Criminal 2 Flashcards
What is the process of a Newton hearing?
Judge takes the role of tribunal of fact and makes a decision on the evidence presented.
Prosecution must prove the disputed issues beyond reasonable doubt
If a prosecution’s case is proven in a Newton hearing, what is the consequence?
Judge may reduce defendant’s guilty plea discount
What does information about a defendant’s character consist of?
Formal outcomes (previous convictions / cautions)
Other information (e.g., gang membership)
Evidence must be capable of proof
Which previous convictions cannot be referred to when disclosing evidence of a defendant’s character?
Precious convictions of under 48 months imprisonment
If a defendant admits to other offences that police were investigating, what is the consequence?
These offences can be taken into consideration and can act as aggravating factors
But cannot be subject to their own sentence
If a defendant has several offences, but only some of them are included as sample, what can prosecution do if the defendant is convicted of these offences/pleads guilty?
Prosecution can invite the court to treat the convicted offences as a sample and take the other offences (not on the indictment) into consideration as aggravation
What is the purpose of a pre-sentence report?
Assists the court in determining the most suitable sentence
When should a pre-sentence report always be considered?
If court is considering imposing a custodial sentence
If court is determining the suitability of a community order
If a victim’s statement has influenced a sentence, what must happen?
It must be considered and referred to in Court
What is the limitation on a court using a victim’s statement when sentencing?
May consider statement when determine aggravating factors, but should not base the sentence on requests / representations from victims
When does the court indicate a sentence that it is considering?
At a plea in mitigation
What must a court explain when passing a sentence?
- the effect of the sentence
- the consequence of non-compliance
- the court’s power to review the sentence
- the sentencing guidelines used and how they were applied
What is the time limit for which a court can vary a sentence passed?
CC = within 56 days of imposing it
MC = can vary/rescind at any time if it is in the interests of justice to do so
party seeking variation must apply as soon as practicable after sentence
What duty does a court have when imposing a sentence?
- to determine the sentencing category
- to impose a sentence which is in the offence range
When can sentencing guidelines be ignored?
If following them would be contrary to the interests of justice
Is the court obliged to take mitigating factors into account when determine sentence?
Court is entitled, but not statutorily obligated
What are the guilty plea discounts at each stage?
First stage = one third
Next stage = one quarter
Last minute = one tenth
How much can a sentence be reduced by by virtue of a guilty plea discount?
Reduced to 80% of the minimum sentence
Apart from a guilty plea, is a defendant entitled to discount of their sentences in other circumstances?
If they gave / offered assistance to the investigating authorities
What does it mean for a sentence to be served concurrently?
At the same time
What does it mean for a sentence to be imposed consecutively?
One after the other
If it is not specified, how will a sentence be served?
Concurrently
When is a concurrent sentence appropriate?
If the offences arise out of the same incidents / facts or form part of a series of events
What must the court do when imposing a concurrent sentence (in relation to length)?
Apply the totality principle by looking at the overall sentence and increasing it to reflect all the offending behaviour
When should a consecutive sentence be imposed?
Offences arise out of unrelated facts or incidents
Offences are if the same or similar kind
What must the court do when imposing a consecutive sentence (in relation to length)?
Apply to totality principle to ensure the sentence is just (may be necessary to reduce the total)
Which parties can appeal from the MC to the CC?
Defendant only
What are the grounds for appealing from the MC to the CC?
- plea was unequivocal (plea was explained in a vague/confusing way)
- plea was made under duress
- plea relates to a matter for which the defendant has already been convicted or acquitted
- Appeal is a defence by the Criminal Cases Review Commission
To appeal from the MC to CC, what must the defendant lodge and within what timeframe?
Must lodge a written notice of appeal with either the MC or the CC within 15 working days of the MC conviction
Does a defendant need to seek leave to appeal from MC to CC?
There is no requirement to seek leave (court has no power to decline jurisdiction)
What should a respondent do once they’ve received the defendant’s notice of appeal and within what timeframe?
Issue a respondent’s notice on the CC and the applicant within 15 working days of service
Who is a MC appeal in CC heard by? How is the decision made?
1 CC judge and 2 MC justices
Decision is made by majority
What are the options for CC on appeal?
Confirm / vary / reverse MC decision fully or in part
Remit back to MC with opinion
Resentence (can pass a more serious sentence but cannot go over MC maximum sentencing powers)
Who can appeal by case stated?
Prosecution and defence
What decisions can be heard in appeal by case stated?
Decisions of the MC
Appeal of the CC (not matters tried in the CC)
When must an application for appeal by case stated be made?
Within 21 days of sentence
Under what grounds can a decision be appealed by case stated?
Decision is wrong in law
Decision exceeds the jurisdiction of the court
What must MC do for appeal by case stated?
State the case
When can MC refuse to state the case?
If they feel it is:
- futile
- misconceived
- hopeless
- academic
How can the MC state the case?
Authorised court clerk drafts a statement of case
When must a drafted statement of case be served on all parties? Can further representations be made?
Drafted statement of case must be served on everyone within 15 business days after the decision to state the case.
Further representations must be made within 15 business days of service.
Final statement of case case must be completed within 15 days of the above.
Who is an appeal by cases stated heard by?
2/3 HC judges
Majority must agree
What is the format of an appeal by case stated?
No rehearing of evidence
Appeal is determined solely based on knowledge submissions by the parties
What are the options of outcome for an appeal by case stated?
- reverse / vary / amend the decision
- remit back to MC with opinion
- make any other as they see fit
- can substitute a conviction for an acquittal
- can pass a sentence itself
What is a loss of time order?
Single judge does not fully determine leave, but a refusal of leave means a loss of time order.
Can be made if the appeal is taken to CoA and fails there.
May mean that some / all of the time spent in custody since appeal will not count as part of the sentence.
Who is appeal by judicial review available to?
Prosecution and defence
What are the grounds for appeal by judicial review?
Error of law
Decision being ultra vires (beyond the power / jurisdiction of the court)
Breach of natural justice (bias / unfairness / insufficient time)
When must a claim form be filed for judicial review?
Within 3 months after the grounds for review arise
What is the pre-condition for a judicial review appeal to be made?
All other remedies need to have been exhausted
What should happen with the claim form for juridical review?
- if should be issued to all parties
- it should state the remedy sought
- it should include the lower court’s reason for the decision
Who will the defendant to a judicial review appeal be?
The court challenged
When must the defendant to a judicial appeal acknowledge the claim?
Within 21 days
Is permission required for a judicial review appeal?
Permission of a single administrative court judge is required (without a hearing)
What can a party do if permission to appeal by judicial review is refused?
Party can request a reconsidered at a hearing (unless single judge decides it is wholly without merit)
If permission is granted for judicial review, what should the defendant court and other party be served with, and within what timeframes?
Served detailed grounds for resisting the claim within 21 business days before the hearing
Served a skeleton argument within 14 business days before the hearing
Who hears a judicial review appeal?
2/3 administrative court judges
What is the format of a judicial review appeal?
Hearing will be a legal argument based on witness statements
Court has discretion to receive oral evidence
What are all remedies under judicial review?
Discretionary
What are the outcome options for an appeal by judicial review?
- quashing order
- mandatory order requiring MC to comply with its legal obligations
- mandatory order issued to prevent the MC from continuing to act
When will a court quash an acquittal by the MC?
If they feel the MC had no jurisdiction to deal with the case
If they feel the sentence is in excess of the MC jurisdiction
When are the grounds for an appeal be made from the CC to the CoA?
- appealing a conviction on the basis that it is ‘unsafe’ (basic procedural impropriety)
- appealing a sentence on the basis that it is wrong in law or manifestly excessive
- CCRC can refer a matter if there is a real possibility that the verdict / sentence would not be upheld
When will a conviction be ‘unsafe’?
- evidence was wrongly admitted or excluded
- directions wrongly given or omitted
- trial conduct showed bias
- wrong exercise of discretion
- errors in summing up
- problems with the jury
In order to appeal from CC to CoA, who must leave be obtained from?
A CC judge or CoA judge (unless leave has already granted by CC judge)
When must Appeal / notice of appeal be lodged with the court?
Within 28 days of the convictions or sentence
Who should be notified of appeal from CC to CoA?
Prosecution
What must an application to appeal from CC to CoA include?
The grounds of appeal
Lost of supporting authorities
If leave has not been granted by the CC judge, who determines whether leave should be granted?
A single CoA judge
If leave is refused for appeal from CC to CoA, what should the defendant do?
Defendant has 10 business days to renew the application before the full court
When can an appeal from CC to CoA be rejected?
If it is frivolous or vexatious (no realistic prospect of success)
What is the consequence if permission to appeal from CC to CoA is not given?
Defendant may face a loss of time order
Can fresh evidence be heard in an appeal from CC to CoA?
Not normally, but can be if necessary in the interests of justice
In deciding whether CoA will hear fresh evidence in appeal, what factors will the court consider?
- evidence capable of belief
- evidence that appears relevant to an appeal judgment
- evidence that would have been admissible at trial and there is reasonable explanations for not adducing it at trial
What is the purpose of new evidence in a CoA appeal from the CC?
New evidence is not to allow a rehearing, but rather review the original decision and determine if it was unsafe
What options do the CoA have in deciding an appeal from the CC?
- quash the conviction and acquit the defendant
- quash the conviction and convict the defendant of a lesser offence
- quash the conviction and order a retrial
- dismiss the appeal
- quash the original sentence and pass any new sentence (but cannot pass one higher than what was imposed on the defendant in the CC)
- quash the acquittal and order a retrial
What criteria must be satisfied for the CoA to quash a CC’s original acquittal and order a retrial?
If:
- offence is a qualifying offence (homicide, serious sexual offences, drug offences)
- there is new and compelling evidence
- it is in the interests of justice to do so
OR
- there has been interferences with witnesses
What grounds can an appeal be made be made to the Supreme Court?
If SC or CoA certify the case as involving a point of law or general public importance
What can prosecution appeal in the SC?
- an unduly lenient CC sentence
- a point of law following acquittal
What can prosecution not appeal in the SC?
A decision by the CC jury to acquit the defendant (may be able to do so in limit circumstances)
What can the Attorney-General appeal in the SC?
A sentence that is ‘unduly lenient’ but Co leave must be obtained
A particular ruling of law which has lead to the defendant’s acquittal (does not affect defendant’s acquittal)
What is a terminated ruling?
Where the Prosecution can seek to appeal a CC ruling in a way that will have an impact on the defendant (used during the trial)
What is the process for a prosecution to make a terminated ruling?
- CC makes a decision that would bring prosecution to an end
- Prosecution immediately seeks an appeal or adjourns to reconsider
- Prosecution announces its intent to appeal
- Prosecution seeks leave from the trial judge (single appeal judge can grant leave)
- Prosecution undertakes not to offer any evidence against the defendant if its appeal is abandoned or rejected
- Trial judge may expedite the appeal (hear it immediately) or discharge the jury
In the instance of a terminated ruling, what can the full appeal court do?
Confirm the ruling of the trial judge
Reverse / vary the ruling of the trial judge
What are the aims of youth sentencing?
- to prevent offending by young people
- to ensure young people’s welfare
Who is a youth trial used for?
Offenders under 18
What is the maximum sentence a YC can impose?
Up to 24 months
What happens if a youth turns 18 during proceedings?
YC can decide on whether to retain jurisdiction or remit the case to the MC
Full range of sentencing options become available upon conviction
When must parents attend the hearing for a youth?
If youth is sent to the CC, and youth is aged 15 or less
Where should a youth’s first hearing be?
The youth court
When must a youth be sent to the CC for trial?
If they have committed any of the following:
- homicide
- mandatory minimum weapons offences
- grave crimes (carrying a maximum sentence of 14 years or more)
If a YC is charged with the CC trial offences, where will their first appearance be?
Still in the YC, but the case will immediately be sent to the CC
First appearance is where the YC will formally read the charge, and any bail/remand decisions are made.
If a youth has been jointly charged with an adult in the MC, and they both plead not guilty, which court will try each of them?
MC must try both
If a youth has been jointly charged with aiding / abetting adult or offences arising out of the same circumstances, which court will try each of them?
MC may try both together or remit youth back to YC
If a youth has been jointly charged with an adult in the CC, and they both plead not guilty, which court will try each of them?
Youth may be tried in the CC if it is in the interests of justice
CC must sentence the youth using the YC sentencing powers
What is a youth caution?
A formal warning
When is a youth caution given?
Where there is a realistic prospect of conviction
Where it is in the public interest to issue a YC than prosecute
When is a Youth Conditional Caution given?
Where:
- there is sufficient evidence for a realistic prospect of conviction
- it is in the public interest
What requirements can be impose alongside a Youth Conditional Caution?
Behaviour training
Unpaid work
What is a Referral Order?
An order referring the defendant to the Youth Offenders Panel, who will meet the youth and their family to address the situation and issues
When must a referral order be made?
must be made when:
- the youth pleads guilty to an imprisonable offence, and
- has not been convicted of an imprisonable offence before
When may a referral order be made?
may be made when:
- youth pleads guilty to some but not all offences
or
- youth has already received a referral order
When can a referral order not be made?
If youth pleads not guilty and is convicted at trial
What is a detention and training order?
Custodial sentence imposed by the YC
Which age youths cannot be given a DTO?
Defendants aged 10 and 11 (or younger)
Is a DTO available for defendants ages 12-14?
If they are persistent young offenders (e.g., sentenced on three occasions for an imprisonable offence
Is a DTO available for defendants ages 15-17?
Yes if the case is so serious that only a custodial sentence is justified
How long can a DTO last?
4, 6, 8, 10, 12, 18, 24 months
What happens if a defendant turns 18 whilst serving their custodial half of a DTO?
They are always releases for a period of 12 months supervision (regardless of what their original term was)
What is a Youth Rehabilitation Order?
A community sentence for a youth
This is a discretionary sentence
How long can a YRO last?
Up to 3 years total
When can a YRO be given?
I’d the offence is serious enough to permit a YRO, not not so serious as to permit a DTO
What are some requirements that a youth can be subject to during a YRO?
- activity requirement
- supervision requirement
- programme requirement
- attendance centre requirement
- prohibited activity requirement
- curfew requirement
- exclusion requirement
- electronic monitoring requirement
- local authority residence
- mental health treatment
- drug treatment
- intoxicating substance requirement
- education requirement
What criteria must a youth meet to have a YRO imposed?
- must be 15 or over
- offence is imprisonable
- offence passes the custody threshold
When are youth sentence extensions available?
If the original sentence merits 4 years or more
What are the YC sentencing extensions that can be imposed?
Violent offences = 5 years
Sexual offences = 8 years
What is the purpose of the custody threshold?
To ensure that prison is reserved for serious crimes
If representing a client at the sentencing stage, what should defence solicitors prepare?
A plea in mitigation (set out during the sentencing hearing)
What does a plea- in- mitigation set out?
- the sentencing options in accordance with the sentencing guidelines
- an emphasis on the mitigating factors and aggravating factors
- a proposal for a suggested sentence
What is the solicitor duty to not mislead the court?
We must not mislead or attempt to mislead our clients, the court or others, either by our own acts or omissions or allowing/being complicit in the acts or omissions of others (including our client)
What is the format of a MC appeal in the CC?
It is a complete rehearing of the case
Parties can call different witnesses
Any factual basis accepted in MC does not need to be accepted in CC
