criminal litigation

Question 1

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

Answer 1

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

Question 2

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

Answer 2

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

Question 3

what are the gateways for bad character for D?

Answer 3

• 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

Question 4

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

Answer 4

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

Question 5

what does S78 PACE allow?

Answer 5

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

Question 6

when must a confession be excluded?

Answer 6

• 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.

Question 7

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

Answer 7

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

Question 8

what does S116 hearsay allow? (DIALS)

Answer 8

Dead
Ill
Abroad
Lost
Scared

Question 8

what are the statute exceptions to the general rule on hearsay?

Answer 8

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

Question 9

what are the common law exceptions to the general rule on hearsay?

Answer 9

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

Question 10

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

Answer 10

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

Question 11

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

Answer 11

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

Question 12

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

Answer 12

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

Question 13

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

Answer 13

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

Question 14

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

Answer 14

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

Question 15

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

Answer 15

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.

Answer 16

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.

Question 17

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

Answer 17

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

Question 18

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

Answer 18

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

Question 19

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

Answer 19

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

Question 20

what type of questioning is allowed in examination in chief?

Answer 20

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

Question 21

what type of questioning is allowed in cross examination?

Answer 21

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.

Question 21

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

Answer 21

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

Question 22

when can a court grant special measures for a witness?

Answer 22

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

Question 23

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

Answer 23

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.

Question 24

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

Answer 24

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.

Question 25

what is a Newton hearing?

Answer 25

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

Question 26

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

Answer 26

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

Question 27

when the court imposes a fine what must they consider?

Answer 27

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

Question 28

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

Answer 28

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

Question 29

what is the standard for community order?

Answer 29

serious enough

Question 30

what is the standard for a custodial sentence?

Answer 30

so serious that neither community order nor fine would be justifiable

Question 31

what are common aggravating factors?

Answer 31

• 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

Question 32

what are common mitigating factors for sentencing?

Answer 32

• 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

Question 33

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

Answer 33

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

Question 34

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

Answer 34

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’

Question 35

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

Answer 35

can defer a sentence for up to 6 months

Question 36

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

Answer 36

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.

Question 37

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

Answer 37

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

Question 38

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

Answer 38

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

Question 39

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

Answer 39

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

Question 40

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

Answer 40

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.

Question 41

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

Answer 41

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

Question 41

what is the slip rule for sentencing?

Answer 41

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

Question 42

what must be included in the notice of appeal?

Answer 42

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

Question 43

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

Answer 43

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

Question 44

what is the deadline to appeal for judicial review?

Answer 44

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

Question 45

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

Answer 45

• 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

Question 46

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

Answer 46

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.

Question 47

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

Answer 47

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

Question 48

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

Answer 48

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

Question 49

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

Answer 49

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

Question 50

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

Answer 50

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

Question 50

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

Answer 50

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

Question 51

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

Answer 51

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

Question 52

what do the guidelines say a youth persistent offender is?

Answer 52

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

Question 53

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

Answer 53

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)

Question 54

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

Answer 54

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)