Criminal Lit Flashcards
1
Q
What are the 4 categories of crown court judge
A
High court judges, circuit judges, district judges and recorders
2
Q
How many justices must sit at 1 time in mags unless district judge present
A
2
3
Q
How is decision to grant representation order determined
A
2 state test
Interest of justice
Means
4
Q
What is the overriding objective
A
Dealing with cases justly
5
Q
Is a case progression officer appointed
A
Yes
6
Q
Must an interview be carried out under caution
A
Yes
7
Q
Where must a suspect be interviewed
A
Either at police station or authorised place of detention
Unless delay would
- interference with evidence
- lead to alerting other persons involved not arrested yet
-hinder the recovery of property obtained
8
Q
Must a caution be given when interview recommences
A
Yes
9
Q
When must a special warning be given
A
If suspect
- asked to account for object on person
Or
- asked to account for presence somewhere
10
Q
What should officers do about significant statements in an interview
A
Must put that to defendant
11
Q
When must an interview cease
A
When officer in charge of investigation is satisfied that all the questions officer considers relevant have been asked
12
Q
Must the interview be recorded
A
Yes and suspect given chance to verify
13
Q
What must a child or vulnerable adult have for interview
A
Appropriate adult
14
Q
Can you interview intoxicated person
A
No
15
Q
When should handcuffs be used
A
Only when reasonably necessary to prevent escape or to prevent a violent breach of the peace by a prisoner
An unjustified resort to use handcuffs will be trespass to person
16
Q
Must the grounds for arrest be communicated
A
Yea otherwise unlawful
17
Q
When can the magistrates issue a warrant
A
The offence must be indictable or punishable by imprisonment, or the persons address must be not sufficiently established
18
Q
What rank must a custody officer be
A
Sergeant
19
Q
What is the custody officer responsible for
A
Ensuring the person is treated in accordance with pace
Giving authority for someone to be detained
Giving authority for someone to be released
20
Q
What is the right to notification
A
When a person is is held in custody after arrest, they have the right to have 1 friend or relative or other person who is known to them informed of arrest and place of detention
If the person cannot be contacted then can choose up to 2 alternatives
21
Q
What is the right to a solicitor and must they be told
A
Must be told of the right and have the right to consult solicitor at any time privately
22
Q
What as the role of the appropriate adult and can they get legal advice themselves
A
Role is to support, advise and assist detainees when they are given or asked to provide info or or participate in a procedure
Observe whether police are acting properly and fairly
Help them understand rights and communicate with police
23
Q
What are the detention time limits
A
Normal max is 24 hours from relevant time
Can be extended by superintendent if indictable offence to 36 hours
Mags can extend to 96 hours
24
Q
What is the relevant time for detention time limit purposes
A
Runs from time they arrive at police station unless do not arrive at police station within 24 hours. Then it runs from 24 hours after arrest
25
The three ways of starting prosecution
Arrest and charge
Written charge and requisition - Written charge and requisition can only be used by a relevant prosecutor
Laying information (summons)
26
Time limit for starting proceedings for summary offences
Mags cannot try an accused for summary offence unless application for summons was served on the mags court within 6 months of alleged offence took place
No time limit for either way offence
27
Can you challenge decisions of adjournment
Yes by judicial review
28
What is the maximum period that the magistrates can remand the accused in custody ; and the exceptions
8 clear days
Exceptions =
Following summary conviction, there may be a remand in custody of up to 3 weeks
29
What must happen if custody time limit expires
Accused must be granted bail
30
Can you extend custody time limits
Courts can extend time limits if
A) the prosecution has acted with all due diligence and expedition , and
B) that there is good and sufficient cause for doing so
31
Is there a presumption in favour of bail
Yes , except if charged or previously convicted of murder, attempted murder, manslaughter, rape or attempted rape
Where the previous conviction was for manslaughter, the restriction applies only if accused received custodial sentence
32
What are the main grounds for refusing bail for a D charged with an indictable offence
Also what are the extra grounds where the D need not be granted bail
Substantial grounds for believing that accused would
A) fail to surrender to custody
B) commit an offence while on bail
C) interfere with witnesses or obstruct the course of justice
These grounds are not applicable though if there is no real prospect of a custodial sentence
Extra grounds
- where the accused was already on bail for another offence
- for the accused’s own protection
- court has insufficient information
- accused is already serving a sentence in custody
- d absconded
33
What are the specialist bail grounds
Serious cases with high penalties and
Cases of a particular nature that affect the assessment of the risk posed by a D on bail
For example cases of domestic abuse or abuse of drugs
34
What are the grounds for summary imprisonable offence
To get access to big 3
Must have
Breached bail condition or
Failure to surrender on record or
Committed offence on bail
35
Non imprisonable offence grounds for bail
Very rare to not be given bail but can only be where
Previous conviction for failure to surrender or breach of bail conditions
36
What bail conditions may be imposed by the court
A condition of residence
A curfew
A condition that accused is not to enter a certain area
Must surrender passport to police
37
What is a surety for bail purpose
Upfront money or valuable item for court which is liable to forfeiture if non attendance in answer to bail
38
If denied bail at mags can you appeal to crown
Yea
39
What is disclosure of initial details
Requires the prosecutor as soon as practicable and in any event no later than first hearing to provide to the court initial details of the prosecution case which means a summary of the circumstances of the offence
40
What are offences taken into consideration for sentencing purposes
Police may invite suspect to admit FHR the offences that could be taken into account at sentencing
Eg burglaries
Court will be invited to sign a schedule of offence to be taken into account
Benefit to defendant is that lower sentence than having each offence included on indictment or charge sheet
41
When is dangerousness considered for sentencing purposes
Specified offences is one that the maximum sentence is either life or a determinate sentence of 10 years or more
42
How do you know whether concurrent or consecutive
Consecutive if different facts
Concurrent if same facts
43
How does credit reduce
1/3 at first opportunity
1/4 PTPH
1/10 at trial day
44
If a person is likely going to be detained for longer than 6 hours, where should they be taken
Designated police station
45
When is a caution for questions not needed
To establish identity or ownership of vehicle
To obtain information in accordance with statutory requirement
In furtherance of the proper and effective conduct of a search
Above questions do not amount to interview for code c
46
Recording interviews
All interviews MUST be contemporaneously recorded
INDICTABLE OFFENCE INTERVIEWS MUST BE AUDIO RECORDED
47
Must the prosecution prepare a schedule for unused material
Yes and it is particularly important to defendant
48
What are the 4 stages of disclosure
1) The investigation stage - the duty to record and retain material during the investigation
2) the initial duty of disclosure on the prosecution
3) Defence disclosure
4) the continuing duty of prosecution to keep disclosure under review
49
What is the duty of the investigator for disclosure
Must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be fair and objective
50
What is the duty of the disclosure officer for disclosure
Must inspect,view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done.
Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor
51
Unused material is contained in what
MG6 in crown court
Streamlined disclosure certificate in mags
52
R 2016 addressed problems associated with prosecution giving initial disclosure and said
Should submit a disclosure management doc
Should engage in dialogue with defence
Court entitled to give orders to address disclosure failings
53
Time limits for initial disclosure (used material)
The prosecution will serve initial details no later than the first hearing
Must enable defendant to take an informed view on
- plea
- on venue for trial
- for the purposes of case management
- for purposes of sentencing
54
Defence statement time limits
A defence statement is compulsory only in crown court and must be served within 28 days of date when prosecution gives initial disclosure
Can apply to extend
In magistrates it should be within 10 days of initial disclosure. Failure to serve means that cannot make application for specific disclosure
55
Time limits for unused material
In the mags - only when the defendant pleads not guilty and the case is adjourned for summary trial
In the crown court - when a defendant has been sent for trial or where a voluntary bill of indictment has been preferred against the defendant
56
Consequences of failing to serve defence statement in crown court
Adverse inferences or comment being made
57
How to get 3rd party disclosure
Summons
58
What form will parties need to fill out before first hearing at mags
Preparation for effective trial form
59
What does the court set at first hearing in mags
Directions for documents between parties
Trial date
60
Why might there be another hearing after the PTPH
Section 78
Special measures
Vulnerable defendants
Witness summons
Application to change plea
61
Any indictment may contain :
A) any count charging substantially the same offence as one of which the D was sent for trial
B) any count contained in a draft indictment served with the permission of high court judge or at the direction of the court of appeal ;and
C) any other count charging an offence that the crown court can try and which is based on the prosecution evied Bev that has been served
62
When may the court exercise power to not allow joinder of counts
A) the D otherwise may be prejudiced or embarrassed in his or her defence ( for example where the offences to be tried together are neither founded on the same facts not form or are part of series of offences which are same or similar in character ) or
B) for any other reason it is desirable that the defendant should be tried separately for one or more of those offences
63
Examples of offences founded on same facts
64
Which summary offences are capable of being charged on an indictment
Common assault
Taking a motor vehicle without owners consent
Driving whilst disqualified
Criminal damage under 5000
65
What is the rule against duplicity
Each count should relate to different offences
66
What is the exception to rule against duplicity
Continuing offences ie someone stealing money from tilll over prolonged period
These are called roll up offences
67
When may the court allow application for severance
Would be prejudicial or embarrassing to accused and it’s in interests of justice
68
When can the indictment be amended
Any time up to verdict
69
What can the prosecution do if they accept a defendants offer to plead for lesser offence
Apply to amend indictment or
D can simply plead guilty to a direct alternative offence ie section 20 instead of 18
70
What happens to original offence if d pleads guilty to alternative
Can either offer no evidence or
Ask judge to Lie on file
71
Can a defendant be competent for the prosecution
No
72
Can a spouse or civil partner be compelled
Can be compelled for defence
Cannot be compelled for prosecution unless domestic violence ;
Assault on or injury to or threat of injury to under 16 :
A sexual offence against someone under 16;
Attempts,conspiring , aiding and abetting any of the above
73
What is the test for competence
Whether witness can understand the questions ; and
Whether witness can give answers which can be understood
74
Does saying my solicitor told me to say no comment waive privilege?
No, but explaining why may do so
75
What is the VIPER process
If identity is in dispute then officers film the suspect. The identification officer, suspect and legal rep then select lookalikes from over 10,000 video clips on the system.
Suspect is then placed amongst 8 other individuals in a vid clip which is show to witness
76
What is section 34 of the criminal justice and public order act
Jury can draw adverse inferences as appear proper if a defendant fails to mention a fact when questioned or charged that he might reasonably have been expected to mention - he then relies on it in court
77
Why do police officer keep asking questions in interview even when they know D will say no comment
For adverse inference under s34. D does not have to volunteer the fact so he must be asked
78
What will the court consider when deciding whether a defending could have mentioned the fact earlier
Age, experience , mental capacity, health, sobriety, tiredness and personality
79
Where a defendant has varied their account between interview and trial, what is the correct approach out of s34 and Lucas
Lucas
80
Can you draw an inference if there was no access to legal advice
No
81
What is a section 36 inference
This is where an ARRESTED person fails to account for an object, substance or mark on their person, clothing, footwear or in their possession or in any place at the time of their arrest
82
What is a section 37 inference
Silence on ARREST when asked to account for presence.
83
What is s35 inference
Silence at trial
In order to draw inference, the defendant must be told
- at the conclusion of the prosecution case that the time has now arrived when the defendant may give evidence
- be warned that the jury may draw inference if does not testify, must be done in front of jury
84
What is a Lucas direction
85
What is absolute good character
D has no previous convictions and no evidence of reprehensible conduct
86
What is effective good character
D has previous convictions that are old, minor or relate to offences of a different nature to the offence charged. In such cases the court may treat the defendant as being of good character
87
What is positive good character
Defendants can go further by adducing evidence that they have behaved virtuously
88
How can you admit good character evidence
- Cross examination of police officer
- s10 formal admissions
- examination in chief of defendant a
- calling a character witness
89
What is a vye direction
Good character direction -
First limb is credibility
Second limb is propensity
90
What did r v hunter do
Introduced effective good character
A matter for the judges discretion
Ie if has old conviction judge still does not have to give effective good character direction
91
What happens if joint trial and 1 has good character and 1 has bad character for directions purposes
Good character direction given for 1 , nothing said for the other
92
Definition of bad character
Evidence of a disposition pointing to commission of offence or other reprehensible behaviour
93
Sources of bad character
Previous convictions
Previous convictions in a foreign court where there is a domestic equivalent
Cautions
Acquittals
Agreed facts
Witness evidence
94
What does 98 a and b say will not be bad character
A-if has to do with alleged facts of offence or
B- is committed in connection with the investigation of prosecution of that offence eg jury tampering
95
What are the bad character gateways
101(1)(a)- agreement of parties
101(1)(b) - adduced by defendant
101(1)(c) - important explanatory evidence
101(1)(d) - relevant to an important matter in issue between parties
101(1)(e) - relevant to an important matter in issue between defendant and Co defendants
101(1)(f) - correct a false impression
101(1)(g) - attack another persons character
96
How should the jury be directed for bad character
Told that the weight is a matter for them
Propensity does not prove the offence
97
What are the bc gateways for non defendant
100(1)(a) - important explanatory evidence
100(1)(b) - has substantial probative value in relation to a matter which
I- is a matter in issue or
ii- is of substantial importance to the case as a whole
100(1)(c) all parties agree
98
What is 101(3) and what bad character gateway does it apply to
It repeats section 78 but instead of may it is must
It applies to gateway 101(1)(d) which is important matter in issue and 101(1)(g) which is attack another persons character
99
What does section 107 criminal justice act say
Court can stop the case where it is satisfied that after the close of the prosecution case the bad character is contaminated and a conviction may be unsafe
100
What does section 110 of the criminal justice act say
Court must give reasons on any ruling it makes on the issue of bad character
101
What does section 73 pace say
Previous convictions can be proved by certificate of conviction
102
What is section 74 pace
Where a person has been proved to have committed the offence , that person shall be taken to have committed the offence unless the contrary is proved
103
What is section 75 pace
Makes various documents including the information, charge sheet and or indictment admissible as evidence of the facts on which the previous conviction was based
104
When must notice of application to adduce defendants bad character need to be given
Prosecution evidence
Mags- not more than 20 business days after d pleads not guilty
Crown- not more than 10 business days after d pleads not guilty
Co- defendants evidence
As soon as is reasonably practical and in any event not more than 10 business days after the prosecutor disclosed the material on which the notice is based.
Response
Not more than 10 busines days after service of notice
105
When does notice to apply to adduce NON-defendants bad character need to be given
For mags and crown it is as soon as reasonably practical and in any event not more than 10 business days after prosecutor discloses material
Response
Not more than 10 business days after service of application
106
Is the public excluded from youth court
Yes
107
When does the accused need an adjournment notice
If not present
108
What happens if accused does not attend trial
If over 18 then must be tried in absence unless contrary to interest of justice to do so- court only considers why not present if reason offered
If under 18 then may proceed in absence
109
When can you make a citizens arrest
Indictable offences only
110
If facing murder charge, can you make bail app in mags
No
111
If someone is facing offence carrying life imprisonment , will there be bail presumption.
No unless no significant risk of further offences
112
How many bail applications can you make
Infinite however 2 in mags within 8 days of eachother . Also 1 appeal to crown. Only way of getting another is if material change in circumstances
113
Does a pre trial ruling bind the mags
Yes unless applicant can show a material change in circumstances
114
Must the accused be present at a plea before venue hearing
Yes unless accused is represented and behaved disorderly
115
Can the mags commit for sentence if accused has legitimate expectation he would be sentenced at mags
No but burden on accused to show
116
Can d ask for indication of sentence
Yes but will only be told if custodial or non custodial and it is discretionary anyway
117
If one Co accused is committed, what happens to the rest
All committed
118
If the mags have sent up a triable either way offence what happens to relatable offences
All relatable either way offences and summary offence are sent up providing punishable by imprisonment or driving disqualification
119
When is offence related
If born out of circumstances which are the same or connected
120
What are the s40 summary offences which can be joined to indictment
Common assault , assaulting prisoner custody officer or secure trining centre officer, taking a motor vehicle without the owners consent, driving whilst disqualified and criminal damage less than 5000
121
What is hearsay
An out of court statement tendered for the truth of its contents
122
What counts as a statement
Any representation of fact or opinion made by whatever means; and it includes a representation made in a sketch, photo fit or other pictorial form
123
How can you challenge an adjournment
By judicial review and high court will only interfere with adjournment if there are compelling reasons to do so
