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Hakyung's flashcards > Criminal Litigation + Dispute Resolution > Flashcards

Criminal Litigation + Dispute Resolution Flashcards

1
Q

What is the max. remand period for a D in a Magistrates’ Court?

A

8 days or 28 days if a date is set for the next stage of proceedings.

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2
Q

Define bail

A

Release of a D subject to surrendering to the court or police station at a specified time, pending trial

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3
Q

Define a caution (police sentencing powers)

A

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.

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4
Q

Do Ds have the right to appeal to the Crown Court after making an application in the Court of Appeal?

A

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.

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5
Q

Role of an appropriate adult

A

Responsible for welfare and support of the vulnerable client.

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6
Q

Outcomes of bail

A
  1. Conditional bail
  2. Withhold bail
  3. Bail granted
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7
Q

Plea in mitigation

A

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)

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8
Q

Gateways for admitting bad character evidence (s 101(1) Criminal Justice Act 2003)

A
  1. Agreement by all parties
  2. Evidence adduced by D
  3. Important explanatory evidence
  4. Relevant to important matter in issue between prosecution and defence
  5. Substantial probative value in relation to a matter between co-Ds
  6. Correction of false impression by D
  7. D attacked another’s character
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9
Q

Sale of Goods Act 1979

A
  1. Must match any description applied by the seller
  2. Be of satisfactory quality
  3. Be fit for any particular purpose made known to the seller by the buyer
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10
Q

Supply of Goods and Services Act 1982

A
  1. Must match any description applied by the seller
  2. Be of satisfactory quality
  3. Be fit for any particular purpose made known to the seller by the buyer

PLUS

  1. Be carried out within a reasonable time if no time is agreed
  2. Be carried out with reasonable care and skill
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11
Q

Consumer Rights Act 2015

A
  1. Must match any description applied by the seller
  2. Be of satisfactory quality
  3. Be fit for any particular purpose made known to the seller by the buyer

PLUS

  1. Be carried out within a reasonable time if no time is agreed
  2. Be carried out with reasonable care and skill

PLUS

  1. Completed in accordance with any information which the consumer relies upon
  2. Completed for a reasonable price if no price has been agreed
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12
Q

Part 36 offer mandatory requirements

A
  1. In writing
  2. State whether it takes into account any counterclaim
  3. Specify a period of at least 21 days
  4. State whether it relates to the whole of the claim or part of it
  5. Make clear it is pursuant to Part 36
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13
Q

Part 36 offer

A
  • 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
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14
Q

Consequences of Part 36 offer when accepted by either party

A
  • Claim is stayed
  • D pays C’s costs to date of acceptance on standard basis
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15
Q

Consequences of Part 36 offer where C makes offer and rejected by D

A

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

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16
Q

Consequences of Part 36 offer where D makes offer and rejected by C

A

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

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17
Q

Youth Court orders

A

Referral order: max. 12 months
Rehabilitation order: max. 3 years
Detention and training order: max. 2 years

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18
Q

Criteria for an interim injunction

A

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?

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19
Q

Duty of care

A

Claimant must prove:
1. Duty of care
2. Breach
3. Causation
4. Damages

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20
Q

Application for an injunction

A
  • Can be made with or without notice
  • Must include draft order supported by evidence explaining why the injunction is necessary
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21
Q

Purpose of interim payment

A

To alleviate hardship for C caused by delay in the litigation process

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22
Q

Steps to pursue a claim

A
  1. Writing a letter before claim
  2. If settlement cannot be reached, pursue claim in courts

Takes a while, will not prevent immediate harm so not a good short-term solution

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23
Q

Occupiers’ Liability Act 1957 (Visitors)

A

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
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24
Q

Occupiers’ Liability Act 1984 (non-visitors)

A

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

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25
Q

Employer’s vicarious liability

A

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

26
Q

Product liability under the Consumer Protection Act 1987

A
  1. Person suffers damage caused by a defect in the product
  2. 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
27
Q

Public nuisance

A

Act not warranted by law which causes damage to public

  1. Persons affected are the public
  2. C suffered some special and particular damage over and above general inconvenience
28
Q

Private nuisance

A

Act which interferes with the enjoyment or use of an occupier’s land

  1. C has an interest in land
  2. D’s use of the land was unreasonable and led to interfering with C’s land
29
Q

Remedies

A
  • Damages
  • Debt claim
  • Injunction
  • Specific performance
30
Q

Battery

A
  1. D applies unlawful personal force on another
  2. Intentionally or recklessly

SUMMARY

31
Q

Assault

A
  1. D causes another to apprehend (not fear)
  2. Immediate unlawful personal force
  3. Intentionally or recklessly

Conditional threat is sufficient

SUMMARY

32
Q

Assault occasioning ABH (S47, OAPA 1861)

A
  1. D commits battery / assault
  2. And causes ABH
  3. Intentionally or recklessly

EITHER WAY

33
Q

Actual bodily harm

A

Any injury calculated to interfere with the health or comfort of the victim which is more than merely trifling, including psychiatric injury

34
Q

Wounding or inflicting GBH (S20, OAPA 1861)

A
  1. D causes either a wound or GBH
  2. Intentionally or reckless as to causing some harm

EITHER WAY

35
Q

Wounding or inflicting GBH with intent (S18, OAPA 1861)

A
  1. D intends to cause serious harm OR reckless as to some harm and intends to resist lawful apprehension
  2. Causes either a wound or GBH

INDICTABLE ONLY

36
Q

Involuntary manslaughter (Unlawful act / Constructive)

A
  1. D intends to commit a criminal offence that is
  2. Dangerous
  3. Carries objective risk to the victim
  4. Causes the death

INDICTABLE ONLY

37
Q

Involuntary manslaughter (Gross negligence)

A
  1. D owes victim duty of care and has breached it
  2. In such an extremely negligent way that they are deemed criminally culpable
  3. There was serious and obvious risk of death, whether or not D was aware
  4. Causes death

INDICTABLE ONLY

38
Q

Voluntary manslaughter (diminished responsibility)

A
  1. D shows abnormality of mental functioning
  2. Which arose from recognised medical condition
  3. And substantially impaired D’s ability to either:
    Understand nature of his conduct
    Form rational judgement
    Exercise self-control
  4. It provides an explanation for the killing

Burden of proof is on D

INDICTABLE ONLY

39
Q

Voluntary manslaughter (loss of control)

A
  1. D lost self-control
  2. 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)
  3. Hypothetical person of D’s age and sex might have reacted in the same way (objective)

Burden of proof is on prosecution

INDICTABLE ONLY

40
Q

Murder

A
  1. D causes
  2. Death of another human being
  3. Unlawfully
  4. With intention to kill or cause GBH

MANDATORY sentence of life imprisonment

INDICTABLE ONLY

41
Q

Theft (S1, Theft Act 1968)

A
  1. Dishoenst appropriation of property belonging to another
  2. Intending to permanently depriving them of it

Intent determined at time of appropriate

EITHER WAY

42
Q

Robbery (S8, Theft Act 1968)

A
  1. Committing theft
  2. Immediately before or at the same time using force or causing the victim to apprehend force or intending to cause the apprehension of force
  3. In order to steal

INDICTABLE ONLY

43
Q

Burglary by trespass with intent (S9(1)(a), Theft Act 1968)

A
  1. D knowingly or recklessly enters a building / part of a building as a trespasser with any part of their body
  2. With intent to:
    a. Steal
    b. Inflict GBH
    c. Cause criminal damage

EITHER WAY

43
Q

Burglary by offence following trespassory entry (S9(1)(b), Theft Act 1968)

A
  1. D knowingly or recklessly enters a building / part of a building as a trespasser with any part of their body
  2. Did:
    a. Steal / attempted to steal
    b. Inflict / attempted to inflict GBH

EITHER WAY

44
Q

Aggravated burglary (S10, Theft Act 1968)

A
  1. Committing burglary
  2. 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

45
Q

Domestic burglary

A

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

46
Q

Criminal damage (S1(1), Criminal Damage Act 1971)

A
  1. D, without lawful excuse, destroys or damages property belonging to another
  2. Intentionally or recklessly

Under £5,000 = tried summarily

EITHER WAY

47
Q

Aggravated criminal damage (S1(2), Criminal Damage Act 1971)

A
  1. D, without lawful excuse, destroys or damages property
  2. Intentionally or recklessly
  3. 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

48
Q

Arson (S1(3), Criminal Damage Act 1971)

A
  1. Criminal damage by fire (not smoke)

EITHER WAY

49
Q

Aggravated arson (S1(3), Criminal Damage Act 1971)

A
  1. Aggravated criminal damage

INDICTABLE ONLY

50
Q

Fraud by false representation (S2, Fraud Act 2006)

A
  1. Dishonestly making a false or misleading representation
  2. Knowing it is false or misleading
  3. Intending to make a gain for themselves OR cause or risk loss to another

EITHER WAY

51
Q

Fraud by failing to disclose information (S3, Fraud Act 2006)

A
  1. D fails to disclose information that he is under a duty to
  2. Intending to make a gain OR cause or risk loss to another

EITHER WAY

52
Q

Fraud by abuse of position (S4, Fraud Act 2006)

A
  1. D abuses a position in which he is expected to safeguard the financial interests of another
  2. Intending to use the position to make a gain OR cause or risk loss to another
  3. By act or omission

EITHER WAY

53
Q

Appeal from Magistrates’ Court to Crown Court

A

Against sentence or conviction

Within 15 days

54
Q

Appeal from Magistrates’ Court to High Court by way of case stated

A

On issues of law or excess of jurisdiction

Within 21 days

55
Q

Appeal from Crown Court to Court of Appeal

A

Against conviction: UNSAFE

Against sentence: WRONG IN LAW / WRONG IN PRINCIPLE / MANIFESTLY EXCESSIVE

Within 28 days, apply for leave to appeal

56
Q

Youth Court: Detention and training orders

A

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

57
Q

Magistrates’ Court

A

Sir / Madam

58
Q

District Judge

A

Judge

59
Q

Circuit Judge

A

Your Honour

60
Q

High Court Judge

A

My Lord / Lady

61
Q

Master of High Court

A

Judge

Hakyung's flashcards (4 decks)

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