Criminal Litigation Flashcards
1
Q
What is the consequence of the police’s failure to follow PACE 1984 or the Codes of Practice (2 statutes)?
A
Evidence obtained in breach of these provisions may be excluded at a later criminal trial either under
- S.78 of PACE 1984 (admission of evidence would have an adverse effect on fairness of the proceedings); or
- S.76 of PACE 1984 (the suspect made incriminating admissions)
2
Q
5 important duties of the custody officer?
A
- Search suspect on arrival
- Compile custody record
- Inform suspect of legal rights
- Decide if there is sufficient evidence to charge the suspect
- Undertake risk assessment
3
Q
What is the deadline for the custody record? What does it contain?
A
As soon as reasonably practicable upon suspect’s arrival at the police station.
Detailed account of all aspects of the suspect’s detention (e.g. meals, refreshments, reason for detention, requests for legal advice)
4
Q
Additional custody safeguard for vulnerable suspect?
A
Can be accompanied by “appropriate adult” at the police station
5
Q
3 legal rights to be explained by custody officer?
A
- Inform someone of their arrest
- Consult privately with solicitor
- Consult Codes of Practice
6
Q
Two considerations when searching suspect?
A
- Can seize and retain property and clothing if it could be used to cause injury, damage or escape
- Strip search requires special authorisation–either to identify a mark or tattoo that would confirm involvement in the offence, or reasonable belief that suspect may be concealing article that detainees are not allowed to keep
7
Q
Two options for custody officer when deciding if there is sufficient evidence to charge suspect?
A
- Sufficient evidence: charge suspect and either: (i) release on police bail; or (ii) remand in custody awaiting MC
- Insufficient evidence: either (i) release; or (ii) keep without charge, subject to conditions
8
Q
Two permissible reasons to detain suspect without charge? One precaution?
A
NECESSARY to:
1. secure or preserve evidence relating to an offence for which the suspect is under arrest
2. Obtain evidence by questioning the suspect
Must note reason for detaining without charge in the custody record
9
Q
What is the relevant time for purposes of detention without charge (3 options)?
A
The earlier of:
1. The time the arrested person first arrives at the designated police station
2. (Rarely) 24 hours after the time of arrest
3. For persons who are arrested only the police station: the time of arrest
10
Q
What is the “entry level” period of detention without charge? Preconditions?
When will this represent the absolute ceiling on D’s detention?
A
24 hours from the relevant time, if conditions in S.41 of PACE 1984 are met
D cannot be detained more than 24 hours without charge with respect to a SUMMARY OFFENCE
11
Q
4 criteria to extend detention beyond 24 hours without court authorisation?
A
Up to 36 hours if the offence
1. can be tried in the Crown Court (i.e., either-way or indictable only):
2. Senior office of at least superintendent rank authorizes
3. Officer has reasonable grounds for believing that this is necessary to secure, preserve or obtain evidence
4. Investigation is conducted diligently and expeditiously
12
Q
What procedure must police follow to detain suspect for 48 hours? Precondition? Maximum (with caveat)?
A
More than 36 hours = requires application to MC for warrant of further detention. Offence must be indictable or either-way.
Max of 72 hours if only one application is made; or 96 if a second further application is made.
13
Q
Three options for suspect that has been detained without charge for 96 hours?
A
- Charge
- Release unconditionally
- Release on police bail
14
Q
How often must a police of rank above inspector review the suspect’s detention to ensure detention remains lawful?
Effect of not carrying our reviews?
A
First time is no later than 6 hours after CO first authorized detention.
Subsequent reviews no later than 9 hours after previous review.
Detention will be unlawful until review takes place.
15
Q
What are the 2 (+3) conditions for suspending a suspect’s right to inform someone of their arrest?
Maximum period of suspension?
A
- Arrest is in connection with indictable offence
- **Inspector and above **authorizes delay on the basis that this will lead to **interference with or harm to **evidence, persons, other suspects, or recovery of property obtained as a result of the offence
No more than 36 hours from the arrival at the designated police station
16
Q
What right is created by S.58 of PACE 1984. What are the 2 (+3) conditions for suspending this right, and the maximum period of suspension?
A
Right to consult a solicitor privately at any time.
May be delayed if:
1. Arrest is in connection with an indictable offence; and
2. Officer of at least superintendent rank authorizes the delay on the basis that this will lead to interference or harm to evidence, persons, other suspects, or recovery of property obtained as a result of the offence.
No more than 36 hours from the arrival at the designated police station
17
Q
3 most common cases where free legal advice may be restricted to telephone advice provided by Criminal Defence Direct?
A
- Detention is for a non-imprisonable offence
- Driving while unfit
- Detained for breach of police or court bail condition
18
Q
Important consideration when dealing with an offender who is under 18 or mentally disordered?
A
CO must inform an appropriate adult as soon as possible about the detention and request the appropriate adult to attend the police station as soon as practicable.
Usual exception applies if police officer ranked superintendent or above authorizes it.
19
Q
Three important legal rights of a volunteer? What if police wish to prevent a volunteer from leaving the station?
A
- Legal representation’
- Be cautioned before being questioned
- Be informed they are not under arrest and can leave police custody at any time
Formal detention of the volunteer requires arrest (and they will become a suspect).
20
Q
Overarching consideration for defence solicitors?
A
Keep accurate and detailed contemporaneous notes about the involvement in the case from the moment they are contacted.
21
Q
3 to-do items on defence solicitor’s list on arrival of the police station?
A
- Speak with custody officer
- Check custody record (esp to identify the “relevant time” and reasons and authorizations for arrest / dtention without charge)
- Speak with the IOs and ask them to disclose all the evidence against the suspect
22
Q
What is the minimum standard of police disclosure to the defence solicitor?
A
Sufficient knowledge of the case to enable them to
1. Understand the nature of the offence
2. Understand why the client is a suspect, and
3. Effectively exercise the rights of the defence
23
Q
Key consideration for defence solicitor during police disclosure?
A
Identify if any evidence disclosed is: (i) weak; (ii) inadmissible; or (iii) open to challenge about the way the evidence was obtained
24
Q
All conversations between an IO and a suspect are a police interview. True or false?
A
False. An informal conversation between an IO and a suspect is permitted provided it does not relate to the offence under investigation (e.g. verifying someone’s identity).
25
What is the key question for the CO in deciding whether to interview a suspect?
Is the suspect fit to be interviewed? There is an ongoing duty to prevent the interview from starting or continuing if the CO considers that the interview would cause significant harm or distress to the interviewee's physical or mental state.
26
Summarize five key aspects of the defence solicitor's role.
1. Introduction (identify, explain representation is free)
2. Explain (evidence and reason for arrest)
3. Information-gathering from the client
4. Welfare assessment (healthcare professional needed?)
5. Advice, especially for police interview
27
What are the four options the client can choose during the police interview, based on the solicitor's advice?
1. Answer all questions.
2. No comment (but note adverse inferences may be drawn)
3. Selective answers (court may infer they have something to hide)
4. No comment + written statement setting out facts that they will rely on at trial (AIs should not be drawn if statement is comprehensive)
28
When must the IO caution the suspect?
At the start of the interview and whenever the interview recommences after a break
29
There are two types of cautions. What are the two key differentiating factors?
1. Whether or not adverse inferences can be drawn from silence, and relatedly,
2. whether or not the suspect has been offered and/or received legal advice
30
When is a recording of an interview compulsory? What two steps must the defence take with respect to the recording?
Whenever the interview is in connection with an indictable or either-way offence.
Defence must review the written summary of the recorded interview to check its accuracy: (1) if defence agrees, written summary will be part of evidence in the case; and (2) if defence disagrees, recording will be transcribed in full for use at trial
31
Overarching requirement of fairness in police interviews?
Police cannot abuse their position of trust by conducting the interview in an oppressive manner.
32
Must police officers always disclose their name during interviews?
Not if they reasonably believe that disclosure may put them in danger--they can alternatively use their warrant or other identification numbers and the name of their police station.
33
When can a solicitor be excluded from a police interview?
When the solicitor's conduct is UNREASONABLY OBSTRUCTING proper questions being put to the suspect or the suspect's response being recorded.
34
Four options open to police after an interview? How can defence solicitor influence these decisions?
1. Charge suspect if there is sufficient evidence
2. Divert suspect from prosecution by offering a caution
3. Detain suspect without charge to continue investigation
4. Release suspect on police bail
Defence solicitor is entitled to make representations to the police about what action should be taken in the case, and these must be recorded in the csutody record.
35
If suspect is not charged, what 3 options can police take after the interview?
1. Release without charge and on bail
2. Keep in police detention pending DPP decision
3. Release without charge and on bail if preconditions satisfied
4. Release without charge and without bail if preconditions for bail not satisfied
36
What are the 3 scenarios where the CO can make the charging decision instead of referring to the CPS?
1. **Summary-only** offence (including criminal damage if the value of loss/damage < GBP 5000), irrespective of plea
2. Attempted or actual **retail theft**, irrespective of plea, if it can be sentenced in a MC
3. **Either-way offence** which is (1) anticipated as raising a guilty plea (2) suitable for sentencing in an MC (3) not subject to any exceptions (e.g. GBH)
37
What are the 3 options where the CO has decided there is sufficient evidence to charge the suspect but the final decision needs to be taken by the CPS?
1. Detain in custody
2. Release without charge
3. Release on bail (conditional or otherwise)
38
Which 4 scenarios permit conditions to be attached to pre-charge bail?
Necessary to prevent suspect from
1. **failing to surrender to custody**
2. **Committing an offence while on bail**
3. **Obstructing course of justice** (e.g. interfering with witnesses)
OR
4. Conditions are necessary for **suspect's welfare**
39
What are the two possible time limits for pre-charge bail?
Substantive threshold?
Default is** 28 days**
May be extended by a maximum of** 3 months** if authorised by an officer of at least **superintendent rank**
Pre-charge bail may only be used if necessary and proportionate in all the circumstances-otherwise presumption is that people will be released without bail
40
3 most common situations where CO can refuse post-charge bail?
Reasonable grounds for believing:
1. Defendant will **fail to appear in court**
2. Arrest was for imprisonable offence and **detention necessary to prevent D from committing offence** OR Arrest was not for imprisonable offence but **detention necessary to prevent D causing physical injury or property damage**
3. Detention necessary to **prevent interference with administration of justice or witnesses**
41
What is the one situation where the defendant cannot be granted bail?
Charge of murder
42
Safeguard where bail is denied to a defendant in custody?
Must appear before a MC as soon as practicable
43
Once a suspect is informed he might be prosecuted, no further questions may be asked of him except in which 3 scenarios?
Interview necessary to:
1. prevent or minimise **harm or loss** to some other person
2. **Clarify ambiguity** in previous statement
3. Serve the **Interests of justice** because D should have the opportunity to comment on information concerning the offence which came to light since they were informed they might be prosecuted
44
What is the difference between a known and unknown suspect?
Known suspect - police have sufficient information to justify the arrest of a particular person for suspected involvement in an offence.
Unknown suspect - no particular person has been identified
45
What are two common ways that police may ask witnesses to identify an unknown suspect?
1. Take witness to a particular place
2. Show selection of photographs from the Police National Computer
46
Three safeguards when showing witness selection of photographs from Police National Computer?
1. Show 12 photos at a time depicting person of similar age, appearance and ethnicity to suspect
2. Avoid prompting or guiding the witness in any way
3. If witness makes a positive identification, no other witness can be shown the set and each witness should be asked to attend a parade
47
What is the consequence of showing a witness photos if the suspect is known and available?
This would render any formal identification procedure irrelevant and admission of evidence from that procedure may be challenged as unfair for breach of Code D / S,78 PACE.
48
When is an identification procedure mandatory (2 conditions)? Two exceptions?
1. Eyewitness believes they have identified a suspect at the crime scene
2. Suspect denies being the person allegedly seen by the witness
Exceptions where: (i) not practicable to conduct the procedure; or (ii) would serve no useful purpose
49
Four types of formal identification under Code D?
A. Video identification (must show at least 8 others)
B. Identification parades (at least 8 people in addition to, and resembling the suspect)
C. Group identification (does not require suspect's consent)
D. Confrontation
50
Six warnings / explanations of rights prior to conducting an identification procedure?
1. Free legal advice
2. Have a solicitor or friend present
3. Does not have to consent or cooperate but refusal can be used in evidence against them
4. Significant alterations of appearance may be used in evidence against them
5. Whether police showed any photographs or photofit before hand
6. Police can proceed covertly even if suspect refuses to cooperate
51
What should the defence do where police obtain identification evidence in breach of the Code?
Apply to exclude it under S.78 of PACE on the ground of unfairness.
Court will then decide if the admission of evidence would be so prejudicial on the fairness of the trial that it should be excluded.
52
Is suspect's consent required to take fingerprints?
No.
53
When can police take fingerprints away from the police station (2 conditions)?
1. Reasonably suspects that the person is committing or attempting to commit an offence, or has already done so
2. Officer cannot reasonably ascertain the name of the person
54
Four safeguards to take fingerprint or footwear without consent?
1. Only such reasonable force as is necessary
Suspect must be informed:
2. Why fingerprints are being taken
3. The grounds relied on to take fingerprints
4. Fingerprints may be retained and be the subject of a speculative search
55
What kind of offences permit the police to take forensic sample without consent?
Recordable offence: (i) conviction may be recorded in national police records and (ii) possible sentence of imprisonment upon conviction
56
In which 2 scenarios may a non-intimate sample be taken without consent?
1. Suspect is arrested and detained, or charged, in connection with a recordable offence and no sufficient or suitable sample has been taken
2. Suspect has been convicted or cautioned and since then, no suufficient or suitable sample has been taken AND an office ranked inspector or above has authorized the taking as necessary to assist in preventing or detecting crime
57
Five safeguards to take a non-intimate sample without consent?
1. Only use such reasonable force as is necessary
2. Reason for taking sample is disclosed
3. Grounds on which authority has been given are disclosed
4. Suspect informed that sample may be retained and subject of a speculative search
5. Record must be made of the reasons and any relevant circumstances (e.g. if force is used)
58
When may an intimate sample be taken without consent?
Never
59
Four requirements before taking intimate sample?
1. Authorized by a police officer of at least the rank of inspector
2. Officer has reasonable grounds for suspecting: (i) the person to be involved in a RECORDABLE offence; and (ii) the sample would confirm or disprove the suspect's involvement
3. Written consent must be obtained
4. Sample taken by healthcare professional
Solicitor should warn client that adverse inference may be drawn by magistrate or jury at trial if he refuses
60
What is facial mapping?
Comparing digital image to the suspect (usually using expert evidence on photographic technology and anatomical features_
61
3 situations where the police may decide the charge instead of the CPS?
1. Summary-only offence irrespective of plea (including criminal damage of less than GBP 5000)
2. Retail theft or attempted retail theft irrespective of plea, if suitable for sentencing by MC
3. Either-way offence anticipated as a guilty plea and suitable for sentence in a MC
62
What are the two considerations when the CPS (or the CO) decides whether to prosecute under the Full Code Test?
1. Sufficient evidence to provide for a realistic prospect of conviction
2. It is in the public interest to prosecute
63
Which 4 conditions must be satisfied to detain a suspect in custody even if there is insufficient evidence to charge him (Threshold Test)?
1. Insufficient evidence to apply the EVIDENTIAL STAGE of the Full Code Test
2. Reasonable grounds to believe that FURTHER EVIDENCE will be available within a REASONABLE period
3. SERIOUSNESS or circumstance of the case justifies making an immediate charging decision
4. There are CONTINUING SUBSTANTIAL grounds to OBJECT TO BAIL
64
At what juncture are the Threshold and Full Code Tests respectively applied?
Threshold Test must be continually kept under review to ensure that the charge is appropriate and the continued objection to granting bail is justified.
Full Code Test must be applied as soon as reasonably practicable and before the end of D's custody time limit,
65
Four considerations for the CPS when selecting charges?
1. Seriousness and extent of the offending
2. Give court adequate powers to sentence and impose postconviction orders
3. Allow a confiscation order to be made in appropriate cases (i.e. where D has benefited from criminal conduct)
4. Enable case to be presented in clear and simple way
66
What are the two out of court disposal options and what is the main difference between them?
Simple and conditional cautions.
Simple cautions are not available for most INDICTABLE offences (unless there are exceptional circumstances and the DPP consents)
67
Four common requirements for simple and conditional cautions?
1. Sufficient evidence for prosecution
2. Offender admits guilt
3. Public interest in giving a caution
4. Offender consents after being told that the caution may be cited in court if they offend in the future
68
What are two consequences of a conditional caution?
1. Failure to comply with conditions of the caution renders offender liable for PROSECUTION for the original offence
2. Conditional caution will form part of offender's RECORD and can be cited in future criminal proceedings
69
In which court(s) do offenders usually make their first court appearance?
Magistrate's court for Ds 18 and over (youth court, for those aged 17 and below)
70
Six considerations for defence lawyer at the outset of a criminal case?
1. **Funding** (representation order or private funding)
2. **Pre-trial disclosure** from the CPS
3. **Written evidence** from client
4. **Guilty plea** - advise based on prosecution evidence
5. **Indictment or summary trial** for either-way offences
6. **Court bail**
71
3-step procedure where the defendant pleads guilty for a summary offence?
1. Prosecutor tells magistrates facts of the case
2. Defence solicitor makes mitigation plea
3. Magistrate sentence (usually same day unless pre-sentence report required)
72
3-step procedure where the defendant pleads not guilty for a summary offence?
1. Fix trial dates
2. Issue case management directions on Preparation for Effective Trial Form
3. Whether to release on bail or remand in custody, if case is adjourned
73
What is the main procedural difference when the defendant is charged with an indictable only offence vs an either-way offence?
Indictable offences are sent directly from the MC to the Crown Court for trial.
Either-way offences begin with the PbV (Plea before Venue)
74
When may summary offences be sent to the Crown Court?
1. Must arise out of circumstances which are the same as or connected with those giving rise to the indictable-only offence
AND
2. Punishable with imprisonment OR
3. involve disqualification from driving
75
What are the two tests that apply for publicly-funded legal representation?
1. Interests of Justice test
2. Means test
76
How does the specific charge affect the interests of justice test?
If the offence is indictable-only and sent to Crown Court, automatically satisfied
If the offence is summary-only or either-way, then the interests of justice criteria must be considered (e.g. possible damage to D's reputation or livelihood)
77
Which applicants automatically qualify for the means test (3 criteria)?
1. Under 18
2. Receiving main welfare benefits
3. Applicants with income under a certain threshold, who do not own a house and have no savings/investments
78
When is a partner's income not included in the means assessment?
When the partner has a contrary interest in the dispute in respect of which the application is made
79
What happens if the client's application fails the interests of justice test?
Can submit further application, and then an appeal to the MC
80
What happens if the client's application fails the means test?
No right of appeal, but can ask for: (i) reassessment if circumstances have changed or (ii) recalculation if applicant thinks error has been made
81
3 special considerations if Welsh language proceedings are involved?
1. Party may need to give **advance notice** if they plan to speak Welsh, in non-MCs
2. Court will arrange and fund **Welsh interpreters**
3. Court will inquire about **D's language preference **during the plea and case management stage and set deadline for response
82
When is D’s bail usually first dealt with? What if the CPS objects?
At the end of their first court appearance in the magistrates’ court.
If the CPS objects they will usually do so after court adjourns proceedings, and a contested bail hearing will be held (mini trial with relaxed rules of evidence).
83
What is the procedure for bail decisions in murder cases?
Can only be made by a Crown Court judge (magistrates cannot grant bail in murder cases).
84
What is the procedure for bail decisions in murder cases?
Can only be made by a Crown Court judge (magistrates cannot grant bail in murder cases).
85
Significance of Section 4 of Nail Act 1976?
All defendants have a prima facie right to bail regardless of the offence, unless D’s charge or prior conviction involves certain serious offences (murder, manslaughter, rape) in which case bail is only granted in “exceptional circumstances”
86
Four situations where the presumption in Section 4 of Bail Act does not apply?
1. D charged with or previously convicted of serious offences like murder
2. Police bail, when D charged at police station
3. After conviction in the MC where D appeals
4. After conviction in MC where D committed to Crown Court for sentence
87
What are the 5 main grounds for refusing bail to a defendant charged with an offence?
SUBSTANTIAL grounds for believing that D would, if released on bail:
1. Fail to surrender to custody
2. Commit an offence while on bail
3. Obstruct the course of justice (including by witness interference)
4. For his own protection or welfare
5. Already in custody in respect of any sentence
88
What are the the 5 “paragraph 9” factors that the court must apply in considering whether to withhold bail?
1. Nature and seriousness of offence and probable method of dealing with it
2. D’s character, record and associations
3. Bail record
4. Strength of evidence
5. Risk that D would commit offence while on bail
89
What are the the 5 “paragraph 9” factors that the court must apply in considering whether to withhold bail?
1. Nature and seriousness of offence and probable method of dealing with it
2. D’s character, record and associations
3. Bail record
4. Strength of evidence
5. Risk that D would commit offence while on bail
90
What are the 4 permissible grounds for applying conditions to a grant of bail?
1. Ensure surrender to custody
2. Ensure D does not commit further offences
3. Ensure D does not obstruct the course of justice
4. For D’s own protection
91
What are the 4 permissible grounds for applying conditions to a grant of bail?
1. Ensure surrender to custody
2. Ensure D does not commit further offences
3. Ensure D does not obstruct the course of justice
4. For D’s own protection
92
Consequence of breaching bail conditions?
Can be arrested and must be brought before a magistrate within 24 hours (unless court does not sit on that day).
Not a criminal offence but may result in enhanced conditions and revocation of bail / reinstatement of custody.
93
What procedural safeguards must court observe when withholding bail?
1. Announce reasons in open court
2. Provide written notice setting out reasons
3. Issue full argument certificate
94
Two procedural options if your client is refused bail by the MC? What happens in the meantime?
1. Only allowed one further application to the MC UNLESS change of circumstances
2. Appeal to the Crown Court
D may be remanded up to 28 days without their consent if the MC so decided.
95
What are the four consequences where prosecution appeals a bail decision by the MC?
1. Must give oral notice of appeal before D released from custody
2. Confirm oral notice in writing within 2 hours from end of proceedings
3. Remand D in custody pending appeal
4. Crown Court must hear appeal as soon as practicable and no later than 2nd business day after appeal notice served
96
Your client has been charged with an indictable-only offence. Advise him on the venue and purpose of his first court appearance.
First court appearance will be in the MC, either in-person or video-link form police custody or prison.
Purpose is to take D's guilty or not-guilty plea.
97
Your client has been charged with an indictable-only offence. What 3 things happen next if he pleads not guilty?
1. Complete case management questionnaire before the PTPH (disputed issues, agreed evidence, number of witnesses)
2. Decide whether to release D on bail or remand in custody
3. MC will send case to CC and set PTPH date
98
What is the medium of pre-trial disclosure by the prosecution? Content? Deadline?
Prosecution will serve the "case sent" bundle on D.
Contains draft indictment and both used evidence (e.g. witness statements) and unused evidence (S.3 CPIA 1996)
50 days if D is remanded in custody and 70 days if D is on bail
99
What is the extent of the CPS' duty to disclose unused evidence?
Must disclose any evidence which might be reasonably considered as: (i) undermining prosecution case or (ii) assisting defence case, either with case sent bundle or subsequently
Continuing duty on prosecutor to keep under review the question of whether any undisclosed material meets the prosecution test, and to disclose if so, until conclusion of trial.
100
Upon receiving the case sent bundle, what must the defence do next (2 things + deadline)?
Within 28 days of receiving case sent bundle:
1. Serve defence statement on the court and prosecution, setting out nature of defence, factual premise, and any points of law
2. Notify whether intend to call witnesses
101
What options does defence have if it cannot prepare defence statement within 28 days?
Must file for extension before time limit expires (court's discretion-only if satisfied that D cannot reasonably give a defence statement within the specified time)
No power to extend time for service once 28 days have expired
102
What is the next procedural obligation on the prosecution after the case sent bundle (and before the PTPH)?
Serve a draft indictment on the CC not more than 20 business days after service of the case sent bundle.
Indictment = charges D will plead to at PTPH + principal parts of the case against defendant + availability of prosecution witnesses
103
At the PTPH, D will be arraigned. What happens if he pleads guilty (1 step)? What happens if he pleads not guilty (5 decisions)?
Guilty = sentenced on the same day if possible (usually with pre-sentence report)
Not guilty = (1) set trial date; (2) identify issues to be decided at trial; (3) timetable that sets out issues to be decided before trial; (4) make case management directions
104
What is a pre-trial ruling?
Judge may make binding rulings at the PTPH relating to the **admissibility of evidence and questions of law**, in preparation for a Crown Court trial.
105
When will multiple charges be tried together?
Where:
(1)
a. D is charged with more than one offence OR
b. there are multiple defendants on separate written charges
(2)
a. D agrees to charges being tried at the same time OR
b. Court orders because: (i) it is in the interests of justice to do so AND (ii) the offences comprise part of a series of offences of the same or similar character
106
What are the 2 scenarios in which a visual recorded interview is most commonly used as a witness' evidence in chief? What are the two exceptions?
1. Adult complainant in sexual offence trial (usually where V is vulneravle or intimidated)
2. Child witnesses
Exceptions: (1) not in the interests of justice or (2) would not maximise the quality of the complainant's evidence
107
Deadline to apply for witness special measures under YJCEA?
10 business days after D enters not guilty plea
108
What happens if D pleads NG at the PTPH and changes plea to G on the day of the trial?
What's the difference if D pleads NG during his first court appearance and changes plea to G at the PTPH?
Prosecution decides whether to accept the plea. If accepted, court proceeds to sentence. If not accepted, jury is empanelled and trial is held.
No difference.
109
When can D change plea from NG to G?
Any time during trial-even immediately before court passes sentence?
110
When does the CJA 2003 permit trial to be conducted without a jury (3 requirements)?
What if one side objects?
1. Real and present danger of jury tampering
2. Jury has already been discharged because of jury tampering
3. Risk of jury tampering so substantial that it is necessary in the interests of justice for the trial to be conducted without a jury
Can appeal to the Court of Appeal
111
What is the threshold for competency to give evidence? 1 special exception?
Witness can understand the questions put to them and provide understandable answers.
Defendant is not competent to give evidence in proceedings for the prosecution.
112
How is a child's competence to give evidence determined?
By understanding, not age. But presumptions apply: over 14 is presumed competent to give sworn evidence and under 14 is presumed competent to give UNSWORN evidence
113
When D's spouse or civil partner compellable to give evidence for the prosecution?
Generally not compellable EXCEPT where
(1) D is charged with an assault on, or injury or threat of injury to, the SPOUSE OR CIVIL PARTNER
(2) D is charged with an assault or sexual offence against a PERSON UNDER 16
114
When is a witness permitted to refresh their memory from a document or transcript during EIC? (3 requirements)
1. Document **made or verified** by the witness on an earlier occasion
2. Witness states in** oral evidence** that the document records their recollection about the matters under testimony
3. Recollection of matters at the time document was made/verified likely to have been **significantly better **than at the time of oral evidence
115
Distinguish unfavourable and hostile witness
Unfavourable = witness cannot recall a fact about their testimony even after refreshing memory
Hostile = witness does not give the answers expected of them / in support of the party calling them
116
Two options where witness is ruled hostile?
Advocate can either (1) cross-examine the witness or (2) ask the witness if he has made an earlier statement inconsistent with their present oral testimony
117
When can you use written statement as evidence even where witness gives admissible oral evidence on it?
Where (1) witness adopts earlier written statement as evidence or (2) written statement is proven against them
118
Two roles of re-examination?
1. Cannot introduce new matters which they omitted to ask during EIC
2. Cannot ask leading questions
119
When can D make a submission of no case to answer, and who decides?
At the close of the prosecution case.
Decision made by judge in the absence of the jury
120
When does the defence have the right to make an opening speech?
Where the defence intends to call evidence other than, or in addition to, D's testimony
121
What is the threshold for a majority verdict by the jury? Can a majority verdict convict the defendant?
11:1 for a 12-man jury and 10:1 or 9:1 for a jury below 12 men
Yes, D can be convicted or acquitted by majority verdict
122
3 procedural safeguards for majority verdict?
1. Jury retired for at least TWO HOURS or such longer period as is reasonable in the circumstances
2. Judge may send jury out for a further period if jury states that unanimous verdict not possible
3. If judge decides they are willing to accept majority verdict, jurors should be directed that they should continue to seek unanimous verdict but if not, majority verdict will be accepted
123
What if jury cannot even reach a majority verdict?
Jury is discharged. CPS decides whether there should be a retrial before a different jury.
124
125
Four procedural steps pre-sentencing, if a defendant is found guilty after pleading NG?
One optional step?
Prosecutor will: (1) read victim impact statement; (2) refer to previous convictions; and (3) ask for ancillary orders (legal costs, compensation order)
Defence will (4) make mitigation plea
Court may request pre-sentencing report if one is not available-case will be adjourned and D will either be remanded in custody or released on bail.
126
What is the one procedural diff between sentencing after guilty plea vs sentencing after NG plea?
Prosecution needs to outline facts of the offence, which court may not be familiar with if D did not claim trail
127
When does a Newton hearing occur?
Where D: (1) pleads guilty but (2) disputes the version of the facts put forward by the CPS, the court must either accept D's version of events or hold a Newton hearing to decide the true facts on which D's sentence is based
128
Newton hearing - burden of proof, standard of proof, and consequences?
Burden of proof - prosecution
Standard of proof - beyond reasonable doubt
Consequences - D's sentencing credit for pleading guilty will be reduced if the prosecution's version is believed
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What are two compulsory considerations and two aggravating factors when determining seriousness of an offence?
1. Offender's culpability
2. The extent of any actual, intended or foreseeable harm to V or others
May also consider as aggravating factor:
3. Previous convictions if court considers it reasonable to do so
4. Offences committed while on bail
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What is the fundamental principle of the Sentencing Act 2020?
A sentence should not be more severe than the seriousness of the offence requires.
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What are the four levels of criminal culpability identified by the Sentencing Council?
1.** Intention** to cause harm
2. **Reckless **as to whether harm is caused (knows at least some harm would be caused but proceeds anyway)
3. **Knows **the risks but does not intend to cause the harm that results
4. **Negligence**
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Three aggravating factors for culpability
1. Deliberately causing more harm than necessary
2. Targeting vulnerable victim
3. Extent to which D foresaw harm
133
Three guidelines to give client when advising him on likely sentence.
1. Sentencing range
2. Aggravating factors vs mitigating factors
3. Sentencing discount for guilty plea
134
What are the two situations where a Crown Court will sentence an offender?
1. Offence is indictable-only
2. Offence is either-way but MC decides to commit to the CC because it considers its sentencing powers insufficient having regard to the seriousness of the offence
135
What is the purpose and effect of a PSR?
A Pre-Sentence Report proposed what the probation service considers to be the most appropriate sentence for the offender, consistent with any sentencing aims expressed by the court.
Court is not bound to follow the PSR's proposal.
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What is the custody threshold test set out in Section 230 of the SA 2020?
The offence (alone or in combination with other associated offences) was so serious that neither (1) a fine nor (2) a community sentence can be justified.
137
What is the maximum custodial sentence the MC can impose?
Six months per offence OR
a maximum of 12 months in aggregate for 2 or more either-way offences
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What is the principle of totality and what is its main consequence?
For multiple offences, court's total sentence should reflect all of the offending behaviour before it in a just and proportionate way.
Main consequence: concurrent sentence usually longer than sentence for a single offence
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When can the court suspend a custodial sentence?
If the AGGREGATE custodial sentence is AT LEAST 14 DAYS and NO MORE THAN TWO YEARS
140
When can the MC suspend a custodial sentence?
Always. Custodial sentences can be suspended so long as they are between 14 days and two years, and the max sentence a MC can give is 6 or 12 months.
141
What are the 2 situations when a suspended custodial sentence may be activated?
1. D fails to comply with any requirements imposed OR
2. D commits a further offence and sentencing court decides to also activate the original suspended custodial sentence
142
What is an alternative to a suspended sentence?
A deferred sentence of up to 6 months, so court can observe D's conduct and any change in his circumstances.
143
Two requirements before a community sentence can be imposed?
1. Court must be of the opinion that the offence (alone or in combination with associated offences) is SUFFICIENTLY SERIOUS
2. Offence must be PUNISHABLE WITH IMPRISONMENT
144
3-stage process of dealing with breaches of community sentence?
1. 1st breach - Probation Service issues warning that further failure will result in breach proceedings
2. Subsequent breach - Probation Service applies for community order to be revoked by requiring offender to be returned to court
3. Court can impose fine, new requirements or prison sentence < 6 months
145
What is the test for imposing a fine?
Offence is not serious enough to justify custody or a community sentence
146
What powers do the MC and CC respectively have to impose a fine?
Subject to any limit (in the Sentencing Guidelines for the MC, and legislation creating offence for the CC), both the MC and the CC can impose an unlimited fine
147
Two requirements for appeal to the Crown Court?
1. Appeal must be by the defendant (prosecution cannot appeal from MC to CC)
2. Written notice of appeal must be sent to the MC that heard the case within 15 business days of the conviction and/or sentence (unless time limit is extended), stating whether appeal is against conviction, sentence or both
148
Who hears criminal appeals to the CC? What is the standard of review?
What if appellate judges disagree?
Complete rehearing before a CC judge sitting with 2-4 lay magistrates
Cases may be decided by a simple majority
149
Four options open to CC upon an appeal from the MC? What is the maximum sentence if D fails?
1. Confirm
2. Vary
3. Reverse
4. Send back to MC with its opinion on the case
CC can impose any sentence that was available to the MC (can be more severe than the original sentence)
150
Three features of an appeal by way of case stated?
Time limit?
1. Made from a decision of the MC or CC to the Divisional Court High Court)
2. Ground of appeal is: (1) error of law or (2) excess of jurisdiction
3. Relates to matters of law, evidence or procedure
Applicant (whether P or D) must apply in writing within 21 days from end of trial, requiring magistrates to state a case for the Div Court's consideration
151
3 prerequisites for appealing from CC to CA (Criminal Div)?
1. Must obtain **leave** (either from the trial judge or the CC)
2. If the trial judge has not given leave, must apply within **28 days **of conviction or sentence with a notice of application for leave, plus draft grounds of appeal
3. If appealing against conviction, **transcript** of part or whole of trial proceedings should be provided
152
What is the threshold for a successful appeal to the CA against conviction? Four disposal options?
The conviction must be UNSAFE. Can:
1. Quash and order acquittal
2. Quash and order retrial
3. Find appellant guilty of alternative offence
4. Allow part of appeal
153
What is the threshold for D to successfully appeal to the CA against sentence?Two disposal options?
1. Wrong in law
2. Wrong in principle or manifestly excessive
CA can:
3. quash any sentence or order
4. Impose any sentence/order available to the CC BUT appellant should not be dealt with more severely than at the CC
154
Describe the A-G reference procedure. Time limit?
Where the A-G, with leave of the CA, refers to the CA any sentence passed by the CC that the A-G believes is unduly lenient (i.e., outside the range of sentences which the judge could reasonably consider appropriate if he applied his mind to all the relevant factors)
28 days from the date of sentence.
155
3 criteria for the prosecution to appeal to the CA against a terminating ruling at first instance?
3 grounds of appeal?
1. Trial is on indictment
2. Trial cannot otherwise be subject of an appeal to the CA
3. Terminating ruling = no case to answer, stay based on abuse of process
CA can reverse ruling if:
1. Wrong in law
2. Involved error in law or principle
3. Ruling was mot reasonable for the court to make
156
2 criteria for prosecutor to apply to CA for a retrial? When must CA order a retrial?
1. Defendant has been acquitted
2. Of a qualifying offence (generally, one that carries a sentence of life imprisonment)
Retrial must be ordered if:
3. There is new and compelling evidence AND
4. It is in the interests of justice to make the order
157
In what situations would you ask the MC to reopen a case? Time limit?
1. Case would otherwise need to be appealed to CC, or assessed by HC (case stated or JR)
2. Interests of justice for case to be reopened
No time limit, but unreasonable delay relevant to interests of jusitce test.
158
What are the two requirements for recourse to the CCRC? Consequence if successful?
1. D exhausted all avenues of appeal
2. D lost the initial appeal
CCRC can refer both convictions and sentences to the appeal court (i.e., if imposed by CC, refer to CA; if imposed by MC, refer to CC)
159
When may CC send case back to the appeal court?
1. Real possibility the appeal court will reduce original sentence
2. Arises from evidence or legal arguments not previously presented (save in exceptional circumstances)
3. Applicant already attempted unsuccessful appeal (save in exceptional circumstances)
160
When is JR against an MC decision appropriate instead of an appeal?
1. Excess of jurisdiction
2. Breaching rules of natural justice
3. Grounds for suspecting bias
161
When should a police officer treat a suspect as a juvenile?
Must treat as juvenile if:
1. Suspect appears to be under 18 AND
2. Suspect either: (i) refuses to give their age or (ii) the officer believes the age the person has given is incorrect
162
3 precautions the custody office must take when dealing with a juvenile?
1. Identify **needs and vulnerabilities**
2. Identify person with **parental responsibility** and: (i) inform them of the circumstances of the arrest; and (ii) ask them to attend immediately
3. Should not be placed in a **cell** unless no other secure accommodation is available (and never with an adult)
163
What is the last-resort appropriate adult? Why can't it be a solicitor?
A community volunteer aged 18 or over who is not employed by the police.
Conflict of interest between role as legal advisor and role as appropriate adult.
164
What two additional public interest considerations apply when deciding whether to prosecute a defendant under 18?
1. D's **best interests and welfare** (e.g. disproportionate impact on future prospects)
2. Principal aim of **preventing offending **by young people
165
3 additional considerations where CPS decides to charge a young person?
1. Must charge in the presence of the **appropriate adult and solicitor**
2. Bail decisions - additional criteria where **it is not in D's interests to be granted bail**
3. D will be moved to **local authority accommodation** if police bail is refused
166
2 considerations when advising a youth on legal costs?
1. Police Advice and Assistance scheme will be free of charge
2. If charged, lawyer needs to apply for a representation order ASAP - will be granted because Ds under 18 automatically meat the IoJ and means tests
167
Two additional factors at the commencement of court proceedings against a youth?
1. Strong presumption they will be tried and sentenced in youth court
2. If under 16, parent or guardian present unless the court considers it unreasonable
168
When will a young D's first appearance be in the adult magistrate's court?
Where the offence he is charged with is connected with a **charge against an adult** (e.g. aiding and abetting, jointly charged)
169
When is a young person entitled to unconditional bail?
Entitled to unconditional bail unless court considers that grounds exist for: (1) imposing bail conditions or (2) refusing bail
170
How are most young offenders tried? What about indictable-only offences?
Usually tried: (1) summarily and (2) in the youth court
Same presumption applies even for indictable-only offences EXCEPT for homicide, firearms offences, or "grave crimes" (carrying a 14-year imprisonment term for adults)
171
What is the maximum custodial sentence the youth court can impose?
24 months
172
Wheh is D's age determined for purposes of selecting the trial mode?
Age determined at the START of proceedings
173
If a 17 year old is charged with an offence, but turns 18 before his plea is taken at his first hearing, how will the court proceed?
The court MUST remit to the MC or the Crown Court if indictable-only.
The youth court has no jurisdiction over an offender who turns 18 prior to commencement of proceedings.
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If a 17 year old is charged with an offence, but turns 18 after he pleads not guilty at his first hearing, how will the court proceed?
The youth court may either: (i) continue dealing with the case or (ii) exercise its discretionary power to remit the person for trial to the adult MC
175
If an ex-juvenile is remitted to the MC, when will a Crown Court trial occur?.
Same rule as for adults i.e. (1) where he is charged with an either-way offence and chooses Crown Court trial or (2) where he is charged with an indictable-only offence and the MC sends the case to the CC
176
Why would an ex-juvenile try to avoid remission to the adult courts after turning 18 and before his conviction?
Adult courts cannot impose youth sentences, only adult sentences and procedures.
In contrast, if the sentence is retained, the youth court may give a youth sentence.
177
Can a convicted juvenile who turns 18 after his conviction but before his sentence receive a youth sentence?
Yes.
178
3 key differences between youth court and adult court criminal trials?
1. Magistrates sit at the same level
2. Not open to the public
3. Before disposal, the chair of the Bench will ask D whether he understands the reasons and the effects of his offending
179
What 3 Sentencing Guideline considerations are key when sentencing youths, and which is the starting point?
1. Starting point - seriousness of the offence
2. Principal aim of preventing offending and reoffending
3. Offender's welfare
180
What is the maximum period of deferral for a youth sentence? Two permissible purposes
6 months.
1. Because of an imminent and significant change in the young person's lifestyle
2. To allow the young person to save up to pay compensation to the victim
181
What does a referral order involve?
A Youth Offender Panel will meet with the young person and his parent/guardian to agree a "contract", consisting of an intervention programme.
182
Difference between a mandatory and discretionary referral order?
A mandatory order must be imposed on a: (i) FIRST TIME offender (ii) who pleads GUILTY (iii) to an offence that is not suitable for a custodial sentence or any of the other prescribed disposals.
A discretionary order may be imposed on a youth where: (i) they have pled guilty (ii) to at least one of the offences for which they are being sentence (iii) after taking into account his age, the seriousness of the offence and previous convictions
183
Length of a referral order? Can it be combined with other orders?
3-12 months. Often combined with a compensation order.
184
What kind of discharges may a youth offender receive? How common are discharges as a disposal method?
Discharges are rare in practice.
Usually conditional - no offences can be committed during the operational period which may be up to THREE YEARS; otherwise they may be punished for both offences
185
What is a reparation order and when can it be imposed?
Requires offender to undertake UNPAID work for the victim or their wider community. Can only be imposed for IMPRISONABLE offences.
186
What are the 3 conditions for a Youth Rehabilitation Order to be imposed?
1. Must include at least one requirement that targets the four sentencing requirements
2. The seriousness test must be satisfied
3. The offence does not satisfy the criteria for a compulsory referral order
187
Maximum duration for a Youth Rehabilitation Order?
3 years but can be extended for up to six months
188
4 criteria for a Detention and Training Order to be imposed?
1. **Custody threshold **- neither a fine alone nor a community sentence can be justified
2. Court must give reasons why a **YRO** with ISS or a fostering requirement cannot be justified instead
3. Not available if offender is under 12
4. Only available for offenders under 15 if court views them as a **persistent offender**
189
What is the easiest way to remember the permissible DTO durations?
Any EVEN number between 4-24 months
190
Where is a DTO served?
1. First half is in an institution
2. Second half is under supervision in the community
191
Can a Crown Court sentence a young offender?
Yes, but it is supposed to remit the offender to the youth court for sentencing unless it is UNDESIRABLE to do so (usually concerns efficiency issues - delay, duplication etc).
| In practice, youths are often sentenced in the crown court as judges are
192
A suspect's mother calls you as her son has been arrested. What is a very important ethical consideration?
You must expressly check with the client and take instructions personally before beginning to act, to avoid breaching the rules on Third Party Instructions
193
# 1.
What is the main ethical concern when considering acting for joint defendants (2 scenarios)?
If their interests conflict (because they give conflicting accounts, or blame one another), you should decline to act for one of them and suggest he obtain separate legal advice.
But if the conflict only arises after you begin to act for both clients, you should withdraw from representation entirely.
194
When can you continue to act for a client who admits his guilt to you but enters a NG plea?
Where the defence is merely putting the prosecution to proof and not putting forward an active defence. Otherwise, you would be misleading the court!
195
What 2 precautions must you take if you see that the list of convictions for your client is inaccurate?
1. Do not indicate agreement with the list - constitutes misleading the court
2. If you alert the court to the inaccuracy, must obtain the client's consent to avoid breaching confidentiality
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