Criminal Litigation - Prosecution of Adult Offenders Flashcards
2 ways of commencing summary prosecution?
- Charge D at POLICE station
- Issue WRITTEN CHARGE and POSTAL REQUISITION
Time limit for commencing summary prosecution?
6 months of date of commission
In a summary prosecution:
1. What is the deadline for CPS initial disclosure?
2. What is the deadline for D to serve defence statement and witness details?
- CPS disclosure must be before the first hearing
- If D wishes to serve defence and/or witness details, 14 days after initial disclosure
3 matters usually dealt with by MC at first hearing of summary offence?
- Take plea
- Legal representation
- Court bail (if hearing adjourned)
What is the main difference re CPS disclosure when a NG plea is anticipated?
if CPS expects a NG plea, the Initial Disclosure of Prosecution Case will also include a STREAMLINED DISCLOSURE CERTIFICATE comprising any UNUSED MATERIAL that requires disclosure
What is the 2-stage threshold for initial disclosure by the CPS?
- Any evidence NOT PREVIOUSLY disclosed
- That might REASONABLY be considered capable of UNDERMINING THE PROSECUTION or ASSISTING THE DEFENCE cases respectively
What should D do if he has reasonable cause to believe there is undisclosed prosecution material that meets disclosure threshold?
Apply to court for a disclosure order: failing which, consider abuse of process!
Who tries a summary trial?
Either 2 or 3 lay magistrates + court legal advisors
OR
District Judge
What is the test for whether D may give evidence through TV link? 3 specific requirements?
Whether D is a VULNERABLE defendant
- Interests of justice AND
- D is suffering from a mental disorder preventing him from participating by giving oral evidence in court AND
- Live-link would help D participate more effectively
When is the Plea Before Venue procedure required?
When D is charged with an EITHER WAY offence, then his first appearance before the MC will involve a PBV, where he is asked to decide:
What are the two possible consequences if D pleads guilty at the PBV?
- Either MC will retain jurisdiction and sentence (usually same day, subject to short adjournment for pre-sentence report) OR
- MC will commit D to CC for sentencing if MC believes sentencing powers are insufficient
What happens if D enters NG plea in the PBV hearing?
Magistrates will immediately proceed to an ALLOCATION HEARING
What is the general approach to an allocation hearing for an EW offence?
Pursuant to the Allocation Guidelines, should be tried SUMMARILY unless:
- Any sentence, even taking into account mitigation and guilty plea reduction, would CLEARLY be in MANIFEST EXCESS of the court’s powers or
- The case should be tried in the CC due to unusual legal, procedural or factual COMPLEXITY
Describe broadly the 3 possible outcomes of an allocation hearing.
- MC sends case to Crown Court (D has no choice)
- MC decides case should be tried summarily and D CONSENTS TO SUMMARY TRIAL and P is agreeable
- MC decides case should be tried summarily and D CONSENTS TO SUMMARY TRIAL but P objects
- MC decides case should be tried summarily but D ELECTS TRIAL ON INDICTMENT
4 key considerations when advising client on electing between summary and indictment trial?
- Jury (more open mind) vs judge (better-equipped to consider disputed evidence and voir dire issues)
- Sentencing
- Trial length
- Publicity
D is charged with an indictable-only offence. Advise him on his first court appearance.
Will still be in magistrates’ court, where: (1) he will be asked to indicate if he INTENDS to plead guilty or not-guilty plea and (2) MC will decide bail)
What must P and D do if D pleads NG for a trial on indictment?
- Obtain all information and identify all issues needed to ensure Pre-Trial Preparation Hearing is an EFFECTIVE HEARING
- Complete CASE MANAGEMENT QUESTIONNAIRE in good time before PTPH (including need for expert, bad character and hearsay applications)
What is the CPS deadline for serving the case sent bundle on defence in trial on indictment?
50 days if D is remanded in custody
70 days if D is on bail
When is “initial disclosure” usually made in a trial on indictment? Why is it called “initial disclosure”?
Either with the case sent bundle, or subsequently.
Initial disclosure because P has an ONGOING duty to KEEP UNDER REVIEW whether any prosecution material requiring disclosure was not previously disclosed
When is D’s deadline to serve a defence statement and witness notification in a ToI? Test for extension?
28 days after P provides initial disclosure.
Court will not grant extension unless: (1) application is BEFORE expiration of 28 day time limit and (2) court is satisfied D cannot reasonably give a defence statement within the SPECIFIED TIME
Main consideration when preparing defence statement?
Must set forward ALL facts and points of law that D intends to rely on at trial - otherwise adverse inferences may be drawn against any omissions
What is the prosecution’s next deadline after serving the case sent bundle?
P must serve a draft indictment and confirm any prosecution witnesses being called at trial 20 business days after serving the case sent bundle
What happens if D pleads NG at the first hearing but changes plea to G at the PTPH?
D must inform the court immediately and apply for a pre-sentence report to be prepared before the PTPH
What is “arraignment”?
Where, at the PTPH, D pleads guilty or not guilty
When D pleads not guilty at his arraignment, what four directions will the court make next at the PTPH?
- Set a TRIAL DATE
- Identify ISSUES to be decided at trial
- Provide a TIMETABLE to decide the PRE-TRIAL issues
- Make any further CASE MANAGEMENT directions
What considerations must be taken into account when arranging trial of a D who has been denied bail? Any exception?
If D has been remanded in custody pending trial, he should be tried within 182 days (although Crown can apply to extend if they have acted with due diligence and expedition)
When may the court try charges against different Ds together even though Ds are on separate written charges?
- D agrees to the charges being tried at the SAME TIME
- The court orders because (i) it is in the INTERESTS OF JUSTICE and (ii) the offences form part of a SERIES OF OFFENCES of the SAME OR SIMILAR CHARACTER
Why must P apply for an express court order to amend an indictment after it is served?
Any count added without formal court leave is not properly added or amended and any proceedings on that count will be a nullity
2 nuances regarding the giving of evidence by visual recorded interview?
- Automatically admissible unless not in interests of justice or would not maximise quality of V’s evidence
- Child witnesses are presumed to give EIC by recorded interview
Deadline to apply for special measures? Exception?
Party seeking the direction must apply in writing within 10 BUSINESS DAYS of D entering a NG plea
Exception is child witnesses under 18: automatically eligible for special measures
When is D not required to serve any witness notice after receiving initial disclosure?
When he is not calling any witness other than D
How many members usually sit on a jury?
12, but minimum 9 to be validly composed
What is the deadline for D to change his NG plea to G?
At any stage of the trial - even before verdict or sentence!
What is the two-element test for a trial on indictment to be conducted without a jury?
- Real and present danger of jury tampering
- Which is so substantial as to make it necessary in the interests of justice to conduct the trial without a jury
What are the 2 situations where a person can be lawfully called to give evidence but nevertheless is not competent?
- Cannot understand questions or provide answers that can be understood
- Witness is charged in the criminal proceedings
Presumption of competency for children?
Over 14 - presumed competent to give SWORN evidence
Unver 14 - presumed competent to give UNSWORN evidence
What are the 2 situations where the spouse or civil partner of D is compellable to give evidence for the prosecution?
D is charged with:
1. An assault on or threat of injury to the spouse or civil partner
2. An assault or sexual offence against someone under 16
What is the difference between a hostile and unfavourable witness?
Unfavourable witness cannot recall aspect of their testimony even after refreshing memory
Hostile witness does not tell the truth to support the party calling them
3 conditions for witness to refresh his memory from a document while giving oral testimony?
- Previously MADE or VERIFIED by the witness
- Witness states that the document RECORDS RECOLLECTION of the matters about which they are testifying
- Likely had SIGNIFICANTLY BETTER RECOLLECTION at the time of the document than at the time of their oral evidence
Who decides a submission of no case to answer?
The judge, in the absence of the jury
For a majority jury verdict, what ratios will suffice?
12-man jury: at least 10:2
Below 12-men: maximum 1 dissenter
What is the minimum requirement before a jury can return a majority rather than unanimous verdict?
Jury must retire for at least TWO HOURS (or such longer period as is reasonable in the case)
What happens if the jury cannot reach a verdict?
Judge will discharge them from giving a verdict and P will decide whether there should be a retrial before a different jury.
What are the 4 steps that occur in the sentencing procedure following D’s conviction after a NG plea?
P will:
1. Read victim impact statement
2. Refer court to D’s previous conviction
3. Asks for ancillary orders (P’s costs, compensation order)
D will:
4.Make mitigation plea
What additional step occurs in a sentencing procedure following a guilty plea? Possible complication?
Need to outline the facts of the offence since court will not be familiar.
If D disputes the facts put forward by P and they may influence the sentence, then court must either accept D’s version or allow both sides to call evidence in a NEWTON HEARING.
What is the danger of a Newton hearing for a defendant?
If court believes P’s version, D may lose his sentencing credit for pleading guilty.
What is the general criteria when assessing the seriousness of an offence for sentencing purposes?
2 aggravating features?
- Offender’s culpability in committing the offence (based largely on mens rea)
- Any harm which the offence has caused or might foreseeably have caused
Aggravating features:
3. Previous convictions, if reasonable to consider
4. Any offences committed on bail
Note: every offence has specific statutory aggravating features
When does the “custody threshold” test apply? What is the test?
Where the court is considering a DISCRETIONARY custodial sentence.
Threshold is that the offence (or the combination of associated offences) is SO SERIOUS that neither a fine alone nor a community sentence can be justified
Totality principle?
Total sentence should: (1) reflect all the offending behaviour and (2) be just and proportionate in all the circumstances
When can court suspend a custodial sentence, and for how long?
TOTAL custodial sentence must be 14 days - 2 years.
Suspension of custody can be for 6 months - 2 years (“operational period”)
What is the effect if D receives a suspended custodial sentence but breaches a requirement?
Custodial sentence activated, and likely will be served in addition to the sentence for the new offence
Explain the court’s power to defer a sentence.
Can defer sentence for up to six months to enable court to observe both: (1) D’s conduct during deferment period and (2) any changes in D’s circumstances
Requirement to impose community sentence?
Offence must be punishable with imprisonment
2 consequences of repeatedly breaching community sentence?
- Probation Service issues SINGLE WARNING about failure to comply
- Probation Service then applies for community order to be revoked and D to be returned to court, upon which court can impose more onerous requirements or prison sentence not exceeding 6 months
What is the limit on the MC and CC’s respective powers to impose a fine?
Relevant considerations
Unlimited UNLESS there is a statutory maximum specified for the offence.
Relevant considerations are seriousness of the offence together with D’s financial circumstances
One important limitation of appeals to the Crown Court?
Prosecution CANNOT appeal to the crown court
How does D seek permission for appeal to the crown court (3 pts)?
D merely needs to:
1. File a written notice of appeal to the Crown Court within 15 business days of the conviction or sentence appealed against
2. Sent to the MC that heard the case
3. Crown Court MUST accept the notice of appeal
Describe the appeal procedure in the Crown Court (3 points)
- Complete rehearing
- Heard by a Crown Court Judge (CJ or R) with 2-4 lay magistrates who were not involved in the 1st instance decision
- Decided by a simple majority
Possible outcomes of an appeal to CC?
CC may vary, quash or reverse the MC decision, or send it back to MC with its opinion
CC may also confirm the decision and impose: (1) more severe penalties and/or (2) an adverse costs order
How can D abandon an appeal to the Crown Court (2 scenarios)?
- Before hearing - any time, by serving a notice of abandonment
- Once hearing started - need permission of the Crown Court
What is the scope of an appeal by way of case stated (2 pts)?
- Appeal against MC or CC decision
- To the Divisional Court (High Court)
- On grounds that the MC decision was: (i) wrong in law or (ii) exceed jurisdiction
Deadline for appeal by way of case stated?
Apply in writing to trial judge within 21 days from end of the trial, requiring trial judge to state a case
How does D appeal against conviction or sentence from the Crown Court?
- Appeal to CoA
- Must seek leave from trial judge first
- If TJ refuses, apply to COA within 28 days of the conviction/sentence by filing (i) a notice of application (ii) draft grounds of appeal and (iii) transcript (if conviction appealed against)
Who hears appeals from the Crown Court?
Usually 3 judges:
- One COA judge
- Two HC judges OR one HC Judge and specially-nominated senior CJ
What is the threshold for successfully appealing against a conviction from the CC?
Must persuade COA that the conviction is UNSAFE (legal or procedural errors)
What is the threshold for successfully appealing against a sentence from the CC?
Limitation on COA powers?
- Wrong in law OR
- Wrong in principle or manifestly excessive
COA should not impose a more severe sentence than at the CC
On what 3 grounds can prosecution appeal to the COA?
- Where the A-G believes that a CC sentence is UNDULY LENIENT, i.e. - outside the range of sentences which the judge, applying his mind to all the relevant factors, could REASONABLY CONSIDER APPROPRIATE”
- Against a terminating ruling during a trial on indictment (e.g. stay for abuse of process, no case to answer)
- To quash D’s acquittal for any QUALIFYING OFFENCE that carries a life sentence and order a new trial
Deadline for A-G reference procedure?
Refer to COA within 28 days of the sentence being handed down
When must the COA order a retrial on application of the prosecution (2 pts)?
- New and compelling evidence in the case AND
- In the interests of justice
When can an appeal from the COA to UKSC be made?
COA or UKSC certifies that the case involves a point of law of general public or constitutional importance
Describe the MC’s power to reopen a case.
MC can reopen cases and correct obvious mistakes and errors that would otherwise need to be:
1. Appealed to the CC OR
2. Assessed by the HC by way of case stated or JR
Provided it is in the interests of justice (taking into account any delay)
What is the threshold for D to apply to the Criminal Cases Review Commission?
D must have EXHAUSTED ALL AVENUES of appeal and LOST THE INITIAL APPEAL
How can the Criminal Cases Review Commission deal with a referral? 3 conditions?
Usually by sending the disputed challenge or sentence back to the appeal court
- REAL POSSIBILITY that the CC will reduce the original sentence
- Arising from evidence or legal arguments NOT PREVIOUSLY PRESENTED
- D already ATTEMPTED UNSUCCESSFUL APPEAL
Why is a CCRC application relatively low-risk for D?
If CCRC refers a sentence to the CC, CC has no authority to increase the sentence
3 examples of a case where JR may be more appropriate than a criminal appeal?
- Court acted ultra vires by failing to apply the statute
- Court acted in breach of natural justice
- Grounds for suspecting bias
