Criminal GAPs Flashcards
Battery
D intentionally or recklessly applies unlawful force upon another
s47
Assault + battery causing ABH
Does not have to intend harm or foresee ABH injuries
s8 Theft
Robbery - Commit theft and immediately before they use force or put the V in fear of it in order for a theft to take place
s10 Theft Act
Aggravated burglary - B uses firearm, weapon, or explosive
Criminal Damage
“without lawful excuse”
Diminished responsibility
Burden on defendant
Gross Negligence Manslaughter
D owes V duty of care.
D breaches duty causing V’s death
Serious and obvious risk of death
Breach causes death
Fraud by failure to disclose information
Fail to disclose information and in doing so intend to make a gain or cause a loss to another
Fraud by abuse of position
D abuses position where they are expected to safeguard the financial interest of another
Must use position to intend to make a gain or cause a loss
Actus Reus
Conduct (or strict liability)
Circumstances (or failure to act)
Result
Mens Rea
Direction intention
Oblique intention (Virtual certainty outcome would occur)
Specific intention (can only be committed intentionally)
Transferred malice (limited to same offence)
Self Defence
Complete defence
Inchoate offences - Attempt
D makes more than mere prepatory steps towards commission of crime.
MR is the intention to complete the full offence.
Completion can be impossible
Inchoate offences - Conspiracy
Agreement between two or more parties to carry out an offence
Agreement can be conditional
Right to legal advice
Can be delayed for up to 36 hours
Right to have someone informed of arrest
Can only be for up to 36 hours
Custody limits
Contained in PACE Code C
When are ID procedures to be held?
Witness has identified or purported to identify a suspect
Witness expresses an ability to identify suspect
Reasonable chance of witness being able to identify suspect
Types of ID procedure
Video ID
ID Parade
Group ID
Advising at police station
Inspect custody record, ask for disclosure, make decision on whether to advise client to answer questions
Right to bail
General right to bail unless an exception applies
AND
There is a real prospect of a custodial sentence being imposed
Exceptions to bail
Nature/seriousness of offence, D’s character, record of complying with bail conditions, strength of evidence, risk of further offending
Procedure for applying for bail
Rules of evidence relaxed
Court must give reasons in open court is application is refused
Allocation - s22A Magistrates Court Act 1980
Low value shoplifting offence can be tried either way despite being a summary offence
Allocation s20 Magistrates Court Act 1980
Defendant can ask for an indication of sentence
Section 50A Crime and Disorder Act 1998
Either way offence sent to Crown Court if co-defendant charged with indictable offence
Magistrates’ Case Management Directions - Prosecution
Must serve its evidence and any notice of intention to adduce bad character evidence within 28 days
Certificate of readiness 7 days before trial
Magistrates’ Case Management Directions - Defence
Serve defence statement within 14 days and notify prosecution which witnesses are to attend within 7 days
Must give notice of intention to use hearsay or bad character of witness within 14 days
Certificate of readiness 7 days before trial
Plea and Trial Preparation Hearing
Takes place within 28 days of being sent from the Magistrates
Guilty plea = moves to sentencing. Consider any Goodyear indication
Not guilty= Trial date is set by judge following submissions on base and practicalities of trial
Disclosure - Prosecution
50 Days (70 if on bail)
Disclose material it intends to rely on at trial, unused material reasonably capable of undermining prosecution case or aiding the defence
Disclosure - Defence
Following prosecution disclosure, the defence have 14 days to serve defence case statement on both the prosecution and court
Visual ID and Turnball Guidelines
A - Amount of time witness observed suspect
D- Distance between witness and suspect
V - Visibility at time of observation
O - Obstruction between witness and suspect
K - Known or unknown to witness
A - Any reason to remember suspect
T - Time elapsed between incident and ID procedure
E - Errors in initial account of suspects appearance
If case is weak, the defence should ask the judge to withdraw the case from the jury
Inferences from Silence
No obligation to give account - but adverse inference may be drawn
Cannot be convicted on an adverse inference alone
Admissibility of Hearsay - Statute
Witness is unavailable
Business document
Document prepared for use in criminal proceedings and person cannot be expected to recollect matter
Previous consistent or inconsistent statements of a witness
Expert evidence
Confession
Admissibility of hearsay - Rule of law
Preserved by res gestae
Admissibility of hearsay -Other
all parties agree
In the interests of justice - court discretion
Multiple hearsay
Statement relayed through more than one person
Less reliable
Admissibility of multiple hearsay
- business document
- Consistent or inconsistent statement
- All parties agree
- The value of the evidence is so high that it is in the interests of justice
Admissibility of Confessions
- Must be relevant to matter in issue
- Defendant can challenge on the basis of mistake or untruth (s76 PACE)
- Untruth = oppression or things said or done likely to render a confession unreliable
- Prosecution to prove beyond reasonable doubt that confession was not obtained by mistake or untruth
- Admissibility is determined at a Voir Dire
Discretionary Exclusion of Evidence for Unfairness
s78 PACE
- Admitting the evidence would have such an adverse effect on the fairness of proceedings that it ought not be admitted
- Court may but need not, exclude for unfairness
- Used where evidence is likely to have been rendered unreliable
Bad Character Evidence - gateways
7 gateways:
- All party agreement
- Adduced by defendant
- Important explanatory evidence
- Relevant to important matter in issue
- Matter in issue between co-defendants
- Correct false impression given by defendant
- Defendant attacked another’s character
Bad Character Evidence -Relevant to important matter in issue
- Propensity to commit similar offences or to be untruthful
Bad Character evidence - s78 PACE
Must NOT admit the evidence if to do so would have such an adverse impact on the fairness of proceedings (stronger than for hearsay)
Good character direction
Judge required to give direction if of previous good character (no or old/irrelevant convictions)
Discretionary if case features bad character evidence
Stages of Criminal trial
Prosecution goes first
Examination-in-chief
Cross examination
(process for each witness)
No case to answer
Takes place after prosecution have put forward their evidence
Demonstrate that prosecution has not presented enough evidence to amount to a prima facie case
Discretion for judge to grant
Modes of address
Magistrates (individual) - sir/madam
Magistrates (bench) - your worships
Crown Court - Your honour
Role of sentencing guidelines
Create consistency
Obliged to follow unless in the interests of justice not to
Mitigating factors
Early guilty plea
Previous good character
Age
health
Feature of the offence itself - impulse
Magistrates’ Sentencing powers
Summary (Single or multiple) - 6 months
Single either way = 6 months
Multiple either way = 1 year
Crown Court sentencing powers
Restricted by maximum for each offence
Appeal from Magistrates’ to Crown Court
- Must lodge written notice of appeal with convicting court within 21 days
- Matter heard by Crown Court judge and supported by 2-4 magistrates
- Complete re-hearing so new evidence can be adduced
- Can increase or reduce sentence but are restricted to Magistrates’ sentencing limits
- Can impose a costs order on the defendant if the appeal is unsuccessful
Appeal from Magistrates’ to High Court by way of case states
- Can be made by both prosecution and defence
- Must demonstrate grounds that the decision is wrong in law or in excess of jurisdiction
Appeal from Crown Court
- D must obtain leave to appeal from the trial judge or CoA
- Appeal against conviction = only on grounds that it is unsafe
- Appeal against sentence= wrong in law, wrong in principle or manifestly excessive.
CoA cannot exceed the sentence handed down in Crown Court
Youth Court Jurisdiction
- 10 to 17
- Grave and specified crimes are tried in crown court provided that the YC concludes that there is a real prospect of a custodial sentence of more than 2 years
Youth Court Sentencing
Referral order
Rehabilitation order
Detention and training order
