Criminal Litigation + Dispute Resolution Flashcards
What is the max. remand period for a D in a Magistrates’ Court?
8 days or 28 days if a date is set for the next stage of proceedings.
Define bail
Release of a D subject to surrendering to the court or police station at a specified time, pending trial
Define a caution (police sentencing powers)
Penalty imposed by the police for minor offences where the accused admits the offence and agrees to be cautioned.
Not a criminal conviction but can be used as evidence of bad character.
Do Ds have the right to appeal to the Crown Court after making an application in the Court of Appeal?
No.
Right of appeal to Crown Court is lost once application is made in Court of Appeal.
However, sentence may still be appealed to Crown Court and conviction appealed by way of case stated.
Role of an appropriate adult
Responsible for welfare and support of the vulnerable client.
Outcomes of bail
- Conditional bail
- Withhold bail
- Bail granted
Plea in mitigation
Made by defence prior to sentencing to argue for a reduced sentence.
They will focus on factors that may lessen severity of punishment (e.g. mitigating circumstances, remorse)
Gateways for admitting bad character evidence (s 101(1) Criminal Justice Act 2003)
- Agreement by all parties
- Evidence adduced by D
- Important explanatory evidence
- Relevant to important matter in issue between prosecution and defence
- Substantial probative value in relation to a matter between co-Ds
- Correction of false impression by D
- D attacked another’s character
Sale of Goods Act 1979
- Must match any description applied by the seller
- Be of satisfactory quality
- Be fit for any particular purpose made known to the seller by the buyer
Supply of Goods and Services Act 1982
- Must match any description applied by the seller
- Be of satisfactory quality
- Be fit for any particular purpose made known to the seller by the buyer
PLUS
- Be carried out within a reasonable time if no time is agreed
- Be carried out with reasonable care and skill
Consumer Rights Act 2015
- Must match any description applied by the seller
- Be of satisfactory quality
- Be fit for any particular purpose made known to the seller by the buyer
PLUS
- Be carried out within a reasonable time if no time is agreed
- Be carried out with reasonable care and skill
PLUS
- Completed in accordance with any information which the consumer relies upon
- Completed for a reasonable price if no price has been agreed
Part 36 offer mandatory requirements
- In writing
- State whether it takes into account any counterclaim
- Specify a period of at least 21 days
- State whether it relates to the whole of the claim or part of it
- Make clear it is pursuant to Part 36
Part 36 offer
- Formal offers to settle an action
- Has significant costs consequences if they are rejected- important tactical tool
- Without prejudice save as to costs- not disclosable to any third party
- May be made at any time
- Not an admission of liability
Consequences of Part 36 offer when accepted by either party
- Claim is stayed
- D pays C’s costs to date of acceptance on standard basis
Consequences of Part 36 offer where C makes offer and rejected by D
C loses = no costs consequences, C will have to pay for D’s costs
C wins but less than offer = no costs consequences
C wins same or more = D pays C’s costs on indemnity basis plus enhanced interest + damages plus interest
Consequences of Part 36 offer where D makes offer and rejected by C
C loses = C pays for D’s costs
C wins more than offer = no costs consequences
C wins same or less = D to pay C’s costs until end of relevant period, C to pay D’s costs plus interest from end of relevant period
Youth Court orders
Referral order: max. 12 months
Rehabilitation order: max. 3 years
Detention and training order: max. 2 years
Criteria for an interim injunction
Test in American Cyanamid
1. Is there a serious issue to be tried?
2. Are damages an adequate remedy?
3. What is the balance of convenience?
Duty of care
Claimant must prove:
1. Duty of care
2. Breach
3. Causation
4. Damages
Application for an injunction
- Can be made with or without notice
- Must include draft order supported by evidence explaining why the injunction is necessary
Purpose of interim payment
To alleviate hardship for C caused by delay in the litigation process
Steps to pursue a claim
- Writing a letter before claim
- If settlement cannot be reached, pursue claim in courts
Takes a while, will not prevent immediate harm so not a good short-term solution
Occupiers’ Liability Act 1957 (Visitors)
Occupier must take reasonable care to ensure that visitors are safe
- Not if visitor enters area they are not permitted to enter
- More care should be taken for children
Occupiers’ Liability Act 1984 (non-visitors)
Occupier may be liable for injuries suffered by non-visitors where:
1. occupier is aware of a dangerous condition of their property or has reasonable grounds to believe that it exists
2. occupier reasonably knows a non-visitor is in the vicinity of the danger
3. the risk is one the occupier is expected to guard against
Employer’s vicarious liability
Employer wil be liable for employees’ negligent conduct where it is closely connected to the employment to make it fair and just to hold the employer vicariously liable
Product liability under the Consumer Protection Act 1987
- Person suffers damage caused by a defect in the product
- A producer / brand / importer will be strictly liable
- Does not have to have bought the product
- Doesn’t apply to damage caused to business property
- Cannot recover cost of product itself
- Cannot recover losses under £275
Public nuisance
Act not warranted by law which causes damage to public
- Persons affected are the public
- C suffered some special and particular damage over and above general inconvenience
Private nuisance
Act which interferes with the enjoyment or use of an occupier’s land
- C has an interest in land
- D’s use of the land was unreasonable and led to interfering with C’s land
Remedies
- Damages
- Debt claim
- Injunction
- Specific performance
Battery
- D applies unlawful personal force on another
- Intentionally or recklessly
SUMMARY
Assault
- D causes another to apprehend (not fear)
- Immediate unlawful personal force
- Intentionally or recklessly
Conditional threat is sufficient
SUMMARY
Assault occasioning ABH (S47, OAPA 1861)
- D commits battery / assault
- And causes ABH
- Intentionally or recklessly
EITHER WAY
Actual bodily harm
Any injury calculated to interfere with the health or comfort of the victim which is more than merely trifling, including psychiatric injury
Wounding or inflicting GBH (S20, OAPA 1861)
- D causes either a wound or GBH
- Intentionally or reckless as to causing some harm
EITHER WAY
Wounding or inflicting GBH with intent (S18, OAPA 1861)
- D intends to cause serious harm OR reckless as to some harm and intends to resist lawful apprehension
- Causes either a wound or GBH
INDICTABLE ONLY
Involuntary manslaughter (Unlawful act / Constructive)
- D intends to commit a criminal offence that is
- Dangerous
- Carries objective risk to the victim
- Causes the death
INDICTABLE ONLY
Involuntary manslaughter (Gross negligence)
- D owes victim duty of care and has breached it
- In such an extremely negligent way that they are deemed criminally culpable
- There was serious and obvious risk of death, whether or not D was aware
- Causes death
INDICTABLE ONLY
Voluntary manslaughter (diminished responsibility)
- D shows abnormality of mental functioning
- Which arose from recognised medical condition
- And substantially impaired D’s ability to either:
Understand nature of his conduct
Form rational judgement
Exercise self-control - It provides an explanation for the killing
Burden of proof is on D
INDICTABLE ONLY
Voluntary manslaughter (loss of control)
- D lost self-control
- Caused by a qualifying trigger
a. Fear of serious violence against D or another identified person (subjective), OR
b. Things done / said constitute circumstances of extremely grave character and caused D to have a justifiable sense of being wronged (objective) - Hypothetical person of D’s age and sex might have reacted in the same way (objective)
Burden of proof is on prosecution
INDICTABLE ONLY
Murder
- D causes
- Death of another human being
- Unlawfully
- With intention to kill or cause GBH
MANDATORY sentence of life imprisonment
INDICTABLE ONLY
Theft (S1, Theft Act 1968)
- Dishoenst appropriation of property belonging to another
- Intending to permanently depriving them of it
Intent determined at time of appropriate
EITHER WAY
Robbery (S8, Theft Act 1968)
- Committing theft
- Immediately before or at the same time using force or causing the victim to apprehend force or intending to cause the apprehension of force
- In order to steal
INDICTABLE ONLY
Burglary by trespass with intent (S9(1)(a), Theft Act 1968)
- D knowingly or recklessly enters a building / part of a building as a trespasser with any part of their body
- With intent to:
a. Steal
b. Inflict GBH
c. Cause criminal damage
EITHER WAY
Burglary by offence following trespassory entry (S9(1)(b), Theft Act 1968)
- D knowingly or recklessly enters a building / part of a building as a trespasser with any part of their body
- Did:
a. Steal / attempted to steal
b. Inflict / attempted to inflict GBH
EITHER WAY
Aggravated burglary (S10, Theft Act 1968)
- Committing burglary
- At the time carrying a: (don’t need to use it)
a. Firearm / imitation firearm
b. Weapon of offence
c. Explosive
All can be adapted to cause injury or intended by D to
INDICTABLE ONLY
Domestic burglary
Burglary becomes an INDICTABLE ONLY offence if:
1. Burglary of a domestic dwelling
2. D commits / attempts indictable only offence
3. Victim subject to violence / threat of violence
4. D’s 3rd charge of domestic burglary
INDICTABLE ONLY
Criminal damage (S1(1), Criminal Damage Act 1971)
- D, without lawful excuse, destroys or damages property belonging to another
- Intentionally or recklessly
Under £5,000 = tried summarily
EITHER WAY
Aggravated criminal damage (S1(2), Criminal Damage Act 1971)
- D, without lawful excuse, destroys or damages property
- Intentionally or recklessly
- Also intending or reckless as to endangerment of life by the same damage caused to the property
Life need not actually be endangered
INDICTABLE ONLY
Arson (S1(3), Criminal Damage Act 1971)
- Criminal damage by fire (not smoke)
EITHER WAY
Aggravated arson (S1(3), Criminal Damage Act 1971)
- Aggravated criminal damage
INDICTABLE ONLY
Fraud by false representation (S2, Fraud Act 2006)
- Dishonestly making a false or misleading representation
- Knowing it is false or misleading
- Intending to make a gain for themselves OR cause or risk loss to another
EITHER WAY
Fraud by failing to disclose information (S3, Fraud Act 2006)
- D fails to disclose information that he is under a duty to
- Intending to make a gain OR cause or risk loss to another
EITHER WAY
Fraud by abuse of position (S4, Fraud Act 2006)
- D abuses a position in which he is expected to safeguard the financial interests of another
- Intending to use the position to make a gain OR cause or risk loss to another
- By act or omission
EITHER WAY
Appeal from Magistrates’ Court to Crown Court
Against sentence or conviction
Within 15 days
Appeal from Magistrates’ Court to High Court by way of case stated
On issues of law or excess of jurisdiction
Within 21 days
Appeal from Crown Court to Court of Appeal
Against conviction: UNSAFE
Against sentence: WRONG IN LAW / WRONG IN PRINCIPLE / MANIFESTLY EXCESSIVE
Within 28 days, apply for leave to appeal
Youth Court: Detention and training orders
Not available for 10-11 years AT ALL
Only available for 12-14 years if REPEAT OFFENDER
Only available for 15-17 years if CUSTODIAL THRESHOLD PASSED
Magistrates’ Court
Sir / Madam
District Judge
Judge
Circuit Judge
Your Honour
High Court Judge
My Lord / Lady
Master of High Court
Judge
