Criminal Litigation - Flashcards Full Deck

Question 1

What are Summary Only offences?

Answer 1

Summary only offences are the least serious offences, such as assault and battery, and can only be heard in the Magistrates’ Court (MC).

Question 2

What are Indictable Only offences?

Answer 2

Indictable only offences are the most serious offences, such as rape, murder, and robbery. They can only be heard in the Crown Court (CC). If the defendant is charged with multiple offences, the most serious will determine where the trial is heard.

Question 3

What are Either Way offences?

Answer 3

Either Way offences are more serious than summary offences but less serious than indictable offences. They can be heard in either the Magistrates’ Court (MC) or Crown Court (CC).

Question 4

What rights does PACE 1984 provide to suspects?

Answer 4

PACE 1984 provides several rights, including access to free legal advice, right to notify someone of arrest, right to inspect PACE, right to silence, right to be informed of the reason for arrest and detention, right to inspect documents related to arrest, and right to information on detention time limits.

Question 5

Why is the right to free legal advice important?

Answer 5

The right to free legal advice is the most important because it safeguards the suspect’s other rights. It is available to everyone regardless of means and is free at the point of delivery. Advice can be given via phone or in person.

Question 6

When can access to free legal advice or notifying someone of arrest be delayed?

Answer 6

Access to legal advice and notifying someone can be delayed to prevent interference with evidence, witnesses, or alerting other suspects, but only for indictable offences. A superintendent or above must authorize the delay in writing for up to 36 hours.

Question 7

What are the detention time limits under PACE 1984?

Answer 7

The time limit starts when a suspect arrives at the police station. Initial detention is 24 hours, extendable by 12 hours with superintendent approval, and by 36 hours if a Magistrates’ Court approves. A further 24 hours can be added, so the maximum detention time is 96 hours (4 days).

Question 8

What conditions must be met for detention to be extended beyond 24 hours?

Answer 8

To extend detention beyond 24 hours, the offence must be indictable, there must be reasonable grounds to believe further detention is needed to preserve or obtain evidence, and the investigation must be conducted diligently and expeditiously. Magistrates’ Court approval is required for the extension.

Question 9

What is the general rule on bail?

Answer 9

Defendants have the right to bail, except in murder cases, unless one of the exceptions applies and there is a real prospect of a custodial sentence if convicted.

Question 10

What are the exceptions to granting bail?1

Answer 10

1. Substantial grounds to believe the defendant would fail to surrender, commit further offences, or interfere with witnesses/justice.

Question 11

What are the exceptions to granting bail?2

Answer 11

2. The defendant was on bail during an indictable offence.

Question 12

What are the exceptions to granting bail?3

Answer 12

3. Bail is necessary for the defendant’s protection.

Question 13

What are the exceptions to granting bail?4

Answer 13

4. Risk that the defendant would commit an offence against an associated person.

Question 14

What are the exceptions to granting bail?5

Answer 14

5. Defendant is already serving a custodial sentence.

Question 15

What are the exceptions to granting bail?6

Answer 15

6. Insufficient information to make a decision.

Question 16

What are the exceptions to granting bail?7

Answer 16

7. Defendant failed to surrender or breached bail in the same proceedings.

Question 17

What does ‘substantial grounds’ refer to in bail decisions?

Answer 17

Courts consider factors such as the nature and seriousness of the offence, how it will likely be dealt with, the defendant’s past convictions, community ties, compliance with bail in the past, strength of evidence, and the risk of harm to others if released.

Question 18

What is conditional bail?

Answer 18

Conditional bail allows the court to impose conditions on the defendant’s release, which must be relevant, proportionate, and enforceable. Common conditions include residence requirements, reporting to a police station, exclusion zones, curfews, electronic tagging, and sureties or security payments.

Question 19

What is the rule regarding bail in murder cases?

Answer 19

There is a presumption against granting bail in murder cases.

Question 20

How many bail applications is the defendant entitled to?

Answer 20

A defendant is entitled to only two bail applications under the same circumstances.

Question 21

What happens if a defendant breaches bail conditions?

Answer 21

If a defendant breaches bail conditions, they will be arrested and taken into custody. The court can either revoke bail or impose stricter conditions. Failure to attend court leads to an arrest warrant and could result in bail being revoked or an additional charge of failing to surrender.

Question 22

What are the main stages of a criminal trial?

Answer 22

1. Prosecution opening speech.
2. Prosecution calls witnesses.
   2a. If applicable, defendant may make an application of no case to answer.
3. Defence calls witnesses.
4. Closing speeches (both sides).
5. Judge sums up.
6. Jury deliberates (in Crown Court).
7. Verdict.
8. Pre-sentence reports (if relevant).
9. Sentencing.

Question 23

What is the purpose of an application of no case to answer?

Answer 23

The application is made when the defence argues that the prosecution has not presented enough evidence to amount to a prima facie case. If the judge agrees, the case can be dismissed. If not, the trial continues.

Question 24

What is the difference between examination-in-chief and cross-examination?

Answer 24

Examination-in-chief is when a witness is questioned by their own side using non-leading questions to help them give their evidence. Cross-examination is when the opposing side questions the witness to cast doubt on their evidence, and leading questions can be used.

Question 25

What is meant by ‘competence’ in relation to witnesses?

Answer 25

A witness is considered competent if they are able to understand questions and provide understandable answers. Most people are competent to give evidence unless they lack this capacity.

Question 26

What does ‘compellability’ mean for witnesses?

Answer 26

Compellability refers to whether a witness can be forced to give evidence. Generally, all competent witnesses are compellable, but there are exceptions, such as defendants, their spouses, and co-defendants.

Question 27

Who is compellable to give evidence?1

Answer 27

• The defendant is not compellable for the prosecution and does not have to give evidence unless they choose to.

Question 28

Who is compellable to give evidence?2

Answer 28

• The defendant’s spouse/civil partner is not compellable for the prosecution but is compellable for the defence.

Question 29

Who is compellable to give evidence?3

Answer 29

• Co-defendants are neither competent nor compellable for the prosecution.

Question 30

What are special measures for giving evidence?

Answer 30

Certain witnesses, like those affected by fear, can request special measures, such as the removal of wigs and gowns by court personnel, giving evidence in private, pre-recorded testimony, or the use of screens.

Question 31

What professional conduct duties must lawyers uphold during trial?

Answer 31

Lawyers must avoid misleading the court, such as allowing a client to lie or not correcting an error of law. They also have a duty to avoid conflicts of interest.

Question 32

What are the Turnbull Guidelines for assessing ID evidence?

Answer 32

TheTurnbull Guidelinesmust be followed when a case substantially relies on disputed ID evidence. These guidelines help ascertain the strength of the evidence. The judge will evaluate factors set out inADVOKATEto determine the quality of the ID evidence.

Question 33

What is ADVOKATE in relation to ID evidence?

Answer 33

ADVOKATE is an acronym used to assess the strength of ID evidence:
Amount of time witness observed the suspect
Distance from suspect
Visibility at time of observation
Obstructions
Known to the witness
Any special reason to remember the suspect
Time between incident and ID procedure
Errors in the witness’s first description of the suspect.

Question 34

What happens if the judge concludes that ID evidence is weak and unsupported?

Answer 34

If the ID evidence is weak and unsupported by other evidence, the judge should withdraw the case and direct an acquittal.

Question 35

What happens if the judge finds ID evidence strong enough?

Answer 35

If the judge concludes that the ID evidence is strong enough, the case will be left to the jury to decide.

Question 36

What is a Turnbull Warning?

Answer 36

ATurnbull Warningis a special caution given by the judge to the jury in cases relying on ID evidence. The judge warns that mistaken witnesses can still be convincing and asks the jury to consider weaknesses in the ID evidence using the ADVOKATE factors.

Question 37

When can adverse inferences be drawn from the defendant’s behavior?

Answer 37

Adverse inferences can be drawn when the defendant:
(i) Fails to account when questioned or charged.
(ii) Remains silent at trial.
(iii) Fails to explain marks on their person, possession of an item, or presence at the scene.

Question 38

What is hearsay evidence?

Answer 38

Hearsay is evidence of something someone else said outside of court, which cannot be tested by cross-examination. It is generally less reliable than direct evidence. For example, witness statements read in court are considered hearsay.

Question 39

What are the four main ways hearsay evidence can be admissible?

Answer 39

1. Under Statute
2. By Rule of Law
3. By Agreement of All Parties
4. In the Interests of Justice

Question 40

What are the statutory exceptions to hearsay admissibility?

Answer 40

(a) Witness is unavailable (e.g., dead, unfit, outside UK, missing, or too scared).
(b) Business documents (created/received in the course of business).
(c) Statements for criminal proceedings (when witness can’t remember details).
(d) Previous consistent/inconsistent statements of a witness.
(e) Expert evidence.
(f) Confessions.

Question 41

What is a “confession” in the context of hearsay?

Answer 41

A confession is an admission of guilt made by the defendant, which can be admissible as hearsay under the rule of law. Mixed statements, which include both incriminating and exculpatory elements, are also admissible.

Question 42

What are the rule of law exceptions to hearsay?

Answer 42

(i) Confessions or mixed statements.
(ii) Statements made at the time of the offence.
(iii) Statements preserved by res gestae (e.g., made while emotionally overpowered during an event, such as a domestic violence victim’s statement).

Question 43

When can hearsay be admitted by agreement of all parties?

Answer 43

Hearsay evidence, such as witness statements, can be read out in court if all parties agree. This is a way to simplify the trial process.

Question 44

When is hearsay admitted in the “interests of justice”?

Answer 44

Hearsay may be admitted if it serves the interests of justice. Factors include the probative value of the statement, its importance to the case, reliability, and difficulty in challenging the statement.

Question 45

What is multiple hearsay and when is it admissible?

Answer 45

Multiple hearsay occurs when a statement is relayed through more than one person before reaching court, making it even less reliable. It is admissible if:
(i) Business documents
(ii) Inconsistent or consistent statements
(iii) All parties agree
(iv) In the interests of justice.

Question 46

What is a confession in the context of hearsay?

Answer 46

A confession is any statement that is wholly or partly adverse to the person who made it. It is admissible if it is relevant to a matter in issue. Confessions are a specific type of hearsay with special rules.

Question 47

Under what circumstances can the admissibility of a confession be challenged?

Answer 47

Challenges to admissibility can be made under s76 PACE if:
1) There was oppression, such as torture, inhuman or degrading treatment, or violence (or the threat of it).
2) Things said or done were likely to make the confession unreliable (e.g., offering bail or a caution in exchange for a confession, overstating police evidence, or interviewing an unfit suspect).

Question 48

What must be proven for a confession to be excluded?

Answer 48

There must be acausal linkbetween the oppression or things said or done and the confession. If the confession would have been made regardless, it will not be excluded. The burden of proof is on the prosecution to show beyond reasonable doubt that neither oppression nor improper conduct occurred. If the prosecution fails to do so, the confessionmustbe excluded.

Question 49

What happens if the prosecution fails to prove the confession was not obtained by oppression or improper conduct?

Answer 49

If the prosecution cannot prove beyond a reasonable doubt that oppression or improper conduct did not occur, the confessionmustbe excluded. This is mandatory; the court has no discretion in this case.

Question 50

How is the admissibility of a confession decided in the Crown Court (CC)?

Answer 50

In theCrown Court, admissibility is decided in avoir direhearing, which takes place in the absence of the jury. If the confession is deemed inadmissible, the jury will not hear about it.

Question 51

How is the admissibility of a confession decided in the Magistrates’ Court (MC)?

Answer 51

In theMagistrates’ Court, the bench decides matters of both fact and law. If the bench rules a confession inadmissible, they must disregard it when deciding the case.

Question 52

What does s78 PACE allow the court to do in terms of excluding evidence?

Answer 52

Unders78 PACE, the court has discretion to exclude any evidence if admitting it would have anadverse effect on the fairnessof the proceedings. This is a discretionary power and is usually applied to substantial breaches (e.g., illegal searches, improper ID procedures, confessions, covert surveillance).

Question 53

What is bad character evidence?

Answer 53

Bad character evidence refers to evidence of a disposition towards misconduct, the commission of offences, or other bad behaviour not directly related to the current charge. This can include previous convictions, but it does not have to. It is considered extremely prejudicial, so its admission is closely guarded.

Question 54

What are the 7 gateways for admitting bad character evidence?

Answer 54

1) All parties agree
2) Introduced by the defendant (e.g., in response to cross-examination)
3) Important explanatory evidence
4) Relevant to an important matter in issue (e.g., propensity to commit similar offences)
5) Substantial probative value in issue between co-defendants
6) Corrects a false impression given by the defendant
7) Defendant has attacked another witness’s character

Question 55

What is important explanatory evidence under bad character rules?

Answer 55

This is evidence that is necessary to properly understand other evidence in the case. The jury would find it difficult or impossible to understand the case without it. It must beessentialto understanding the case as a whole, not just filling out the picture.

Question 56

When is bad character evidence relevant to an important matter in issue?

Answer 56

It is relevant when it addresses matters in issue, such as thedefendant’s propensityto commit offences of the type charged or thepropensity to be untruthful. Previous similar convictions or cautions can be admitted under this gateway.

Question 57

What is the procedure for admitting bad character evidence?

Answer 57

The prosecution must give notice to adduce bad character evidence:
- Within 28 days of a not guilty plea in the Magistrates’ Court.
- Within 14 days of a not guilty plea in the Crown Court.
In the Crown Court, the application will be heard by the judge in the absence of the jury. In the Magistrates’ Court, the bench will consider the application. If the evidence is ruled inadmissible, it must be disregarded.

Question 58

When must bad character evidence be excluded under gateways 4 and 7?

Answer 58

If the defence applies to exclude bad character evidence admitted under gateways 4 (propensity) or 7 (attack on witness character), and the court believes its admission would have anadverse effect on the fairness of proceedings, the courtmustexclude it.

Question 59

What is good character evidence?

Answer 59

Good character evidence demonstrates a lack of disposition towards committing offences or engaging in reprehensible behaviour. It is often shown by a lack of a criminal record. If the defendant has no previous convictions, they areautomatically entitledto agood character directionfrom the judge.

Question 60

What is a good character direction?

Answer 60

A good character direction is given by the judge if the defendant has no previous convictions. It instructs the jury that a person of good character isless likelyto commit an offence andmore likelyto be credible when asserting their innocence.

Question 61

How does s78 PACE 1984 allow for the exclusion of evidence?

Answer 61

The court can exclude prosecution evidence if it would adversely affect the fairness of the proceedings, considering all circumstances. This exclusion isdiscretionary.

Question 62

What distinguishes s78 exclusion from exclusion based on other grounds?

Answer 62

Exclusion under s78 isdiscretionary(focused on fairness), while exclusion for mistake, untruth, oppression, or unreliability ismandatory.

Question 63

Under what circumstances is exclusion under s78 likely to be granted?

Answer 63

Exclusion is likely when police have significantly and substantially breached their duties under PACE in obtaining evidence, rendering it unreliable.

Question 64

What are examples of significant breaches that might lead to exclusion?

Answer 64

Examples include:
- Illegal searches
- Identification evidence obtained improperly
- Confessions obtained through coercion
- Covert surveillance conducted unlawfully
- Undercover operations that breach protocol

Question 65

What is the purpose of a submission of no case to answer?

Answer 65

To argue that the prosecution has not met its burden of proof and that there is insufficient evidence to support a conviction.

Question 66

What is the first point to make in a submission of no case to answer?

Answer 66

Remind the court that theburden is on the prosecutionto prove the defendant is guilty and that all elements of the offence must be established.

Question 67

What is the second point to argue in this submission?

Answer 67

Argue that the prosecution’s evidence is insufficient for any reasonable court to convict, either due to failure to prove an element of the offence or because the evidence ismanifestly unreliable, making a conviction unreasonable.

Question 68

What must the court consider when deciding whether to accept jurisdiction?

Answer 68

The court must consider theadequacy of its sentencing powersin relation to the case at hand.

Question 69

What are the custody limits for the Magistrates’ Court (MC)?

Answer 69

The MC is restricted to6 monthscustody for a single offence or12 monthscustody fortwo or more either way offences.

Question 70

What should be reviewed in the submission?

Answer 70

Go through the relevantsentencing guidelinesto assess thestarting pointfor the sentence and the applicablerangefor sentencing.

Question 71

What is the goal of the submission regarding jurisdiction?

Answer 71

To argue that the court’s sentencing powers areadequate, thereby justifying the acceptance of jurisdiction over the case.

Question 72

What initial question should be asked when considering bad character evidence?

Answer 72

Is it evidence of, or a disposition towards,misconduct, commission of offences, or otherreprehensible behaviouroutside the facts of the offence? If yes, it is generallynot admissibleunless…

Question 73

What are the 7 gateways for the admission of bad character evidence?

Answer 73

1) All parties agree it is admissible
2) Adduced by the defendant
3) Important explanatory evidence
4) Relevant to an important matter in issue between prosecution and defence
5) Substantial probative value to an important matter in issue between co-defendants
6) Corrects a false impression given by the defendant
7) The defendant attacks another’s character

Question 74

What happens if evidence is adduced under the last two gateways?

Answer 74

If admitted under “important matter in issue” or “the defendant attacked another’s character,” the court must not admit it if the defence applies for exclusion and shows that admission would have anadverse effect on the fairnessof the proceedings.

Question 75

What is the first step in making a hearsay application?

Answer 75

Identify whether the hearsay issingleormultiplehearsay.

Question 76

What must be established for single hearsay to be admissible?

Answer 76

Single hearsay is inadmissible unless it falls under one of the following exceptions:
1) Under statute
2) By rule of law
3) By agreement of the parties
4) In the interest of justice

Question 77

What considerations apply to multiple hearsay?

Answer 77

For multiple hearsay, consider whether it:
- Is contained in a business document
- Includes inconsistent or consistent statements
- Is agreed upon by all parties
- Has such high value that it is in the interests of justice

Question 78

What should be done after identifying the type of hearsay?

Answer 78

Apply thetest from the relevant exceptionto determine admissibility.

Question 79

What is the first point to make in a plea in mitigation?

Answer 79

Remind the court that thesentence must be proportionateto the seriousness of the offence, considering the offender’sculpabilityand any potentialharmfrom the offence.

Question 80

What should you identify next regarding sentencing?

Answer 80

Identify thestarting pointfor the sentence and therange of sentencesavailable.

Question 81

What factors should be considered in relation to the offence?

Answer 81

Consider bothaggravatingandmitigating factorsrelated to the offence itself.

Question 82

What factors should be considered relating to the offender?

Answer 82

Considermitigating factorsspecifically relating to the offender, such as personal circumstances or background.

Question 83

What should you remind the court about guilty pleas?

Answer 83

Remind the court of thecredit for a guilty plea(if applicable) and how it may affect sentencing.

Question 84

What should you propose at the end of your plea?

Answer 84

Propose anappropriate sentencethat reflects the considerations discussed.

Question 85

What is the first point to make in a bail application?

Answer 85

Remind the court of the defendant’sright to bail—bail can ONLY be refused if one of the exceptions apply AND there is areal prospect of a custodial sentence.

Question 86

What should you consider next regarding exceptions?

Answer 86

Consider whether any of the following exceptions apply:
1) Substantial grounds to believe the defendant would fail to surrender, commit further offences, or obstruct justice
2) Indictable offence and the defendant was on bail at the time
3) For the defendant’s own protection
4) Belief that the defendant would commit an offence on bail against an associated person
5) Defendant already serving a custodial sentence
6) Insufficient information to make a decision
7) Defendant failed to surrender or breached bail conditions in the same proceedings.

Question 87

What does “substantial grounds” refer to?

Answer 87

The court will consider factors such as thenature and seriousness of the offence, probable method of dealing with it, previous convictions, community ties, and the strength of the evidence.

Question 88

What factors should you review to determine if substantial grounds exist?

Answer 88

Review factors such as thenature and seriousness of the offence, the defendant’scharacter, their record of complying with bail conditions, and thestrength of evidence.

Question 89

What conditions can be proposed to mitigate issues?

Answer 89

Consider whether anyconditionscan be put forward, such as residence requirements, reporting to a police station, exclusion zones, non-contact orders, tagging, or curfews.

Question 90

What should be your conclusion in the application?

Answer 90

Conclude onwhy bail should or should not be granted, based on the assessment of the exceptions and proposed conditions.

Question 91

Assault

Answer 91

Definition: Intentionally or recklessly causing apprehension of immediate unlawful violence.
Mode of Trial: Summary only
Sentence Range: Discharge – 26 weeks

Question 92

Battery

Answer 92

Intentional or reckless application of immediate unlawful force.
Summary only
Discharge – 26 weeks

Question 93

ABH

Answer 93

Causing actual bodily harm by assault or battery.
Either Way
Fine – 3 years custody

Question 94

s20 GBH

Answer 94

Wounding or causing GBH with intent or recklessness.
Either Way
Community order – 4 years

Question 95

s18 GBH

Answer 95

Wounding or causing GBH intending serious harm.
Indictable only
3 – 16 years custody

Question 96

Murder

Answer 96

Causing death of a human being by intending to kill or cause GBH.
Indictable only
Mandatory life sentence

Question 97

Unlawful act manslaughter

Answer 97

Unlawful, intentional act causing death.
Indictable only
1 – 24 years custody

Question 98

Manslaughter by diminished responsibility

Answer 98

Murder with partial defence of diminished responsibility.
Indictable only
3 – 40 years custody

Question 99

Manslaughter by loss of control

Answer 99

Murder with partial defence of loss of control.
Indictable only
3 – 20 years custody

Question 100

Gross negligence manslaughter

Answer 100

Breach of a duty of care causing death.
Indictable only
1 – 18 years custody

Question 101

Theft

Answer 101

Dishonest appropriation of property belonging to another with intention to permanently deprive.
Either Way
Discharge – 6 years custody

Question 102

Robbery

Answer 102

Taking property unlawfully from a person or place by force or threat of force.
Indictable only
1 – 16 years custody

Question 103

Burglary (domestic)

Answer 103

Entering a building as a trespasser with intent to steal, commit GBH, or criminal damage.
Either Way
Community order – 6 years

Question 104

Fraud by false representation

Answer 104

Dishonestly making a false representation intending to gain or cause loss.
Either Way
Discharge – 8 years

Question 105

Criminal Damage

Answer 105

Without lawful excuse, damaging or destroying property belonging to another.
Summary (under £5,000) / Either Way (over £5,000)
Under £5,000: Discharge – 3 months; Over £5,000: Discharge – 4 years

Question 106

Arson

Answer 106

Criminal damage by fire.
Either Way
Discharge – 8 years

Question 107

Aggravated Arson

Answer 107

Criminal damage by fire with intent or recklessness as to endangerment of life.
Indictable
High-level community order – 12 years