criminal litigation Flashcards

Question

right to independent legal advice SI OR ABOVE

Answer 1

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

Answer 2

1. inspect codes of practice 2. silence 3. reasons for arrest 4. inspect documents relating arrest and detention. 5. detention times.

Answer 3

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.

Answer 4

a) inspector b) superintendant c) superintendant d) conduct reviews

Answer 5

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.

Answer 6

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

Answer 7

1. admissions of guilt - try to dissuade the client from lying and let them know that cooperation and early pleas = a reduced sentence. 2. 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.

Answer 8

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.

Answer 9

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

Answer 10

the defendant can against sentence or conviction to the court of appeal

Answer 11

1. frist instance - appeal may be sought immediately after judgement for the trial judge (CC) 2. 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

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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.

Answer 16

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-