criminal litigation Flashcards
aggravating factors
- previous convictions
- Defendants record in respect to previous grants of bail
- racial or religious aggravation
- disability or sexuality hostility
- offences against someone who provides a public service
- commission of an offence in front of a child
- using a minor to mind a weapon
- terrorism connections
mitigating factors
- high degree of provocation
- acted on impulse
- acted in genuine fear
- has attempted to make reparations to the victim
- minor role in the offence
- old or young
- mental or physical disability
what must be show to exclude evidence of a confession under s76 PACE 1984
- oppression
a) torture, inhumane or degrading treatment - e.g. hostile and aggressive questioning
b) causal link between oppressive behaviour and making the confession - circumstances which renders the confession unreliable
a) something said or done which caused the defendant to make the confession i.e an inducement
b) breaches of PACE e.g. being denied legal advice.
what must be shown to exclude evidence under s78 PACE 1984
That it would have such an adverse effect on the fairness of proceedings that it not to be admitted
The breach must have been significant and substantial:
The court will take into account:
1. How serious the breach was
2. whether it was deliberate
3. whether the presence of a solicitor would have remedied or prevented the breach
is the probative value of the accused’s persons statement, overridden by its prejudicial effect?
what are the requirements for a video identification procedure
Witness is shown moving imagines of several people, including the suspect.
1 suspect = 8 other people
2 suspects = 12 other people
Must resemble the height, age and general appearance of the suspect and be carrying out the same sequence of movements.
if the suspect has any unusual features e.g. tattoo or facial scar, these needs to be concealed on the defendant or replicated on the other people
requirements of an identification parade
held at the police station
at least 8 other people stand in a line alongside the suspect
suspect can choose their position in the line, but cannot alter the position of the other people.
witness myst look at everyone in the line twice before making a decision.
if the suspect has any unusual features these need to be concealed or replicated on the other people.
group identification parade
witness seems the suspect in an informal group of people
police rankings
- constable and detective constable
- sergeant and detective sergeant
- inspector
- chief inspector
- superintendant
- chief superintendent
confrontation
witness is brught face to face with the suspect in the police station
last resort, normally because the defendant has refused to partake in other identification procedures
before confrontation, witness must be told that they are about to confront and may not be the person that they saw.
usually happens with the suspects solicitor present
identification officer
not below the rank of inspector (so not constable or sergeant).
not involved with the investigation
responsible for choosing the identification procedure and ensuring it is carried out properly
hearsay evidence
general rule not admissible
- s116 missing witness
- s117 business document
a) created or received in the course of business
b) where the person supplying it had knowledge of the matters dealt with and
c) everyone receiving the document was in the course of business
Turnbull gudielines - when considering whether the id evidence
- A - amount of time under observation
- D - distance between the witness and the defendant
- V - visibility at the time
- O - obstructions of the witness’ view
- K - Known to the witness beforehand?
- A - Any reason to remember the defendant
- T - Time lapsed since they saw the incident
- E - errors or material discrepancies in the witness’ first and subsequent accounts of the defendant
Tunrball guidelines procedure
Bad character evidence: what needs to be shown for evidence to be admitted under one of the gateways?
- important explanatory evidence - impossible or difficult to understand the case without the evidence
- important issue between the defendant and the prosecution - D has a propensity to commit same / similar crimes or be untruthful
- used by prosecution to admit evidence of previous convictions. - substantive probative value - would a fair minded court regard the previous convictions as having subsatail evidential value?
- correct a false impression given by the defendant
- defendant has attacked another person’s character
what is the overview of detention at the police station procedure?
suspects are to be taken to the police station following arrest for detention and interviews
procedural must follow procedural rules otherwise evidence obtained may be inadmissible.
CODE C governs detention, treatment and questioning
code D - iDentification procedure
code e - audibly recorded interview procedure
detainees have serval rights including to legal advice, information and silence.
when must a suspect be put before the custody officeR?
as soon as practicable following arrest. they must be dealt with expeditiously and released as soon as detention is no longer necessary.
role of the custody officer?
officers not directly involved with the case and ranking of at least sergeant
1) responsibilities: auhtorise detention and monitor welfare.
2) inform the suspect of their ongoing rights
3) search the suspect - can authorise search to any extent necessary.
make a record of all items found.
what is the custody record and detention log
custody officers must open a custody record and detention log details suspect, offence, reason fir arrest, time of arrest and arrival, confirmation of rights, items found, medical details and fitness to interview.
the detention long - a record of all significant events occurring during detention annexed to the custody record.
what evidence is required to charge and detain?
custody officers must determine whether there is sufficient evidence to charge or detain.
there is usually insufficient evidence to charge immediately, meaning the suspect will be released on bail or detained before charge pending further questioning.
why and how is a suspect detained before they are charged.
generally, a suspect is detained before charge in order to secure evidence.
as soon as the ground to detain cease, the custody officer must release the suspect.
conditions of detention
- clean cell
- clean bedding
- regular meals 0 two light meals and one main meal every 24 Horus drinks on reasonable request.
- daily exercise outdoors
- ifficer visitation
- medical arrangements
- 8 hours of uninterrupted rest every 24 hours, preferably at night.
what rights does a detainee have in detention?
- right to know rights
- right to inform a person of their arrest
- right to independent legal advice
- other rights
right to know their rights
detainees have the right to be informed of their ongoing rights during detention prior to charge
right to inform someone of their arrest
detainees have the right to inform one person of their arrest and detention as soon as practicable.
delaying the right:
- officers of at least the rank of inspector may delay this right for up to 36 hours on proper grounds - can be given orally but must be confirmed in writing as soon as possible.
- relevant offences: right can only be delayed for indictable only and either way offences
- grounds for the delay - inspector must believe one of the following grounds will “probably happen”
right to independent legal advice SI OR ABOVE
dealing the right - officers ranking superintendent or above may delay this right on the same grounds and for 26 hours.
officers cannot intentionally dissuade suspects from seeking legal advice
other rights for all suspects
- inspect codes of practice
- silence
- reasons for arrest
- inspect documents relating arrest and detention.
- detention times.
what is the detention clock? superintendent OR ABOVE
the maximum period of detention runs from the time of arrival at the police station or time of arrest if arrested at the station
1) GENERAL RULE: suspects cannot be detained for more than 24 hours without charge unless properly extended.
2) police extension: officers ranking superintendent can extend detention to 36 Horus on proper grounds. - only for indictable only or either way and on proper grounds: necessary o secure/preserve evidence and be diligent and expeditious investigation
3) magistrates extension- the magistrates court can extend to 72 hours on the same grounds as above
extension 2 can order a second extension to a maximum of 96 hours.
ranking of police officer required to authorise
a) delay to right to inform someone of their arrest
b) delay right to legal advice
c) extend detention to 36 hours
d) conduct reviews
a) inspector
b) superintendant
c) superintendant
d) conduct reviews
review
review clock runs from when authorisation was received for detention - ensue the grounds to detain continue to apply.
1) officers ranking inspector and not directly involved with the case - failure/delay renders the detention unlawful and amounts to false imprisonment tort.
2) first review occur no later than 6 hours after detention is authorised.
3) further reviews, no more than 9 hours after the previous review until the end of detention.
during detention how to the investigating officers investigate the suspect?
h
role of the solicitor during detention?
1) evidence gathering - should obtain information on the offence from the custody record and detention record, obtain offence information including details of the offence, time and reason for arrest, comments taken, items seized, fitness, medical intoxication and details of any interviews conducted.
2) investigating officer must provide sufficient information through which to understand the nature of the offence and the suspect’s alleged involvement. evidence does not need to be disclosed.
informing the client - the solicitor should inform the client by:
1) informing them of their rights and any duties the solicitor is under
2) detail the offence and advise the client on the law required to convict.
3) obtain and record the client’s version of events and clear instructions
4) advise the client on their interview
ethical issues
- admissions of guilt - try to dissuade the client from lying and let them know that cooperation and early pleas = a reduced sentence.
- decline to act - unless the client agrees to give a no comment interview they should decline to act as they cannot mislead the court. inform the police they must withdraw due to professional reasons.
conflicts of interest
- conflicts may arise if the solicitor is asked to represent co suspects
- decline to act if conflict does exist - inform the client why, inform them of availability of advice elsewhere and inform the police they withdraw for professional reasons.
duty of disclosure: may be asked o discos information between parties
- client to client - if they have already forwarded consistent instructions, consent in writing and it is in their best interests to do so
- client to another:
- solicitor to client - should pass all material information to clients unless prohibited by national security, necessary to prevent a crime , disclosure would result in serious physical or mental injury to the client or another person, information is privileged and received by accident.
what is the process of appeal from the magistrates court / youth court?
the defendant may appeal their conviction or sentence to the crown court as of right. the prosecution has no right to do the same.
1) notice of appeal: filed either with the MC, CC and the CPS within 15 working days of the conviction or sentence. crown court has the discretion to extend this time limit.
2) directions - the CC will fix a date for appeal.
3) hearing - circuit judge alongside2 or 4 magistrates
4) sentencing appeal: rehearing of the issues to consider the sentence holistically - appeals are successful if a sentence if too excessive.
5) conviction appeal: full rehearing of the issues including new evidence and law.
6) available orders: the CC can impose any sentence the MC or YC had the power to impose
7) further appeals? to high court bt what if case stated if the appeal judgement is wrong in law.
appealing to the high court by way of case stated?
both the defence snd prosecution can appeal to the HC by way of case stated against any decision.
1) within 21 days of the decision outlining the point of law clarity is sought on.
2) statement of care - a clerk will prepare a doc for the high court specifying the decision, specific issue and a summary of proceedings and evidence relied upon
3) hearing: confined t legal arguments, no witness evidence permitted
4) grounds of appeal - wrong in law or acted outside their jurisdiction
who can appeal a cc judgement?
the defendant can against sentence or conviction to the court of appeal
how to get permission for appeal for a cc judgement
- frist instance - appeal may be sought immediately after judgement for the trial judge (CC)
- court of appeal: the defendant may serve notice of appeal and their draft grounds to the court of appeal criminal division within 28 days of conviction or sentence
if unsafe or rendered by an abuse of process
abuse if process: trial was conducted in a manner so unfair and wrong that conviction is improper e.g. misdirection of jury, admissibility issues, poor suing up, new evidencea
appeal against sentence CC
permission is required
grounds: appeals may be successful if manifestly excessive or of unjust disparity or made through errors of law or principle
a) manifestly excessive: sentence is far in excess of the seriousness of the offence
b) unjust disparity: sentence is disproportionate to the sentence of an equally culpable co-defendant.
c) error of law or principle: court passed a sentence that was unlawful or did not adhere to the proper guidelines i.e no reduction, above statutory maximum, no Newton hearing.
3) the court of appeal can confirm the original sentence or quash it pending resentencing it cannot increase it but can order for loss of time.
can a further appeal be mad from the court of appeal once one appeal has been made by the defendant from the CC
further appeals can be made to the Supreme Court provided it regards a point of law and is of general public importance and permission is granted by the court of appeal of the Supreme Court.
what are adverse inferences?
courts can draw adverse inferences from a defendant’s silence in given circumstances usually on the presumption that their silence is an indication that they had no defence that would stand up to scrutiny.
1) effect: adverse inferences cannot prove guilt alone but can support other evidence often by suggesting a defence is fabricated or that the defendant initially believed it too weak to rely upon.
grounds; one of several statutory grounds must be met
exclusion - adverse inferences cannot be drawn from a point at which the defendant was denied legal advice or was not properly cautioned.
what is the procedure fro drawing an adverse inference for silence when questioned before charge?
adverse inferences can be drawn if a suspect is silent when questioned UNDER CAUTION and later relies on a fact they could have reasonably be expected to mention.
questioning must have been prior to charge for the purposes of investigating the alleged offence typically a police interview but also questioning following arrest if cautioned.
first interview - silence at first interview can give rise to adverse inferences even if relevant facts were mentioned in subsequent interviews.
judge can only direct jury to draw an inference if it is believed that the likely reason for the silence was that the defendant had no answer or no answer that would stand up to scrutiny.
advised silence: inferences should not be drawn if the defendant genuinely and reasonably relied on legal advice to remain silent.
what is the procedure for drawing adverse inferences for silence at trial
failure to raise a defence to a case to answer
1) burden of proof - remains on the prosecution - silence does not mean guilt.
2) vulnerability 0-
