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FLK2 > criminal litigation > Flashcards

criminal litigation Flashcards

1
Q

what are the 3 gateways to allow bad character for non-defendants?

A

1) important explanatory evidence
2) substantial probative value to the case as a whole
3) if all parties agree evidence is admitted

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2
Q

when is evidence important explanatory evidence (for bad character both D and non-D)?

A

a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
b) its value for understanding the case as a whole is substantial

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3
Q

what are the gateways for bad character for D?

A
  • agreement
  • blurts it out = evidence adduced by D
  • context (important explanatory evidence)
  • done it before = propensity and important issues between P and D
  • E’did it = co-defendants
  • false impression
  • gets at the witness
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4
Q

if the issue is the credibility of a witness - which gateway can their bad character go through?

A

substantial probative value (in relation to their credibility as a witness) which is a matter of substantial importance in the context of the case.

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5
Q

what does S78 PACE allow?

A

allows the court to exclude evidence if its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

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6
Q

when must a confession be excluded?

A
  • obtained via oppression
  • made as a consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by D.
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7
Q

what is the time limit for the prosecution evidence of D’s bad character in the magistrates court and the crown court?

A

magistrates: not more than 20 business days after D pleads not guilty
crown: not more than 10 business days after D pleads not guilty

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8
Q

what does S116 hearsay allow? (DIALS)

A

Dead
Ill
Abroad
Lost
Scared

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8
Q

what are the statute exceptions to the general rule on hearsay? (there are 4)

A

unavailable witness (s116)
Docs (s117)
previous inconsistent statements
previous consistent statements

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9
Q

what are the common law exceptions to the general rule on hearsay? (there are 5)

A

o Public information (including published works and public records)
o Reputation as to character
o Res gestae (spontaneous statement when emotionally overpowered)
o confessions (if not excluded under PACE)
o Expert evidence

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10
Q

when would you use the hearsay exception of previous consistent statement?

A

to rebut a suggestion of recent fabrication or as recent complaint evidence

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11
Q

what is the common law exception of hearsay (res gestae)?

A

the person was so emotionally overpowered by an event that the possibility of concoction or distortion is disregarded. this is particularly important for domestic violence cases

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12
Q

how much can a crown court increase a sentence that has been appealed from magistrates?

A

The Crown Court has the power to impose any sentence, as long as it is a sentence which the magistrates’ court had the power to impose

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13
Q

what are the powers of the crown court for sentencing from an appeal?

A

can confirm, reverse or vary the sentence up to the maximum sentence allowed in the magistrates court

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14
Q

if a D refuses their right to a solicitor - who has to authorise it and how is it done?

A

needs to be given by an officer not below the rank of an inspector (written authority)

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15
Q

if a D is 14 years old and they are on trial for a robbery offence - what court must they be tried in?

A

robbery is a grave crime and can be tried in either the Youth Court or the Crown Court, although it will only be tried in the Crown Court if there is a real prospect of the client receiving a custodial sentence of over two years.

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16
Q

when is a prisoner likely to be released from prison? (sentencing)

A

a prisoner will generally be released after serving half their sentence. he will be released on licence and will be under the supervision of the Probation Service during the licence period.

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17
Q

when is a spouse/civil partner compellable to testify against each other?

A

general rule is they cannot unless it involves domestic violence or child abuse

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18
Q

if the defence believe the prosecution has not presented sufficient evidence for a reasonable court to convict - what can they do?

A

they can make a half time submission of ‘no case to answer’ to request the court to acquit the D.

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19
Q

what is the jury’s role and what is the judge’s role in court?

A

judge determines the admissibility of evidence and instructs the jury on the law, whilst the jury decides on the facts and the D’s guilt

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20
Q

what type of questioning is allowed in examination in chief?

A

open questions - should avoid leading questions that suggest the answer because leading questions can make the evidence seem less credible as they guide the witness to a specific response rather than allowing the witness to provide their own account

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21
Q

what type of questioning is allowed in cross examination?

A

leading questions are typically permitted during cross-examination to test the credibility and reliability of the witness’s statements. The purpose of cross-examination is to challenge and scrutinise the testimony given during the examination in chief.

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21
Q

when can a court grant special measures to a vulnerable witness?

A

court can grant special measures to ensure that a vulnerable witness, such as someone with a learning disability, can give their best evidence.

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22
Q

when can a court grant special measures for a witness?

A

if it believes that these measures are necessary to improve the quality of the witness’s evidence.

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23
Q

what happens if the prosecution prove their version of facts beyond reasonable doubt at a Newton hearing?

A

the defendant will be sentenced passed on the prosecution’s version of events. as a result the D loses some of the credit they would have received for pleading guilty, as their plea didn’t save as much court time and resources.

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24
Q

what happens if a D breaches the conditions of a suspended custodial sentence?

A

the court has the discretion to activate the suspended custodial sentence in party or in whole, having regard to the extent of the D’s compliance prior to the breach.

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25
Q

what is a Newton hearing?

A

it is designed to resolve the factual dispute in the case where D has pleaded guilty but disputes facts that make a material difference to the sentence

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26
Q

what is the result if the prosecution fail to prove their version of facts beyond reasonable doubt at a Newton hearing?

A

the court is required to sentence the D based on the D’s version of events set out in their basis of plea

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27
Q

when the court imposes a fine what must they consider?

A

court must taken into account the offender’s financial circumstances and can permit the fine to be paid in instalments if immediate payment is not feasible

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28
Q

what is the role of a Judge in a Newton hearing?

A

judge acts as the arbiter of both law and fact, deciding whether prosecution has proved their version of the facts beyond reasonable doubt.

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29
Q

what is the standard for community order?

A

serious enough

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30
Q

what is the standard for a custodial sentence?

A

so serious that neither community order nor fine would be justifiable

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31
Q

what are common aggravating factors?

A
  • previous convictions
  • offences committed whilst on bail for other offences
  • racially or religious aggravated
  • hostility to sexual orientation or V’s disability
  • under influence of alcohol or drugs when committing offence
  • planning of an offence
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32
Q

what are common mitigating factors for sentencing?

A
  • greater degree of provocation than normally expected
  • mental illness or disability
  • youth or age (where it affects responsibility of the individual defendant)
  • fact that offender played only a minor role in offence
  • good character and/or lack of previous convictions
  • any personal mitigations
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33
Q

what are the 5 purposes of sentencing adults (aged over 18) at the date of conviction?

A
  1. Punishment of offenders
  2. The reduction of crime (including its reduction by deterrence)
  3. The reform and rehabilitation of offenders
  4. The protection of the public
  5. The making of reparation by offenders to persons affected by their offences
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34
Q

what must the judge decide when deciding on totality of sentencing?

A

When sentencing for more than one offence the judge must decide what the total sentence should be and arrive at one that is ‘just and proportionate’

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35
Q

what is the max amount of time that a court can defer a sentence?

A

can defer a sentence for up to 6 months

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36
Q

what are the rules related to indication of sentence in the magistrates court?

A

Court doesn’t have to give indication but if it does just say whether sentence would be custodial or non-custodial. It ONLY binds if D pleads guilty.

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37
Q

what are the rules related to indication of sentence in the crown court?

A

D can ask for indication either BEFORE PTPH or at any stage of the proceedings before jury return verdict. indication is discretionary and remains the decision of the judge

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38
Q

what is the max amount of fines in the magistrates court?

A

set on a standard scale from level 1 (£200) to level 5 (unlimited)

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39
Q

what happens/consequences if D fails to pay a fine?

A

If D fails to pay fine they can be brought back before magistrates court (doesn’t matter if fine was given in crown court) and as a last resort D can be sentenced to a period of imprisonment for defaulting

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40
Q

if a D is convicted in the magistrates court and appeals to crown court can they apply for bail and what is the procedure?

A

yes they can, d must apply to bail in the magistrates court first. if bail is refused, then D may be able to apply to the crown court.

41
Q

what is the time limit for lodging a notice of appeal against the conviction in the crown court?

A

notice of appeal must be lodged within 28 days of the conviction

41
Q

what is the slip rule for sentencing?

A

allows the Judge who passed the sentence to correct errors within 56 days of sentencing.

42
Q

what must be included in the notice of appeal?

A

the conviction, sentence, order or decision being appealed, a summary of the issues, and the parties on whom the appeal notice has been served.

43
Q

what are the 3 means of challenging open to D from magistrates court (appeal)?

A

a) Appeal to CC, by way of re-hearing
b) Appeal to high court, by way of case stated, or
c) Application to high court for judicial review of the decision

44
Q

what is the deadline to appeal for judicial review?

A

3 months - but must be lodged promptly (failure to lode promptly can lead to application being rejected even when lodged within 3 months)

45
Q

when does a youth need to have their trial in CC (if acting alone)?

A
  • If charged with homicide (manslaughter or murder)
  • If notice has been given in respect of serious or complex fraud case or child case
  • If fall under dangerous offender provision
  • Firearm offence
46
Q

what is a primary concern a judge should think of when deciding whether to remit a case back to youth court?

A

judge must balance the need for the specialised expertise of the youth court in dealing with young offenders against any benefits of the sentencing being carried out by the court that determined guilt.

47
Q

when should a person not act as an appropriate adult? (youths)

A

person shouldn’t act as an AA if they are involved in the investigation or if they have received admissions prior to attending to act as the AA

48
Q

what is the key role of an appropriate adult (youths)?

A

AA’s role is to safeguard the interests of the juvenile, which includes upholding their rights and facilitating communication during the police interview process. AA shouldn’t disclose confidential info unless juvenile consents to disclosure

49
Q

when a youth is jointly charged with an adult - where is their first hearing?

A

magistrates court - court then considers whether Ds should be tried together or separately

50
Q

what are the rules relating to referral orders (youths)?

A

referral order can be imposed when a youth pleads guilty, but it becomes discretionary if the youth has previous convictions.

50
Q

what is the grave crime test that a youth court needs to consider when deciding if the youth should go to the CC?

A
  1. would adult get 14+ years?) if offence is punishable for an adult with 14+ years imprisonment, or if offence of sexual offences, child sex offence or firearms offence
  2. Is there a real prospect that D will get a sentence of more than 2 years
51
Q

What factors should be considered when deciding in the interests of justice test if a youth and adult should be tried together?

A
  1. Whether separate trials will cause injustice to witnesses or to case as a whole = BIG FACTOR: injustice to trial as a whole or injustice to witnesses
  2. Age of child or young person (younger the D, greater desirability to go youth court)
  3. Age gap between child and adult
  4. Lack of maturity of child
  5. Relative culpability of child compared to adult and whether alleged role by child was minor; and/or
  6. Lack of previous findings of guilt on part of child
52
Q

what do the guidelines say a youth persistent offender is?

A

if there have been 3 findings of guilt in last 12 months for imprisonable offences

53
Q

if there is a youth and an adult and adult elects summary trial = where does the youth go?

A

youth goes to the magistrates court (idea is you want joint trial and there is no injustice to the youth for going to a more serious court so dont use the interests of justice test)

54
Q

what are the 3 key things in the interests of justice test?

A

a) Whether separate trials would cause injustice to witnesses or case as a whole
b) Age of child/young person (younger the D the greater the desirability that he be tried in youth court)
c) Age gap between child/young person and the adult (substantial age gap favours youth court)

55
Q

if a relative calls you to appoint you as solicitor for their relative that is in prison - what should you do?

A

you should confirm with the police whether the detainee wishes to instruct you. detainee must be informed that the solicitor has been contacted by someone else and must sign custody record if they wish to see solicitor. defence solicitor call centre must then formally instruct the solicitor if the detainee agrees.

56
Q

what is the role of a custody officer?

A

responsibility for the holding and welfare of suspects in detention at police station

57
Q

what rank must a custody officer be?

A

must be rank of at least seargeant

58
Q

what is the custody record?

A

contains everything that has happened to, been said to, or said by detainee

(solicitor has right to consult this ASAP after arriving to police station)

59
Q

what rank must the review officer be?

A

must be at least rank of inspector and not the custody officer (must be satisfied detention is still necessary)

60
Q

if person is being investigated for indictable offence what is the max time limit that it can be extended by for them to be detained in police station?

A

36 hours

61
Q

who can grant the extension of time for a D to hold them for 36 hours?

A

superintendent and above

62
Q

what is the complete max period of time for detention authorised by magistrates court by someone who has not been charged yet with offence?

A

up to 96 hours

63
Q

what are the 3 key rights of a suspect when in custody?

A

1) right to solicitor
2) right to have someone informed of their arrest
3) right to consult codes of practice

64
Q

what is a significant statement?

A

a statement that appears to be capable of being used as evidence and, in particular, any direct admission of guilt (eg, confession)

65
Q

what are the 3 different ways that a suspect can answer at an interview?

A

1) answer the questions
2) prepared written statement and no comment
3) no comment interview

66
Q

what are the 3 key adverse inferences?

A

s34 = fact is later relied on at trial and it would have been reasonable to have mentioned it now
s36 = failure to account for a mark, object or substance
s37 = failure to account for presence at the scene

67
Q

can adverse inferences be drawn if a suspect is not cautioned?

A

no - must be cautioned

68
Q

when can adverse inferences be drawn for failure to account for a mark, object or substance
or failure to account for presence at the scene?

A

can be drawn immediately

69
Q

are adverse inferences relevant if D doesnt go to trial or pleads guilty?

A

no they are not relevant then

70
Q

how many individuals are needed in an ID lineup (VIPER)?

A

There needs to be the suspect and 8 others in the lineup

71
Q

what is the time limit for when a charge must be brought for a summary only offence?

A

information must be laid or the complaint must be made within 6 months of the date of the alleged offence

72
Q

what is the time limit for when a charge must be brought for an indictable offence?

A

there is no time limit for charging the accused

73
Q

what procedural steps must a superintended follow to lawfully extend a suspect’s detention beyond the initial 24 hours?

A

superintendent must authorise extension, explain grounds for extension to suspect, note these grounds in custody record, and allow suspect or their solicitor an opportunity to make representations.

74
Q

can an adverse inference be drawn if the suspect is not allowed access to legal advice?

A

no - suspect must be given opportunity to consult with solicitor before any adverse inference is drawn

75
Q

if a suspect refuses to consent to ID procedure - what should ID officer do next to comply with PACE?

A

proceed with a covert identification procedure as a last resort (this is if all other procedures have been refused or are impractical)

76
Q

if appealing from magistrates to CC - who must the notice of appeal be served on and when must it be lodged (time frame)?

A

notice of appeal must be served on both magistrates court and prosecution and this notice must be lodged within 15 business days of the sentence

77
Q

who applies for a defendant to be remanded into custody?

A

prosecution apply = present objections to bail as there is a presumption in favour of bail

78
Q

what are the 2 situations when the right to bail doesnt apply?

A

1) those appealing their conviction or sentence; or
2) to Ds being committed for sentence from magistrates court to crown court

79
Q

what are the 3 primary grounds for objecting to bail for an indictable offence?

A

1) fail to attend a subsequent hearing
2) commit further offences on bail
3) interfere with witnesses, or otherwise obstruct the course of justice

80
Q

what is the difference between grounds for objecting to bail and factors?

A

Grounds for objecting to bail are reasons why a court might refuse bail, while factors are things that a court considers when deciding whether to grant bail
factors are mandatory considerations

81
Q

what are the factors that need to be considered for objecting to bail?

[there are 4]

give court wide discretion

A

1) nature and seriousness of the offence and likely disposal (eg, sentence)
2) character of D, antecedents, associations and community ties [antecedents refer to previous convictions which can make custodial sentence more likely]
3) D’s bail record in the past
4) strength of the evidence

82
Q

is it a criminal offence to breach bail conditions?

A

no - but it is an offence if fail to surrender to custody (can get unlimited fine or 12 months)

83
Q

what is the general rule for bail attempts if trial is in magistrates court (applying for bail)?

A

general rule is D who is having trial in magistrates court has 2 attempts at getting bail in magistrates court, and one attempt in crown court to appeal which will be listed no later than 1 business day after receipt of the appropriate notice

84
Q

what are the custody time limits for trials in magistrates court and crown court when not been granted bail?

A

56 days for trials in magistrates court of summary only or either way offences

182 days for trials in crown court for indictable only or either way offences

85
Q

when does a magistrates court trial ‘start’ for purposes of custody time limits?

A

started when court begins hearing evidence from the prosecution

that is when the custody time limit of 56 days without bail stops

86
Q

when does a crown court trial ‘start’ for purposes of custody time limits?

A

when jury is sworn in

that is when the custody time limit of 182 days without bail stops

87
Q

what is the timing of a 1st hearing when a defendant is on bail from being charged when they are anticipate a guilty plea sentenced in magistrates court?

A

the timing is 14 days of being charged = if prosecutor anticipates a guilty plea which is likely to be sentenced in the magistrates court

88
Q

what is the timing of a 1st hearing when a defendant is on bail from being charged when they anticipate D will plead not guilty or be sentenced/trial in crown court?

A

the timing is 28 days of being charged = if anticipated that D will plead not guilty or the case is likely to go to the crown court for either trial or sentence

89
Q

what is the timing of when a 1st hearing must be heard if the defendant is detained in police custody after charge?

A

if detained then need to be brought before the next available court

90
Q

what is ‘initial details’ for prosecution to serve under criminal procedure rules, part 8?

A

prosecution is obliged to serve initial details which include a summary of the circumstances of the offence and the D’s criminal record and sometimes other docs. information supplied must be sufficient at firs hearing to allow court to taken an informed view

91
Q

is a defence statement compulsory in the crown court and what is the time frame?

A

yes, a defence statement is compulsory in the crown court and it must be served on the prosecution and the court within 28 days of the date when the prosecution complies with its duty of initial disclosure

92
Q

is a defence statement compulsory in the magistrates court and what is the consequence of not serving one?
what is the time frame

A

no it is not compulsory in the magistrates court but if the do then need to do it within 10 business days of prosecution complying with initial disclosure duty.

failure to put a defence statement in means defence are unable to make an application for specific disclosure

93
Q

what is the time frames for notice of intention to call defence witness in magistrates court and crown court? (different timings for both)

A

must be given within 10 business days for magistrates court

28 days for the crown court

[dates are from the prosecution complying or purporting to comply with initial disclosure)

94
Q

when does the continuing duty of disclosure by the prosecution last up until?

A

lasts up until the D being convicted, acquitted or the prosecutor decides not to proceed with the case

95
Q

what is a s8 application (disclosure)?

A

defence can make an application for specific disclosure where it has reasonable cause to believe that there is protection material which should have been disclosed but which has not been disclosed

96
Q

what must the defence do in order to file a s8 application for specific disclosure?

A

need to make sure they have served a defence statement and prosecution must have either provided further disclosure in light of the defence statement or notified the defendant there is no further disclosure to be made

97
Q

what are the consequences of the prosecution failing to disclose?

A

lead to abuse of process applications
quashed convictions
wasted costs orders
refusal to extend custody time limits
exclusion of evidence

98
Q

what are the 2 stages in a PTPH?

A

1) plea: indictment is put to D who enters either guilty or not guilty plea (known as arraignment)
2) sentence or trial preparation [trial date, timetable ect]

99
Q

what are the 3 things that a judge can order if a D is unfit to plead and jury has found them guilty of committing an act?

A

absolute discharge
supervision order
hospital order

FLK2 (9 decks)

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