Criminal Litigation - Flashcards Full Deck
1
Q
What are Summary Only offences?
A
Summary only offences are the least serious offences, such as assault and battery, and can only be heard in the Magistrates’ Court (MC).
2
Q
What are Indictable Only offences?
A
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.
3
Q
What are Either Way offences?
A
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).
4
Q
What rights does PACE 1984 provide to suspects?
A
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.
5
Q
Why is the right to free legal advice important?
A
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.
6
Q
When can access to free legal advice or notifying someone of arrest be delayed?
A
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.
7
Q
What are the detention time limits under PACE 1984?
A
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).
8
Q
What conditions must be met for detention to be extended beyond 24 hours?
A
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.
9
Q
What is the general rule on bail?
A
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.
10
Q
What are the exceptions to granting bail?1
A
- Substantial grounds to believe the defendant would fail to surrender, commit further offences, or interfere with witnesses/justice.
11
Q
What are the exceptions to granting bail?2
A
- The defendant was on bail during an indictable offence.
12
Q
What are the exceptions to granting bail?3
A
- Bail is necessary for the defendant’s protection.
13
Q
What are the exceptions to granting bail?4
A
- Risk that the defendant would commit an offence against an associated person.
14
Q
What are the exceptions to granting bail?5
A
- Defendant is already serving a custodial sentence.
15
Q
What are the exceptions to granting bail?6
A
- Insufficient information to make a decision.
16
Q
What are the exceptions to granting bail?7
A
- Defendant failed to surrender or breached bail in the same proceedings.
17
Q
What does ‘substantial grounds’ refer to in bail decisions?
A
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.
18
Q
What is conditional bail?
A
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.
19
Q
What is the rule regarding bail in murder cases?
A
There is a presumption against granting bail in murder cases.
20
Q
How many bail applications is the defendant entitled to?
A
A defendant is entitled to only two bail applications under the same circumstances.
21
Q
What happens if a defendant breaches bail conditions?
A
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.
22
Q
What are the main stages of a criminal trial?
A
- Prosecution opening speech.
- Prosecution calls witnesses.
2a. If applicable, defendant may make an application of no case to answer. - Defence calls witnesses.
- Closing speeches (both sides).
- Judge sums up.
- Jury deliberates (in Crown Court).
- Verdict.
- Pre-sentence reports (if relevant).
- Sentencing.
23
Q
What is the purpose of an application of no case to answer?
A
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.
24
Q
What is the difference between examination-in-chief and cross-examination?
A
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.
25
What is meant by 'competence' in relation to witnesses?
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.
26
What does 'compellability' mean for witnesses?
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.
27
Who is compellable to give evidence?1
- The defendant is not compellable for the prosecution and does not have to give evidence unless they choose to.
28
Who is compellable to give evidence?2
- The defendant’s spouse/civil partner is not compellable for the prosecution but is compellable for the defence.
29
Who is compellable to give evidence?3
- Co-defendants are neither competent nor compellable for the prosecution.
30
What are special measures for giving evidence?
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.
31
What professional conduct duties must lawyers uphold during trial?
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.
32
What are the Turnbull Guidelines for assessing ID evidence?
The Turnbull Guidelines must 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 in ADVOKATE to determine the quality of the ID evidence.
33
What is ADVOKATE in relation to ID evidence?
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.
34
What happens if the judge concludes that ID evidence is weak and unsupported?
If the ID evidence is weak and unsupported by other evidence, the judge should withdraw the case and direct an acquittal.
35
What happens if the judge finds ID evidence strong enough?
If the judge concludes that the ID evidence is strong enough, the case will be left to the jury to decide.
36
What is a Turnbull Warning?
A Turnbull Warning is 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.
37
When can adverse inferences be drawn from the defendant’s behavior?
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.
38
What is hearsay evidence?
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.
39
What are the four main ways hearsay evidence can be admissible?
1. Under Statute
2. By Rule of Law
3. By Agreement of All Parties
4. In the Interests of Justice
40
What are the statutory exceptions to hearsay admissibility?
(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.
41
What is a "confession" in the context of hearsay?
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.
42
What are the rule of law exceptions to hearsay?
(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).
43
When can hearsay be admitted by agreement of all parties?
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.
44
When is hearsay admitted in the "interests of justice"?
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.
45
What is multiple hearsay and when is it admissible?
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.
46
What is a confession in the context of hearsay?
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.
47
Under what circumstances can the admissibility of a confession be challenged?
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).
48
What must be proven for a confession to be excluded?
There must be a causal link between 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 confession must be excluded.
49
What happens if the prosecution fails to prove the confession was not obtained by oppression or improper conduct?
If the prosecution cannot prove beyond a reasonable doubt that oppression or improper conduct did not occur, the confession must be excluded. This is mandatory; the court has no discretion in this case.
50
How is the admissibility of a confession decided in the Crown Court (CC)?
In the Crown Court, admissibility is decided in a voir dire hearing, which takes place in the absence of the jury. If the confession is deemed inadmissible, the jury will not hear about it.
51
How is the admissibility of a confession decided in the Magistrates' Court (MC)?
In the Magistrates' 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.
52
What does s78 PACE allow the court to do in terms of excluding evidence?
Under s78 PACE, the court has discretion to exclude any evidence if admitting it would have an adverse effect on the fairness of the proceedings. This is a discretionary power and is usually applied to substantial breaches (e.g., illegal searches, improper ID procedures, confessions, covert surveillance).
53
What is bad character evidence?
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.
54
What are the 7 gateways for admitting bad character evidence?
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
55
What is important explanatory evidence under bad character rules?
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 be essential to understanding the case as a whole, not just filling out the picture.
56
When is bad character evidence relevant to an important matter in issue?
It is relevant when it addresses matters in issue, such as the defendant’s propensity to commit offences of the type charged or the propensity to be untruthful. Previous similar convictions or cautions can be admitted under this gateway.
57
What is the procedure for admitting bad character evidence?
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.
58
When must bad character evidence be excluded under gateways 4 and 7?
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 an adverse effect on the fairness of proceedings, the court must exclude it.
59
What is good character evidence?
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 are automatically entitled to a good character direction from the judge.
60
What is a good character direction?
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 is less likely to commit an offence and more likely to be credible when asserting their innocence.
61
How does s78 PACE 1984 allow for the exclusion of evidence?
The court can exclude prosecution evidence if it would adversely affect the fairness of the proceedings, considering all circumstances. This exclusion is discretionary.
62
What distinguishes s78 exclusion from exclusion based on other grounds?
Exclusion under s78 is discretionary (focused on fairness), while exclusion for mistake, untruth, oppression, or unreliability is mandatory.
63
Under what circumstances is exclusion under s78 likely to be granted?
Exclusion is likely when police have significantly and substantially breached their duties under PACE in obtaining evidence, rendering it unreliable.
64
What are examples of significant breaches that might lead to exclusion?
Examples include:
- Illegal searches
- Identification evidence obtained improperly
- Confessions obtained through coercion
- Covert surveillance conducted unlawfully
- Undercover operations that breach protocol
65
What is the purpose of a submission of no case to answer?
To argue that the prosecution has not met its burden of proof and that there is insufficient evidence to support a conviction.
66
What is the first point to make in a submission of no case to answer?
Remind the court that the burden is on the prosecution to prove the defendant is guilty and that all elements of the offence must be established.
67
What is the second point to argue in this submission?
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 is manifestly unreliable, making a conviction unreasonable.
68
What must the court consider when deciding whether to accept jurisdiction?
The court must consider the adequacy of its sentencing powersin relation to the case at hand.
69
What are the custody limits for the Magistrates' Court (MC)?
The MC is restricted to 6 months custody for a single offence or 12 monthscustody for two or more either way offences.
70
What should be reviewed in the submission?
Go through the relevant sentencing guidelines to assess the starting point for the sentence and the applicable range for sentencing.
71
What is the goal of the submission regarding jurisdiction?
To argue that the court's sentencing powers are adequate, thereby justifying the acceptance of jurisdiction over the case.
72
What initial question should be asked when considering bad character evidence?
Is it evidence of, or a disposition towards, misconduct, commission of offences, or other reprehensible behaviour outside the facts of the offence? If yes, it is generally not admissible unless...
73
What are the 7 gateways for the admission of bad character evidence?
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
74
What happens if evidence is adduced under the last two gateways?
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 an adverse effect on the fairness of the proceedings.
75
What is the first step in making a hearsay application?
Identify whether the hearsay is single or multiple hearsay.
76
What must be established for single hearsay to be admissible?
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
77
What considerations apply to multiple hearsay?
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
78
What should be done after identifying the type of hearsay?
Apply the test from the relevant exception to determine admissibility.
79
What is the first point to make in a plea in mitigation?
Remind the court that the sentence must be proportionate to the seriousness of the offence, considering the offender’s culpability and any potential harm from the offence.
80
What should you identify next regarding sentencing?
Identify the starting point for the sentence and the range of sentencesavailable.
81
What factors should be considered in relation to the offence?
Consider both aggravating and mitigating factors related to the offence itself.
82
What factors should be considered relating to the offender?
Consider mitigating factors specifically relating to the offender, such as personal circumstances or background.
83
What should you remind the court about guilty pleas?
Remind the court of the credit for a guilty plea (if applicable) and how it may affect sentencing.
84
What should you propose at the end of your plea?
Propose an appropriate sentence that reflects the considerations discussed.
85
What is the first point to make in a bail application?
Remind the court of the defendant’s right to bail—bail can ONLY be refused if one of the exceptions apply AND there is a real prospect of a custodial sentence.
86
What should you consider next regarding exceptions?
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.
87
What does "substantial grounds" refer to?
The court will consider factors such as the nature and seriousness of the offence, probable method of dealing with it, previous convictions, community ties, and the strength of the evidence.
88
What factors should you review to determine if substantial grounds exist?
Review factors such as the nature and seriousness of the offence, the defendant’s character, their record of complying with bail conditions, and the strength of evidence.
89
What conditions can be proposed to mitigate issues?
Consider whether any conditions can be put forward, such as residence requirements, reporting to a police station, exclusion zones, non-contact orders, tagging, or curfews.
90
What should be your conclusion in the application?
Conclude on why bail should or should not be granted, based on the assessment of the exceptions and proposed conditions.
91
Assault
Definition: Intentionally or recklessly causing apprehension of immediate unlawful violence.
Mode of Trial: Summary only
Sentence Range: Discharge – 26 weeks
92
Battery
Intentional or reckless application of immediate unlawful force.
Summary only
Discharge – 26 weeks
93
ABH
Causing actual bodily harm by assault or battery.
Either Way
Fine – 3 years custody
94
s20 GBH
Wounding or causing GBH with intent or recklessness.
Either Way
Community order – 4 years
95
s18 GBH
Wounding or causing GBH intending serious harm.
Indictable only
3 – 16 years custody
96
Murder
Causing death of a human being by intending to kill or cause GBH.
Indictable only
Mandatory life sentence
97
Unlawful act manslaughter
Unlawful, intentional act causing death.
Indictable only
1 – 24 years custody
98
Manslaughter by diminished responsibility
Murder with partial defence of diminished responsibility.
Indictable only
3 – 40 years custody
99
Manslaughter by loss of control
Murder with partial defence of loss of control.
Indictable only
3 – 20 years custody
100
Gross negligence manslaughter
Breach of a duty of care causing death.
Indictable only
1 – 18 years custody
101
Theft
Dishonest appropriation of property belonging to another with intention to permanently deprive.
Either Way
Discharge – 6 years custody
102
Robbery
Taking property unlawfully from a person or place by force or threat of force.
Indictable only
1 – 16 years custody
103
Burglary (domestic)
Entering a building as a trespasser with intent to steal, commit GBH, or criminal damage.
Either Way
Community order – 6 years
104
Fraud by false representation
Dishonestly making a false representation intending to gain or cause loss.
Either Way
Discharge – 8 years
105
Criminal Damage
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
106
Arson
Criminal damage by fire.
Either Way
Discharge – 8 years
107
Aggravated Arson
Criminal damage by fire with intent or recklessness as to endangerment of life.
Indictable
High-level community order – 12 years
