Criminal Law Flashcards
1
Q
Crime: How long right to legal advice can be delayed:
A
up to 36 hours if:
-arrested on indictable only or either way offense;
-approved by superintendent or higher; and
-reasonable grounds to think delay is ness.
2
Q
Crime: How long right to phone call can be delayed:
A
up to 36 hours if:
-arrested on indictable only or either way offense;
-approved by inspector or higher; and
-reasonable grounds to think delay is ness.
3
Q
Crime: How long can suspect be in custody before charge:
A
- 24 hrs for no reason
- additional 12 hours (36 hrs total) if approved by superintendent and arrested on indictable only or either way offense
- additional 36 hours (72 hrs total) if approved by Magistrates Ct
- additional 24 hours (96 hrs total) if approved again by Magistrates Ct
4
Q
Crime: When a case is sent to Crown Court from Magistrates Court, how long until the suspect has his first hearing in Crown Court?
A
28 days
5
Q
Crime: Usually, courts MAY exclude bad character evidence if it would have an adverse effect on the fairness of the proceedings, but when MUST courts exclude bad character evidence?
A
When the bad character evidence is being introduced based on (1) an important matter in issue between the prosecution and defense (for ex: if P is trying to show that D has the propensity to commit similar offenses or to lie) or (2) the defendant attacked another’s character.
6
Q
Crime: What is the causation test?
A
Factual: but for
Legal: more than minimal; substantial and no intervening cause
7
Q
Crime: What is the recklessness test?
A
Suspect forsees a risk (subjective) and that is an unreasonable risk to take under the circumstances known to the defendant (objective)
8
Q
Crime: Besides, intent to kill, what other intent qualifies for murder?
A
Intent to cause grievous bodily harm.
Note that indirect intent also qualifies: aka, defendent knew death or GBH was a virtual certainty
9
Q
Crime: Who has the burden of proof to reduce murder to voluntary manslaughter?
A
- Diminished responsibility: defendant must prove on balance of probabilities
- Loss of control: defendant raises and brings evidence of loss of control, then prosecution must prove no loss of control beyond reasonable doubt
10
Q
Crime: What sort of harm qualifies for ABH?
A
More than minimal; like a bruise
11
Q
Crime: What sort of harm qualifies for GBH (s18 and s20)?
A
- s.18 - grevious harm - must have intent to do GBH
- s.20 - grevious harm - no need to show intent to do GBH
For example, suspect tries to punch victim X really hard. If suspect misses, then assault. If suspect grazes victim X, then battery. If victim X just gets a bruise, then ABH. If victim X falls and breaks a bone but prosecution can’t prove that suspect GBH, then GBH s.20. If victim X falls and breaks a bone and prosecution can prove that suspect wanted GBH, then GBH s.18. If victim X falls and dies, then depending on intent of suspect, then murder or involuntary manslaughter (unlawful act murder).
12
Q
Crime: What’s the thing about theft you always forget?
A
That dishonesty threshold is objective. Even if suspect didn’t mean to mislead or take something, if they don’t fix the other person’s mistake and return the item, that’s objectively dishonest and is theft.
13
Q
Crime: Can Ct of Appeals change sentence handed down by Crown Ct?
A
Yes, but cannot exceed the sentence.
14
Q
Crime: Who can NOT be part of a conspiracy?
A
- The victim of the conspiracy
- Minors
- Spouses
15
Q
Crime: Indictable only offenses
A
Murder
Manslaughter
S18 GBH
Robbery
Burglary (in certain instances)
Aggravated criminal damage/arson
16
Q
Crime: Summary only offenses
A
Assault & battery
Criminal damage under $5000
17
Q
Crime: What is the value threshold of theft offenses that Magistrate’s court cannot decline jurisdiction?
A
$200.00
18
Q
Crime: If identification procedure is not followed (for ex, the suspect is not able to have attorney or friend present), can witness identification be excluded from trial?
A
Yes, but it’s discretionary
19
Q
Crime: Suspects generally have a right to bail, when do they not?
A
- when an exception to the right to bail applies and
- there is a real prospect of jail time being imposed if convicted
20
Q
Crime: Exceptions to right to bail
A
- there are substantial grounds to believe that the D would fail to surrender, commit further of the same offenses while on bail, interfere w/ witnesses or obstruct justice, commit an offense that causes injury or fear of injury against an associated person
- D is charged w/ an indictible or either-way offense and they were on bail at the time of the offense
- custody is for their own protection
- there is insufficient info to make a decision on bail; or
- they have failed to surrender or breached bail conditions on the same proceedings
21
Q
Crime: Generally Ds charged with murder don’t get bail unless what applies
A
there is no significant risk that D would commit an offence likely to cause physical or mental injury to another person
22
Q
Crime: How many bail applications can one D get?
A
up to 2, unless there’s a change in facts/circumstances
23
Q
Crime: In what instances will D be sent to Crown Court automatically even if charged with an either way offense?
A
- the D or co-D is charged with an indictable only offense alongside the either way offense.
- this is a serious or complex fraud cause or involves child witnesses who should be protected (there’s better protections in the Crown ct)
24
Q
Crime: Goodyear indication
A
D requests an indication of sentence before entering a plea. If judge agrees and gives indication and D pleads guilty, then judge is bound by their indication.
25
Crime: When does plea and trial preparation hearing take place?
28 days after case was sent from Magistrates' ct
26
Crime: When does prosecution have to complete disclosure?
within 50 days (or 70 days if D is on bail).
27
Crime: When does defense have to file defense case statement?
within 28 days of prosecution's disclosure.
28
Crime: If a case wholly or substantially relies on witness ID evidence, then the judge will determine whether the D should be acquitted based on the Turnbull guidelines. What are those?
ADVOKATE
Amount of time witness saw
Distance from suspect
Visibility at the time
Obstructions in the way
Known - suspect was known to witness
Any other reason to remember the suspect
Time between event and ID procedure
Errors in the witness's statements over time
29
Crime: What is a Turnbull warning
If case relies on witness IDs of suspect, then judge must give a caution that mistaken witnesses can be convincing, the jury should consider all the circumstances and point out particular weaknesses with the ID evidence based on ADVOKATE
30
Crime: Who must prove that a D's confession was coerced?
The prosecution; prosecution has to prove that there was no coercion beyond a reasonable doubt. Defense just has to raise the issue. If prosecution cannot prove beyond reasonable doubt that confession was not coerced, then confession MUST be excluded.
31
Crime: What is Voir dire
Ruling by judge without jury. Used for example to determine admissibility of a confession.
32
Crime: In what circumstances MUST evidence offered by the prosecution be excluded and when MAY evidence be excluded?
MUST: evidence is based on D's mistake or coercion
MAY: when considering all the circumstances, the evidence would have an adverse effect on the fairness of the proceeding. Pretty high bar.
33
Crime: Deadline for prosecutor to serve notice that they want to introduce bad character evidence
10 business days
34
Crime: When MUST a judge give good character direction?
no prior convictions and no other bad character evidence that the prosecutor relies on.
35
Crime: Is a co-defendant compellable and competent?
For prosecution: Only if co-D has pleaded guilty or charges are dropped, then must testify
For defense: may testify, but doesn't have to
36
Crime: Is a spouse compellable and competent?
For prosecution: may testify but doesn't have to unless case involves assault or injury to child or spouse
For defense: MUST testify
37
Crime: Is a defendant compellable and competent?
For prosecution: NO
For defense: May testify, but doesn't have to
38
Crime: What are aggravating factors that MUST be taken into account?
Previous convictions
Whether offense was commited while on bail
Racial or religious aggravation
Hostility based on sexual orientation, transgender identity or disability
39
Crime: What happens if a suspect breaches any parole conditions?
They are automatically returned to jail.
40
Crime: What is the maximum period that a jail sentence can be suspended?
2 years
41
Crime: Newton Hearing
Where D wants to plead guilty but wants to argue that certain facts are wrong. There is a Newton Hearing where witnesses are presented to decide the facts. If the D wins the Newton Hearing, they get to keep the 1/3rd discount for pleading guilty early. If D loses the Newton Hearing, they lose the 1/3rd discount for pleading guilty early.
For ex: I want to plead guilty to theft and battery, but I didn't actually threaten the victim with a gun, it was just a fake gun. Hearing is held to determine whether I had a fake or real gun. If I win, then I get to keep my discount for pleading guilty. If I lose, then I lose my discount.
42
Crime: What crimes MUST be sent to crown court even if the D is a minor?
What crimes MAY be sent to crown court even if the D is a minor?
Youth is charged with murder, attempted murder or manslaughter. Or youth is jointly charged with an adult who is sent to crown ct for trial.
A 'grave crime' -- such as robbery & rape. Youth ct needs to decide if their limited sentencing powers are adequate (basically, if the youth would probably be jailed for more than 2 years)
43
Crime: When a referral order MUST, MAY or CANNOT be made:
MUST: D pleads guilty to jailable offenses and has not been convicted of a jailable offense before
MAY: D pleads guilty to some but not all offenses, or D has previously received a referral order
CANNOT: D pleads not guilty and is convicted at trial (in that case a youth rehab order or detention and training order is more appropriate)
44
Crime: Age limit for detention and training order
Noone under 12 can go to juvi. Youths aged 12-14 can go to juvi only if they've been convicted on 3+ occasions for an jailable offense. Youths aged 15-17 can go to juvi if justified.
45
Crime: When is an omission a criminal act
When D had a duty to act and the D breached that duty by failing to act
For ex: under a statute (obligation to stop at scene of crime), special relationship (like parent-child), duty imposed by contract (police officer), D created a dangerous situation and is aware of having done so
46
Crime: In murder (and other result crimes), you need to look at whether D caused the result, what does that mean?
1. But for test,
2. D's actions are more than minimal and
3. no break in the chain of causation
47
Crime: What could cause a break in the chain of causation?
1. thin skull rule
2. medical treatment
3. third party's actions
4. victim's own acts
5. D's act if a new act
6. natural event
1. no
2. only if so bad that the original injury is overshadowed
3. only if free, deliberate and informed (third party tries to stop the bleeding from the gunshot wound, but accidentally causes them to bleed out; not a break)
4. only if so daft as to be unforeseeable
5. maybe
6. yes if a reasonable person couldn't have foreseen it
48
Crime: What are the specific intent crimes?
Attempt
Encouragement and assistance
Murder
Wounding or Causing GBH with intent (s18)
Theft
Robbery
Burglary
Fraud by False Representation
49
Crime: Mens rea for attempt
Intent to complete the crime attempted
50
Crime: Mens rea of Encouragement and Assistance
Intent that the crime encouraged or assisted would be committed
51
Crime: Mens rea of Murder
Intent to kill or cause GBH (or the result of the D's act must be a virtually certain consequence of the D's conduct and the D realized that)
52
Crime: Mens rea of s18 GBH
Intent to wound or cause grievous bodily harm or to resist apprehension or detention (or the result of the D's act must be a virtually certain consequence of the D's conduct and the D realized that)
53
Crime: mens rea of theft
Intent to permanently deprive another of their property
54
Crime: mens rea of robbery
Intent to permanently deprive another of their property (plus intent or recklessness to use force at or before theft)
55
Crime: mens rea of burglary (s9(1)(a)
Intent to enter building and commit theft/cause GBH/commit criminal damage therein
56
Crime: mens rea of fraud by false representation
Knowledge that statement is/might be false and intent to make gain or cause loss or risk of loss
57
Crime: test for recklessness
Whether the D foresees the risk from the act and continues regardless and in all circumstances known to the D, it is an unreasonable risk to take.
58
Crime: Recklessness crimes
Assault, batter, wounding or causing GBH (s20), criminal damage
59
Crime: is a fetus a human being for purposes of murder?
no
60
Crime: D causes victim to become brain dead but not physically dead, is that murder?
Yes, brain dead = dead.
61
Crime: Two defenses will reduce murder to voluntary manslaughter. What are they and who has the burden of proof?
1. Diminished responsibility; D on the balance of probabilities
2. Loss of control; Prosecution. D only has to raise it.
62
Crime: Elements of loss of control
a fear of serious violence or things said or done which constituted circumstances of an extremely grave character and caused the D to have a justifiable sense of being seriously wronged
A hypothetical person of the D's age and sex might have reacted in the same way.
63
Crime: D did not intend to kill or cause GBH to the victim, but the victim still died, what can the D be charged with?
Try unlawful act manslaughter or gross negligence manslaughter.
64
Crime: Elements of unlawful act manslaughter
an positive act that is intentional, criminal, dangerous and the cause of death
65
Crime: elements of gross negligence manslaughter
Gross negligence (duty of care and breach) plus causation and a serious and obvious risk of death
66
Crime: What is the Offences Against the Person Act 1861 Section 47?
Assault occasioning actual bodily harm.
Basically assault or battery with a resulting injury (except fear or anxiety), such as PTSD or a bruise.
Mens rea is the same as assault or battery.
67
Crime: What is the Offences Against the Person Act 1861 Section 20?
Wounding or inflicting grievous bodily harm but without the intent required for GBH 18.
Result should be a wound, like a break in the skin (bruise is not enough), or grievous bodily harm.
Mens rea is intent or reckless as to some harm.
68
Crime: What is the Offences Against the Person Act 1861 Section 18?
Wounding or inflicting grievous bodily harm with intent.
Result should be wound or GBH.
Mens rea is (i) intent to cause serious harm or (ii) foresee the risk of some harm and intend to resist lawful apprehension.
69
Crime: For theft, what is the standard on whether the D is dishonest?
It's an objective standard of reasonable and honest people
70
Crime: in what 3 situations is a D deemed NOT dishonest for purposes of theft offenses?
If the D believes (objective test)
1. they have a right to the property
2. they would have the owner's consent
3. the owner could not be discovered by taking reasonable steps
71
Crime: elements of theft
Dishonest
Appropriation
of property
belonging to another
with the intent of permanently depriving the other of it
72
Crime: elements of robbery
Force (or fear of force) before or at the same as the theft in order to steal
73
Crime: two types of burglary
1. Burglary with intent at time of entry to commit criminal damage, steal, or inflict GBH on anyone in the building. Theft Act 1968 S9(1)(a)
2. Burglary with no intent at time of entry but then subsequently attempts to or actually commits GBH or steals. Theft Act 1968 S9(1)(b)
74
Crime: What is Theft Act 1968 S10?
It's aggravated burglary, which is just burglary but the D had with them a real or fake gun, any weapon or explosive.
75
Crime: Can D get charged for criminal damage for ruining the following items:
1. a computer co-owned with their ex;
2. information on a computer;
3. copyrights;
4. plants growing wild behind his neighbor's fence;
1. yes
2. no
3. no
4. no
76
Crime: mens rea of criminal damage
intent to damage the property belonging to another or reckless as to whether the item belonging to another will be damaged
77
Crime: defenses to criminal damage
D thought the owner did or would have consented (does not need to be reasonably held); or
D reasonably thought they needed to damage the other property in order to protect their own property (must be reasonably held)
78
Crime: mens rea for aggravated criminal damage
intent to damage the property belonging to another or reckless as to whether the item belonging to another will be damaged; and
intent or be reckless as to the endangerment of life by the damage caused by the property
79
Crime: What is aiding, abeting, counseling or procuring?
Aiding - helping at the time of the event
Abeting - encouraging at the time of the event
Counseling - advising usually beforehand and not at the time of the event
Procuring - helping or getting something before the event
80
Crime: What is the actus reas and mens rea of attempt?
Actus reas: acts that are more than merely preparatory
Mens rea: the intent to complete the full offense
81
Crime: What is the Case of Anderson [1986] AC 27
The case found that where a D supplied diamond wire for a prisoner's escape, he could still be part of a conspiracy to escape even though the D believed that the escape attempt would fail and thus didn’t have intent for the crime to be committed.
82
Crime: mens rea of conspiracy
Intend to form an agreement
83
Crime: When is burglary an indictable only offense?
1. When the burglary includes the commission of (or intent to commit an) indictable only offense,
2. the victim is subject to violence or threat; or
3. this is the third charge for domestic burglary
84
Crime: What the key rights under the Police and Criminal Evidence Act 1984
1. Access to free legal advice, free medical help and a free interpreter
2. right to notify someone of their arrest
3. right to inspect police Codes of Practice
4. right to silence
5. right to be informed of the reason for the arrest
6. right to inspect documents relating to the arrest and detention
7. right to information on detention time limits
85
Crime: rights of suspects in ID procedures
1. to have the purpose of the procedure explained
2. to have free legal advice and to have a solicitor or friend present
3. to have their obligations explained and the consequences of their decisions, namely that:
-the suspect need to cooperate, but a procedure may still be conducted covertly and the failure to cooperate may be raised at trial; and
-if the suspect changes their appearance between the notification and conduct of the procedure, it may be raised at trial
86
Crime: What are the different ID procedures?
1. Video ID
2. ID parade
3. Group ID - in an informal group
4. Confrontation
87
Crime: Possible objections to ID procedure
1. failure to take into account reasonable objections to the appearance of others in the ID procedure
2. failure to keep the witness away from the suspect before or during the ID process
3. failure to keep witnesses apart before or during the ID process
4. failure to warn witnesses that the suspect might not be shown at all
88
Crime: what happens if police breach Code D of PACE 1984?
This is the ID procedures rule.
The ct will consider whether the admission of ID evidence would have such an adverse effect on the fairness of trial that it ought to be excluded. And if so, then evidence will be excluded.
89
Crime: What must the police say to suspect before an interrogation?
Miranda rights basically. Must also include that if suspect fails to mention something that they later rely on in court and it's a fact that they reasonably could've mentioned in the interview, then an adverse inference may be drawn.
90
Crime: What is the Special Caution?
During the interrogation, the police need to disclose the offense being investigated and the fact that the suspect needs to account for (if the suspect was at the scene of the crime or an object, substance or mark ties them to the crime) and that if the suspect doesn't provide an alibi during interrogation but then has an alibi at trial, then an adverse inference will be drawn.
91
Crime: instead of answering the questions in an interview, can the suspect just make a written statement?
Yes, suspect can answer questions, decline to answer questions or submit a written statement during an interrogation
92
Crime: Who is responsible for determining whether a vulnerable suspect is entitled to access to an appropriate adult?
The custody officer, but note that if a suspect is vulnerable and an appropriate adult was not called in, the evidence obtained during interrogation may be excluded.
93
Crime: Who is an appropriate adult for vulnerable suspects?
Can be the suspect's parent or guardian, a rep from a care organization, social worker, or other volunteer not affiliated with the police.
The suspect's wishes should be taken into account when appointing an appropriate adult.
94
Crime: When is an appropriate adult for vulnerable suspects necessary?
For interrogations.
95
Crime: Can a solicitor be removed from the interrogation?
Yes if solicitor is obstructing the interrogation (by answering the questions or telling suspect what to say), but only with approval from a superintendent or higher. In that case, the D would be entitled to another solicitor.
96
Crime: Who decides whether the suspect should get bail after being charged?
The custody officer at the police station.
If custody officer denies bail, then after that the D goes to Mag Ct. and gets a hearing for bail.
97
Crime: Generally, Ds must get bail, but when can court deny bail?
When there is an exception to the right of bail and there is a real prospect of jail time if convicted
98
Crime: Ct can include conditions to bail if they are:
relevant, proportionate and enforceable
99
Crime: What happens if D breaches their bail conditions or fails to surrender?
1. if breaches their bail conditions, then they can be arrested without warrant. Ct can withdraw their bail or impose more stringent conditions.
2. if D fails to surrender, then that's a separate offense and their bail CAN be revoked
100
Crime: What must be satisfied in order for the D to get legal aid in a criminal case?
The interest of justice test and the means test
101
Crime: Factors in the interests of justice test
1. will D lose their liberty or livelihood or suffer serious damage to reputation
2. is there a substantial question of law (like hearsay evidence, bad character evidence, challenging ID evidence)
3. is D unable to understand the proceedings or state their own case (for ex: D doesn't speak English)
4. does case involve tracing witnesses and cross-examining them
5. is it in the interest of another person (for ex: you want a pro to cross-ex a sexual assault victim)
102
Crime: What is the means test for a representation order?
Threshold is currently income of $3,398 after all deductions and adjustments. Also, if D receives food stamps, state pensions, unemployment, or is under 18, etc..
103
Crime: What are the steps of plea before venue?
-For either way offenses, first hearing is in mag ct.
-D can say whether they will plead guilty or not guilty.
-If D says guilty, then D will be sentenced in mag ct (unless mag ct. doesn't think their sentencing power is sufficient, then case gets sent to crown ct for sentencing).
-If D says not guilty, then mag ct decides whether it has jurisdiction
-If mag ct decides that it has jurisdiction, then D decides which ct he/she wants.
-If mag ct does not have jurisdiction, then case gets sent to crown ct
104
Crime: Standard case management directions in Mag Ct
Prosecution must serve its evidence within 28 days
Defence must serve a defence statement (if it is to be served) within 14 days and notify which prosecution witnesses are required to attend within 7 days
105
Crime: What is prosecution's duty of disclosure?
Prosecution must disclose:
1. all evidence that it will rely on at trial; and
2. all evidence that might reasonably be capable of undermining the case for the prosecution or that assist the case for the defense.
106
Crime: When can adverse inferences be drawn?
1. D fails to account for their presence at the scene of the crime or for objects, substances or marks found on them at the time of the arrest that link them to the crime
2. D fails to give evidence at trial unless the D's physical or mental condition prevents them from giving evidence
3. D failed to give alibi pre-trial but has an alibi at trial.
107
Crime: When is hearsay evidence admissible?
When it's allowed by statute, rule of law, agreement of all parties, or in the interest of justice
108
Crime: When is hearsay evidence admissible by statute?
1. Witness is unavailable
2. It's a business document
3. Statements were prepared for use in criminal proceedings and the relevant person cannot be expected to recollect the matter
4. There are previous consistent or inconsistent statements of a witness
5. It's expert evidence
6. It's a confefssion
109
Crime: When can a business document be introduced as hearsay evidence?
1. it was created in the ordinary course of business,
2. the person who created it had knowledge of what they were writing
110
Crime: When can hearsay evidence be admissible under rule of law?
When it's a confession or denial by the D; or
statements made at the same time as the offense.
For ex: "I didn't do it intentionally." or a witness who shouts "Don't forget to take his wallet!"
111
Crime: When is multiple hearsay admissible?
Only if:
1. it's a business doc;
2. it is an inconsistent statement;
3. it is a consistent statement;
4. all parties agree; or
5. the value of the evidence is so high that it is in the interests of justice
112
Crime: If a prosecutor cannot prove that the confession is not unreliable, can the ct still admit the confession as evidence?
No, if the prosecution cannot show beyond a reasonable doubt that neither oppression nor things said or done likely to render the confession unreliable apply, the confession MUST be excluded.
113
Crime: When MAY a court exclude evidence and when MUST a court exclude evidence?
MAY: when admitting evidence offered by the prosecution, considering all the circumstances, would have an adverse effect on the fairness of the proceeding
MUST: when a confession is based on mistake, untruth, oppression, or is unreliable due to things said or done
114
Crime: What will the ct consider when they're deciding whether to admit or exclude bad character evidence?
Whether admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it
115
Crime: Prosecution has a duty to disclose evidence that is unfavorable to the P, but does the defense have that duty as well?
No, defense does not have to disclose evidence that is unfavorable to the D.
116
Crime: When MAY a judge give a good character direction
Usually D has right to good character direction if no prior convictions, but judge could still give good character direction if the prior convictions are unrelated, old, or minor or even if there is bad character evidence that the prosecution will not rely on
117
Crime: What is the totality principle?
When sentencing an offender, the overall sentence must not be disproportionate to the overall seriousness of the offending behavior
118
Crime: What are some mitigating factors?
Age (particularly young or old)
Health (long term or mental health)
Good character
Remorse and voluntary compensation
Early guilty plea
Family situation
119
Crime: What is the victim surcharge?
It's a MANDATORY fine that is pooled and distributed by a fund for the victim's behalf.
120
Crime: What happens if a minor turns 18 while in youth court?
Youth ct may elect to keep the case or transfer to adult Mag ct. Either way, the Youth ct has the full sentencing options available in the adult ct.
121
Crime: if youth is charged as co-defendant with an adult, who is sent to Crown ct or Mag ct, will the youth also be sent to Crown ct or Mag ct?
Yes
122
Crime: What is a referral order?
It's a referral to the Youth Offender Panel, who enters into a contract with the youth and their family between 3-12 months in length.
123
Crime: What happens if referral order is breached or youth commits further offenses?
The ct has discretion to decide whether to permit the order to continue or revoke the order and resentence.
124
Crime: What is a Youth Rehabilitation Order?
Order that lasts up to 3 years, similar to parole.
125
Crime: When must D object to introduction of bad character evidence?
Within 10 days of request for admission
