Criminal CMA Flashcards
What is the description of assault?
Apprehension of immediate application of unlawful force.
What is the description of battery?
A person intentionally or recklessly applies unlawful force upon another.
What is ABH?
Assault occasioning Actual Bodily Harm. For this, the elements of assault OR battery must be made out, as well as causation and actual bodily harm. It’s also harm that is more than transient or trifling.
What is GBH?
Grievous Bodily Harm. Requires proof of intention to cause some harm. The harm must be greater than ABH i.e. puncture of skin.
What’s the difference of GBH s.20 and GBH s.18?
s.20 is to cause some harm and 2.18 is intent to cause serious harm. For s.18, recklessness as to risk isn’t enough. The risk must be foreseen.
What is the presumption about bail applications?
There is a presumption bail should be granted unless:
(1) it’s homicide.
(2) there’s a real prospect of custody sentence.
(3) there’s substantial grounds to believe the D. will: fail to surrender, commit further offences on bail, interfere with witnesses.
(4) the court will also consider the seriousness of the offence, previous convictions etc.
What kind of conditions can court attach to bail?
Where to live, who not to contact and that kind of thing.
What if someone doesn’t comply with bail conditions?
Breach of the bail conditions could result in bail being reconsidered and even withdrawn.
What if the complainant doesn’t cooperate with the prosecution? i.e. Guy who was the victim of ABH doesn’t want to cooperate with prosecution who is prosecuting the person who hurt them.
The decision to prosecute isn’t the victims. Even if it is someone’s spouse, they are compellable to give evidence as the force was against them.
If the victim attends court and says nah they didn’t do anything etc, the prosecution will treat him as a hostile witness and could seek to adduce his written statement as hearsay to show he made a previous inconsistent statement. This application would be very likely to be granted.
If victim refuses to co-operate with a prosecution, his written statement could possibly be adduced as hearsay. The prosecution could make an application to use his statement on the basis that ‘the witness is not available and it is not reasonably practicable to ensure their attendance.” Any application on this basis could be strongly opposed. However, if victim fails to attend court, he could potentially face prosecution himself. The prosecution could still opt to proceed and rely on the 999 call alone. The prosecution might also make a bad character application and seek to rely on that together with the 999 call if deemed admissible.
What to respond when someone asks how to plead?
- On her own account, Mrs x is guilty/not guilty of the offence charged.
- The decision on how to plead is for Mrs x alone. We can advise her on the strength of the evidence, but she must decide how to plead.
- Defendants receive credit for an early guilty plea, which includes up to a 1/3 reduction in sentence, compared to conviction after trial.
Admissibility of the 999 police call.
- The 999 call is hearsay (that is evidence other than oral evidence given in court offered as proof of the truth of its content) which is not generally admissible in criminal proceedings. But, exceptions to the rule against hearsay:
Res Gestae = Because the statements were made in the heat of the moment, they are likely to be genuine. So, that hearsay evidence should be admissible. - Defense could challenge this evidence under s. 78 PACE that it would be unfair to admit it. This would be particularly so if the complainant doesn’t attend court to give evidence.
Bad character evidence generally can’t be adduced unless…
- Important explanatory evidence to a matter in issue between prosec and defence.
i.e. propensity to commit an offence of the type charged and propensity to be dishonest. - Corrects false impression given by the D.
- If D. attacked another person’s character.
What is the other consideration that the defense can bring to bar the bad character evidence even after the other exceptions have been passed?
If D. has made an application to exclude it, and it appears to the court that admitting it would have such an adverse effect on the fairness of the proceedings that it ought to be excluded.
If a deceased dies without a will but with a spouse and kids, what do they get?
Spouse gets statutory legacy of 322k, plus half the deceased’s remaining property and chattels (moveable property).
Children split the rest.
However, if the surviving spouse wants the matrimonial home they can force the executor to give that to them. If it’s worth more than the spouse’s share, they will have to pay the difference to the estate.
