Criminal Practice Flashcards
Magistrates’ Court judges
- District judge OR
- Panel of magistrate
Crown Court judges
- Circuit judge OR
- Recorder
Classification of offences
- Summary only:
- Examples: assault and battery
- Maximum of 6 months for a single either way offence
- Maximum of 6 months for multiple summary only offences
- Maximum of 12 months for multiple either way offences - Either way:
- Examples: theft and ABH
- Whether magistrates sentencing powers are adequate
- What defendant wants - Indictable only
Suspect’s rights at police station
- Access to free legal advice
- EXCEPTION in very rare circumstances can be delayed up to 36 hours - Right to notify someone of arrest
- EXCEPTION in very rare circumstances can be delayed up to 36 hours3. Right to inspect police codes of practice - Right to silence
- Right to be informed of reasons for arrest
- Right to inspect documents
- Right to information on detention time limits
- From when the suspect arrives and NOT booked in
-
Custody time limits at police station without charge
- 24 hours
- 12 hour extension with superintendent approval
= 36 hours
Can be held beyond 36 hours if police obtain approval from Magistrates’ for a further 36 hours = 72 hours
Second application to magistrates for a further 24 hours = 96 hours MAXIMUM
Requirements for Magistrates authorisation to extend custody time limit without charge:
- Offence is indictable
- Reasonable grounds for believing further detention necessary to preserve or obtain evidence
- Investigation being conducted diligently and expeditiously
When must an ID parade be held?
- Witness identified suspect
- Witness says they can identify suspect
- Reasonable chance witness can identify suspect
Types of identification procedures
- Video identification (8+)
- Identification parade (8+)
- Group identification
- Confrontation
Objections defence can raise to identification procedure which could lead to exclusion of the evidence
- Police disregarding reasonable objections to the appearance of others in the identification procedure
- Not keeping the witnesses away from the suspect
- Not keeping different witnesses apart before or during the process
- Not warning witnesses that the suspect might not be shown at all
Identification evidence can be excluded if the court deems the admission of the evidence would have such an adverse effect on the fairness of the trial that it ought to be excluded
Silence during interview can result in an adverse inference at trial
Defence can object to an interview being used at trial e.g. if proper caution not given at start of interview
Special caution
Used when suspect asked to account for specifics at time of arrest
In addition to caution before interview an additional special caution should be given to a suspect if they are asked to account for their presence at the scene of an offence or an object, substance or mark found on them at the time of arrest
Special caution
Used when suspect asked to account for specifics at time of arrest
A failure to give a caution/special caution during interview could result in material being excluded at trial
Police interviews: suspects’ options
- Answer questions
- Decline to answer questions
- Give written statement but answer no further questions
Police officer should avoid the use of oppression (e.g. shouting, banging, multiple officers in interview etc.) or inducement (e.g. promise of bail, offer of a cigarette etc.) during interview
Defence representative role during interview
Protect and advance legal rights of their client
Examples:
- Ensure PACE is complied with
- Getting disclosure from police
- Advising suspects about answering questions in interview
Police interviews: defence representatives interventions
- Interrupt in order to seek clarification
- Challenge police about their questioning
- Advise their client not to answer questions
- Ask interview to be stopped for more legal advice
The defence representative cannot be removed from the interview for doing any of the above
Police interviews: misconduct of defence representative
- Tell suspect what to say
- answer question on behalf of suspect
If defence representative does any of the above they should be warned BUT if they continue the interview can be stopped and the interviewing officer can seek authority from superintendent or above to remove the defence representative from the interview. Suspect should then be given the opportunity to consult with another defence representative
Bail applications
Prosecution: outlines why it objects to bail and then explains why conditions will not be adequate
Defence: outlines why bail can properly be granted and put forward conditions that can allay the court’s fears
Every defendant has a right to bail but the court can deny bail IF
1. An exception to the right to bail exists
2. There is a real prospect of a custodial sentence being imposed if the defendant is convicted
Exceptions to right to bail
- Substantial grounds to believe that defendant would
a. Fail to surrender
b. Commit further offences whilst on bail
c. Interfere with witnesses or obstruct justice - Indictable offence and defendant was on bail at time of offence
- Custody for defendant’s own protection
- Belief defendant would commit offence on bail against associated person e.g. spouses, children, relatives etc.
- Defendant already serving custodial sentence
- Insufficient information to bail
- Defendant failed to surrender or breached bail
Bail applications: substantial grounds factors
- Nature and seriousness of offence
- Probable method of dealing with offence
- Previous convictions on bail or absconded before
- Associations and community ties
- Record on complying with bail obligations
- Strength of evidence
Conditional bail: bail conditions must be
- Relevant
- Proportionate
- Enforceable
Common bail conditions
- Residency
- Report to police station regularly
- Prohibited from particular area (key to prevent witness intimidation)
- Prohibited from contacting certain individuals
- Curfew or electronic tag
- Security - money paid into court in cash
- Surety - money promised to be paid by third parties if defendant doesn’t answer bail or appear at court
Bail and murder charges
Presumption against bail when defendant charged with murder
A defendant is entitled to two bail applications in each case unless there is a change of circumstances
Fear of a failure to surrender arises from the likelihood of a custodial sentence
Fear of further offences arises from previous convictions
If offences took place at night a curfew would be appropriate
First appearance
Summary only: defendant pleads guilty or not guilty
Either way offence: plea before venue process
Indictable only offence: matter sent to Crown Court
First appearance
- Obtain disclosure from prosecution (case summary, statement, interview transcript, other evidence e.g. cctv)
- Take instructions from client
- Advise client: guilty or not guilty, strength of case, sentence, credit for guilty plea, best venue for either way offence
- Court process
- Bail
- Apply for funding - representation order
Pleading guilty at first appearance entitles defendant to 1/3 off sentence
Representation order
- Interests of justice test
- How serious offence is
- Likelihood of custodial sentence
- Would defendant lose their job
- Would defendant understanding proceedings on their own - Means test
- Is defendant wealthy enough that they can pay their own fees or are they entitled to state funded representation
- If defendant is on benefits = satisfied
- Income below £3,398/ year after outgoings = satisfied
- Income above £3,398 but below £37,500 after outgoings defendant entitled to limited legal aid
- If over £37,000 after outgoings = not satisfied
Pleas before venue
Defendant doesn’t have to enter plea but if they indicate guilty plea then court can proceed to sentence
If defendant indicates not guilty then court proceeds to allocation of court venue
Allocation
- Magistrates court decides whether to accept jurisdiction - it consider:
a. Previous convictions
b. Sentencing powers
c. Representations made be prosecution and defence on mode of trial and adequacy of sentencing powers
- If magistrates court accepts jurisdiction it is then for defendant to choose between magistrates or crown
Benefits of magistrates court
- Cheaper
- Quicker
- Lower sentencing powers
- Less burden on defence to disclose anything before trial
Benefits of crown court
- Greater benefits for defendant wanting to plead not guilty
- More likely to be acquitted if sent to crown court as trial is decided by jury
- Challenging admissibility of evidence is more effective in crown court as takes place in absence of jury
Theft with value below £200
- Theft is an either way offence BUT if value below £200 is:
- Treated as summary only by the Court and the Magistrates cannot decline jurisdiction
- Is treated as either way by the defendant who can elect magistrates court or crown court
Case management form: magistrates court
- Witnesses who will be called to give evidence
- Witnesses whose statements are agreed and can be read
- Estimated length off trial
- Likely applications to the court
- Special arrangements e.g. interpretor
- Confirmation defendant has been advised on credit for early guilty plea and that they will proceed in their absence if they fail to attend
Case management directions: magistrates court
- Prosecution evidence served within 28 days
- Defence case statement served within 14 day
- Defence’s notice of intention to adduce hearsay evidence or bad character evidence served within 14 days
- Point of law raised at least 21 days before trial
- Certificate of readiness served a least 7 days before trial
PTPH takes place 28 days after case is sent from magistrates
Goodyear indication
Defendant asks for indication of sentence
If defendant pleads guilty judge bound by indication
Prosecution duty of disclosure in the Crown Court
- 50 days (or 70 if defendant on bail) to provide disclosure
- Must disclose all evidence it intends to rely on at trial
- Must disclose unused material which might reasonably be considered capable of undermining the case or assisting the defence
Defence case statement in the Crown Court
- Must serve within 14 days of prosecution’s disclosure
- Sets out nature of defence, disputed facts, points of law, alibi witnesses
- If defence fail to serve adequate defence case statement on time that reflects defence put forward at trial, jury can make an adverse inference
Identification evidence: Turnball guidelines
Amount of time witness had to observe perpetrator
Distance between the witness and the perpetrator
Visibility at the time witness saw the perpetrator
Obstruction
Known to witness
Any reason to remember perpetrator e.g. tattoo, limp etc.
Time between incident and identification
Errors between first description and actual appearance
Judge will consider all of these factors in deciding the quality of the identification evidence
a. If weak: withdraw case from jury and direct acquittal
b. If strong enough conviction would be supported or if there is corroborating evidence to support a weak identification - judge will leave case for jury to decide
Identification evidence: Turnball warning
- Warn of special need for caution
- Ask jury to consider circumstances in which witness identified defendant
- Refer to particular weaknesses in ID evidence
Hearsay evidence
Statement not made in oral evidence that is relied on as evidence of the matter in it
When can hearsay be admissible?
- Under statute:
- By rule of law
- By agreement of all parties
- In the interest of justice
Hearsay evidence admissible under statute
- Witness unavailable e.g. dead
- Unfit e.g. physical or mental condition
- Outside UK and not reasonably practical to secure their attendance
- Unable to be found despite reasonable practical steps
- Witness fears giving evidence and court gives leave for statement to be read
- Business documents IF created or received in the course of trade, business, profession or other occupation and the person who supplied the information may reasonably be supposed to have had personal knowledge of the matter and if the information was received by other persons it was done so in the course of trade, business, profession or other occupation e.g. statements of company accounts
- Statements prepared for use on criminal proceedings e.g police officer statement
- Previous consistent or inconsistent statements
- Expert evidence
- Confessions
Hearsay evidence admissible by rule of law
- Confessions or mixed statements
- Statements made at time of offence
- Statements preserved by res gestae (victim was so emotionally overpowered at the time of making the statement that concoction or distortion can be disregarded)
Hearsay evidence admissible in the interests of justice
Allows court flexibility to admit hearsay evidence which doesn’t fit into any of the other grounds
Factors:
- Probative value of statement
- What other evidence could be given
- Importance
- Circumstances
- Reliability
- Whether oral evidence can be given
- Difficulty in challenging statement
- Likely prejudice caused
When is multiple hearsay admissible?
- Business documents
- Inconsistent or consistent statement
- All parties agree
- In interest of justice
Confessions
Statement wholly or partly adverse to the persons
Mixed statements which are partly exonerating and partly incriminating are also confessions
Defence challenges to confession admissibility
- Oppression (torture, inhuman or degrading treatment and use or threats of violence, whether or not amounting to torture)
- Things said or done likely to render confession unreliable (e.g. defendant still drunk)
Need to show a causal link between confession and things said or done
Burden of proof on prosecution to prove that neither oppression or things said or done apply
If burden not discharged then thing must be excluded
Hearing to decide the admissibility of confession - voir dire
Hearing in absence of jury
Court can exclude evidence if considering all circumstances admission of evidence would have adverse effect on fairness of proceedings (discretionary and not mandatory)
Bad character evidence
Evidence of or a disposition towards misconduct, commission of offences or other bad behaviour
Seven gateways for bad character evidence
- All parties agree
- Introduced by defendant e.g. during cross-examination
- Important explanatory evidence e.g. needed to properly understand other evidence in the case
Seven gateways for bad character evidence
- All parties agree
- Introduced by defendant e.g. during cross-examination
- Important explanatory evidence e.g. needed to properly understand other evidence in the case
- Relevant to important matter in issue e.g. propensity to commit offences like the current charge or propensity to be untruthful
- Substantial probative value to matter in issue between co-defendants
- Correct false impression given by defendant
- Defendant attacked another’s character
If any of the seven gateways are made out the evidence is admissible BUT
Exception: if the bad character evidence is introduced under gateway 4 or 7 the court must NOT admit it if the defence apply for it to be excluded and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of proceedings that court must not admit it - court must have regard to factors such as the amount of time that has passed since the bad character evidence in question
Procedure for admitting bad character: prosecution
- Within 28 days of not guilty plea in magistrates’ court
- Within 14 days of not guilty plea in crown court
Defendant can make an notice to oppose
Good character direction
- Propensity direction: a person of good character is less likely to have committed this offence
- Credibility direction: a person of good character is more likely to be credible when they assert that innocence either before or during the trial
No case to answer
Submission that the prosecution has not presented enough evidence to amount to prima facie case
Prosecution has failed to adduce evidence of one or more of the elements of the offence or if evidence given is so unreliable that no reasonable bench, judge or jury can convicts
Only in the crown court does the judge sum up evidence
Examination in chief
- Witness questioned by own side
- Non-leading questions e.g. who, what where, when, why
Cross-examination
- Witness questioned by opposing side
- Leading questions allowed
Witness competence i.e. may they testify
- Witness able to give evidence in court
- Most people competent unless they are unable to:
a. Understand questions
b. Give understandable answers
Witness compellability i.e. may they be forced to give evidence
- Witness can be forced to give evidence
- Competent witnesses generally are compellable
EXCEPTIONS
1. Defendant
- Neither competent not compellable for prosecution
- Competent but not compellable for defence
2. Defendant’s spouse/civil partner
- Competent but not compellable
- Competent and compellable for defence
2. Co-defendants
- Neither competent not compellable for prosecution
- Competent but not compellable for defence
Modes of address
Crown: your honour or his/her honour
Magistrates:
Single magistrate = sir/madam
Bench of lay magistrates = your worships
Sentencing principles: aggravating factors examples
- Previous convictions
- Offence committed don bail
- Offence against emergency worker
- Timing of offence
- Location of offence
- Presence of children
- Degradation of victim
- Committed on licence
- Abuse of power
- Committed under the influence of drugs or alcohol
Sentencing principles: mitigating factors examples
- No previous convictions
- Remorse
- Isolated innocent
- Addressing addiction
Concurrent sentences
Sentences served simultaneously
Consecutive sentences
Sentences served one after the other
Totality ensures the overall sentence is not disproportionate
Plea in mitigation
Defence gives reasons why lowest possible sentence should be imposed
Factors:
1. Credit for guilty plea
2. Mitigating factors relating to offence according to sentencing guidelines
3. Minimise aggravating factors relating to offence
4. Mitigating factors relating to defendant:
- Age (particularly young or old)
- Health (long term or mental health)
- Good character
- Remorse and voluntary compensation
- Family situation
Credit for guilty plea
Defendant who pleads guilty before trial entitled to sentence reduction
Guilty plea at first opportunity = 1/3 reduction in sentence
Types of sentences
- Custody: imposed when offence is. so serious that no other form of punishment will suffice
- Suspended sentence
- Maximum suspension = 2 years
- Crown court can suspend 2 year sentence
- Magistrates’ can suspend 6 month sentence - Community order
- Discharge (absolute and conditional)
Limits on magistrates’ sentencing powers
6 months for single offence
12 months for two or more either way offences
Newton hearing
Procedure to settle disputed facts before sentencing defendant who pleaded guilty
A form of trial
If prosecution wins defendant loses any credit fro a guilty plea
If defendant wins defendant retains credit for guilty plea
A defendant who pleaded guilty may only appeal against sentence
Prosecution has no right to appeal in the magistrates’
A defendant has 21 days to appeal their conviction or sentence from the magistrates’
The crown court hearing an appeal from the magistrates has the power to reduce or increase a sentence
An appeal from the magistrates to the crown court is heard by a judge supported by at least two but no more than four magistrates BUT are restricted to the sentencing powers of the magistrates’
The court can impose a costs order on the defendant should the appeal be unsuccessful
Appeal from magistrates’ court to divisional court
Open to prosecution and defence
Appeal by way of case stated: decision is wrong in law or in excess of jurisdiction
Application must be made in writing to the convicting outlining points of law subject to appeal or sentencing magistrates’ court within 21 days of decision to appeal
Only legal arguments made, no rehearing of evidence
Heard by 3 judges
Appeal from crown court to court of appeal
Defendant needs leave to appeal from wither crown court or court of appeal
28 days to lodge notice
1 judge decides if leave to appeal should be granted
If leave to appeal is refused the defendant can apply again to the full court
Only one ground of appeal against conviction = unsafe
Court of appeal can:
- Quash conviction and order acquittal
- Quash conviction and order retrial
- Find defendant guilty of some offences but not others
- Find defendant guilt of alternative offences
- Dismiss appeal
Grounds of appeal against sentence:
1. Wrong in law
2. Wrong in principle
3. Manifestly excessive
Court of appeal cannot increase any sentence imposed by the crown court
Any new sentence imposed by court of appeal will be deemed to have been imposed at the original sentencing date
Prosecution can appeal rulings made by judge during course of trial
The Attorney General can refer a case to the Court of Appeal if they feel a sentence was too lenient and permission is granted by Court of Appeal
Appeal f rom court of appeal to supreme court
- Court of appeal or supreme court grant leave to appeal
- Point of law of general public importance is involved
Youth court
- Part of magistrate’s court
- Defendants aged 10-17
Youth defendants sent to the crown court
- Charged with:
- Murder
- Attempted murder
- Manslaughter
- Other serious crimes e.g. violent sexual offences or terrorism - Grave crimes (punishable in adult court by 14 years of more in custody) and youth court declines jurisdiction
- Jointly charged with adult who is sent to magistrates or crown court
Sentencing in youth court
- Referral order
- Must be made if defendant pleads guilty to a first imprisonable offence and an absolute discharge or prison sentence are not an option
- May be ordered if defendant pleads guilty to some but not all offences or have previously had a referral order
- Cannot be made if defendant pleads guilty to all offences and is found guilty - Youth rehabilitation order:
- Can last up to 3 years
- Conditions include:
- Supervision by probation
- Unpaid work
- Specific programmes e.g. anger management
- Curfew
- Exclusion from specified area
- Residence requirements - Detention and training order
- Custody
- Defendants 12 and over
- Defendants 12-14 it is only available for persistent young offenders
- From 4 to 24 months
- First half spent in custody
- Second half under supervision of youth offending team who decides conditions of supervision period
