Criminal Flashcards
1
Q
What is the first step in determining eligibility for legal aid?
A
Does your client automatically satisfy the Means Test?
This includes individuals under 18 or those passporting through benefits like JSA.
2
Q
What is the adjusted annual income limit for the Initial Means Test?
A
£12,475
3
Q
If a client’s annual income is £22,325 or more, what is the outcome?
A
NOT FUNDED
4
Q
What is the maximum disposable income for a client to pass the Full Means Test?
A
£3,398
5
Q
What factors determine if it is in the interests of justice for a client to have legal representation? List at least three.
A
- Likelihood of losing liberty
- Likelihood of losing livelihood
- Serious damage to reputation
6
Q
When should legal aid applications be submitted?
A
At the earliest opportunity.
7
Q
What forms are required for a legal aid application?
A
- Form CRM14 (main application)
- Form CRM15 (financial statement, sometimes required)
8
Q
Where should the legal aid application be sent?
A
To the Legal Aid Agency (LAA).
9
Q
What is the outcome of a successful legal aid application?
A
Representation Order
10
Q
What should a defendant do if their application for a representation order is refused?
A
They can see the duty solicitor if they meet the criteria.
11
Q
What is the hardship application form number for further review of exceptional circumstances?
A
Form CRM16
12
Q
Is there a contribution system in the Magistrates’ Court legal aid?
A
No, clients are either financially eligible for a full representation order or not.
13
Q
What is the actus reus (AR) of Assault under s.39 CJA?
A
Causing V to apprehend immediate application of unlawful force
14
Q
What is the mens rea (MR) for Battery under s.39 CJA?
A
Intent or recklessness as to the application
15
Q
What type of offence is ABH under s.47 OAPA?
A
Either-way
16
Q
What is the AR for Theft under s.1 TA?
A
Appropriation of property belonging to another
17
Q
What is the MR for Low-Value Shoplifting?
A
Same as Theft (s.1)
18
Q
What is the MR for Burglary under s.9.1(a) TA?
A
Intent to steal, inflict GBH or do unlawful damage at point of entry
19
Q
What is the AR for Aggravated Burglary under s.10 TA?
A
Burglary with a firearm, imitation firearm, weapon, or explosive
20
Q
What is the MR for Robbery under s.8 TA?
A
Same as Theft (s.1)
21
Q
What is the AR for Simple Criminal Damage?
A
Unlawfully destroys or damages property belonging to another, exceeding £5000
22
Q
What is the key element of the defence of Self-Defence?
A
D used force to defend themselves, another, or property
23
Q
Is intoxication a valid defence in criminal law?
A
No, intoxication is not a defence.
24
Q
What does Loss of Control apply to?
A
Only applies to murder.
25
What are the elements required for Diminished Responsibility?
* Abnormality of mental functioning
* Caused by a recognised medical condition
* Condition substantially impaired D's ability
26
What is the Burden of Proof when D relies on an affirmative defence?
The prosecution has the legal burden of disproving the defence beyond reasonable doubt.
27
What is required for a qualifying trigger in Loss of Control?
* Fear of serious violence from V
* Extremely grave character circumstances causing a sense of being seriously wronged
28
What is the burden of proof when D relies on an affirmative defence?
The prosecution has the legal burden of disproving the defence beyond reasonable doubt.
29
Under S.76 PACE, when must a court exclude confession evidence?
When obtained by oppression or anything likely to make it unreliable.
30
What does S.78 PACE allow the court to do?
Exclude evidence if it has an adverse effect on the fairness of the proceedings.
31
Is a co-defendant's confession admissible against another co-defendant?
Not admissible, but affected by the 'Common Enterprise' hearsay exception.
32
What is VIPER?
Video Identification Parade Electronic Recording, considered the fairest identification procedure.
33
What are the two main criteria for witness competence?
* Not able to understand or be understood
* Person charged in the same proceeding
34
Who is an incompetent witness in a trial?
A co-defendant cannot give evidence for the prosecution.
35
What is the rule regarding hearsay evidence?
Inadmissible unless an exception applies.
36
List three key exceptions to the rule against hearsay.
* Interests of justice
* Dead, ill, afraid
* Business/other documents
37
What are the Turnbull Guidelines used for?
Challenging witness evidence regarding identification.
38
What does S.101 CJA outline regarding bad character evidence?
Evidence of D's bad character is admissible under specific gateways.
39
What are the seven gateways for admitting D's bad character evidence?
* Parties agree
* D adduces own bad character
* Important explanatory evidence
* Propensity to commit crime
* Important issue between D and co-D
* Correcting false impression
* D attacks another's character
40
What is the presumption regarding bail under the Bail Act?
There is a general right to unconditional bail.
41
What are the three main exceptions to the right to bail?
* Fail to surrender to custody
* Commit an offence while on bail
* Interfere with witnesses
42
What is the 'No Real Prospect' Test in relation to bail?
Exceptions to bail do not apply if there is no real prospect of a custodial sentence.
43
What are the limits for police detention without charge?
24 hours, extendable to 36 hours with authorization, and up to 96 hours with court warrants.
44
What must police do during a suspect's interview?
Remind them of their right to free legal advice and caution them.
45
What does the Right to Silence entail?
The client can remain silent or choose to answer questions.
46
What is the R v Galbraith Test regarding 'No Case to Answer'?
Based on either no evidence or insufficient evidence for a reasonable conviction.
47
What should a solicitor do if a client intends to plead 'not guilty' but is guilty?
They should not mislead the court but may challenge the prosecution's evidence.
48
What happens if a conflict of interest arises while representing co-defendants?
The solicitor must consider whether to continue representing one client or cease to act for both.
49
What should a solicitor advise a client about pleading guilty?
The plea must be voluntary and informed, and the client should only plead guilty if they believe they are guilty.
50
What must a solicitor explain to the client regarding giving evidence?
They must only give truthful evidence and the potential adverse implications of giving untrue evidence.
## Footnote
A solicitor must not allow a client to give false evidence or suggest they are not guilty.
51
What should a solicitor do if a client wishes to give false evidence?
The solicitor must withdraw and cannot reveal the reason to the court.
## Footnote
This is due to the duty of confidentiality.
52
What is the solicitor's duty regarding misleading the court?
Solicitors must not knowingly or recklessly mislead the court or be complicit in misleading acts.
## Footnote
Upholding the proper administration of justice is crucial.
53
What should a solicitor do if the prosecution makes an incorrect assumption about the client?
Discuss the prosecution's omission with the client and obtain their consent to correct it.
## Footnote
If consent is refused, the solicitor should withdraw.
54
What is a potential consequence of non-disclosure of previous convictions by the prosecution?
The court may fail to pass the correct sentence.
## Footnote
Prosecutors must provide details of previous convictions before sentencing.
55
What should a solicitor do if they become aware that a client has committed perjury?
They should refuse to continue acting for the client unless the client agrees to disclose it to the court.
## Footnote
The reason for withdrawing remains confidential.
56
What should a solicitor explore if a client knows the offender but won't identify them?
Explore the reasons for protecting the offender and potential intimidation concerns.
## Footnote
If this leads to false evidence, the solicitor must cease to act.
57
What should a solicitor ensure before a client changes their plea to guilty?
The solicitor should ensure the client is making a free and informed choice and explain the implications.
## Footnote
It is the client's decision whether to plead guilty.
58
What must a solicitor record before a guilty plea is entered?
The reasons for the plea and the client's understanding of its consequences.
## Footnote
The client should endorse this note to confirm their instructions.
59
What should a solicitor not disclose to the court regarding a guilty plea?
They should not disclose that the plea is a genuine acknowledgment of guilt or that the client is remorseful.
## Footnote
Submissions can be made regarding mitigating factors.
60
True or False: A solicitor can submit that a guilty plea reflects genuine remorse.
False.
## Footnote
Submissions should focus on other matters like good character or early guilty plea credit.
61
What tests must an applicant pass to be eligible for public funding in criminal cases?
The applicant must pass the Means Test and Merits Test.
62
What is the Means Test?
The Means Test assesses financial eligibility for legal aid.
63
Who automatically passes the Means Test?
Applicants under 18 or those receiving passporting benefits automatically pass the Means Test.
64
What are some examples of passporting benefits?
Examples include Income Support, Income Based Jobseeker’s Allowance, State Pension Guarantee Credit, Income-related Employment and Support Allowance, and Universal Credit.
65
What is considered when assessing a client's income for the Means Test?
The client's adjusted annual income and family circumstances are considered.
66
What is the income threshold for passing the Initial Means Test?
If the client's annual household income is £12,475 or less, they pass the Means Test.
67
What happens if a client's income is between £12,475 and £22,325?
The client's disposable income will be assessed.
68
What is the threshold for disposable income to pass the Means Test?
If the client's disposable income is £3,398 or less, they pass the Means Test.
69
What is the Interests of Justice Test?
This test determines if an applicant is entitled to legal aid based on the merits of their case.
70
What factors are considered in the Interests of Justice Test?
Factors include the likelihood of losing liberty, livelihood, reputation, and the complexity of the case.
71
What is the procedure to apply for legal aid?
Applications should be made at the earliest opportunity using Form CRM14 for the Interests of Justice Test and Financial Statement.
72
What is the outcome of a successful legal aid application?
A Representation Order is issued, authorizing payment of legal aid.
73
What rights does an arrested person have?
Key rights include being informed of the arrest, seeing a solicitor, and having someone informed of their location.
74
What is the maximum duration a suspect can be held without charge?
The maximum is 96 hours for an indictable offence.
75
What must happen if a suspect is held for 96 hours?
The suspect must either be charged or released unconditionally or on police bail.
76
What is required before a suspect can be interviewed?
The suspect must be cautioned prior to any interview.
77
What is the caution given to suspects?
The caution states: 'You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court.'
78
What rights do suspects have regarding legal advice?
Suspects have the right to obtain independent legal advice and must be reminded of this right.
79
What must be ensured for vulnerable suspects during interviews?
An appropriate adult must be present during interviews of vulnerable suspects.
80
What are the conditions under which an interview of a vulnerable suspect must take place?
An interview of a vulnerable suspect must not take place in the absence of an appropriate adult, except for a few exceptions.
81
What is the right to conditions of detention according to PACE Code C?
Detainees have rights regarding detention conditions, including: one detainee per cell, adequate heating and cleaning, access to toilet and washing facilities, and medical attention as needed.
82
What is the minimum meal provision for detainees?
Detainees are entitled to 1 main meal and 2 light meals every 24 hours, along with drinks at mealtimes or upon reasonable request.
83
Is a client entitled to remain silent during a police interview?
Yes, a client is entitled to remain silent, but the right to silence has been reduced by ss.34-38 CJPOA, allowing for adverse inferences.
84
What is an adverse inference?
An adverse inference is a negative conclusion drawn from a suspect's silence, particularly if they later rely on a fact at court that they could have mentioned during questioning.
85
What conditions must be met to draw adverse inferences?
To draw adverse inferences, the suspect must have been cautioned, the failure to mention a fact must relate to their defense, and there must be ongoing proceedings for the offence.
86
What is a prepared statement in a police interview?
A prepared statement is a written account given to the police instead of remaining silent, allowing a suspect to provide a defense while protecting against self-incrimination.
87
What options should a client be advised about before a police interview?
Clients should be advised on options such as a no comment interview, a prepared statement, a combination of both, or answering all questions.
88
What are some situations that can justify a client's silence during an interview?
Situations include inadequate disclosure of charges, being unfit to answer questions, or relying on legal advice to remain silent.
89
What is the general presumption regarding bail?
There is a presumption in favor of bail for anyone charged with a criminal offence, except for certain exceptions.
90
What are some exceptions to the right to bail?
Exceptions include charges of murder, specified serious offences for a second time, or if the defendant poses a risk of failing to surrender to custody.
91
What factors does the court consider when deciding on bail?
The court considers the strength of evidence, nature of the offence, character and criminal record, previous bail record, and community ties.
92
What are some proposed bail conditions to address risks?
Proposed bail conditions may include surrendering a passport, curfews, reporting to a police station, or not contacting named witnesses.
93
What is the risk of interference with witnesses regarding bail conditions?
Named witnesses must not be contacted, and the defendant must not go within a certain radius of where the witness lives or works.
94
What are the risks associated with committing further offences while on bail?
Conditions may include a curfew (with or without electronic tagging) and restrictions on engaging in certain behaviors or going to specific places.
95
What general arguments can be made in response to opposing bail?
Dispute the strength of evidence, argue unjust remand on weak evidence, and stress factors suggesting a lighter sentence.
96
What personal circumstances can be stressed in a bail application?
Factors like job interviews, family responsibilities, or caring for an ill relative can be highlighted.
97
How can one respond to arguments about the risk of absconding?
Argue that there must be a significant risk of failing to surrender, emphasizing personal circumstances and community ties.
98
What should be argued if the evidence against the defendant is weak?
If the evidence is weak, it may be argued that the defendant is less likely to abscond.
99
What is required for the court to deny bail based on witness interference?
The court must be satisfied that there is a significant risk of interference if released on bail.
100
What must the court determine regarding the risk of committing offences while on bail?
The court must find a significant risk that the defendant would commit further offences if released.
101
What happens if bail is refused?
The defendant can make another bail application at the first hearing after refusal.
102
What is the appeal process for bail refusal in the Magistrates' Court?
A person can appeal to the Crown Court against bail refusal or to vary/remove bail conditions.
103
What are the consequences of failing to attend court while on bail?
It is a criminal offence to fail to surrender without reasonable cause, and a warrant may be issued for arrest.
104
What are the custody time limits for a defendant refused bail?
56 days for summary-only offences, 70 days for either-way offences, and 112 days for committal for trial.
105
What is the rule for trials in the absence of the accused?
In summary trials, the court must proceed in the absence of the accused unless it is contrary to justice.
106
Where do all criminal cases start?
All criminal cases start in the Magistrates' Court.
107
What is a summary-only offence?
Less serious cases that can only be heard in a Magistrates' Court.
108
What happens at the first hearing for summary-only offences?
The court decides if a trial is needed and may address bail applications and legal aid.
109
What is an indictable-only offence?
The most serious crimes that can only be heard in the Crown Court.
110
What is the Plea and Trial Preparation Hearing (PTPH)?
A hearing where the defendant indicates their plea and the case is adjourned for trial or sentencing.
111
What are either-way offences?
Middle-ranking crimes that can be tried in either the Magistrates' Court or the Crown Court.
112
What is the Plea Before Venue?
At the first hearing, the defendant is asked to plead guilty or not guilty.
113
What happens if the defendant pleads not guilty?
The case will proceed to mode of trial proceedings to determine where it will be tried.
114
What must the court do with evidence?
The court must hear evidence and then disregard it; it may be difficult not to be influenced.
115
What is the appeal process from Magistrates' Court to Crown Court?
D has an automatic right to appeal from Magistrates’ Court decisions to the Crown Court, but permission is required to appeal from Crown Court decisions to the Court of Appeal.
116
What are the types of trials?
If tried summarily, it is a Summary Trial; if tried on indictment, it is a Jury Trial.
117
What happens if D pleads guilty or is found guilty?
Allocation affects sentencing.
118
What is the maximum sentence in a Magistrates' Court for either-way offences?
The sentence cannot exceed 6 months imprisonment for a single either-way offence or 12 months for 2 or more either-way offences and/or unlimited fine. However, if the offence is too serious, it can be passed to Crown Court for sentencing.
119
What is the update regarding custodial sentencing power in Magistrates' Courts?
The custodial sentencing power for a single either-way offence was increased to 12 months, effective 18 Nov 2024.
120
What is the sentencing power of the Crown Court?
There is no limit on sentencing power other than the statutory penalty.
121
What happens if D is found not guilty?
D is acquitted (innocent in the eyes of the law).
122
What are Sentence Indications in the Magistrates' Court?
D can seek an indication of what the sentence would be if D pleads guilty. The indication can only say whether a custodial or non-custodial sentence is more likely.
123
What is a Goodyear Indication in the Crown Court?
D can seek an indication of the maximum sentence if a guilty plea were to be entered at that stage. Any indication given is binding, subject to exceptional circumstances.
124
What are the characteristics of youth court proceedings?
The youth court is for people aged 10-17, has no jury, and is less formal. D's parent/guardian must accompany them if under 16.
125
What is the presumption regarding children under 10?
No child under 10 can be guilty of an offence.
126
What is the general rule for trying cases involving children?
Cases involving children should be tried in the youth court, except for grave crimes.
127
What is the focus of sentencing for children?
Sentencing should be individualistic, focused on rehabilitation, and consider underlying factors contributing to offending behavior.
128
Where are young offenders sent if they receive custodial sentences?
They are sent to secure centres for young people, not prisons.
129
What is the burden of proof in criminal cases?
The burden of proof rests with the prosecution to prove that D committed the offence beyond reasonable doubt.
130
What is the evidential burden on D?
Generally, D is not under an evidential burden to show their innocence.
