Criminal Litigation Flashcards
What is the overriding objective in part 1 CrimPR
Criminal cases be dealt with justly
Who must prepare and conduct criminal cases according to the overriding objective
Participants - anyone involved in any way with a criminal case
What does justly mean in relation to the overriding objective of CrimPR
Acquitting innocent
Convicting guilty
Recognising rights of D
Treating D and P fairly
Respect and inform witnesses, victims and jurors
Deal efficiently and expeditiously
Ensure court has all info when considering bail and sentencing
Consider gravity of offence, complexity of issues and consequences for parties
How must the court further the overriding objective of dealing with cases justly
Through active management of the case
At start of case must nominate someone responsible for progress of case and inform parties who this is
Court is given power to make any direction or take any step to manage case unless it would contravene legislation
What does active case management include
Early identification of real issues
Early identification of needs of witness
Avoid delay
Use technology
Encourage participants to co operate
Monitor progress of case and compliance with directions
Present evidence is short and clear way
Certainty about what must be done, by who and when (timetable)
When a case comes to court but cannot be dealt with at that hearing the court must….
If D is absent, decide whether to proceed anyway
Ask D to enter plea or likely plea
Set, follow or revise a timetable
Where direction has not been followed take appropriate action
Which courts are the probation service at and what do they do
MC and CC. Report on D to help sentencing
What types of contracts do the LAA enter into to provide public funding for criminal defence work
Standard crime contract - with solicitors in private practice
Salaried public defenders
General crime contract - for solicitor in private practice who wants to secure funding for their client
What matters does the crown court deal with
Indictable offences and some either ways
Appeals from MC on bail, representation, sentencing and conviction
What matters does the magistrates court deal with
Summary offences and some either ways
Sending indictable offences to CC (MC gives case management directions and then CC has preliminary hearing and trial)
Issues warrants for search, arrest and further detention
Applications for representation and bail
How are indictable offences dealt with
MC gives case management directions then sends to CC who has preliminary hearing and trial
How are either way offences dealt with
First hearing at MC who decide whether to deal with it or send it to CC
What factors determine if an either way offence is sent to CC or kept at MC
Is it serious
Does D consent to summary trial? If not send to CC
Notice serviced under S 51B or 51C CDA 1998 to progress straight to CC
Can D reconsider plea if MC indicate harsh sentence?
Yes
What duty does the prosecutor have when presenting evidence
Duty to put all material evidence before the court in a fair and dispassionate manner
What duty does the prosecutor have when arguing a point of law
Duty to inform court of authority even if it doesn’t support the prosecution
Does the prosecutor have to present all known facts to the court
Yes, all relevant facts known to prosecution should be placed before the court including any in mitigation
What if the prosecutor has evidence that would help D
The prosecutor must supply particulars of evidence to the defendant
Must the defence solicitor always treat the defendants interests as paramount
Yeah unless they conflict with professional conduct obligations
What should the defence solicitor do regarding previous convictions
Get list from COS prior to court
Discuss with client. If client indicated he will lie about accuracy of list you must cease to act
What should the defendant solicitor do if the client indicates they will lie about the list of previous convictions
Cease to act
Can you continue to act if your client gives inconsistent instructions
Yes unless it is clearly to put forward false evidence
Can a client plead guilty even if a defence is available? Can a solicitor continue to act if they decide to do this?
Yes. Solicitor must explain defence to them and continue to act.
If a defendant pleads guilty even though there is a defence available can they rely on the facts constituting the defence with a plea in mitigation?
No cannot rely on them in mitigation
What are the obligations of the defence solicitor when a point of law is in dispute
Obligation to assist court by supplying relevant authority even if harmful to Ds case
Can you continue to represent a client who admits guilt to you but refuse to plead guilty and don’t offer any evidence - just put the prosecution to proof of its case (may ask questions of prosecution witness)
Yeah can continue to act
Can you continue to act for D who admits guilt to you then refuses to plead guilty and insists on giving evidence
Decline to act
Can you continue to act for D that admits guilt to a solicitor at the end of trials after acquittal
Solicitor can do nothing
Is a confession made by D prior to trial admissible
Yes
Is a confession by D admissible at a trial of co D
Yes
When will confessions made outside the police station be inadmissible
When code C is not adhered to by failing to:
Make accurate record of Ds comments
Give D record to view and sign as accurate or dispute
Failing to put it to D to allow D to confirm or deny on record
On what grounds can D challenge the admissibility of a confession
He didn’t confess
He confessed for a reason other than being guilty (oppression or circumstances that would make confession unreliable)
Code c not adhered to
Who has the burden of proving that a confession was not obtained through oppression or as a consequence of anything likely to render it unreliable
P must prove it beyond reasonable doubt
What is oppression
Torture, inhuman or degrading treatment or use of threat of violence
What is hearsay
A statement made outside court that is repeated inside court to prove truth of a matter
When is hearsay admissible
When any statutory provision allows it
When s118 retained law allows it
All parties agree
Interest of justice requires it
Can hearsay be admitted when a witness cannot attend court
S116
Would be admissible if they attended
They are identifiable
And either they are dead, unfit, outside U.K., cannot be found despite efforts or fear and court gives leave
Additional requirements for multiple hearsay to be admissible
Business document
Inconsistent statement ( to prove what they said is inconsistent with previous doc)
Consistent statement ( to refresh me memory or cross examine them on doc)
(All above require oral evidence of that matter to be admissible for the doc to be)
All parties agree
Or
Interests of justice require it
How to challenge the credibility of an absent party
Put forward any evidence that would be admissible as relevant to their credibility as a witness
And
If the court gives leave any evidence that could have been put to them in cross examination as evidence of their credibility
What if the whole case in the cc is based on hearsay
The judge can direct the jury to acquit after the prosecution closes their cases
Can the court refuse to admit hearsay
Yes the court has a general discretion to refuse to admit hearsay evidence where the case for excluding it substantially outweighs the case of admitting it
What discount is given for a guilty plea
First hearing 1/3 After first hearing 1/4 First day of trial 1/10 Further reduction during Can go to zero
What is an offence taken into consideration?
Taken into consideration as an aggravating factor at sentencing of main offence
Requirements for offences to be taken into consideration
Prosecution, police and offender all agree
Court decides to take it into consideration
D admits to the offences
When will a court not take an offence into consideration
TIC likely to attract a bigger sentence than main offence
TIC and main offence not similar
Public interest in prosecuting them separately
D will avoid a consequence desirable to impose
TIC occurred when D was already subject to sentence
Consequences of taking an offence into consideration
Won’t go to court again for these offences
Increase sentence proportionately and not outside the range for the sentence of the main offence
Increase sentence from stating point of main offence normally determined by culpability (blame) and harm caused
When is there a presumption in favour of bail
Before conviction
After conviction of case is adjourned
Those appearing before court for breach of community sentence
Grounds for arguing against bail
D would fail to surrender to custody
D would commit a further offence on bail
D would interfere with witness or obstruct justice
Relevant bail factors
Character, association and community ties
Nature and seriousness of offence
Record of previous bail
Strength of evidence
What is a bad character when taken into consideration for bail
Evidence of or a disposition towards misconduct other than evidence connected with the offence for which D has been charged
What are the two tests for criminal legal aid
Means test
Public interest test
When is the public interest test for criminal funding automatically fulfilled
Under 18 Cc trial Retrial Committals for sentencing Voluntary bill of Indictment
If the public interest test for criminal funding is not automatically fulfilled what factors are considered
Loss of liberty
Consideration of substantive law
Interest of another person to represent D
When is the means test for criminal funding fulfilled
Under £12475 adjusted income
When is the criminal funding means test not fulfilled
Between £12475 and £22325 full means test is needed
Over £22325 no funding
Full means test needs less than £3398 disposable income for funding
How is work done at station before D is charge funded?
Claimed as fixed fee under police station advice and assistance scheme
Things to ask and consider on arrival at police station
Code C - entitled to see custody record
Did they ask for legal advice
Did they make any requests and were they fulfilled? Food, water, medication etc
Did they need to see a doctor?
Has the detention been reviewed 6 hours then every 9 hours
seized property?
reason for detention?
if home searched, ask what the outcome was
circumstances of arrest?
Who must be permitted to inspect the custody record
detainee, their solicitor and their appropriate adult as soon as practicable after arrival at station and at any other time on request whilst detained. Access allowed will be recorded
Inspect v receive copy of custody record
entitled at inspect at any time but can only receive a copy after you are let go or taken to court. Solicitor or appropriate adult will be given copy, on request, as soon as practicable.
How long does the entitlement to receive a copy of custody record last
12 months after release
Things to ask the investigating officer
facts and evidence - sufficient information to understand nature of offence and why they are suspected. But no obligation to disclose anything to you. If they refuse then question why. Summary of evidence.
What to do when applying for bail (bail will always be considered when a case is adjourned)
obtain initial disclosure of the prosecution case asap.
Take clients instructions on prosecution papers including previous convictions list and what conditions he would be willing to comply with
ask probation for accommodation if needed. Might need to confirm employment or get a surety.
What happens when bail is opposed
Prosecution rely on factors in part 1 of sch 1 Bail Act 1976 and defense deal with each one and say why it is not made out to the standard required.
Defense then sets out realistic conditions to overcome any concerns the court may have
what is key evidence
evidence which either alone or taken together establishes every element of the offence to be proved and that the person charged committed the offence with the necessary criminal intent.
Advantages of being tried in Crown Court
lower conviction rate
more appropriate proceedure for voir dire hearings
avaliability of non-means tested legal aid
Disadvantages of being tried in the Crown Court
MC deals with things quicker
MC is less formal/stressful
If D is convicted he will be ordered to pay prosecution costs which are higher in the Crown Court. In addition, he may be ordered to pay something towards his defence costs. Such defence costs will not be ordered in MC.
MC has lower sentencing powers
Max sentencing powers for MC
maximum of 6 months custody unless sentencing for 2 or more either way offences in which case the overall maximum is extended to 12 months
Factors considered by the MC when deciding if they can deal with an either way offence
The nature of the case
Whether the circumstances make the offence one of a serious character
Whether the punishment available to the Magistrates would be adequate
Any other circumstances which appear to the court to make the case more suitable to be tried one way or another
Representations made by the prosecution and defence
Sch 2 MCA 1980 monetary threshold
Sch 2 Magistrates’ Courts Act 1980 sets out either way offence which should be tried at CC if they are of a value over £5000 and at the MC if they are of a value lower than £5000. If they are over £5000 but the defendant consents then it can be tried at MC.
Offences for which the value is relevant to the mode of trial - Sch 2 MCA 1980 offences
Below £5000 summary trial
Above £5000 may consider CC
Destroy or damage property intentionally or recklessly (not by fire).
OR aiding, abetting, counselling or procuring, attempting to commit, inciting another to commit the above.
Aggravated vehicle theft (taken then driven dangerously, caused an accident or damaged vehicle).
S34 Criminal Justice and Public Order Act 1994
Can draw negative inference from a failure to mention facts when questioned or charged which are later relied on in his defense.
Facts which they could have reasonably been expected to mention
S35 Criminal Justice and Public Order Act 1994
effect of accused’s silence at trial – can draw inferences from the accused’s refusal to give evidence at trial or refusal to answer questions once sworn in.
S36 Criminal Justice and Public Order Act 1994
effect of failure or refusal to account for objects, substances or marks
S37 Criminal Justice and Public Order Act 1994
failure or refusal to account for presence at a particular place
What is the general rule regarding hearsay in criminal trials
Generally not admissible
When can hearsay be admissible
- To allow evidence from absent witnesses (section 116). – for this one if the reason is fear the judge can only allow it if it is in the interests of justice to do so. Absence abroad would only suffice if it was not reasonably practicable to bring the witness to court in person or by video link. If a witness was lost, reasonably practicable steps must have been taken, not only to find him, but also to keep in touch with him before he disappeared.
- To allow the admission of business documents (section 117).
- Where there is a preserved common law exception (section 118).
- Where there is agreement between all parties that hearsay evidence should be admitted (section 114(1)(c)).
- Where it is in the interests of justice to admit hearsay evidence (section 114(1)(d)).
How should the judge direct the jury when hearsay is admitted
it may contain some limitations compared to evidence given on oath by a witness at trial
If D wants to introduce hearsay evidence how soon must the notice be served
as soon as reasonably practicable
If P wants to introduce hearsay evidence when must the notice be served
28 days from after the date the D pleads not guilty in MC or 14 days if CC
Does hearsay in business documents require notice
no except when the document is prepared for the purpose of criminal proceedings
When can hearsay in business documents be admitted
Could be put forward orally
Created and received by people in course of business
Created by someone with personal knowledge of the matter
How can a notice for the introduction of hearsay evidence be opposed
To oppose the notice for hearsay the opposing party must serve notice of opposition and serve it on the court and each party no later than 14 days after receipt of the notice of application, the service of the evidence (where no notice is required) or the defendant pleads not guilty, whichever of those events happens last.
What must a notice of opposition of hearsay evidence include
The notice of opposition must:
Identify the facts set out in the notice of application that it disputes.
Assert why the evidence is not admissible, or, if admissible, why it ought not to be admitted.
What if the party does not respond to the notice to introduce hearsay evidence
treated as if it was admissible by agreement
Can hearsay in business documents be excluded
if they are considered doubtful (reliability in doubt over content, source, context in which it was created or info was given).
Retained law exceptions to the admissibility of hearsay
Transactions where a statement is made that explains an event, without which the event would have no meaning.
Certain admissions, for example, dying declarations.
Public documents, for example, electoral records and census data.
Reference works, for example, maps and dictionaries.
What must the court do if the hearsay evidence is wholly unconvincing
the court has a duty to stop the case
Can the court exclude hearsay evidence
Yes the court has a discretion to exclude hearsay evidence where the court is satisfied that the case for excluding the evidence substantially outweighs the case for admitting it
when is bad character evidence admissible under S101 CJA 2003
all parties agree
Given as an answer to a question asked by D in cross-examination and intended to elicit it
it is important explanatory evidence
It is relevant to an important matter in issue between the defendant and the prosecution.
it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, - only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.
it is evidence to correct a false impression given by the defendant, or
the defendant has made an attack on another person’s character.
What is explanatory evidence
Needed to understand other evidence in the case, and case as a whole
What are the matters in issue between the D and the P? (regarding bad character evidence)
Propensity to commit offence of this kind unless that makes it no more likely that he is guilty of the offence
Propensity to be untruthful, except where it is not suggested that D’s case is untruthful in any respect.
What must the court have regard to when deciding whether to admit bad character evidence
the length of time between the previous incidents and the current incident
