Criminal litigation Flashcards

Question

What must be taken into account when conducting identification procedure with vulnerable clients?

Answer 1

Consent from juvenile 14 + and parents to identification If juvenile is under 14, consent must be obtained from parents If suffering from mental illness, consent must be given in presence of the appropriate adult

Answer 2

A juvenile can only be kept in custody after charge if it is impractical to move suspect to secure local authorities accommodation (restricting freedom) or the juvenile is 12+ and secure local accommodation is not adequate to protect public from harm Alternatives to charge for juvenile: Community resolution Youth caution Youth conditional caution

Answer 3

PACE: police and criminal evidence act

Answer 4

Interview must comply with code C and E. Suspect should not be interviewed if he is unable to appreciate the significance of answering questions or understand what is happening (e.g. because of drugs, illness etc. Suspect should not be interviewed before receiving legal advice, except if: 1. Police may delay legal advice for up to 36 hours under s. 58(8) 2. Awaiting arrival of solicitor would cause unreasonable delay 3. Solicitor cannot be contacted or has declined 4. Suspect has changed their mind about legal advice, an inspector or more senior has spoken to the suspect, it’s documented in custody records and the suspect has confirmed in writing. This must also be repeated at the beginning of the interview. The suspect may at any time change his mind.

Answer 5

Interview is one of 4 steps an investigating officer can take to preserve evidence whilst the suspect is detained: 1. Recorded interview 2. Identification procedure 3. Fingerprints 4. Samples

Answer 6

When the interview starts the police officer must ask whether the suspect confirms or denies any “significant” (appears capable as evidence) statements or silence given in the presence of a police officer before the interview starts. If this was not done, content of the statement might be inadmissible at trial.

Answer 7

Solicitors usually make an opening statement to explain their role during the interview. Solicitor should sit next to the client. Solicitors may intervene to improper questioning, behaviour, misrepresentation of law or the strength of the case, police putting words in clients mouth, speculative questions or to advise clients. Solicitors may not write down replies to questions for the client to read out. A solicitor may be removed if a superintendent assesses their conduct is such that the police cannot properly question the suspect.

Answer 8

Interviews cannot use oppression: shout, threatening gestures, lean towards suspects face, stand over or behind suspect, threaten to detain suspect indefinitely.

Answer 9

During interviews, suspects must be given at least 8 hours rest every 24 hours and short breaks every 2 hours.

Answer 10

No further questions can be asked except: 1. necessary to prevent har or loss to other person or the public 2. necessary to clear up ambiguity in a previous answer or statement 3. It is in the interest of justice for the suspect Staying silent in an interview after charge will not be used at trial and the suspect must be reminded about right to legal advice

Answer 11

If the client admits guilt, the solicitor must inform that it cannot represent the client in an interview where the client then denies committing the offence.

Answer 12

A solicitor being asked to represent 2+ suspects at the police station if there is a potential conflict of interest. Solicitor should gather information from the investigative officer and first talk to the suspect that first requested their assistance. If a solicitor chooses to represent both he must be aware that conflict may arise. If a solicitor represents several clients they cannot disclose information from one client to another. If the first client has authorized that the solicitor may pass on information and the clients stories align (no tries to use the solicitor to mislead the court, the solicitor can pass on the information. It’s rarely in the clients best interest to share information with other solicitors representing other suspects in the same case.

Answer 13

The solicitor is obliged to disclose to their client all information that they have except: 1. if there is a risk of national security or to prevent a crime, 2. client gives informed and written consent, 3. there is a risk of physical or mental harm to client or others if info is disclosed or information was in a privileged doc you obtained by a mistake.

Answer 14

A solicitor can withdraw from acting for a suspect and must inform client + that the client has free legal advice from another solicitor, ensure client confidentiality and inform custody officer.

Answer 15

After/during investigations, the police may: 1. Suspects may be released without charge during investigation on NFA (no further action). 2. Release on pre-charge bail 3. charge

Answer 16

In Policing and Criminal Act 2017 there is a presumption against pre-charge bail. The presumption does not apply if: 1. Case is admitted to CPS (crown prosecution service) for a charging decision (custody officer can release on bail), or 2. Custody officer is satisfied that bail is necessary and proportionate given the circumstances + officer ranked inspector or higher authorizes bail. Maximum last 28 days from the day after the suspect was arrested. Can last up to 3 months if authorized by superintendent or above. Suspect likely to be released under investigation (RUI) if investigation is likely to take longer than 28 days. When released without bail, the suspect may be rearrested. (The police, crime, sentencing and courts act 2022, which removed the presumption against pre-charge bail only entered into force in October 2023, e.g. after the cut off date for the SQE. Therefore not relevant.)

Answer 17

When re-attending police station (answering bail) the police may: Release without charge Extend further investigative powers e.g. re-interview. Release on further bail (max 28 days) Charge the suspect If the suspect fails to answer bail they might be arrested without warrant. Technically a criminal offence, but is rarely charged.

Answer 18

Police has limited powers, but includes: 1. summary only offences irrespective of anticipated plea 2. retail shoplifting or retail theft suitable for sentencing in the Magistrates court 3. any either way offence where guilty plea is anticipated + suitable for sentencing in the Magistrates court For all other cases, the CPS must decide whether to charge.

Answer 19

1. Keep person in police custody until they are brought for the Magistrate’s court or release them, and 2. If released on bail with or without conditions.

Answer 20

Bail may be declined if the custody officer has reasonable grounds to: 1. name or address of provide by suspect and it cannot be confirmed 2. Suspect will fail to appear in court 3. Necessary to prevent another offence 4. Necessary for samples 5. Prevent them from causing injury or loss of damage 6. Prevent interference with administration of justice 7. Detention is necessary for their own protection. A custody officer does not have the power to grant a defendant charged with murder bail.

Answer 21

Remand: an adjournment where the court wants to ensure that the defendant attends the next hearing. Defendants can be adjourned through: custody conditional bail or unconditional bail. Remand can happen before conviction, on bail prior to conviction or after conviction.

Answer 22

Remand on bail: prior to conviction a defendant may be remanded at any time subject to the defendants consent. Remand after the case is sent to the Crown Court: may be remanded in custody or bail until the case comes up for the crown court.

Answer 23

Before conviction, the basic rule is that a defendant cannot be remanded in custody for more than 8 days at a time. If the case is still in the magistrates court and there are successive remands, the defendant must be put in front of court on every fourth remand provided they have consented to it and have legal representation. May be extended to 28 days if: 1. Previously remanded in custody for the same offence, and 2. They are before the court, and 3. It can set a date to remand them to on which it expects the next stage of proceedings to take place.

Answer 24

Remand after conviction: may be remanded in custody before sentencing for successive periods of no more than 3 weeks. On bail it may be successive periods for no more than 4 weeks.

Answer 25

Maximum time in custody before the case is heard for the magistrate court is: EITHER WAY 70 days for either-way offence 56 days for either-way offence if the allocation hearing takes place within 56 days SUMMARY ONLY 56 days summary-only Prosecution can apply to court (written or oral) for custody time to be extended but most show that there is a good cause and it has acted with due diligence and expedition. Must be served no less than 2 days before the hearing in the magistrates court and defendant released on bail once the extension is over. Magistrate can extend police custody with 3 days if necessary to enquire about offences other than the one the defendant is charged for. Has the same rights as someone detained prior to charge or arrested (e.g. free legal advice). Where is the charged kept in custody? in prison or remand center.

Answer 26

Conditions may be imposed only if necessary to: Prevent absconding (å rømme) Prevent suspect from failing to surrender to custody Prevent another offense whilst on bail Prevent interference with witnesses and evidence Available for medical or other reports Ensuring that appointment with solicitor is met For the suspects own protection

Answer 27

Conditions may be to: Reside at specific address: to overcome absconding and committing offences on bail Not to speak to witnesses: to overcome committing offences on bail and interfering with witnesses Not to enter an area: to overcome committing offences on bail and interfering with witnesses Curfew: to overcome permitting offences on bail Sureties: to overcome absconding. Surety: a person that enters into a recognisance of money and if bail is broken has to answer to the court why the money should not be paid. Unlikely to be accepted from someone with a criminal record, lives far away from defendant or has poor economy Security: to overcome absconding by depositing a sum Report to the police station on a regular basis to overcome absconding and committing offences on bail Attend appointment at solicitor pr the probation service: ensures that case is not delayed Surrender passport: overcome absconding If bail before charge, the suspect may ask the custody officer or apply to the Magistrates court to change conditions for bail.

Answer 28

If the CPS objects to bail, the following procedure is followed: CPS provides court + defence solicitor with all information that is material for the court’s decision CPS outlines why it objects to bail, including previous convictions Defendant’s solicitor makes application for bail Magistrate court may hear evidence from others in support of the defendant’s bail application Magistrate court decides whether to grant bail or keep the defendant in custody and a record of decision is made. If bail is not granted after charge, the defendant must appear for the Magistrate Court as soon as possible and normally the next day (except for bank holidays and Sundays).

Answer 29

1. All defendants before conviction 2. Defendants who have been convicted if there case has been adjourned for the court to obtain reports before sentencing 3. Defendants that have breached community sentence The presumption of bail does not apply: 1. Committed to sentencing at the crown court 2. Appealing against conviction or sentence 3. More serious crimes: murder, manslaughter, rape or attempts of the same, serious sexual offences. 4. For murder, the case must be transferred to crown court which must decide on bail within 48 hours.

Answer 30

Defendant is18+, not convicted for offence in the proceedings and no real prospects of sentencing to a custodial (forvaring) sentence.

Answer 31

The court does not have to grant bail before charge in indictment and either-way offence (with imprisonment) if the court believes the defendant would: 1. fail to surrender to custody, 2. commit offence on bail, or 3. interfere with witnesses or obstruct course of justice The above are the three most common reasons and there is a high threshold for them to be met. To assess whether not these substantial grounds exists, the court takes into account factors like: 1. Nature and seriousness of offence 2. Defendants character, associations and community ties 3. Previous record in terms of bail grants 4. Strength of evidence The court will then assess whether these grounds can be removed by imposing conditions (i.e. conditional bail). If no conditions are appropriate, bail will be refused and defendant remain in custody.

Answer 32

The court does not have to grant bail before charge in indictment and either-way offence (with imprisonment) if the court believes the defendant would: 1. fail to surrender to custody, 2. commit offence on bail, or 3. interfere with witnesses or obstruct course of justice 4. Fear of offence that is likely to injure another 5. Defendants own protection 6. Defendant serving custody 7. Fear of failure to surrender, commit offence, interfere with witness or justice 8. Lack of information The above are the three most common reasons and there is a high threshold for them to be met. To assess whether not these substantial grounds exists, the court takes into account factors like: 1. Nature and seriousness of offence 2. Defendants character, associations and community ties 3. Previous record in terms of bail grants 4. Strength of evidence The court will then assess whether these grounds can be removed by imposing conditions (i.e. conditional bail). If no conditions are appropriate, bail will be refused and defendant remain in custody. Very rare that defendant is not granted bail in non-imprisonment cases.

Answer 33

Even if bail is refused, the magistrate court is under a duty to consider it in subsequent hearings if the defendant still is in custody. The defendant will make a full bail application for the first hearing and is allowed another full bail application after the first one was refused, but for subsequent hearing he will only make an application setting out new facts or legal arguments

Answer 34

Refusal from magistrates court can be appealed to the Crown court after the magistrate court have issued a “certificate of full argument”. Solicitors usually wait until magistrates court to hear a full bail application twice before an appeal. To appeal: notice of application is completed and sent to crown court, magistrate court and CPS at least 24 hours before hearing. The appeal will be heard before a crown court judge in chamber within a few days which considers: 1. notice of application, 2. certificate of full argument and 3. record of defendants previous convictions.

Answer 35

The CPS may also appeal a grant of bail if the defendant is charged with an imprisonable offence. Deadlines: - Oral notice is given by the prosecutor at the hearing bail was granted - Confirmation in writing is served the court no more than 2 hours after the oral notice of appeal The crown court must hear the matter no later than 2 days after the appeal notice was served.

Answer 36

Police may arrest if the suspect is unlikely to surrender to custody, that the person has breached or will breach bail. Breach of bail conditions is not in itself a criminal offence. Can lead to review of bail and remand in custody.

Answer 37

Absconding: failing to surrender at the next hearing. Magistrate court issues a warrant of their arrest and the warrant is either backed by bail (is released back on bail after arrest) or not (kept in custody until next hearing. Defendant arrested on a Friday: special hearing on Saturday. Defendants arrested on Saturday must wait until monday. Whether the defendant is charged with failing to surrender to custody is up to the CPS. If the defendant already has appeared before the court and the court grants bail, it is up to the court to charge the defendant with failure to surrender to custody.

Answer 38

Two possible offences from Bail Act 1976: 1. Failure to surrender without reasonable cause - May be sentenced immediately or adjourned to substantive proceedings. - Even if the magistrate court does not impose a penalty, they may refuse bail or grant bail with stringent conditions 2. Failure to surrender with reasonable cause will not be liable if they surrendered as soon as it was reasonably practicable for them to do so. (e.g. in hospital after an accident). - Police officers have power to arrest a person on bail if they believe there is a risk that the person will not surrender to bail or has broken/likely to break bail conditions.

Answer 39

Police officers have power to arrest a person on bail if they believe there is a risk that the person will not surrender to bail or has broken/likely to break bail conditions.

Answer 40

First hearing in Magistrates court is normally 1-2 weeks after the suspect was charged. If the police refuse bail, the suspect is kept in police custody and the hearing should be as soon as possible and no later than the first sitting of the court after the charge (normally 24 hours as the court sits on Saturdays but not Sundays).

Answer 41

Intent or trialability

Answer 42

Offences of basic intent: committed intentionally or recklessly. When basic intent applies, the defendant cannot rely on the defence that they were voluntarily intoxicated. Offences of specific intent: can only be committed intentionally, e.g. murder and theft. The defendant may rely on the defence that they were voluntarily intoxicated in certain circumstances. Ulterior intent: required mens rea goes beyond the actus reus and the prosecution has to establish an “extra” element e.g. to not only enter a building without permission, but to also have the intention to steal. Hence the prosecution must also prove consequences beyond the actus reus e.g. burglary.

Answer 43

Triable only indictment Most serious criminal offences e.g. murder, manslaughter, grievous bodily harm, robbery, aggravated burglary, conspiracy Tried in crown court Triable either way OBS where act refers to only “indictable offence” it includes both offences triable only be indictment and offences triable either way. Tried in magistrates or crown court. Will first be heard at magistrates court and if the defendant pleads not guilty the magistrate decides whether to send the case to the crown court If the magistrate keeps the case, the defendant can choose trial by judge and jury in the crown court or consent to summary trial Low value shoplifting of less than 200 GBP are treated as summary only unless an adult defendant pleads not guilty - then they will still be able to pick crown court. If the defendant pleads guilty, it cannot be transferred. Criminal damage for less than 5000 GBP will be treated as summary only unless caused by fire.

Answer 44

Advice at the police station is free. Duty solicitor scheme: in Magistrate court where solicitors are pro rata members. Representation order: criminal legal aid in the Magistrates court. Must satisfy 2 tests: 1. Interest of justice test: Defendant must show that it is in the interest of justice (ECHR art 6) that they receive public funding, and Would they lose livelihood or suffer damage to reputation, Substantial question of law Unable to understand proceedings Tracing, interviewing or expert cross-examination of witness It is in the interest of another individual that the witness is represented 2. Means test: That their financial means are so that they cannot cover the cost themselves. No means test needed if the applicant is on income support or similar, and for applicants under 18. For means test, applicant must inform: annual income, tax and national insurance, annual housing costs, annual childcare costs, annual maintenance, adjusted annual living allowance If the defendant has failed the means test for magistrate court and the case is sent to the crown court, funding doesn’t start until he passes the eligibility test of the Crown Court. To apply for representation order, solicitor must send in Form CRM14 (interest of justice test) and Form CRM 15 (means test)

Answer 45

CJSSS: Criminal justice: simple, speedy, summary (from 2007 to speed up proceedings for magistrates court. Key principles: Plea at first hearing is presumed Guilty pleas: sentence same day Not guilty pleas: trial date within 6-8 weeks CPS should provide sufficient information at first hearing to ensure effective hearing

Answer 46

What happens is determined by e.g.: Classification of offence (indictment, either-way or summary) How the defendant pleas in an either-way offence (if guilty, only triable by magistrate) Level of detail from CPS of the prosecution case. Should make sufficient disclosure so that the defendant can enter into a plea Securing public or private funding

Answer 47

Usually required to enter a plea (guilty or not guilty) A guilty plea case may be handled by magistrates court on the same day as the hearing. If the defendant disputes the fact the hearing may be adjourned. If defendant pleads not guilty the judge will set a date for the trial and issue case management directions

Answer 48

Either-way offences Guilty plea: Magistrate have to decide whether to sentence or to commit the case to crown court if the magistrates sentencing powers are not sufficient Not guilty: Magistrate has to decide whether to hear the case or send it to the Crown Court. An allocation hearing will take place where the defendant pleads not-guilty, to allocate a case in either Magistrates or Crown court.

Answer 49

Indictments Sent straight to Crown Court. Case is always adjourned and it is up to the Magistrate court to decide whether defendant should be released on bail or remain in custody

Answer 50

Obtain funding from the LAA (unless privately covered) Obtain details about prosecutions case from the CPS Statement from client Advice on strength of the prosecution’s evidence and the plea the client should enter If either-way offence, advice client on which court to choose Make an application for bail where necessary

Answer 51

Initial details of the prosecution's case: IDPC. Includes: Where the defendant has been in police custody and charged immediately before first hearing in Magistrates Court: details of offence and criminal record In all other cases: summary of offence, details from defendant in interview, written witness statements, criminal record and victim impact statement. If a guilty plea is not expected, the list shall include: summary of circumstances of offence, statements and exhibits incl. CCTV, medical or expert evidence, info about special measures, bad character or hearsay. The Defendant's lawyer should see all IDPC after the client is charged to advise the client on the strength of the case. Defendant is entitled to receive IDPV for summary and either-way offences. Defence solicitors must contact CPS before the first hearing to ask for IDPC in digital format.

Answer 52

If a client has told the solicitor he’s guilty but intends to plead not-guilty, the solicitor must advise the client that the solicitors duty to not mislead the court trumps his duty to act in the clients best interest. OBS: He may still represent the client, but his actions during the hearing will be limited. The solicitor may still make a submission of no case, as this would not be to mislead the court. If this was unsuccessful and the client had to enter the witness box to give evidence the solicitor knew was false, the solicitor would have to stop acting for the defendant. The solicitor still owes a duty of care to the client and would normally withdraw “for professional reasons”.

Answer 53

Charge is read out loud and legal advisor tells defendant to indicate how they plead (no obligation to indicate a plea) Indicating guilty plea: treated as tried summarily and convicted. CPS outlines facts and previous convictions. Defendant’s solicitor pleas in mitigation for defendant Magistrate decides whether sentencing power is sufficient (max 12 months) or whether the case must be referred to Crown court. Assessment based on seriousness of the offense, guideline for sentencing and any aggravating or mitigating factors. If sent to crown court: defendant remains in custody or bail - normally not altered from the position before the guilty plea (on bail before plea, usually on bail after plea). Magistrate may either sentence straight away or adjourned case for a pre-sentence report - Magistrate must decide whether a “Newton hearing” is necessary - If case is adjourned: defendant released on bail or remain in custod

Answer 54

Newton hearings: defendant that pleads guilty but disputes facts from CPS, the court must accept the defendants version or allow both the defendant and CPS to call evidence for the factual version, as long as the fact can influence sentencing. Hearing is called Newton hearing.

Answer 55

After solicitor has received IDPC they will have to take further instructions from client: Clients response to the prosecution's case incl. the prosecution's witnesses Strength of the prosecution's case Whether it’s necessary to obtain further evidence If an either-way offence and the client has pleaded not guilty, whether the case should be tried for the magistrates court or before a judge and jury in the crown court.

Answer 56

Statistically better chance of acquittal after a jury trial, better procedures for challenging admissibility of prosecution's evidence (jury are asked to leave and a mini-trial to decide admissibility is held where only the judge decides vs. magistrates court where the magistrates themselves rules in admissibility), More time to prepare the case for trial

Answer 57

Limited sentencing power: For either-way offences, magistrates were permitted to sentence up to 12 months (an increase on the previous limit of six months). However, only a year later, from 30 March 2023, magistrates’ sentencing powers reverted to six months again. Now the Magistrates sentencing powers are limited to 6 months for any offence, but MAY be extended to 12 months in aggregate if dealing with 2+ wither-way offences. Magistrates court can impose an unlimited amount of fines. If details emerges during trial, the magistrate can at any time refer case to crown court to ensure stricter sentencing. Speed and stress (trial takes place sooner, convenient if client is in custody and denied bail or has other reasons to rush). Less stressful and less formal. Costs the defendant has to pay to CPS in case of convictions are higher in Crown court than magistrates court Defence costs: If granted legal aid in magistrate court, the defendant does not have to contribute towards his defence costs. In the crown court, the defendant is subject to a financial eligibility test. If the defendant pleads not guilty in the crown court he must serve the crown court and prosecution with a defence statement setting out the defendants case. There is no obligation to hand in a defence statement in the magistrates court.

Answer 58

If the defendant does not plead guilty to an either-way offence the magistrate court shall transfer the case to the crown court if: 1. The defendant is sent to Crown court for trial for a related offence 2. Defendant is charged jointly with another adult defendant who is sent to the Crown court for a related offence 3. Defendant is charged jointly or with a related either-way offence with a youth that is sent to the crown court for trial

Answer 59

Allocation: 1. Prosecution informs court about facts and previous convictions 2. Court takes into consideration: representations regarding allocation from the prosecution, whether proposed sentence is adequate, Allocation guideline, sentencing power 3. If the court decides the case should be decided by summary trial, the court must explain to the defendant: the case appears suitable for summary trial but the defendant can decide indictment and if they choose summary trial and are convicted, they might be transferred to the Crown Court for sentencing. 4. Defendants may request an indication for sentencing. The court cannot impose a custodial sentence unless this has been indicated (but indication is not binding). Indication of a custodial sentence does not prevent court from giving a non-custodial 5. If the defendant indicates a guilty plea, they are tried as if they had pleaded guilty and summarily. If the defendant does not change guilty plea, the indication of a sentence is not binding on a court. 6. If the defendant consents to summary trial, the court shall continue to summary trial. The prosecution is allowed to make an application before a summary trial begins, asking the court for the case to be moved to the Crown court for indictment. 7. If the suspect is charged with offence triable on indictment, the magistrate sends the case directly to the crown court.

Answer 60

In the following circumstances can an either-way offence be sent straight to the Crown Court: 1. In serious or complex fraud cases where notice has been given by CPP that the evidence is enough to put the person on trial. 2. Where a notice, in certain cases involving children, has been served. Notice includes that the evidence is sufficient to put the person on trial and that a child is called as a witness. 3. An either-way offence related to an offence triable only on indictment 4. An either-way offence related to an offence triable only on indictment where another defendant is sent to the Crown court.

Answer 61

If there are several suspects and one of the chooses Crown court, all of the defendants will be sent to the crown court for a joint trial

Answer 62

If the defendant pleads differently to different offences, and one of them is not guilty, the magistrate court will arrange an allocation hearing in respect of the offence. If the magistrate accepts jurisdiction, it can sentence the defendant immediately for offences it has pleaded guilty to or adjourn sentence until the end of trial for the no guilty plea. If the case is sent to crown court, the offence the defendant has pleaded not guilty to will be sent to crown court and the magistrate court has a choice to also send the guilty pleas or decide these themselves.

Answer 63

Defendant has pleaded not guilty to a summary offence or an either-way offence where the magistrate court has jurisdiction. Magistrate court sets a date for trial and gives directions. Case management directions are usually given at the same hearing that the defendant pleads in.

Answer 64

Time: usually 8 weeks to prepare case, 14 if expert evidence.

Answer 65

Obtain witness summons from magistrate court to ensure that the witnesses attend the hearing. Issued if the court thinks the witness can give material evidence. Defendants must serve CPS with notice about witnesses and CPS may interview these. There is no requirement to serve statements to the CPS (in comparison to civil cases, where the sides must exchange witness statements). Exception: expert witnesses

Answer 66

A witness statement is admissible provided that it is: signed, dated, contains declaration that it is given based on best knowledge and belief. A copy must have been served before the hearing and there has been no objections within 7 days.

Answer 67

Must be sent to crown court if: triable on indictment, either-way or summary offences that appear related to offences triable on indictment and summary only offences punishable by imprisonment or involving disqualification of driving. After a hearing in magistrates court (to determine whether offence is triable on indictment and whether there are related offences), the case is sent to the crown court. Date is set for the plea and trial preparation hearing PTPH at the crown court

Answer 68

Sent to crown court if the defendant pleads not guilty in magistrates court and elects trial by judge and jury in the crown court. The defendant may be tried for other offences on the same facts in the crown court, including summary only offences (common assault, criminal damage or driving whilst disqualified) Summary offences punishable by imprisonment or disqualification of driving, are related to an either-way offence.

Answer 69

In limited circumstances, a preliminary hearing takes place at the crown court 10 days after the case is sent from the magistrates court, if 1. Case management issues 2. Trial exceeds 4 weeks 3. Early trial date is desirable 4. Defendant is under 18 5. A guilty plea at a preliminary hearing is likely

Answer 70

If a preliminary hearing is not required, the first hearing in the crown court is the plea and trial preparation hearing PTPH 20 business days after sending, where plea is entered and the court gives directions.

Answer 71

Arraignment: counts on indictment are put to the defendant at the start of the PTPH in the crown court and the defendant has to plead guilty/not guilty. If the defendant only pleads guilty to some to some accounts but not to others, a jury shall not be told about this.

Answer 72

‘Lie on the court file’: a defendant might plead guilty to some/the more serious accounts during the PTPH at the crown court, so that the CPS decides that the evidence for the remaining offences is not enough to go through with the case. These may be reopened at a later date.

Answer 73

Pleads guilty: If the defendant pleads guilt during the PTPH at the crown court, the judge can either 1. decide the case then and there, or 2. adjourn the sentence for preparation of the pre-sentencing reports. If the defendant pleads guilty but disputes a witness statement, a Newton hearing may be held to determine the factual basis for the defendant’s sentencing.

Answer 74

Judge may give the defendant an indication of sentence if they were to plead guilty at the plea and trial preparation hearing PTPH.

Answer 75

If the defendant pleads not guilty, the crown court will decide whether further directions (other than those given by magistrate court upon transfer) are necessary based on: summary of the issue, number if witnesses, whether transcript from e.g. interview at the police station require editing and whether the defendant’s statement has been served, additional evidence, hearsay evidence, availability to attend trial etc. Trial date is set and case placed on “warn list” (cases awaiting trial list)

Answer 76

Sml. to magistrate court, CPS must serve defendants with all evidence that they will rely on. CPS has an ongoing duty to disclose evidence when it comes in their hands after the initial disclosure. The evidence not relied on is “unused material”. Unused material must be disclosed if it might reasonably be considered that it undermines the case. Types of material that require disclosure is: First description of suspect from witness if they differ from defendant Information indicating an innocent explanation Info casting doubt on reliability of witness of a confession Witness statements in support of defendants case Defence can ask CPS to disclose “missing” documents if disclosure seems incomplete. If UPS does not comply, the defence can apply to court for specific disclosure if the defendant has made a defence statement.

Answer 77

Prosecution may withhold evidence for “public interest immunity”. CPS must apply to the court ex partes and the court decides whether the evidence is encompassed by the exemption. Excluded evidence includes: Matters of national security Identity of police informants or undercover officers Revealing techniques or methods Info about child witnesses

Answer 78

After the CPS disclosure, the defence must provide a defence case statement if the defendant pleaded not guilty in the magistrates court within 10 days after CPS’ disclosure of any unused material. In the crown court it may be extended to 20 days after service of unused material. Defence statements are rarely served in the magistrates court but are compulsory in the crown court. In crown court a defendant may be met with adverse effects if the defence statement is provided too late, incomplete or not at all.

Answer 79

Defence statement should be approved by defendant and content: Nature of defence (e.g self-defence) Facts that will be issued and relied on Points of law and admissible evidence If alibi is the defence, contact information to the alibi must be provided After the defence statement is served, UPS must review all unused material and determine whether more should be used.

Answer 80

Standard of proof: beyond reasonable doubt.

Answer 81

Evidential burden of proof is usually carried by the prosecution i.a. The defendant does not have to prove innocence, except for specific defence e.g. self.defence. The prosecution will then have to prove beyond any reasonable doubt that the excuse does not apply.

Answer 82

Legal burden of proof is usually carried by the prosecutor but may fall on defence if e.g. the defendant pleads not guilty due to duress of insanity.

Answer 83

Visual identification evidence: evidence from eye witnesses. Court has discretion to exclude evidence from the prosecution if it has such an “adverse effect on fairness of proceedings that the court ought not to admit it” PACE 1984 s. 78 Can be challenged by the defendant if methods for obtaining the evidence breach PACE 1984 or codes of practice. Code D of the code of practice e.g. images in video identification procedure do not resemble the defendant, witnesses are not segregated or the police failed to hold identification procedure when this should have been held. Defence would challenge admissibility under code D and then ask the court to use discretion under PACE 1984 s. 78.

Answer 84

Specific guidelines that apply if a witness (turnbull witness) for CPS identifies the defendant and the defendant disputes this. Visual identification includes formal identification, informal identification and a witness claiming to recognise the defendant as someone he has known. If the witness only gives a description of the person committing the crime, but there is no direct evidence that it was the defendant, the Turnbull Guidelines do not apply. The turnbull guidelines sets out conditions to help assess the quality of the identification evidence and includes: Length of observation Distance Lighting Conditions e.g. weather How much of the suspects face did the witness see Whether it is someone known to the victim Original description matches the defendant and any discrepancies

Answer 85

Turnbull warning: judge should warn jury that it is easy to make an honest mistake as a witness and that the quality of the identification evidence should be assessed. The same is given if the evidence is of poor quality but supported by supporting evidence e.g. fingerprints. If the evidence is of poor quality and not supported the judge should ask the jury to acquit the defendant. In the magistrates court, the defendant's solicitor must address the turnbull guidelines as the judge rules on both fact and law. If the evidence is poor, the defence should make a submission for no case to answer at the end of the prosecution's case.

Answer 86

The “right to silence”. The court can draw adverse effects from silence, except for silence when the defendant has not yet been able to speak to a solicitor. Interference under s. 34: Court or jury may draw adverse effects from silence when the defendant is questioned at the police station, before or upon being charged and the fact that was not mentioned is later on being used at trial. Conditions that must be satisfied before adverse effects are drawn: Interview was under caution defendant failed to mention facts later relied on during trial Failed to mention facts that occurred before the defendant was charged In the interview where the defendant failed to inform about fact, the fact had to be whether or by whom the alleged offence was committed The fact had to be one that the defendant reasonably could have expected to mention. A court will not be able to draw adverse effects if the facts are set out in a witness statement prepared by the solicitor and later relied on during trial. A solicitor may ask a suspect to remain silent if: the police has not disclosed meaningful documents, the case is complex and happened a long time ago, the suspect has personal circumstances e.g. ill health, mental disorder, excessively tired, in shock, intoxicated. Silence given as legal advice may not prevent the court from giving it adverse effects. The judge will instruct the jury to not put an adverse effect on silence as long as the defendant’s reliance on legal advice to stay silent was genuine and reasonable. A defendant mentioning that he remained silent due to legal advice does not automatically waive privilege. Once the defendant at trial explains why he was given this evidence, it is enough to waive the privilege and the defendant can be cross-examined about anything that has to do with that legal advice.

Answer 87

Interference under s. 36 The defendant failed to account for an object, sustenance or mark in an interview with the police. Similar to s. 34, but s. 34 requires that the fact is later on relied on during trial, whilst 36 does not. 36 only applies if an officer requests information about an object, sustenance or mark (special caution)

Answer 88

Interference under s. 37 The defendant failed to account for presence at a place or at the time the alleged offence took place and someone investigating the offence reasonably believes that the presence at the given time and place may attribute to his participation in the commission of the offence. 37 only applies if an officer requests information about the time and place (special caution) Interference under s. 35 A defendant is not obliged to give evidence on his own behalf, but if he doesn’t do so it might have adverse effects. For example if the defendant does not explain points put forth by the prosecution. A court has discretion to direct that an adverse effect shall not be drawn.

Answer 89

Interference under s. 38 Prevents a defendant from being convicted solely based on adverse inference drawn from silence.

Answer 90

Definition: a statement, not made in oral evidence, that is relied on in the matter. Includes something a witness has told another person, overheard, been told, statement being read out instead of witness attending trial. A written witness statement is hearsay evidence if the witness is unable to attend court. Exceptions to statements outside of court that are not hearsay: CCTV, photos, audio recordings and other “real” evidence Statutory exceptions to the hearsay rule: CJA 1967 s. 9: written witness statement can be read out in court if: signed by maker, contains a declaration of truth, served on opposing party and within 7 days of service the opposing party has not objected. The court has no power to overrule an objection. CJA 2003 s. 114 states 4 exceptions: It comes within one of the categories of admissible evidence in CJA 2003 to other statutes It falls under a common law rule The parties agree to the evidence admitted The court is satisfied that it is in the interest of justice to admit the evidence CJA 2003 s. 114: a written witness statement is admissible where: the person could have given oral evidence, is identifiable to the courts satisfaction, the person have requisite capability at the time the statement was made. The person must have been unable to attend hearing due to death, unfit bodily or mental condition, outside of the UK and not reasonably practical to attend hearing, through fear CJA 2003 s. 117: business documents are admissible as hearsay evidence as long as they are created or received in the course of trade and the person supplying them had reasonable knowledge of the matters dealt with in the documents. CJA 2003 s. 118 and common law Res Gestae: a statement made by a person so “emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”. E.g. a man fatally stabbed to death naming his two attackers before he died was admissible. Res Gestae statements can be admissible even when the witness is available. Procedure for admitting hearsay evidence: give notice to the other party, which will be given a deadline by the court to adduce hearsay evidence. The other party must apply to court to be able to cross-examine a witness’ hearsay evidence.

Answer 91

Definition: statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in person or otherwise. Admissibility: admissible to prove truth of content, hence also an exemption from hearsay evidence. Evidence given by a co-accused that implicates the defendant will be admissible against the defendant. Confession evidence may be admitted where: The parties agree The court decides that it is in the interest of justice to allow the confession evidence It is a previous inconsistent statement It is a previous consistent statement if it is used to (i) rebut an allegation of fabrication, (ii) as a result of cross-examination on a memory-refreshing doc, and (iii) witness confirms that they have made the statement and it is truthful Challenging admissibility ss. 76 and 78 PACE 1984 my argue either: - Did not make confession at all (mistake or fabricated) - Should not be admitted as evidence because it was obtained by oppression (torture, inhumane treatment) or it is unreliable (denying refreshments, offer lesser sentence to confess, misrepresentation of the prosecutions case, suspect was not in a fit state (alcohol, mental illness, not represented by solictor), threats). The court can dismiss a confession if the defendant argues that the police were in breach of PACe and the breach was significant and substantial ( R v Keenan). Magistrate court procedure: may hold a voir dire (separate hearing to rule on admissibility). Crown court procedure: determined by trial judge. In an interview, the interviewing officer will give evidence. If inadmissible, the jury will not hear about it. A defendant can use a co-defendants confession as evidence, unless it was inadmissible c.f. Below.

Answer 92

Definition of bad character: evidence of, or disposition towards misconduct. Does not itself prove guilt. the 7 gateways s. 101(1) Criminal Justice Act 2003. Bad character evidence is admissible if + how the court can regulate admissability: A All parties agree. The evidence is admissible, subject to the general discretion to exclude evidence. B Adduced (anføre/påberopt) by the defendant or given in answer to a question asked by him in cross-examination. The evidence is admissible, subject to the general discretion to exclude evidence. C Important explanatory evidence. The evidence is admissible, subject to the general discretion to exclude evidence. D Relevant to important matter. The court may exclude the evidence if it would be unjust to admit it due to the passage of time or any other reason. The evidence is admissible unless it would have such an adverse effect on the fairness of proceedings the court ought to admit it. Whether the defendant has a propensity to commit an offence of any kind. Includes evidence of previous convictions as long as they are of the same description and category. Golden rule: courts do not presume someone’s past convictions mean they are guilty of the current charge. Whether the defendant has a propensity to be untruthful. Includes evidence of previous convictions as long as they show that the defendant made a false representation or pleaded not guilty to a crime he was committed for. E Substantive probative value. The evidence is admissible, subject to the general discretion to exclude evidence. Can be used by a defendant against other defendants to show that the other defendant has a propensity to be untruthful or commit the kind of offence they are both tried for. Cannot be used by CPS. F Corrects a false impression. The evidence is admissible, subject to the general discretion to exclude evidence. The defendant may withdraw the assertion. G The defendant has attacked another person’s character. The evidence is admissible unless it would have such an adverse effect on the fairness of proceedings the court ought to admit it. Can someone dead or not intended be called by CPS. CPA can then bring in evidence about previous convictions.

Answer 93

the 3 gateways s. 100(1) Criminal Justice Act 2003 (NY 2023). Bad Character Evidence — Defence-Barrister.co.uk Bad character evidence about others than the defendant (e.g. witness) is admissible if: 1. Important explanatory evidence 2. Substantial probative value in the matter 3. All parties agree to the evidence being admissible

Answer 94

CPS must give notice to the court and the defendant. Any objection must be sent to the court and the other party. court’s powers to exclude bad character evidence The court cannot exclude bad character evidence under D and G A, B, C, E and F are automatically admissible ref. above to 7 gateways s. 101(1) Criminal Justice Act 2003

Answer 95

scope and application of s. 78 PACE and the right to a fair trial. The court has discretion under s. 78 to not allow evidence that could have an adverse effect on the fairness of the proceedings that the court ought not to admit. E.g. something unreliable about police evidence. If evidence is obtained in breach of PACE 1984 it should only be admissible if it is significant and substantial (R v Keenan) Evidence obtained by entrapment (lokke i felle) is admissible, but the court can be asked to exercise its common law powers and disallow the process.

Answer 96

Trail at the magistrates court Opening speech CPS: facts, substantive law, summary witnesses (Vior dire if the defendant objects to evidence e.g. confession. Magistrate rules, as opposed to in crown court where the jury does not attend voir dire). Prosecution witnesses: witnesses under 14 do not take oaths. First victim is likely the victim. Prosecution may read statements from witnesses that have not been called. Summary of defendant’s interview at the police station may be read. (submission of no case by defence). Should be made if the CPS has failed to provide evidence for an essential part of the alleged offence or the evidence was discredited in cross-examination and no court could convict on it. Defence witnesses (defendant first). Give evidence of defence e.g. self-defence. CPS closing speech. Has recently got the right to have a closing speech but is usually only exercised in complex cases. Defence closing speech. Should refer back to the opening statement and comment on shortfalls. Magistrate retired to consider the verdict. Usually 3 magistrates, deciding on majority. Magistrate delivers verdict If guilty: sentenced or adjourn sentence

Answer 97

Split between judge and jury (12 members of the public). Jury decides on disputed facts and whether the defendant is guilty. Judge will resolve issues of law. If the jury finds the defendant guilty, the judge is responsible for sentencing. If the defendant changes plea from guilty to not guilty it must be done in writing and as soon as possible. Order of events: Jury is sworn/empanelled (12 between 18-75). Informed about not guilty please, but not about guilty pleas. CPS opening speech CPS witnesses, starting with victim (Voir dire without jury) (Defendant makes submission of no case, assessed by judge without jury subject to the Galbraith test (In short the test is that a case should not be left to the jury where there is no or no sufficient evidence). If successful, the jury returns and is instructed to give a verdict of not guilty. Defendant is given a chance to plead, which it could do if e.g. it has admitted guilt to solicitor. Defence opening speech (only if more witnesses than the defendant) Witnesses, starting with the defendant. CPS closing speech Defence closing speech Judge sums up case (evidence + law) for jury, which retires. Common appeal ground is that the judge has erred in summoning up law or evidence. Jury decides unanimously, but 10:2 is accepted after 2 hours + 10 min. If no judgment has been reached within reasonable time, the jury will be discharged and CPS request a new jury. If a defendant is found not guilty, their legal costs are usually covered by the state. If guilty, the judge will sentence the defendant immediately or adjourn. If adjourned, the defendant is either kept in custody or bail.

Answer 98

jury (12 members of the public).

Answer 99

Jury decides unanimously, but 10:2 is accepted after 2 hours + 10 min. If no judgment has been reached within reasonable time, the jury will be discharged and CPS request a new jury. If a defendant is found not guilty, their legal costs are usually covered by the state. If guilty, the judge will sentence the defendant immediately or adjourn. If adjourned, the defendant is either kept in custody or bail.

Answer 100

Magistrates: Your worship or sir/madam Crown court judge: Your Honour Counterparty: my learned friend (barrister) or my friend (solicitor) Bow to judge + magistrates upon their entry Usually required to stand when addressing the court unless: youth court, defendant, advocate or witness appears on video link, making a bail appeal for the judge in chambers. To take photos or audio is an offence.

Answer 101

Compellability: witnesses can be compelled to testify by using a witness summons. All persons that have competence are compellable. Exceptions: The accused or any co-accused are not a competence witness for the CPS, except for co-accused: attorney general files a formal notice abandoning the prosecution, order is made for separate trials, an accused is acquitted, plead guilty and give evidence against co-accused. Defendant is competent but not compellable to give evidence for himself. Spouse of accused can be called by CPS or co-accused if the offence involves an injury/charge to the spouse or a sexual offence. A spouse is compellable by the accused. Accused or co-accused spouses are never compellable.

Answer 102

Examination-in-chief (including re-examination): allow witness to tell own story, not ask leading questions (suggests answer) Cross-examination: may ask more leading questions.

Answer 103

Those who may ask for measures: Under 18 Mental or physical disorder Witnessing affects stress Sexual offences Witnesses of gun and knife crimes Measures: Screens Witness on video Clearing court before witnessing Remove wigs and gowns Video record witness statement and cross examination Interpreter or therapist Sign language, hearing loop etc.

Answer 104

Prepared by the sentencing council (8 judicial and 6 non-judicial members). Mostly followed by courts unless it would be contrary to justice. Require an assessment of culpability and harm to the victim. Sentencing guidelines - steps: Determining offence category 1. Greater harm + enhanced culpability 2. Either greater harm or enhanced culpability 3. Lesser harm + lower level of culpability Shaping sentence using mitigating and aggravating factors (below) Consider factors that will reduce sentence Factors for extending sentence Totality principle, including that overall sentence is proportionate Compensation and other ancillary orders Giving reasons

Answer 105

Sentencing guidelines + the principles from the Criminal Justice Act 2003

Answer 106

In addition to the assessments from the sentencing guidelines, the court must take into account the principles from the Criminal Justice Act 2003 when sentencing: Punishment of offenders Reduction of crime Reform and rehabilitation Protection of the public Making good to victims

Answer 107

Prevalence: similar offences should be treated in a similar way. May make exceptions where e.g a typical offence is more prevalent in a given area.

Answer 108

Totality principle: shall be sentenced to all offences at the same time.

Answer 109

Pre-sentence report before plea: legal representative can ask for a pre-sentence report from the Probation Service if the client pleads guilty at the first hearing in the Magistrate court-

Answer 110

Principle of seriousness: the court must consider the offender’s culpability and any harm which the offence caused, was intended to cause or might foreseeably have caused. Culpability: intention, recklessness, knowledge about risks or negligence Harm: physical, psychological, sexual, financial, damage to health Seriousness - statutory aggravating factors (court obliged to treat offence in a more serious way): Previous convictions Offences committed on bail Racial or religious aggravation Hostility based on sexual orientation or disability Seriousness - other aggravating factors (court obliged to treat offence in a more serious way): Offence was planned Groups or gangs Vulnerable people are targeted Under influence of drugs or alcohol Weapons Abuse of trust Against a public servant High value property (including sentimental value) Failure to respond to previous sentence Seriousness - mitigating factors (court obliged to treat offence in a less serious way): Impulse Great degree of provocation Mental illness or disability Young or old Held minor role Motivated by genuine fear Attempts to make reparation to victim Guilty plea: ⅓ discount of the plea can at “first stage proceedings”: first hearing in magistrate court.

Answer 111

Concurrent sentence: custodial terms are deemed to be served at the same time

Answer 112

Consecutive sentences: one custodial sentence will start after another. Not usually imposed.

Answer 113

Penultimate stage in the sentencing process, where the defendant (legal rep) is allowed to present mitigation before sentencing. Mitigation is usually divided into 4 parts: 1. Likely sentence: persuade to have a less severe sentence as a starting point 2. The offence: minimize impact of aggravating factors and emphasize the importance of mitigating factors 3. The offender: mitigating factors such as age, health, cooperation with the police, voluntary compensation for damage, remorse, character, family and low risk for re-offending. 4. Suggested sentence: realistic for what the court should impose.

Answer 114

custodial sentences (forvaring): usually a mandatory sentence or mandatory minimum term of imprisonment. Offence must be so serious that neither a fine nor community sentence can justify the offence. Magistrates sentencing power is max 6 months for a summary offence and 12 months for an either-way offence (regardless of number of offences). ‘Dangerous offenders’ receive either automatic life imprisonment, discretionary life imprisonment or an extended sentence of imprisonment Early release 1/2 through sentence is normal

Answer 115

suspended sentences: custodial (forvaring) sentence of between 14 days - 2 years (max 12 months in magistrates court). Can be suspended for 6 months - 2 years. Suspended period = operating period. Offender is likely ordered to comply with certain requirements for a supervision period. If a suspended sentence is breach the custodial sentence will take effect immediately

Answer 116

community orders: Can be made if the court has the impression that the offence or a combination of the offences was serious enough. Options: Unpaid work 40-300 hours in 12 months Activity e.g. repairing damage Prohibited activity requirement Curfew Exclusion from places Residence as a specific place Mental health treatment Drug rehabilitation Alcohol treatment Supervision Attendance center Foreign travel prohibition

Answer 117

Magistrates sentencing power is max 6 months for a summary offence and 12 months for an either-way offence (regardless of number of offences).

Answer 118

Pleaded guilty in magistrate court can appeal to crown court regarding sentence Pleaded not guilty in magistrates court can appeal to crown court regarding resulting conviction or sentence Appeal against conviction: made errors in law or facts. Crown court will have a full rehearing of the case. New witnesses can be called and new points of law raised Appeal against sentence: can appeal to Crown court which will have a full re-hearing. Appeal is usually heard by a recorder or circuit judge who sits with an even number of magistrates CPS cannot appeal sentence or acquittal, but can appeal over facts of law to the High court. Deadline: defendant must file notice with CPS and court within 15 business days from the magistrate passes the sentence. The crown court does not have power to extend the deadline.

Answer 119

powers of the Crown Court: may confirm, vary or reverse the sentence.

Answer 120

Appeal from the Crown court can be made to the High court by both CPS and the defendant based on a point of law or that the crown court has exceeded its jurisdiction.

Answer 121

CPS or defendant can appeal a decision from the magistrates court to the Kings bench in the high court if: Wrong in law Outside of jurisdiction Must appeal within 21 days after the decision was made by the magistrate court Appeal hearing will be held in the divisional court of the King’s bench division, normally heard by 3 judges. No evidence is given by witnesses and the hearing is confined to legal arguments based on agreed facts. Divisional court has powers to reverse, affirm or vary the sentence. Both CPS and the defendant can apply to the Supreme court on decisions from the High court over points of law that have a general public importance. Either the high court or the Supreme court must grant leave to appeal.

Answer 122

Defendants appeal against conviction The Court of appeal grants leave to appeal or the trial judge grants a certificate that it’s fit for appeal. Appeal must be allowed if the Court of Appeal considers conviction “unsafe” e.g. errors. Common grounds of appeal include: failure of judge to direct jury, judge wrongfully admitted or excluded evidence, failed to administer correct warning to the court, inappropriate intervention by the trial judge Failure by the trial judge when summing up the case Fresh evidence Procedure: defendant must serve appeal notice within 28 days of the conviction (not sentence). The Court of Appeal has a 3-judge panel. Powers of appeal court: acquit defendant, order a retrial, allow part of appeal and dismiss other parts, find defendant guilty of alternative offence, dismiss appeal.

Answer 123

Defendants appeal against sentence Successful if: Error in law Error in principle (e.g. judge passed a custodial sentence for a minor crime) Wrong approach when sentencing Disparity in sentencing of co-defendants Sentence is manifestly extensive Powers of appeal court: confirm or quash sentence from the crown court.

Answer 124

Youth Offering Team YOT must coordinate youth justice services in their area and attend sittings in the youth court. YOT assists with: Investigations, confirming circumstances and previous convictions Support youth granted bail Prepare pre-sentence reports Administer non-custodial sentences

Answer 125

No right to appeal acquittal in crown court by a jury. Has a right to appeal in the court of appeal when ruling is made by judge if ruling either effectively terminates trial (termination ruling) or significantly weakens the prosecution's case ( evidential ruling) CPS has a right to appeal to the court of appeal if the attorney general considers crown court sentence to be “unduly lenient”. CPS can ask for a retrial under s. 57 CJA 2003 if the defendant is acquitted for: Murder, attempted murder or manslaughter Kidnapping Sexual offences Various offences for class A drugs Arson endangering life or property CPS must fulfill the evidential test and the interest of justice test. Evidential test: there is new and compelling evidence of the defendant’s guilt. Interest of justice test: court must take into account a fair trial is likely, time since offence was committed, new evidence, CPS or police has failed to act with due diligence or expedition.

Answer 126

Juveniles under 16 must be accompanied by parent or guardian during each stage in the court process. Juvenile 16-17 court has discretion to require attendance from parents. People allowed to attend hearings in youth court: District judge/youth justice Court staff Juvenile + parent/guardian CPS representative Juveniles solicitor (all juvenile under 18 are automatically eligible regardless of means) YOT representative Press

Answer 127

Part of magistrate court and involves defendants between 10-17 (subject to criminal law as adults). Children: 10-13, Young people: 14-17. Witnesses under 14 give unsworn evidence. Court does not have jurisdiction if the defendant was 17 at the time he was charged, but 18 prior to the first appearance in court. Differences from magistrate court is that juvenile court is less formal.

Answer 128

5 circumstances when case must be sent from youth court to magistrates or crown court: 1. Murder, attempted murder or manslaughter must be sent to crown court 2. Firearms offences 3. Grave crimes: offences that have a minimum 14-year imprisonment sentence for adults (robbery, rape, sexual offence). the Youth courts sentencing limit is 24 months, but the crown court can impose longer sentences. 4. Specified offences (violence or sexual) where if found guilty he could be categorized as a "dangerous offender" must be sent to crown court. 5. Jointly charged with adult for indictable offence and it is in the interest of justice that they are tried together.

Answer 129

youths (under 18) jointly charged with adult: adult case is dealt with in crown court and the juvenile case may also be referred to crown court if it is necessary in the interest of justice. If the adult case is dealt with in the magistrates court, the juvenile case will be tried together with the adult case.

Answer 130

Youth court usually always obtain a pre-sentencing report sentencing: role of the Sentencing Children and Young People – definitive guidelines Overarching principles: The court must have regards to the principal aim of the youth justice system and the welfare of the child or younger person The seriousness of offence Custodial sentence is last resort Factors diminishing culpability Should be given opportunity to change behavior Key elements for determining sentence: Aim of youth justice system Welfare of young children and adults Age Seriousness Likelihood of further offences Extent of harm likely to result in further offences Max sentence is 24 months.

Answer 131

Referral orders must be made for a juvenile (under 18) that pleads guilty to an offence with possible custodial sentence and who has never previously been convicted, unless the court proposes a custodial sentence or discharge. Referral order refers youth to a YOT youth referral panel with a member of YOT and two community volunteers. The panel agrees a youth offender contract with the offender for 12 months. Detention and training orders are the only type of custodial sentence that the youth court has the power to impose. For crimes so serious that neither fines nor community service is fitting. - Cannot be imposed on juveniles between 10-11 and only persistent young offenders between 12-14. - An order is for a fixed period of up to 24 months. - Before imposing, the court must have received a pre-sentence report from the YOT. - Juvenile is held in detention for ½ of the period of the order and is under supervision of the YOT for the second half. Youth rehabilitation orders: equivalent to generic community order for up to 3 years. Youth court decisions can be appealed to the Magistrate court.

Answer 132

He will be a qualified witness and can witness, but he doesn't have to. Adverse effects can be drawn from silence

Answer 133

15 business days from the date that the defendant was sentenced. Appeal is made by a hearing before a district judge and lay magistrates The defendant can also appeal 15 business days after he was convicted and hence NOT wait to be sentenced.

Answer 134

Limited sentencing power: max 6 months imprisonment for an either-way offence (summary only offences are always maximum 6 months imprisonment) and max 12 for several offences. Magistrates court can impose an unlimited amount of fines.

Answer 135

THe Crown court can impose a new sentence, but only sentences that are within the Magistrates court's sentencing powers. e.g. 6 months for summary only and MAX 12 months imprisonment if there are several offences. Even if you have only appealed against your conviction (rather than appealing against both your conviction and sentence), if the appeal is dismissed the Crown Court also has the power to change the sentence. This means that the court can increase the sentence, potentially up to the maximum sentence that would have been available to the magistrates/District Judge at the original trial.

Answer 136

Within 6 months of the date of the commission of the alleged offence (when the alleged offence was commited)

Answer 137

Serve initial disclosure. The defendant can choose whether to serve a defence statement + details of any defence witnesses. If they choose to serve this, the deadline is 14 days after the initial disclosure.

Answer 138

Prepare Preparation for Effective Trial Forms. The case is then adjourned for summary trial. The prosecution will then have to serve the initial details of the prosecution case on the defendant (summary trials). - If guilty plea is likely, it will include a statement that the prosecution understands that their disclosure duties have been complied with - if not guilty plea is likey, the initial details of the prosecutions case must include a Streamline DIsclosure Certificate which includes unused materials for disclosure.

Answer 139

Within 50 days after the trial was sent to the Crown court (the person was sent for trial) if the defendant remains in custody and within 70 days where the defendant is on bail.

Answer 140

The prosecution cannot appeal. Defendant can appeal over their conviction and/or sentence. OBS if the defendant pleaded guilty in the Magistrate court, they can only appeal over the sentence.

Answer 141

The notice only needs to include whether the appeal is over the sentence or conviction. THere is no filtering process in the Crown court and they must therefore allow the appeal

Answer 142

A complete rehearing of the case in the Crown Court where new evidence is allowed. Min 2 and max 4 lay magistrates. Decides unanimously or by majority.

Answer 143

Right to appeal is not automatic and either the trial judge on the CC or Court of appeal must give consent (obtaining leave). If the trial judge has not certified the appeal, the appelant must apply to the Court of appeal within 28 days after the conviction OR sentence, by notice of appeal + draft grounds of appeal.

Answer 144

Appeal over conviction: The ONLY ground of appeal is that the conviction is "unsafe". Defendant can refer to legal or procedural errors during the trial. CoA will hear evidence from both sides before deciding. Appeal over sentence: if the sentence was wrong in law, or wrong in principle or manifestly excessive.

Answer 145

Must be allowed bu either CoA or SC + involve a point of law of general public or constitutional importance.

Answer 146

An appeal heard by the High Court (Divisional court)! Either the prosecution of defendant can appeal over "case stated" , against a decision from the MC or CC. The appeal is to challenge the conviction or any order, decision or ruling made by the court: wrong in law or excess of jurisdiction. Applicant must within 21 days after the end of trial apply in writing to the magistrate that heard the case, requiring that they state the case for the High Court. Wihtin a further 21 days, the magistrates legal advisor prepares a statement of case. The full case is usually heard before 3 judges in the Divisional court. After an appeal by was of case is made, NO further appeal to CC is permitted. The only appeal option is to the Supreme Court over a "point of law"

Answer 147

The prosecution CANNOT appeal an acquittal!! Limited exception where the prosecution (with consent from the director for public prosecution) can apply to CoA over an acquittal for a qualifying offence (usually life imprisonment), for a retrial. the Crown Court still has the power to stop a trial if it considers it to be an abuse of process. e.g. the CoA could order retrial, which could be stopped by CC for abuse. They can appeal over: - to the CoA with the leave from CoA any sentence from the CC that the Attorney General believes is unduly lenient. Must appeal within 28 days of the date of sentence. - Can appeal to CoA over a "terminating rule" made by a judge to an issue at trial, which cannot otherwise be appealed e.g. against a successful subsmission of "no case stated". In the application, the prosecution must agree that if (i) they fail to obtain leave from court or (ii) the appeal is abandoned, the defendant is automatically acquitted.

Answer 148

Defendant can at any time ask Magistrates to set a conviction aside or vary/rescind sentence. if set aside, the case is reheard with new Magistrates.

Answer 149

Yes, the magistrates court is a "public body" and can exercise powers illegally, fail to follow correct procedure or act irrationally. Application for leave is made to the High court, and hearing held at Divisional COurt of granted.

Answer 150

S, A , H: my lord/lady District judge: Judge Circuit + crown court (crown court judge can be circuit judge) : Your honour Magistrate: your worship Solicitor: friend Barristor: my learned friend

Answer 151

Evidence of good character: admissible. E.g. absence of criminal record. A defendant with no convictions is entitled to a good character directions as it is less likely that the defendant will have committed an offence.

Answer 152

CJA 2003 s. 118 and common law Res Gestae: a statement made by a person so “emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”. E.g. a man fatally stabbed to death naming his two attackers before he died was admissible. Res Gestae statements can be admissible even when the witness is available.

Answer 153

Evidence obtained by entrapment (lokke i felle) is admissible, but the court can be asked to exercise its common law powers and disallow the process. The court should only exclude such evidence if it could be shown that the police caused the commission of the offence, and not just provided the defendant the chance to commit the offence.

Answer 154

Before proceedings start: Youth court no longer has jurisdiction and case is transferred to the Magistrates court or Crown Court if indictable, where defendant is treated as an adult. After proceedings start: youth court can choose to retain and impose a youth sentence or send the case to the Magistrate court (can choose crown court) for adult trial. Turns 18 between conviction and sentencing: may be remitted to MC for sentencing, but will receive a youth sentence. the order of remission cannot be appealed.

Answer 155

The solicitor is NOT under any duty to inform the court about factual evidence that could prejudice the defendants case. the solicitor IS under a positive duty to inform the court about any presidence/authority that may damage the client's case.

Answer 156

No, referral payments in criminal proceedings are contrary to the SRA Code of Conduct

Answer 157

Yes, but the presumption in favour of appeal no longer applies