Criminal - part 1 complete Flashcards
What are the three classes of offence?
(a) ‘indictable offence’ means an offence which, if committed by an adult, is triable on indictment, whether it is exclusively so triable or triable either way;
(b) ‘summary offence’ means an offence which, if committed by an adult, is triable only summarily;
(c) ‘offence triable either way’ means an offence, other than an offence triable on indictment only by virtue of [s. 40] of the Criminal Justice Act 1988 which, if committed by an adult, is triable either on indictment or summarily;
How many crown courts are there? and where does a trial take place?
The Crown Court is regarded as a single court. It follows that, although the Crown Court sits in many different locations and a case will normally be tried at a location near where the offence allegedly occurred, the trial may take place at any location of the Crown Court. The choice of location will depend on the nature of the offence charged (offences are divided into three classes, determining the level of judge who should preside), the convenience of the parties, the desirability of expediting the trial and any directions given by the presiding judge of the relevant circuit as to the locations to which the magistrates’ courts in the area of the circuit should normally send cases for trial.
What judges will you find in the Crown Court?
-any High Court Judge
-any circuit judge, recorder, qualifying judge advocate or District Judge (Magistrates’ Courts); or
-a judge of the High Court, circuit judge, recorder or qualifying judge advocate sitting with not more than four justices of the peace,
and any such persons when exercising the jurisdiction of the Crown Court shall be judges of the Crown Court.
There are thus three principal categories of Crown Court judge, namely High Court judges, circuit judges and recorders. All proceedings in the Crown Court must be heard before a single professional judge of the court except where there is provision for justices to sit with such a judge.
Where do appeals from Mags court go?
A person convicted by a magistrates’ court may, if he or she pleaded not guilty, appeal to the Crown Court against conviction and/or sentence; if the person pleaded guilty, he or she may appeal only against sentence (MCA 1980, s. 108, and see D29.2 et seq.).
Who is the judge in the magistrates court? Does it always need to be the same judge?
Magistrates’ courts consist of justices of the peace. The great majority of justices are unpaid lay men or women; a minority are salaried district judges (magistrates’ courts) who are legally qualified. The bulk of the criminal jurisdiction of magistrates’ courts has to be exercised by a court consisting of at least two lay justices sitting in open court. However, district judges almost invariably sit alone.
Where proceedings fall into a number of distinct stages (as when a magistrates’ court, after convicting an offender and imposing a fine, subsequently takes steps to enforce payment of the fine), the court for the later stage need not be constituted by the same justices as constituted the court on the first occasion, so long as both magistrates’ courts are acting in the same local justice area.
What offences can the mags court try?
a magistrates’ court has jurisdiction to try any summary offence and (subject to the mode of trial procedure) any offence which is triable either way, irrespective of where the offence was committed.
If the accused is convicted of a summary offence, the court may sentence the accused to anything up to the maximum penalty provided for by the statute creating the offence.
A magistrates’ court may try an either-way offence allegedly committed by an adult if
(a) the offence is not so serious that the court’s powers of punishment in the event of conviction would be inadequate, and
(b) the accused agrees; in the event of conviction, the court may impose a penalty of anything up to six months’ imprisonment and/or an unlimited fine.
A youth court is a form of magistrates’ court and has jurisdiction to try children or young people for any offence (other than homicide and certain firearms offences), whether indictable or summary, although in certain circumstances the court may choose instead to send the child or young person to the Crown Court for trial (MCA 1980, s. 24).
How do you appeal a decision made by Court of appeal?
only if the Court of Appeal or the Supreme Court itself considers that the appeal involves a point of law of general public importance which should be considered by the Supreme Court.
The Court of Appeal must certify that.
An application to the Court of Appeal for leave to appeal to the Supreme Court must be made by the party seeking to appeal no more than 28 days after the decision, or the date on which the court gives the reasons for its decision, whichever is later. Time begins to run on the day of the decision and not the day following the decision.
Where the Court of Appeal is of the view that the prospective appeal raises no point of law of public importance, it may decide so on the papers. A refusal to allow oral submissions will not amount to a violation of a person’s rights under the ECHR. A refusal by the Court of Appeal to certify a question cannot be appealed.
If the Court of Appeal certifies a question but leave to appeal to the Supreme Court is refused, the party may apply for leave to the Supreme Court within 28 days of the day on which the Court of Appeal gives reasons for its refusal of leave.
If the Court of Appeal decides an appeal on one ground but leaves others undecided and the Supreme Court hears the appeal of that decision, the Supreme Court may either rule on those grounds as if it were the Court of Appeal or may remit them back to the Court of Appeal for its decision.
How do you apply for a representation order (Legal aid)?
Fill in a form and submit to LAA. If no, appeal to mags.
The Crown Court has very limited power to grant a representation order and may do so only on oral application under the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013 (SI 2013 No. 614).
What is the test for granting legal aid?
The decision whether or not to grant a representation order is to be determined by a two-stage test, incorporating a merits test ‘according to the interests of justice’ and an assessment of means.
In deciding what the interests of justice consist of for the purposes of such a determination, the following factors must be taken into account—
(a) whether, if any matter arising in the proceedings is decided against the individual, the individual would be likely to lose his or her liberty or livelihood or to suffer serious damage to his or her reputation,
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law,
(c) whether the individual may be unable to understand the proceedings or to state his or her own case,
(d) whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and
(e) whether it is in the interests of another person that the individual be represented.
It is not enough that the offence carries a custodial sentence: the court must consider whether a custodial sentence might be imposed in the particular case. The LAA pays particular regard to sentencing guidelines and a defendant’s list of previous convictions.
Whats the overriding objective?
(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.
(2) Dealing with a criminal case justly includes—
(a) acquitting the innocent and convicting the guilty;
(b) dealing with the prosecution and the defence fairly;
(c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
(d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
(e) dealing with the case efficiently and expeditiously;
(f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
(g) dealing with the case in ways that take into account
(i) the gravity of the offence alleged,
(ii) the complexity of what is in issue,
(iii) the severity of the consequences for the defendant and others affected, and
(iv) the needs of other cases.
(1) Each participant, in the conduct of each case, must—
(a) prepare and conduct the case in accordance with the overriding objective;
(b) comply with these Rules, practice directions and directions made by the court; and
(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.
(1) The court must further the overriding objective in particular when—
(a) exercising any power given to it by legislation (including these Rules);
(b) applying any practice direction; or
(c) interpreting any rule or practice direction.
What is case management?
Active, hands on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge’s duty.
Once the issue has been identified, in a case of any substance at all, the judge should consider whether to direct a timetable to cover pre-trial steps, and eventually the conduct of the trial itself, not rigid, nor immutable, and fully recognising that during the trial at any rate the unexpected must be treated as normal, and making due allowance for it in the interests of justice.
To enable the trial judge to manage the case in a way which is fair to every participant, pre-trial, the potential problems, as well as the possible areas for time saving, should be canvassed. In short, a sensible informed discussion about the future management of the case and the most convenient way to present the evidence, whether disputed or not, and where appropriate, with admissions by one or other or both sides, should enable the judge to make a fully informed analysis of the future timetable, and the proper conduct of the trial. The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues. When trial judges act in accordance with these principles, the directions they give, and where appropriate, the timetables they prescribe in the exercise of their case management responsibilities, will be supported in this Court.
What is case management?
- early identification of the issues,
- needs of witnesses,
- achieving certainty about what is to be done, by whom and when,
- the setting of a procedural timetable
- compliance with directions,
- discourage delay, promote cooperation and
- avoid unnecessary hearings and,
- as to the evidence, to ensure that, whether disputed or not, it is presented in the shortest and clearest way.
- issues in the case should be identified in writing and to determine the order they are decided in.
How do the parties assist with case management?
each of the parties, and the court, to appoint a case progression officer at the commencement of proceedings, and to inform the other participants of how to contact that person.
The case progression officer is thereafter responsible for progressing the case, ensuring that party’s compliance with court directions, and alerting other parties to anything which may interfere with the smooth progress of the case.
For cases that are contested and which are to proceed in the magistrates’ court the parties are required to complete the Preparation for Effective Trial (PET) form.
For cases that are to be sent to the Crown Court the Better Case Management (BCM) form is completed on sending, and the Plea and Trial Preparation Hearing (PTPH) form at that hearing at the Crown Court.
The respective forms are intended to promote engaged hearings properly to plan the further stages of the case, a standardised approach to case preparation, and to minimise the need for further hearings.
How are written admissions dealt with?
Ordinarily, written admissions should be put before the jury, provided at least that they are relevant to an issue before the jury and do not contain any material which should not go before the jury.
In court, a formal admission may be made by counsel or a solicitor orally. Whatever the manner of making a formal admission, it should be such that what has been admitted should appear clearly on the shorthand note. It is also important that the jury are clear as to what has been formally admitted.
Formal admissions made with the benefit of advice are an important and cogent part of the evidence in a trial. If it is sought to resile from them, leave to withdraw them is unlikely to be given without cogent evidence from the accused and advisers that the admissions were made by reason of mistake or misunderstanding.
Whats the general rule for admissibility of evidence?
subject to the exclusionary rules, all evidence which is sufficiently relevant to the facts in issue is admissible, and all evidence which is irrelevant or insufficiently relevant to the facts in issue should be excluded. As to the former, however, evidence which is relevant may nonetheless be excluded if it is such that no reasonable jury, properly directed as to its defects, could place any weight on it.
Evidence of good character for a prosecution witness
(1) Generally, evidence is not admissible simply to show that a prosecution witness has a good character in the sense that he or she is a generally truthful person who should be believed.
(2) However, evidence is admissible if it is relevant to an issue in the trial.
(3) The category of issues to which evidence of disposition may be relevant is not closed.
(4) If the evidence is admitted because ‘issue-relevant’, the judge should ensure that the effect of admitting it is not to water down the burden of proof on the prosecution and any good character direction given for the accused.
What is circumstantial evidence?
Circumstantial evidence is evidence of relevant facts, i.e. facts from which the existence or non-existence of facts in issue may be inferred. It does not necessarily follow that the weight to be attached to circumstantial evidence will be less than that to be attached to direct evidence.
However, although circumstantial evidence may sometimes be conclusive, it must always be narrowly examined, if only because it may be fabricated to cast suspicion on another. For this reason, it has been said that: ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’. Nonetheless, there is no requirement, in cases in which the prosecution’s case is based on circumstantial evidence, that the judge direct the jury to acquit unless they are sure that the facts proved are not only consistent with guilt but also inconsistent with any other reasonable conclusion.
What is real evidence?
Real evidence is usually some material object, the existence, condition or value of which is in issue or relevant to an issue, produced in court for inspection by the tribunal of fact. Little if any weight can attach to real evidence in the absence of accompanying testimony identifying the object and connecting it with the facts in issue. In some cases the tribunal of fact must not draw its own unaided conclusion without the assistance of expert testimony.
What is a view in evidence?
The term ‘view’ is used to describe both an inspection out of court of some material object which it is inconvenient or impossible to bring to court and an inspection of the locus in quo.
A view should not take place after the summing-up. A view should be attended by the judge, the tribunal of fact, the parties, their counsel, and the shorthand writer. In the case of magistrates, as a general rule a visit to the locus in quo should take place before the conclusion of the evidence and in the presence of the parties or their representatives, so as to afford them the opportunity of commenting on any feature of the locality which has altered since the time of the incident or any feature not previously noticed by the parties which impresses the magistrates. The presence of the accused is important because he or she may be able to point out some important matter of which the legal adviser is ignorant or about which the magistrates are making a mistake.
a judge must produce ground rules for a view, after discussion with the advocates. The ground rules should contain details of what the jury should be shown, and in what order, and who will be permitted to speak and what will be said; and they should make provision for the jury to ask questions.
Who is tribunal or law and fact in mags court?
In the case of proceedings presided over by lay justices, the justices decide all questions of both law and fact, but on questions of law, including the law of evidence, should seek and accept the advice of the justice’s legal adviser. In theory, district judges (magistrates’ courts) are in the same position as lay justices. In practice, however, the district judge will be the more experienced lawyer, so that the occasions for asking for advice will be quite rare.
What is S78?
PROSECUTION EVIDENCE!!!
In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
applications to exclude evidence under the section should be made before the evidence is adduced.
… the decision of a judge whether or not to exclude evidence under section 78 of the 1984 Act is made as a result of the exercise by him of a discretion based upon the particular circumstances of the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the proceedings.
Whats the legal burden and what is the standard for discharge?
The legal burden is a burden of proof, i.e. a burden imposed on a party to prove a fact or facts in issue. In some cases the legal burden in relation to some of the facts in issue will be on one party, and the legal burden in relation to another (or others) will be on the other party. For example, if insanity is raised by way of defence, the legal burden on that issue is on the defence, whereas the legal burden on the other facts in issue is on the prosecution.
Any statutory provision imposing a legal burden on the accused may be open to challenge on the basis of incompatibility with Article 6(2) of the ECHR.
The standard of proof required to discharge the legal burden varies according to whether the burden is borne by the prosecution or defence. If the legal burden is borne by the prosecution, the standard required is proof beyond reasonable doubt. If the legal burden is borne by the accused, the standard required is proof on a balance of probabilities. The question whether a party has discharged a legal burden is decided by the tribunal of fact, whether jury or magistrates, at the end of the trial after all the evidence has been presented.
When does the prosecution not bear the legal burden?
The general rule is that the prosecution bear the legal burden of proving all the elements in the offence necessary to establish guilt, there are only 3 exceptions:
(a) insanity;
(b) express statutory exceptions; and
(c) implied statutory exceptions.
Who proves self defence?
Although the prosecution are not obliged to give evidence in chief to rebut a suggestion of self-defence before the issue is raised, once there is sufficient evidence to leave the issue before the jury, it is for the prosecution to disprove it beyond reasonable doubt. There may be evidence of self-defence even if the defence of the accused is one of alibi.
