there must be a high (rather than speculative) possibility of these outcomes
How long can delaying right to have somebody informed / right to legal advice be delayed for?
Up to 36 hours
Reasons must be noted in the custody record and told to the detainee
When can an accredited legal representative be refused access in an interview?
If an inspector reasonably believes that they will hinder the investigation
When can a solicitor be refused access in an interview?
If their conduct makes an interviewer unable to properly put questions to the suspect.
What is charging?
Formally accusing the suspect of a crime
Who makes the decision to charge?
Summary offences = police only
Either way = police only where there is an anticipated guilty plea, and likely sentence in the MC (otherwise, CPS)
If CPS is charging, what must they take into account?
The Full Code Test
What are the two limbs of the full code test?
Evidential certainty test
Public interest test
What is the evidential certainty test?
Whether there is a real prospect of conviction.
- must be more likely than not.
- must take into account the probative value and admissibility of any evidence (e.g., credibility of witnesses)
What is the public interest test?
Whether it is in the public interest to devote resources to prosecute?
What factors should be considered in determining whether the public interest test has been passed?
- seriousness of the offence
- level of culpability
- circumstances of the victim
- impact on the community
- whether prosecuting is a reasonable response
- the need to protect confidential / serious sources of information
In serious offences, what test is used to determine whether to charge?
The threshold test
When is the threshold test used?
Where there are reasonable grounds to suspect the person of committing the offence, and there is:
- a prospect of getting further evidence
- offence is serious enough to merit an immediate decision
- substantial grounds to object to bail
- charge is in the public interest
When does time start to run for continued detention purposes?
When the suspect arrives at the police station
When should a first review of a detainee be made?
Within 6 hours of arrival
When should subsequent reviews of a detainee be made?
Within 9 hours of each last review
Who carries out reviews for the first 24-hours of detention?
A review officer (not the custody officer)
What is the criteria for continued detention for the first 24 hours?
S.37(3) criteria =
Detention is necessary to secure / preserve evidence relating to the offence to which the suspect is being arrested, or to obtain such evidence by questioning
When is detention further than 24 hours allowed?
Only for an indictable offence
Who makes a decision to continue detention after 24 hours?
Superintendent or higher who is responsible for the station
What is the criteria for continued detention after 24 hours?
- S.37(3) criteria = detention is necessary to secure / preserve evidence relating to the offence to which the suspect is being arrested, or to obtain such evidence by questioning.
AND
- Officer has reasonable grounds for believing that investigation is being conducted expeditiously and diligently.
What can a suspect’s solicitor do if there has been continued detention?
Can make oral / written representations
When must a suspect be released from detention?
If they have been detained for 36 hours from arrival
If officer would like continued detention past 36 hours, what is needed?
A magistrates court warrant
How long can a court authorise further detention for?
Up to 36 hours each time an application is made, but cannot authorise beyond 96 hours from arrival.
When is a police caution not needed?
If officer is simply questioning:
- who the owner of the vehicle is
- establishing somebody’s identify
- effecting a proper search
- verifying something said outside of an interview by a suspect and recorded by a police officer
Where must interviews be carried out?
At the police station
When can interviews be carried out at a location otherwise than at a police station?
If delay would lead to:
- interference / harm to evidence
- interference / harm to others
- serious loss / damage to property
- tipping off others involved
- hindering the recover of property
When does an interview end?
When there is sufficient evidence to charge the suspect
OR
When officer is satisfied that all relevant questions have been put to the suspect
What format must interviews take?
- must be conducted under caution
- suspect should be given enough information to understand the offence
- should not involve oppression, but can be conducted in a way intended to gain admissions
- should be recorded
- suspect should be able to verify the record
- if defendant’s interview is to be used at trial, there must be agreements between the prosecution and the defence
What is a legal advisor’s role during interviews?
To represent the client’s legal interests
To advance the rights of their client
What can a legal advisor challenge during an interview?
Inappropriate / unclear questions
The manner of questioning
What is a caution?
A formal warning informing the suspect of their right to silence
When must a caution be issued?
- when there are reasonable grounds to suspect that person of an offence (before any questions are put)
- when a person is initially questioned not under caution, but their answers give rise to suspicions that they committed the offence
- when person is arrested
- when person is charged
- at the start of a formal police interview
What inferences can be drawn from silence?
Such inferences as appear proper
If a suspect has failed to mention facts, when can inferences be drawn?
Can be drawn if:
- Suspect is being questioned and they have been offered legal advice
- During the interview, suspect fails to mention a fact that they later rely on in court
- It was reasonable to have expected the suspect to mention that fact during questioning
What must the jury be satisfied of in order to draw an inference from a suspect’s failure to mention facts?
Must be satisfied that there is no sensible explanation for the failure to mention the fact other than the defendant has no answer at the time / none that would stand up to scrutiny.
Should be told to drawn an inference if it is a fair and proper conclusion.
When can an inference not be drawn when a suspect remains silent due to legal advice?
If the suspect genuinely and reasonably relied on legal advice to remain silent
What factors will the court consider when determining whether a suspect’s decision to remain silent following legal advice was reasonable?
- suspect’s age
- suspect’s experience (with criminal proceedings)
- suspect’s mental capacity
- suspect’s health
- suspect’s sobriety
- suspect’s tiredness
- any police disclosure given (ie, what it enough for the suspect to understand the situation)
When can adverse inferences be drawn for a suspect’s failure to account for objects / substances / marks or failure to account for presence at the scene?
Such inferences as appear proper but can only be drawn if suspect was given a special caution before the relevant question was asked.
These inferences can simply be drawn on questioning - reasonableness is irrelevant.
What is a special caution?
A warning:
- about what offence is being investigated;
- about what fact/presence/object/other detail the suspect is being asked to account for;
- that this fact may be due to them taking part in the commission of the offence;
- that a court may draw adverse inferences if the suspect refuses/fails to account for this fact:
- that a record is being made of the questioning, and may be used at trial.
What are some examples of vulnerable suspects?
- juveniles (under 18)
- people who do not speak / understand English
- people suffering from mental health issues (difficulty in comprehending)
- people who are illiterate
- people with vision impairment
What must a custody officer do for juveniles?
- Identify who is responsible for the juvenile’s welfare
- Inform them of the arrest
- Ask them to attend the station
- Ensure juvenile is appointed an appropriate adult (cannot be police)
What is the role of an appropriate adult?
- support / advise / assist detainee during their detention
- observe whether the police are acting properly (inform inspector or higher if not)
- assist the detainee with communication
- help the detainee understand their rights and ensure those rights are respected
At first appearance, what three decision can the police/court make?
- Release the suspect without putting them under any obligation to return (but expecting them to return)
- Release the suspect and put them under a legal obligation to return on a particular date/time (on remand - breach of this is absconding)
- Keep the suspect in custody to ensure their return
What is street bail?
Where a person is arrested, but the police choose not to take them directly to the police station and releases them without bail / bail to attend a particular police station.
What criteria must be met for street bail to be granted?
Bail must be necessary and proportionate
Bail must be authorised by rank of at least inspector
When can conditions be imposed for street bail?
- to ensure surrender
- to prevent further offences
- to prevent interferences with witnesses
- for person’s own protection
What must be given to a person granted street bail?
A notice informing them of:
- the offence
- the grounds for arrest
- which station to surrender at
- any conditions of bail
How long can street bail last?
Up to 28 days from the day of arrest
What is the consequence of failing to surrender to street bail?
Failure to surrender is not an offence, but person may be arrested without a warrant
If conditions for ongoing detention do not apply / cease to apply, what should happen?
The suspect should be released without bail unless conditions are met for bail without charge
What are the conditions for a person to be bailed at a police station without charge?
Custody officer is satisfied that a release on bail is necessary and proportionate
AND
Officer who authorises release in bail is inspector or higher
Can conditions be imposed on bail without charge?
Yes, but cannot impose residence at a bail hostel / making suspect available for a court report / attending an interview with a solicitor
How long can bail without charge be imposed for?
Up to 28 days from the day after the bail decision.
Can be extended for up to 3 months by a senior officer.
Can be extended further by a magistrates court.
What is the consequence of failing to surrender to bail without charge?
Failure to surrender is not an offence, but person may be arrested without a warrant
What should happen if a person is charged at the police station re bail?
They should be released in bail to attend a MC at the next available date
What are the grounds for withholding bail following charge?
- name / address cannot be ascertained
- reasonable grounds for believing person will not attend
- lawfully taking samples
- charged with murder
- reasonable grounds for believing detention is necessary to prevent person from interfering with the administration of justice / investigations
- reasonable grounds for believing that detention is necessary to prevent particular harm (to others / to property / committing further offences)
When is the presumption in favour of bail lost?
If the person is convicted
When do exceptions apply to the presumption of bail?
Where the suspect has committed an indictable / imprisonable offence
When does the right to bail cease to exist?
- when defendant has been convicted of an offence and is appealing
- if matter has been sent to CC for sentence
- substantial grounds for believing that, if released in bail, defendant would:
1. fail to surrender
2. commit an offence
3. interfere with witnesses - defendant already on bail when committing the offence
- should be kept in custody for their own protection
- already serving a custodial sentence
- not been practicable to obtain sufficient information to make a bail decision
- has previously been released on bail and failed to surrender / breached conditions
In what circumstances will bail only be granted on an exceptional basis?
- Murder / attempted murder
- Manslaughter
- Serious sexual offences
In deciding whether there are ‘substantial grounds’ for refusing bail, what 5 factors must the court consider?
- Nature and seriousness of the offence and the likely sentence
- Defendant’s character / community ties / previous convictions / associations
- Defendant’s previous record of complying / not complying with bail
- Strength of the prosecution evidence
- Any other relevant factors
What are the grounds for refusing bail for summary-only imprisonable offences?
- person has already failed to surrender in current proceedings + court thinks they will do this again
- person was on bail at the time of committing the current offence + court thinks they will commit further offences whilst on bail
- substantial grounds for believing person would commit an offence likely to cause an associated person injury
- defendant should be kept in custody for their own protection
- person is already serving a custodial sentence
- person has:
1. failed to surrender
2. breached bail conditions
and substantial grounds for believing person would: - commit further offences
- interfere with witnesses
- obstruct the course of justice
- not sufficient information to make a bail decision
What if the default position as to whether bail should be granted for summary-only imprisonable offences?
Bail should be granted if it appears that there is no real prospect of the defendant having a custodial sentence imposed
When will bail nor be granted for summary-only non-imprisonable offences?
- person has already been convicted of that offence, and has
- previously failed to surrender in the current case/court thinks they will fail to surrender
- previously failed to surrender / breached bail conditions / substantial grounds for believing they will fail to surrender / commit an offence / interfere with witnesses / obstruct the course of justice
- court is satisfied that they should be kept in custody for their own protection
- person already serving a custodial sentence
- court is satisfied that person will commit an offence that will cause an associate person injury
What is the duty to surrender?
Duty to surrender at the appointed date and time at the specific location
What is the consequence of a person failing to surrender?
They will, have committed the offence of absconding
When can court impose conditions on bail?
If it is necessary to ensure that the defendant:
- surrenders to custody
- does not commit further offences on bail
- does not interfere with witnesses / obstruct course of justice
- is available for making enquiries
- attends an interview with legal representatives
What is the condition of a surety?
A suitable person guarantee that the defendant will attend court and, if not, that person will forfeit a sum of money
What is absconding?
- Failure to surrender without reasonable excuse
- Having a reasonable excuse, but failing to surrender as soon as reasonably practicable thereafter
If a person has absconded, what three options does the court have?
- Issue a bench warrant (can include bail)
- Adjourn and extend bail
- Proceed in the defendant’s absence
If on bail, when can a defendant be arrested without a warrant?
If officer has reasonable grounds to believe that the defendant is unlikely to surrender to custody / is likely to breach bail conditions.
If surety gives written notice that the defendant is unlikely to surrender / surety requests to be relieved of their obligations (defendant must be provided before magistrates within 24 hours of arrest)
court will then decide if defendant is likely to fail to surrender/breach conditions
When is a decision of bail made when defendant is present in court?
Every time the courts adjourns
What condition must be satisfied for bail to be determined?
Defendant must be present in court
Does not apply if defendant is in custody and waives their right to attend / bail is being extended for a person remanded in custody
If prosecution objects to bail, what happens?
There may be a hearing where the court receives evidence to make a decision
How long can a person be remanded in custody for on their first appearance?
8 days
How long can a person be remanded in custody for at a subsequent hearing (after first appearance)?
Up to 28 days
If a person has been remanded in custody, what can they do to challenge this?
They can make a fully argued application for bail at the next hearing
If a defendant’s argument against bail fails, will the court hear the argument again?
Court will not need to hear arguments that it has heard previously.
However, court will hear arguments if there has been a change in circumstances/ it is a new argument not previously raised.
Of a person is refused bail, what are they given?
A certificate of full argument
What can a certificate of full argument be used for?
To make an appeal application to the CC for bail within 48 hours of initial refusal.
CC will hear the matter afresh.
What is the maximum time limit a person can be remanded in custody for an indictable only offence?
70 days between first appearance and case being sent to CC
What is the maximum time limit a person can be remanded in custody for an either way offence?
70 days / 56 days if decision to try summarily made in this period between fury’s appearance and summary trial
What is the maximum time limit a person can be remanded in custody for a summary only offence?
56 days between first appearance and summary trial
Where does the first hearing for all cases take place?
At the magistrates court
However, if no bail granted, defendant must appear in a remand court as soon as possible.
What must be served on the defendant by the CPS in time for the first appearance?
IDPC (initial disclosure of the prosecution case)
- served asap after charge, by 9am on first hearing day
What does an IDPC include?
- case summary
- key witness statement
- record of police interviews
- any previous convictions
At a first appearance, what must the court be in a position to do?
- take a plea
- determine appropriate trial venue
- identify actual case issues
- conclude the case / give directions for conclusion at the next hearing
If a not guilty plea is anticipated, what should accompany an IDPC?
Streamlined Disclosure Certificate
What does a streamlined disclosure certificate include?
Material that prosecution / police have but do not wish to rely on
What are the two options for first appearance hearings for summary / either way offences?
GAP (guilty anticipated plea)
NGAP (not guilty anticipated plea)
When is a GAP scheduled?
Within 14 days of charge
What is the intention of a GAP?
To resolve the case in one hearing
If a defendant does not plead guilty in a GAP, what is the consequence?
The court will proceed to allocation / set a date for summary trial
When is an NGAP scheduled?
Within 28 days of charge
If a defendant pleads guilty in an NGAP, what happens?
The court should proceed to sentence
If a defendant is charged with a summary-only offence and pleads not guilty, what happens?
The case will proceed to trial / trial date will be set
If a person if charged with an either- way offence, what is the purpose of a first appearance?
First appearance is a plea-before-venue and then moves to allocation
What is the first appearance for an indictable only offence?
The case is sent to the CC forthwith (without taking a plea)
If a defendant is on bail for an indictable only offence at first appearance, what should they ask?
If the bail can be extended to the CC
To obtain a representation order in the MC, what two tests must be satisfied?
- Means test
- Merits / Interests of Justice test
When will a defendant automatically pass the means test in the MC?
- if they are under 18
- if they are in receipt of certain welfare benefits
- if they earn under a minimum threshold (£12,475)
What are the two limbs of the means test in the MC?
Initial test
Full test
What is the initial test for means in the MC?
- looks at income only (not capital / savings)
- looks at applicant’s gross annual income for the last 12 months
- salary / bonuses / state benefits
- partner’s income is included
What is the full test for means in the MC?
Looks at annual disposable income
Disposable income = gross annual income minus tax / NI / insurance / housing / childcare
What is the relevant figure for the full test for means in the MC?
£12,475
If less than this figure, defendant will be eligible for funding
What two figures must an applicant have a gross income between for further determination as to eligibility of funding in the MC?
£12,475 and £22,325
If between these figures, eligibility is dependant on a further assessment of an applicant’s disposable income
What are the 8 factors taken into account for the merits test / IoJ test?
- Defendant likely to lose their liberty
- Defendant likely to lose their livelihood
- Defendant will suffer serious damage to their reputation
- Interests of another person that defendant be represented
- Risk that defendant will be unable to present their own case
- Case involves a substantial question of law
- Case is likely to require tracing / interviewing witnesses
- Case involves expert cross-examination of witnesses
What happens if a defendant obtains a representation in the MC, but the case is subsequently sent to the CC?
The representation order will automatically extend to the CC
What is means tested on in the CC?
Applicant’s income
Applicant’s capital
Applicant’s equity
What is the lower threshold for the means test in the CC?
£3,398
If defendant has income below that figure, they will be eligible with no contributions
What is the upper threshold for the means test in the CC?
£37,500
If defendant has income above that figure, they will not be eligible for a representation order
If a defendant has income between the lower and upper threshold, what is the consequence?
They will be asked to make a contribution from income equal to 90% of disposable income
Taking into account capital, when will a defend be ineligible for a representation order?
No amount of capital will make a defendant ineligible, but disposable capital an be used to recoup the costs of representation
What is a defendant’s liability to contribute once the trial is complete?
A convicted defendant may have to make further contributions out of capital if income contributions are not enough - as specified sum (currently £30k) will be deducted from the defendant’s capital liability.
Total cost of representation - (total income contribution + (30k))
How soon after transfer to the CC must means be proven?
Within 14 days
Failure to do so can increase the contribution obligations
Can a defendant appeal the result of a representation order?
- defendant can seek a hardship and eligibility review from the LAA.
- defendant can seek a reassessment if the circumstances change.
What options does a defendant have at a plea-before-venue?
- Plead guilty = case proceeds to sentence immediately / adjourns for sentencing reports / committed to CC for sentence.
- Plead not guilty = case proceeds to an allocation hearing.
- Withhold plea = case proceeds to an allocation hearing
If a defendant is not present at a plea before venue, can the court proceed in their absence?
Yes, if they are legally represented / court feels it is not practicable to proceed with the defendants presents due to their disorderly conduct.
If jurisdiction is accepted in the magistrates court, what can the defendant do?
Defendant can elect the Crown Court trial
Can the magistrates get help on their decision as to allocation?
Yes, magistrates can hear representations from both prosecution and defence
What are the magistrates maximum sentencing powers?
6 months = summary only offence
6 months = single triable either way
12 months for more than one triable either way
What factors must the magistrates consider when making a decision as to allocation?
- whether their sentencing powers are sufficient
- any representations of the parties
- any allocation guidance
- any relevant previous convictions
Despite making a decision on allocation if a defendant is convicted, what can the magistrates do?
The MC can always commit the defendant to the Crown Court to deal with sentencing if that is more appropriate
What is an indicative allocation?
Where the defendant asks the magistrates to indicate if they were convicted in the magistrates court, whether the magistrates would impose a custodial or non-custodial sentence
Magistrates only need give a general indication
In terms of trial venue, what should you advise your client as to acquittal?
Enter chance of acquittal in the CC
In terms of trial venue, what should you advise your client as to cost?
CC is more expensive
In terms of trial venue, what should you advise your client as to time to complete trial?
Takes longer to complete in CC (may be that defendant is on bail for longer)
In terms of trial venue, what should you advise your client as to matters in relation to disputed evidence?
Arguments to exclude evidence are better suited to the CC as the matter will be decided by the judge in the absence of a jury.
In MC, magistrates are the tribunal of law and fact, so they will see the evidence even if it has been excluded (and it may cloud their judgement)
In terms of trial venue, what should you advise your client as to points of legal complexity?
In MC, matters of legal complexity are left to a bench of lay magistrates.
In CC, matters of legal complexity are left to an experiences trial judge (may interpret it better)
In terms of trial venue, what should you advise your client as to which legal body should decide the matter?
Magistrates usually have extensive involvement in criminal justice, and judges may not be as experienced (doing civil work)
In terms of trial venue, what should you advise your client as to likely sentence?
CC can impose a higher sentence
In terms of trial venue, what should you advise your client as to appeal considerations?
More options to appeal from the MC
Shoplifting up to what value is usually a summary only offence, but means a defendant can elect to be tried in the CC?
Up to £200
Theft from a shop/premises used for business where defendant was purporting to be a customer
If there has been criminal damage (without arson), what value of damage must be present meaning the defendant cannot elect a CC trial?
If the value of items destroyed and extent of damage is under £5,000, defendant cannot elect a CC trial
What happens to an indictable only offence of first appearance?
It is sent to the CC ‘forthwith’ - without any indication of plea
If an offence is sent to the CC, what other offences must also be sent?
Any related summary / either way offences.
They will be joined on indictment and tried in the CC.
When is an either way offence related?
- founded on the same facts
- forms part of a series of offences of the same / similar character
When is a summary on,u offence related (and can therefore be sent to the CC)?
- punishable with imprisonment
- punishable with a driving disqualification
- arises out of circumstances that are the same as / connected with the indictable offence
Which 4 summary only offences can be joined on indictment and tried in the CC?
- Common assault
- Taking a vehicle without consent
- Driving while disqualified
- Criminal damage of up to £5,000
If a summary-only offence does not fit into the category of those that can be joined in indictment, what must happen?
The CC judge must take a plea for the offence.
If guilty, can pass a sentence (but is limited to MC sentencing powers).
If not guilty, must remit back to MC for trial.
What is a testimony?
Spoken evidence of witness
Who is a testimony usually given by?
Police officers / expert witnesses / general witnesses
What is documentary evidence?
- evidence contained in writing
- evidence on a computer
- evidence in an audio / visual recording if not given under oath
What must appear alongside documentary evidence?
Must be proven by other evidence (e.g., real objects)
For a court to take into account documentary evidence, what must they be satisfied of?
That the document is genuine and relevant
What is real evidence?
Objects / items / other things that speak for themselves
Exhibits produced at trials
Tribunal of fact can observe the crime scene
What must be proven about real evidence?
That it is valid and related to the case
What is evidence admitted under s.10 CJA?
Formal admissions of facts
When can evidence under s.10 CJA be made?
Before the trial in writing
At the trial, orally, by the legal representative
What is the effect of evidence given under s.10 CJA?
It stands as conclusive evidence on the matter
What is the role of the tribunal of law?
- makes decisions on legal matters
- determines meaning of law
- decides procedures to be followed
- decides admissibility of evidence
- decides sentence to be followed
What is the role of a tribunal of fact?
- make decisions on factual issues
- decides overall issue of guilt
- decides credibility of witnesses
- decides whether particular facts relevant to guilt are proven (e.g., evaluations and decisions on matters like dishonesty / grossness of negligence)
Can a crown court trial proceed without the absence of a defendant?
Reasonable steps should be taken to secure their absence, but judge can continue if their absence if:
- defendant has acted obstructively
- defendant is too ill to attend
- defendant decided not to attend
- defendant is represented by a legal party who can continue to act
How many people make up a jury?
12 people
Of prosecution is unhappy with a particular juror, what can they do?
They can ask them to ‘stand down’ if they have valid grounds to do so.
What are some valid grounds such that prosecution can ask a juror to stand down?
- concerns about vulnerability
- concerns about jury tampering
- concerns about ability to deal with complexity
Who can challenge a juror ‘for cause’?
Prosecution + defence
What are some grounds under which a juror can be challenged ‘for cause’?
Juror is ineligible
- not aged between 18 and 75
- not on electoral register
- not resident in the UK for the last 5 years
- suffering from a mental disorder
Juror is disqualified
- following a conviction for particular criminal offences
Juror may be biased
What is an indictment?
A document formally listing the offences for which the defendant is to be tried
How should offences appear on an indictment?
Must be distinctly listed in the indictment on a separate count
What must each count identify in the indictment?
The identity of the defendant
Sufficient particulars of the offence
How many offences should a count identify?
Should only identify one offence
However, multiple fences can be included on one indictment (as long as they are in separate counts)
What is the consequence of a count that identifies two distinct offences?
It will be bad for duplicity
When will a count that identifies two distinct offences not be bad for duplicity?
If the offences were committed as a course of conduct
Can an indictment be amended?
With the court’s permission, unless doing so would be an injustice
If an indictment is overloaded, what can the court do?
Order severance and continue only with specified counts
When can multiple counts be included in the same indictment?
If they are:
- Founded on the same facts
- Form part of a series of events of the same/similar character
What category of offences can be included on an indictment?
Only indictable offences, but can include the 4 summary only offences if they are to be joined on indictment and tried in CC
When can defendants be alleged to be co-principals / accessories?
If they are alleged to have committed the offences together
Where must co-principals be charged?
In the same court, but jury can reach a different verdict for each defendant
What is the prosecution opening speech?
- sets out the case to the jury
- tells the jury that the prosecution bear the burden of proof
Once a prosecution has completed their opening speech, what must they do?
Call witnesses
What is the process followed with each witness?
Each witness is:
- Sworn / affirmed
- Examined in chief by prosecution
- Cross examined by other party
- Re examined by the prosecution
What is examination in chief?
Where the witness gives their account in their own words
What is cross examination?
Where the opposing party challenges the witness’s answers / asks them leading questions
What is re examination?
Where witness is questioned by the party calling them again, to get the witness’s account of new matters (not a repeat of what has already been testified)
Even if witnesses are not called up to give evidence, what must the prosecution ensure?
That the witness is available for the defence
As well as witnesses appearing in person, what else can prosecution do?
Prosecution can give non-controversial witness evidence (which is read out and not subject to cross examination
What is a submission of no case to answer?
Once prosecution have called their witnesses, a defence may apply to have the case dismissed on the ground that the prosecution has not produced enough evidence to establish an arguable case
When should a judge accept a submission of no case to answer?
Where:
- There is a key gap in the case (e.g., prosecution has failed to give evidence for certain areas)
- The prosecution case, take at its highest, is such that a properly directed jury could not properly convict (based on prosecution witness credibility)
If a subs mission of no case to answer succeeds, what is the consequence?
The judge should direct the jury to acquit the defendant
When must a jury be discharged during trial?
If there is reason to believe that they can no longer reach a fair verdict
What is the defence opening speech?
Speech made by defended outlining their challenge to the prosecution case
When should adverse inferences not be drawn due to a failure of a defendant to give evidence?
If defendant does not give evidence because their physical or mental condition makes it undesirable to do so
When drawing an adverse inference, what should the jury consider?
Whether the defendant’s failure to testify suggests that they had no credible defence / one that would not stand up to cross-examination.
Jury cannot assume that failure to testify = guilty
Once a case is closed, what can neither party do?
Neither party can re-open this case and call more witnesses
If at the end of the case, what can the judge allow prosecution to do?
Can allow prosecution to call evidence at any point before summing up
If at the end of the case, what can the judge allow defence to do?
Can allow defendant to call evidence at any point up to the retirement of the jury
What further discretion does a judge have as to witnesses?
A judge can call witnesses that neither party has called
What matters should a closing speech be limited to?
Matters called on evidence
In summing up the case, what must the judge tell the jury?
- remind them of the law that applies
- give them guidance on factual issues (can comment on witnesses)
- ensuring jury are clear that they decide the factual matters
- giving directions on key points of evidence
- reminding the jury who bears the burdens of proof
What verdict should a jury reach?
Unanimous
If a jury cannot reach a unanimous verdict, what can they reach instead?
A majority
Either 12:1 or 10:1 or 9:1
If a jury convicts, what must the judge do?
Sentence the defendant immediately / following an adjournment
If a jury cannot agree a verdict, what must be done?
The jury should be discharged - but this does not mean that the defendant is acquitted
When can a decision of a jury not be overturned by a trial judge / appellate court?
If they would have decided differently
What is the time limit for which a summary only offence must be tried?
Summary only can only be tried where case was commenced by summons within 6 months of commission of the offence
Does a defendant need to be present for a summary trial?
No, summary trial should proceed in the absence of a defendant unless it is contrary to the interests of justice
When must a defendant be present at a summary trial?
If a custodial sentence is being passed
How are summary only offences set out?
On a written information / charge
How many offences can a charge impose on a defendant?
Charge can only charge one defendant with one offence (except where offence was committed jointly by multiple defendants)
When can multiple offences and defendants be tried together?
- if defendants agree
- if offences form part of a series of offences of same / similar character
- if court feels that doing so would be in the interests of justice
In taking a plea, what process if followed?
Defendant will be asked to confirm their personal details
Defendant will be asked to plead
How many speeches can a defence make in a summary case?
Only one - either opening or closing
Once magistrates retire, what are they under a duty to do?
Under a duty to reach a verdict + give sufficient reasons to explain their decision
If Magistrates cannot reach a verdict, what happens?
They must reach not guilty
What decision should magistrates reach?
Majority
If majority is not reached between magistrates, what is the consequence?
The case will be adjourned for a rehearing
Can magistrates reach alternative verdicts?
No, cannot reach alternative verdicts to the one alleged on the charge
What is the role of a court clerk?
Duty to provide legal advice on matters of:
- substantive law
- evidence
- procedure
- sentencing
What duty does a defence solicitor have?
Duty to act in the best interests of their client
AND
Duty to act in a way that upholds the proper administration of justice and public confidence
If there is a conflict between a defence solicitor’s duties, what must happen?
Those relating to public interest and confidence prevail
What other general duties does a defence solicitor have?
- duty not to mislead court (cannot be complicit in a direct lie)
- duty to not misuse evidence / tamper with evidence / generate false evidence
- only put forward properly arguable assertions
- not waste court’s time
- not act where there is a conflict of interest
- not act for multiple clients
- not disclose confidential information gained by client unless required by law
- disclose relevant information to client (unless unlawful)
If a solicitor knows that their client has misled the court, what should they do?
Invite the client to correct it or stop acting for the client
What must be said about evidence used in trial?
It must be relevant to the facts in issue
E.g., in a theft trial, evidence must be relevant to show actus reus (that defendant did take appropriate items), the mens rea (that there was dishonesty), or the identity of the defendant (that they were the one who carried out the acts)
When is evidence relevant?
If it could make one of the facts in issue more or less likely
What are the two ways evidence can be relevant?
Direct evidence
Circumstantial evidence
What is direct evidence?
Evidence that shows the fact in issue on its own without further evidence / explanation
What is circumstantial evidence?
Evidence that shows only the fact in issue if combined with other evidence and an explanation of what the evidence shows
Who is relevancy and admissibility of evidence decided by?
The tribunal of law
If certain evidence is given, what can a judge explain to the jury?
How to use the particular items of evidence - but jury is not bound to follow these directions (if misdirected, this is grounds for appeal)
If a party bearing the legal burden fails to meet it to the required standard, what is the consequence?
The issue is not proven
How much evidence must parties call?
Enough to put the matter in issue
If there is a submission of no case to answer, what must the judge decide?
Whether the prosecution has discharged the evidential burden
Do prosecution need to disprove every possible defence?
No, only those that are reasonably credible
If a defence has not discharged their evidential burden, what is the consequence?
The judge may not leave that defence to the jury to consider
What must prosecution prove?
All actus reus and mens rea elements
The identity of the defendant as the person who carried out the actus and mens rea
Who bears the evidential burden for common law defences (like self defence)?
Defence beats the evidential burden to put the matter in issue
Prosecution must disprove that issue beyond reasonable doubt
In the case of insanity, who bears the evidential burden, and who bears the legal burden?
Defendant bears both
What is the evidential burden?
The obligation to provide enough evidence to raise an issue, so that the jury or magistrates must consider it
In CC, who decides if the evidential burden has been met during trial?
Judge
What is the legal burden?
The obligation to prove a fact to the required standard of proof
Who decides if the legal burden has been met during trial?
Magistrates
Jury
In what two instances can statute impose a burden on the defendant to prove a fact?
- Expressly (statute states that it is a matter for the defendant to prove)
- Impliedly (statute creates a defence by exception / exemption / proviso / excuse, but defendant has to prove a fact)
What must the court consider if the statute places a legal burden of proof on a defendant?
Court must consider whether this imposition breaches the presumption of innocence (if it does, then it is reinterpreted to only impose an evidential burden).
Deviation is only granted if necessary and proportionate.
If a defence bears an evidential burden, how can they discharge it?
By calling enough evidence to put the matter in issue - prosecution must then disprove this issue beyond reasonable doubt
When will a prosecution have successfully disproved an issue beyond reasonable doubt?
If the evidence produced leaves the jury with reasonable doubt on that issue
If defence bears a legal burden of proof, what standard must they prove this to?
On the balance of probabilities (more likely than not)
Where an eyewitness claims to have seen the defendant, how can this be proven?
Through witness’s own in-court testimony
Through a successful identification procedure
What is not sufficient identification evidence in relation to eyewitness claims?
A description of the person who committed the offence
When does the court not need to apply the identification rules?
If there is no possibility of mistake - e.g., defendant was seen by close relative/friends in ideal circumstances
If a witness has not made a positive identification through an identification procedure, under what circumstances can they make an in-court statement of identification?
If:
- An identification procedure was not necessary or proportionate
- Court is satisfied that an identification procedure was not practicable
What must happen to a case that is wholly / substantially based on poor identification evidence?
It must be withdraw
What is the purpose of the Turnbull guidelines?
Used as a warning to prevent the jury from attaching too much weight to the witness’ testimony
What should a jury be told of as part of the Turnbull guidelines?
- warned of special need for caution before convicting a defendant on the basis of identification evidence
- reminded of the risks of identification evidence
- specifically referred to objective weaknesses in the identification evidence
- directed to look closely at the circumstances and consider ADVOKATE
What is ADVOKATE?
A = amount of time for which witness observed the defendant
D = distance between the witness and the suspect
V = visibility at the time
O = obstructions between the witness and the suspect
K = known or unknown to the witness
A = any particular reason to remember
T = time lapse between the incident and the identification procedure
E = errors in the witness’s first description
When must an identification procedure be held?
- Witness has identified or purported to identify a suspect who is not known to them
- Witness expresses their ability to identify a suspect
- There is a reasonable chance of eyewitness being able to identify the suspect
- Suspect disputes being the person witness claims to have seen
What should be explained to the defendant if an identification procedure is undertaken?
The purpose and process of the procedure
Consequences of their decisions
Legal advisor should be prevent
Defendant and legal advisor should be made aware of any description by the witness
What identification procedure must be considered first?
Video identification
What is video identification?
Where the witness views moving images of suspect and at least 8 others.
Distinctive features should be concealed, officer has discretion to remove them.
Witness should be told that suspect may not even be present.
If video identification cannot be held, what should be considered?
An identification parade
What happens in an identification parade?
Suspect stands alongside 8 others who, as far as possible, resemble the defendant in age / height / general appearance / position in life.
Distinctive features should be concealed (unless witness asks to see it).
Witness should be told suspect may not be present.
What happens if two people look similar in an identification parade?
There should be 12 other people (rather than 8)
If an identification parade cannot be held, what should be held instead?
A group identification
What is a group identification?
Where people are passing by / waiting around informally.
Suspect should be joining and seen, and location should be where people broadly similar in appearance will be visible.
What is a confrontation?
Where witness sees the suspect and witness is asked if the suspect is the same person they saw (should be old suspect may not be that person)
What should be issued in relation to a voice identification procedure?
A suitably adapted Turnbull direction should be issued + live voice identification should not be used
What must happen to witnesses during identification procedures?
They must be kept separate to each other
Before any identification procedure is followed, what must a witness do?
Give a description of the suspect
Description should be recorded
If a suspect is unknown to the witness, what can be done?
The eyewitness can be taken to a particular place to see if they can identify the person (police cannot point out particular persons)
If police do not follow an identification procedure because they believe it was unnecessary, what can prosecution do?
Prosecution can still seek to have the witness identify the defendant in court.
Can in-court identification procedures be challenged?
Yes, under s.78 PACE if alleged the out-of-court identification procedures should have been conducted
If identification evidence is admitted despite breaches, what must happen?
The jury must be informed of any breaches
What matters is a closing speech restricted to?
Those given in evidence at trial, or matters within a person’s own personal experience
When can leading questions be used in examination-in-chief and re-examination?
- they relate to formal, introductory matters
- they relate to matters not in dispute
- the matter has already been established during the testimony
- the witness is ‘hostile’
If illegitimate questions are asked during examination, what is the consequence?
Answers will not be inadmissible, but will be given less weight and the court may intervene
When can precious out-of-court statements be admitted to support what a person is saying in court?
- if the statement is a previous consistent statement that can be admitted to rebut an allegation of recent fabrication of what is said as testimony (a statement from before the alleged fabrication will disprove that fact)
- if statement was made when identifying somebody out of court
In what circumstances can a witness refresh their memory from a previous document they made?
If witness testifies that:
- Previous document is a record of what the witness remembered at the time
- The witness recollection at that time is likely to have been significantly better in comparison to present (when giving evidence)
witness is also able to refresh their memory by viewing their previous statements before going into court
When can witness’s statements become evidence?
If it is established that there are inconsistencies between the witness’s testimony and the statement
What is a hostile witness?
A witness that shows no desire to tell the truth.
Hostility = silence / evasion / inconsistencies / lies
Who decides if a witness is hostile?
Judge
What are the two options for a taking evidence from a hostile witness?
- They can be cross-examined by the party calling them
- They can have a previous inconsistent statement put to them
When can a witness be unfavourable?
If witness is trying to give an honest testimony, but is not saying what the party calling them hoped they’d say
Party calling the witness cannot seek to discredit their testimony.
What is the overall aim of cross-examination?
To undermine the credibility of the witness’s account / the witness themselves
Credibility of the witness = establishing witness had a motive to lie / was shortsighted and therefore mistaken
If a party has failed to challenge facts stated during cross-examination, what is he consequence?
The party will not be entitled to invite the jury / bench to disbelieve that fact
What is the rule of finality in relation to witnesses?
A witness’s response to cross-examination is final
What are the 4 exceptions to the rule of finality?
Further evidence can be admitted if:
- They are proof that the witness made previously inconsistent statements
- They are proof that the witness was biased against a party in the case
- They are previous convictions and bad character
- It is medical evidence related to any physical/mental disability affecting the credibility of a witness’s evidence
What is the process of admitting a previous inconsistent statement of a witness?
- Witness is asked about the specific previous statement (if they recognise it as their own)
- If witness denies making it, it can be proven and admitted as evidence
- If witness changes their testimony to make it consistent, the document will not be admissible
If a statement made by a witness is a document, when will it be admissible as a previous inconsistency?
- Witness is asked to identify the document as a statement by them
- Witness is invited to read it
- Witness is asked the relevant question again
same provisions apply, if witness denies making the document, it will be admissible
What is hearsay?
A statement not made in oral evidence, relied on as evidence of the matter stated.
Repetition of what another persons says they saw.
What is included under the definition of ‘statement’ for hearsay?
Other representations (sketches / created images)
If a witness describes something another person has told them, will this be hearsay?
Yes, if:
- witness testified that they heard someone else saying that fact
- witness simply adopted what they had heard from somebody else.
What is original evidence?
- threats
- lies
- misstatements
- offers
- current state of mind
When can original evidence be admitted?
As proof that something has happened
When will a matter stated be hearsay?
If the purpose of the maker of the statement appears to have been:
- To cause another person to believe the matter (making somebody believe what you’re saying)
- To cause another person to act on the basis that the matter is as stated (making somebody act in the basis of what you’re saying is true)
When is hearsay admissible under statute?
- Witness is unavailable
- It is a business document that is being adduced
- The statements being used were prepared for use in the criminal case and relevant person cannot recollect
- It proves a previous consistent / inconsistent statement
- It is expert evidence
- It is confession evidence
Under what grounds can a maker of an original statement be unavailable?
- Maker is dead
- Making is unable to attend due to a physical / mental condition
- Maker is outside of the UK
- Maker cannot be found despite reasonably practicable steps being taken
- Maker is kept away from the court through fear
What is required if wanting to rely on the ground of fear?
Leave of the court
What must the court consider if they are being asked to grant leave for the use of ‘fear’ for unavailability of a witness?
Must consider:
- Nature of the statement
- Risks of unfairness
- Whether a special measures direction would solve any fear concerns
When can a business document be adduced as hearsay?
If:
- Document was created / received in the course of trade (must be the document that was created/received in this way)
- Person who supplied the information had personal knowledge of the matters stated in the statement
- If the information was received by other persons, it was in the course of trade
If a business document has been prepared for criminal proceedings, what are the additional requirements that must be met before the document will be admissible?
- One of the grounds of unavailable maker must be established
- Person who supplied the information cannot reasonably be expected to have any recollection of the matters
What is a res gestae statement?
A statement made at the time of the event
Are res gestae statements admissible as hearsay?
Yes, to prove the truth of the things said within it.
E.g., the statement was made so close in time to the event that the maker’s mind was still dominated by the event
When can a statement made by person about their mental or physical state be admitted as hearsay?
If it was a res gestae statement, it will be admissible to prove that state, but not the cause of it
Who is a confession admissible against?
The maker of the confession
If determining whether to admit hearsay in the interests of justice, what must the court consider?
- Probative value of the statement.
- Alternative evidence available.
- Importance of the matter to the case overall.
- The circumstances in which the statement was made.
- How reliable the make of the statement appears to be.
- How reliable is the evidence within the statement.
- Whether oral evidence can be given.
- The amount of difficulty involved in challenging the statement.
- The extent of prejudice to the defendant if the statement was admitted.
When will multiple hearsay be admissible?
- If it is contained in a business document
- The parties have agreed to admit it
- The court is convinced that its reliability is sufficient to make its value so high that is in the interest of justice to admit it
What must be satisfied about the maker of the statement in hearsay?
They must have been capable of making such a statement (competence)
As a maker of a statement cannot be cross examined, what can the prosecution do?
Call evidence to undermine the credibility of the maker
When should hearsay evidence be withdrawn?
If the statement is so unconvincing that any conviction as a result would be unsafe
Prosecution hearsay evidence can be excluded if admitting would have an adverse effect on the fairness of proceedings
What is the process to adducing hearsay?
- Notice is served on the court and the other party
- Notice will set our evidence and why it ought to be admissible
- If OS does not object, it will be deemed admissible
- If OS objects, the party seeking to adduce it must apply, on notice, and within the deadlines, to have the court determine the issue
What are the timeframes for a hearsay notice to be served in the MC and the CC?
MC = 28 days after a not guilty plea
CC = 14 days after a not guilty plea
What is a confession?
Any statement wholly or partly adverse to the person who made it
If a confession statement was obtained by a breach of PACE, what must the defence show?
A causal link between the conduct and the confession and that the confession would not have otherwise been made independently
On what grounds can admissibility of confession evidence be challenged?
Confession was obtained by oppression (s76)
Things said or done to obtain the confession would make the confession unreliable (s76)
Admitting the confession evidence would have such an adverse effect on the fairness of proceedings (s78)
What is oppression?
Torture
Inhumane / degrading treatment
Threats
When admissibility of a confession is challenged, what must prosecution prove?
Beyond reasonable doubt that the confession was not obtained by oppression
What discretion does the court have over excluding confession evidence generally?
Can exclude any evidence if it appears considering all the circumstances that admission of the evidence would have an adverse effect on the fairness of proceedings (s78)
What must be said about breaches of PACE to render a confession unreliable?
Breaches must be serious and subnstaial
What factors will the court consider when determining whether confession evidence was obtained unfairly?
- potential reliability / unreliability of the confession
- scale of any breach / misconduct
- impact on the defendant
What is absolute good character?
No previous conviction and no other reprehensible behaviours proven
What is effective good character?
Defendant has previous convictions or cautions that are not relevant / old / minor
How can good character evidence be established?
- general good reputation
- an opinion of good character from a character witness
- a lack of previous convictions
What are the two limbs to a good character direction?
- Credibility direction
- Propensity direction
What is the effect of the credibility direction?
Jerry should take good character into account when deciding whether what defendant says may be true
(given if defendant testifies)
What is the effect of a propensity direction?
Jury should take good character into account when deciding whether the defendant is likely to have committed the offence
(Given regardless of whether the defendant testifies)
Who can the defendant’s bad character be proved by?
Defendant
Co-defendant
Prosecution
What is gateway (a) for introducing bad character evidence?
(a) evidence agreed by all parties
Can be admitted by all parties
What is gateway (b) for introducing bad character evidence?
(b) evidence directly adduced by the defendant
Only defendant can admit this
What is gateway (c) for introducing bad character evidence?
(c) important explanatory evidence
Only prosecution can admit this
To admit bad character evidence as important explanatory evidence, what must be shown?
That, without it, the jury would find it difficult or impossible to understand other evidence, and it’s value to understanding the case as a whole is substantial
What is gateway (d) for introducing bad character evidence?
(d) evidence relating to an important matter in issue between the defendant and the prosecution (including propensity to commit similar offences or to lie)
Only prosecution can admit this
To admit bad character evidence as an important matter in issue between defence and prosecution, what can be adduced?
Evidence of prior offences of the same kind (showing that behaviour) can be admitted.
Mere technicalities ≠ sufficient
Must be relevant if proving actus reus / mens rea / identity of defendant
Can be used to rebut a defence or innocent explanation
What are the two categories under which prior offences can be admitted to show an important matter in issue between prosecution and defence?
Theft offences = theft / burglary / robbery / handling stolen goods
Sexual offences = rape / other sexual offences committed on a person under 16
When will bad character evidence to show untruthfulness be admitted?
Where dishonesty is part of the offence
What is gateway (e) for introducing bad character evidence?
(e) evidence with substantial probative value in relation to an important matter in issue between defendant and co-defendant
Only co-defendant can admit this
One defendant may try to introduce evidence of a co-defendant’s bad character to weaken their defence or to show that they, rather than the first defendant, are responsible.
What is gateway (f) for introducing bad character evidence?
(f) evidence to correct a false impression given by the defendant
Only prosecution can admit this
What does it mean for the prosecution to admit bad character evidence to correct a false impression given by the defendant?
Where defendant gives evidence that creates a false / misleading impression of themselves, prosecution can rebut that false impression by adducing evidence of bad character
What is the limit on admitting bad character evidence to correct a false impression?
Only admissible to the extent that it corrects the false impression created
What is gateway (g) for introducing bad character evidence?
(g) evidence admitted where the defendant has made an attack on another person’s character
Only prosecution can admit this
Who decides what constitutes bad character?
Tribunal of law
In which two circumstances is bad character evidence automatically admissible (without court approval)?
- Bad character evidence that has to do with the alleged facts of the offence with which the defendant is charged (evidence of the offence itself but also evidence that relates to the offence by being closely associated with it).
- Bad character evidence which is evidence of misconduct in connection with the investigation of the offence (intimidating witnesses / hiding evidence / lying on oath)
When will court admit previous offence showing propensity?
If the evidence is shown to be sufficiently probative of guilt
What is the strict test used for propensity evidence?
- Determine whether the history of previous convictions establishes a propensity to commit offences of the type charged
- If yes, determine whether propensity makes it more likely that the accused committed the particular offence charged
- If propensity makes it more likely, consider whether it would be unjust to rely on these previous convictions
To admit bad character evidence by a co-defendant, what must be proven?
That the evidence has substantial probative value
How strong must bad character evidence admitted by a co-defendant be?
Strong enough to remove the risk of unfair and prejudicial thinking by the jury.
No discretion to exclude evidence under this gateway once admitted.
What is an important point in relation to bad character evidence adduced under:
- ‘important matter in issue’ (d)
And - prosecution evidence of ‘attacking another person’s character’ (g) under what circumstances?
If doing so would have such an adverse effect on the fairness, the court must not admit such evidence
What must the court consider when determining whether to admit bad character evidence?
The length of time between the offence charged and the previous offence
When must a court stop a prosecution case in relation to evidence?
If e is significantly based on bad character evidence + there is found to have been collusion between witnesses.
If judge decides that there is merely innocent contamination between witness’s that it is not sufficient to make the case unsafe, what must they do?
Issue a suitable direction to the jury
What must jury be directed on in relation to bad character evidence?
- reminded of evidence on both sides
- if evidence is disputed, the differences should be identified
- if evidence is admissible through multiple gateways, jury should be directed as to each gateway
- given specific directions on any limits on use of evidence
- warned against prejudice against the defendant
- warned against over-reliance on bad character evidence
- told to consider whether the evidence actually establishes the matters alleged
When can bad character evidence of witnesses be adduced?
If:
- It is important explanatory evidence + substantial value
- It has substantial probative value in relation to an important matter
- All parties agree
+ court must grant leave in both 1 and 2.
What factors are used to determine substantial probative value?
- nature and number of acts of misconduct
- when the misconduct happened
- extent of any similarities and dissimilarities
- extent to which evidence shows that the same person was responsible in each commission of the offence
What is the appropriate test if there are disputes as to the credibility of a witness?
Whether the evidence is
reasonably capable of assisting a fair minded jury to reach a view as to whether the witness’s evidence is/is not worthy of belief
What is the procedure that must be followed to admit bad character evidence?
- Party wishing to adduce must make a written application
- Application must set out the facts of misconduct, how this will be proven, and why evidence is admissible (gateways)
- Notice must be given
What is the notice period that must be followed when making an application to adduce bad character evidence in relation to a non-defendant / co-defendant?
In relation to a non-defendant / co-defendant = served within 10 business days after prosecution disclosure of material on which application is based
What is the notice period that must be followed when prosecution are making an application to adduce bad character evidence?
MC = within 20 business days of a not-guilty plea
CC = within 10 business days of a not-guilty plea
Defence must object within 10 business days
What is the notice period that must be followed when defendant is making an application to adduce their own bad character evidence?
Should give notice orally or in writing as soon as practicable
What discretion does the court have in refusing to admit bad character evidence?
must not admit instances of important matter in dispute and defendant’s attack on another’s character if doing so would have an adverse effect on fairness
may not admit all other bad character evidence if there would be an adverse effect on fairness
What is a significant fact weighing against exclusion of bad character evidence?
Reliability + overall value of the evidence in establishing that the defendant may have committed the offence
Where a defendant commits an offence due to pressure being put on them by an undercover police officer, what can the defendant do?
Argue that the case should be stayed
Or
Argue that the evidence should be excluded to protect the integrity of the administration of justice and fairness of trial
This instance can trigger a s.78 argument
What is a s.76 argument?
That confession evidence was obtained by oppression
That things said or done to obtain the confession would make the confession unreliable
What is a s.76 argument?
That admitting the confession evidence / any evidence would have such an adverse effect on the fairness of proceedings that it should not be admitted
What is the common law discretion to exclude evidence?
The fact that the court has the power to stay proceedings as an abuse of process.
Can be exercised where:
- It would be impossible to give the defendant a fair trial
- No trial could result in a fair outcome because it would offence the court’s sense of justice / trial would undermine public confidence in the criminal justice system
What does an IDPC include?
- summary of the circumstances of the offence
- defendant’s criminal record
- information relevant to plea / allocation / sentence
- any witness statements
When is a preparation for trial hearing not held?
If defendant has been sent to CC
If defendant has plead guilty
What is the purpose of a preparation for trial hearing?
To ensure that defendant
- understands about guilty-plea credit
- takes a plea
If the matter goes to trial, understands that:
- they have a right to give evidence
- trial can proceed in their absence
- failure to attend can constitute an offence
What is a preparation for effective trial form?
- identifies the issues in the case
- completed before the hearing
What must parties confirm at a case management hearing?
- the disputed issues
- points of law that may arise
- evidence that can be agreed
- any formal admissions
- number of witnesses being called + availability
- whether a record of police interview can be agreed
- whether there will be any applications for special measures / character evidence / hearsay evidence
- realistic time estimate for trial
When are further pre-trial management hearings held?
If:
- guilty plea is anticipated
- it is necessary to give directions for an effective trial
- it is required to set ground rules for conduct of the hearing
When can a court make a ruling in relation to admissibility of evidence / questions of law before trial?
If it is in the interests of justice to do so
Who must complete the trial bundle?
Prosecution if the matter is held in the CC
When must the trial bundle be made available to the defence?
If defendant on bail = within 70 days
If defendant in custody = within 50 days
What does the trial bundle include?
- draft indictment
- witness statements
- exhibits
- unused evidence
When should a plea and trial preparation hearing be listed?
Within 28 days of the case being transferred to the CC
What is the plea and trial preparation hearing used for?
To determine:
- orders in relation to witnesses
- orders for disclosure
- legal issues (bad character / hearsay applications are heard)
What can a defendant do at a plea and trial preparation hearing?
Plead guilty
Ask for an indication of likely sentence if pleading guilty
Plead not guilty
When is a preparatory hearing held?
- long / complex cases
- serious fraud
- conducted by the trial judge
When is a pre-trial hearing conducted, and what is the purpose?
Where a guilty plea is anticipated
Necessary to set ground rules as for vulnerable witnesses / defendant
Upon relation to prosecution disclosure, what must prosecution disclose to the defendant?
- information that will be used against the defendant at trial
- materials that may assist the defence case (unused material)
- a list of evidence that might reasonably be considered capable of undermining the prosecution case
When a defendant is charged, what must prosecution serve on them?
A Streamlined Disclosure Certificate
Sets out any unused material
Sent to defendant within 28 days of a not guilty plea
What disclosure must a defendant produce?
A document setting out their case (defence statement)
What does a defence statement set out?
- basis of defence case
- points of dispute
- points of law that defendant intends to raise / challenge
When can witnesses given evidence?
If they are competent to do so
All witnesses are deemed competent (subject to exceptions)
When is a witness not deemed competent?
When they are unable to:
- understand the questions being put to them as a witness
- give answers to those questions that can be understood
witness does not need to appreciate the significance of court proceedings, and does not need to understand every single question put to them
If defendant alleges that a prosecution witness is not competent, what can the defence do?
Defence may apply for evidence of that witness to be excused under PACE s.78 (fairness on proceedings)
Who can give a sworn testimony?
- those aged 14 or over
- those that have sufficient appreciation of the occasion and the responsibility to tell the truth
If an unsworn testimony is given, what is the consequence?
The jury / bench can determine what weight they will give to it
When is a witness competent?
When they are legally permitted to give evidence (ie, have mental capacity)
When is a witness compellable?
When they can be forced to attend court
In which circumstances is a defendant not competent or compellable to give evidence for the prosecution or a co-defendant?
If the defendant is party to the proceeding and stands to be convicted
When does a defendant become a competent and compellable witness for prosecution?
When they ceased to face conviction (e.g., by pleading guilty)
Is a spouse of a defendant competent and compellable for the defendant?
Yes unless jointly charged
In what circumstances will a spouse of the defendant be competent (but not compellable) for the prosecution/co-defendant?
- defendant was charged with an offence involving actual / threatened assault or injury to the spouse
- defendant was charged with an offence involving actual / threatened assault or injury to a person under 16
- defendant charged with a sexual offence to a person under 16
How can a witness be compelled to attend?
By being served with a witness summons
When can a further summons backed by an arrest warrant be served on a witness?
If:
- they were initially served with a normal witness summons
- they are able produce material evidence
- it is established that they were properly served with the summons
- they have no just excuse for failing to attend
If a witness is unwilling to attend court due to fear, what can the court do?
Court may grant leave for their evidence to be admitted as hearsay
When can special measures be implemented?
- witness is under 18
- witness suffers from physical / mental disorder that may diminish the quality of their evidence
- witness’s evidence is likely to be effected by fear/distress
- adult victim of sexual abuse (presumed to be in fear and distress)
What is the court’s decision on whether to implement special measures based on?
Whether the special measures would be likely to improve the quality of evidence given by the witness
In what deadlines must special measures be applied for in the court?
MC = 20 days after a not guilty plea
CC = 10 days after a not guilty plea
What must a special measures application set out?
The basis for the application and why special measures will improve the evidence
Within what timeframe must an application for special measures be opposed?
Within 10 business days of the application
If opposing a special measures application, what must the opposing argument state?
Why there are objections
Why imposing special measures would not be in the interests of justice
What are the three conditions that, if satisfied, the court may consider it appropriate not to disclose the identity of a witness?
Condition A = order is necessary to protect the safety of the witness / prevent serious damage / prevent harm to the public
Condition B = order is consistent, in all circumstances, with the defendant’s right to trial
Condition C = witness’s testimony is important and witness will not testify / public harm if the order is not made
When can special measures be granted for a defendant?
- if it is in the interests of justice to do so
- if the defendant suffers from a mental disorder and measures would allow for the, to participate in proceedings more effectively
Only special measures for defendant = live link
When sentencing, what purposes must the court consider?
- punishment of offenders
- reduction of crime
- reform and rehabilitation
- protection of the public
- offenders making reparation to the persons affected by the crime
What are the two forms of custodial sentence?
Immediate
Suspended
What is it the custody threshold?
Custodial sentence will be imposed if community sentence / fines / discharge are not serious enough and cannot be justified
What is the community sentence threshold?
Offence must be serious enough to justify a sentence greater than a fine but not so serious as to require immediate custody
What must community sentences be, in terms of seriousness?
Appropriate and proportionate to the seriousness of the offence
How are monetary fines levied?
According to the seriousness of the offence / the defendant’s ability to pay
What is discharge?
Where there is no immediate punishment, but this is absolute or condition on future good behaviour
What is seriousness of sentence determined by?
The defendant’s culpability in committing the offence
Any harm which the offence caused / was intended to cause / might foreseeable have caused
When can a community order still remain an option, even when there is a fine?
If a serious fine is just as punitive
When can a custodial sentence be imposed?
- it is mandatory
- the offence passes the custody threshold
- the defendant agrees to community service but refuses to do so
A custodial sentence cannot be imposed unless what?
The defendant is legally represented
I’d imprisonment is imposed, when does the sentence start?
Immediately
Where are adults under 21 sent?
Young offenders institution
How must of a custodial sentence is spent in custody?
Half, and the other half on license
For defendants convicted of specified violent / sexual offences, custodial sentence becomes two-thirds
What length of sentence can be suspended?
Custodial sentences between 14 days and 2 years
How long can a sentence be suspended for?
6 months to 2 years
E.g., MC can sentence for 6 months, but suspend this for 6-24 months
What does a suspended sentence mean?
Defendant will be subject to requirements
Custody threshold must have been passed
When is a suspended sentence appropriate?
Where there is a realistic prospect of rehabilitation / strong personal mitigation / immediate custody would result in significant harm to others
Can a suspended sentenced be combined with another punishment?
With a community order or a fine
If a defendant breaches the requirements in their suspension period, what is the consequence?
The court must reimpose the full original sentence (or a shorter one if it is unjust to do so)
If it is unjust to impose the full sentence after breach of suspension, what can the court do?
Court must instead impose:
- a fine of £2,500
+ - more stringent requirements
+ - extend the period of suspension
What does a suspended sentence actually mean?
Court imposes the full custodial sentence but delays its enforcement for a specified period (allowing defendant to stay in community as long as they comply with certain conditions)
When can an extended sentence be imposed?
- if offender is 21 or older
- if there has been a serious offence
- if court is of the opinion that there is a significant risk to the public of serious harm
- if defendant has previously been convicted of a specified serious offence, or would have a sentence of at least 4 years with this offence
How much can an extension of sentence add on to the sentence that otherwise would have been imposed?
- must add on at least 1 year
- up to 5 years for violent offences
- up to 8 years for sexual offences
HOWEVER overall sentence (including extension) cannot exceed the statutory maximum for the offence
If a life sentence is imposed, what must it specify?
The minimum term to be served
Once a minimum term has been served for a life sentence, what happens?
The defendant is eligible for early release on license
What is the mandatory minimum sentence provision for specified serious offences?
A second commission of a specified serious offence meriting at least 10 years custody imposes a minimum sentence of life
What is the mandatory minimum sentence provision for domestic burglary?
A third commission of domestic burglary imposes a minimum sentence of 3 years
What is the mandatory minimum sentence provision for class A drug trafficking?
A third commission of class A drug trafficking imposes a minimum sentence of 7 years
What are the specified serious offences for the purposes of mandatory minimum sentencing?
- manslaughter
- GBH (s18)
- robbery using a firearm
- rape
defendant does not need to be found guilty of the same offence on each occassiom
What is the rule regarding domestic burglary and drug trafficking in relation to mandatory minimum sentencing?
The second previous offence must have been committed after the defendant was convicted for the first previous offence (must be distinct offences, convicted separately)
When is a court not required to impose a mandatory minimum sentence?
If the circumstances of the particular offence make it unjust to do so
When deciding whether to impose the mandatory minimum sentence, what factors will the court consider?
- difference between the previous offences and the current one
- lapse of time between the offences
- overall seriousness of the offence
What can the total duration of a community order be?
Up to 3 years
What should a community order be based on?
A combination of requirements most suitable for the offender
What must a community order contain?
At least 1 requirement to reflect punishment, unless:
- it is combined with a fine
- there are exceptional circumstances for not doing so
What must a court consider when imposing a community order?
Any time spent remanded in custody
What is the power courts have to impose fines?
CC = unlimited power to impose fines
MC = summary offences are subject to a maximum level of fine (if no level is specified, it will be level 3 (£1000))
What must be kept in mind about limits of fines in the MC?
The levels are limits
The actual amount of the fine should match the seriousness of the offence, but must take into account the circumstances of the case
What is a compensation order?
An order that the defendant pay compensation for personal injury / loss / damage resulting from the offence
What must a court priories between a fine and compensation if defendant cannot pay both fully!
Compensation
If a fine or compensation order is breached, what can the MC do?
Impose a custodial sentence
When a CC imposed a fine, what must they impose alongside?
A term in default order
=
Specified a period of imprisonment if the fine is not paid
A period of up to 12 months custody can be imposed by the MC for fine default under what circumstances?
- defendant is already in custody
- offence is punishable by imprisonment
- defaulter has means to pay
What is a conditional discharge?
Court specifies a period of up to 3 years during which the defendant must not commit any further offences - if they do, they are liable to be sentenced again
What can a discharge be combined with?
A compensation order
An ancillary order
Does the same bench heating the case need to determine the sentence?
No
What is the procedure for sentence?
- Court determines the relevant facts
- Prosecution presents information about defendant’s character
- Prosecution presents sentencing reports
- Prosecution outlines any other information
- Defendant makes representations
if there has been a guilty plea, what happens?
No evidence will be presented
Prosecution will set out the facts in as neutral way as possible
Court should accept defendant’s version of the facts
Parties may have agreed a basis of plea (but Judge isn’t bound by this)
When is a Newton hearing held?
When there is a dispute about the factual basis of an offence that will make a material difference in the sentence
