Criminal Litigation Flashcards
How long does the prosecution have to complete disclosure?
50 days (70 if the defendant is on bail)
What are the prosecution’s disclosure obligations?
The prosecution must disclose a) any evidence it intends to rely on, and b) any evidence that might reasonably be considered capable of undermining their case or assisting the defendant’s case.
Is the power to grant bail if there is no exception discretionary or mandatory?
Mandatory.
When can the police/prosecution remand a defendant in custody?
A) An exception to the general right to bail applies; and
B) There is a real prospect of a custodial sentence.
What are the major exceptions to the right to bail?
A) There are substantial grounds to believe the defendant might fail to surrender, commit other offences while on bail or interfere with witnesses;
B) They are charged with an offence triable at the Crown Court and were on bail at the time of the offence; and
C) There are reasonable grounds to believe that the defendant would harm an associated person while on bail.
What must any conditions that are applied to bail be?
Relevant, proportionate and enforceable.
When can a defendant who has been charged with murder be granted bail?
When there is no significant risk that they would commit an offence likely to harm another person.
What Act governs suspects’ rights in police custody & grants the court powers?
The Police and Criminal Evidence Act 1984.
When can a suspect’s right to legal advice be delayed?
a) When charged with an either way or indictable only offence;
b) When written permission has been given by a superintendent or above; and
c) The officer has reasonable grounds to believe the suspect will interfere with evidence or will alert others.
How long can the right to access legal advice be delayed to a suspect in custody?
36 hours.
When can a suspect be delayed the right to inform someone of their arrest?
a) When charged with an either way or indictable only offence;
b) When written permission has been given by an inspector or above; and
c) The officer has reasonable grounds to believe the suspect will interfere with evidence or will alert others.
What conditions need to be fulfilled to keep a suspect in custody for the first 12 hours over the initial 24 hour period?
a) The suspect is charged with an either way or indictable only offence;
b) A superintend or above authorises it;
c) They have reasonable grounds to believe that it is necessary to secure, preserve or obtain evidence; and
d) The investigation is being conducted diligently and expeditiously.
What are the extensions available past 24 hours to keep a suspect in custody?
1) 12 hours (superintendent)
2) 36 hours (Magistrates)
3) 24 hours (Magistrates)
How long after first appearance will a summary only offence trial be set for?
6 - 8 weeks.
What are the two tests required to pass to obtain a representation order?
a) The interests of justice test; and
b) The means test.
What will the court take into account when considering if a defendant passes the interests of justice test to obtain a representation order?
a) Is the defendant likely to lose their liberty, reputation or livelihood?;
b) Does the case require a substantial understanding of the law?;
c) Is expert evidence or cross-examination required?;
d) Can the defendant understand the proceedings?; and
e) Is it in the interest of anyone other than the defendant that they be represented?
What must the court consider at a plea before venue when at the allocation stage?
a) The defendant’s previous convictions;
b) The adequacy of its sentencing powers; and
c) Representations made by both parties.
What are the two standard directions given for a summary only offence before trial?
a) The prosecution must serve its evidence within 28 days; and
b) The defence statement will serve its defence (if doing so) 14 days after.
When does a plea and trial preparation hearing take place in Crown Court?
28 days after being sent from the Magistrates’ Court.
What is a Goodyear indication?
An optional indication by the judge of the sentence that would be imposed if the defendant were to plead guilty at the Crown Court. If the defendant pleads guilty, the judge must follow this indication.
When will the Turnbull guidelines be followed?
When the case wholly or substantially depends on identification evidence.
What does the ADVOKATE mnemonic stand for?
A - amount of time
D - distance
V - visibility
O - obstruction
K - known to the witness
A - any reason to remember
T - time passed between events
E - errors in initial description
What does a Turnbull warning include?
a) A reminder that witnesses can be convincing but mistaken;
b) A description of the circumstances of the identification; and
c) A referral to particular weaknesses of the evidence using the ADVOKATE factors.
When can an adverse inference be drawn?
a) Upon charge, when failing to refer to something they might reasonably have been expected to mention when they rely on it later;
b) At trial, when the defendant fails to give evidence despite physically and mentally being able to;
c) When the defendant fails to account for a mark or an object being found upon them; or
d) When the defendant fails to account for their presence at the scene.
What is hearsay evidence?
Hearsay is either a written document or when someone testifies in court to something told to them outside of court by someone else.
When is hearsay admissible under statute?
a) When a witness is unavailable because they are dead, out the country or too scared to attend court;
b) A business document if prepared by someone in the course of business with knowledge of the matter and sent to someone in the course of trade;
c) Statements were prepared by someone who could not be expected to remember;
d) Previous consistent or inconsistent statements;
e) Expert evidence; or
f) Confessions.
When is hearsay admissible under rule of law?
When a statement is made contemporaneously to the offence which were preserved by res gestae.
When is multiple hearsay admissible?
a) Business document;
b) Consistent or inconsistent statements;
c) All parties agree; or
d) In the interest of justice.
What is a confession?
A statement wholly or partially adverse to the person who made it.
When are confessions admissible?
When they are relevant to a matter in issue between the prosecution and the defence.
Under what two grounds can the defence challenge the admissibility of a confession?
a) Mistake (listener misheard); or
b) Unreliability.
What are the two grounds of ‘untruth’ when challenging the admissibility of a confession?
a) Oppression; or
b) Things said or done likely to render the confession unreliable (inducements, misrepresenting strength of evidence etc.).
Who has the burden of proof when the admissibility of a confession has been challenged?
The prosecution must prove beyond reasonable doubt that the confession is not unreliable.
If the prosecution cannot prove that a confession is not unreliable, is the power of the judge to deem it inadmissible discretionary or mandatory?
Mandatory.
When does the judge’s discretionary power under s 78 PACE to exclude evidence arise?
When admitting the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
What is bad character evidence?
Evidence of a disposition towards committing offences and misconduct.
What are the seven statutory gateways to admitting bad character evidence?
a) By agreement of all the parties;
b) The defendant adduces the evidence;
c) The defendant attacks another’s character;
d) To correct a false impression given by the defendant;
e) It is important explanatory evidence;
f) Relevant to a matter in issue (most popular one); and
g) Matter in issue between co-defendants.
What are the two grounds for admitting bad character evidence under which the power to exclude the evidence is mandatory?
An important issue between the defence and the prosecution and defendant attacked another’s character.
When considering sentencing, what are the four aggravating factors that MUST be taken into account?
a) Previous convictions (if reasonable to do so);
b) Offence committed whilst on bail;
c) Religious or racial aggravation; and
d) Hostility based on sexual orientation, sexual identity or disability.
