Criminal Practice Flashcards

Question

What is the law position on burglary as an either way offence?

Answer 1

This either way offence becomes indictable if 1. Where the ulterior motive intended or committed in the building is indictable 2. Where a person in the building was subjected or threaten with violence 3. The D had committed a domestic burglary at 18+ and has 2 or more previous convictions for domestic burglary that occurred before November 1999.

Answer 2

D has broken one of the conditions of bail during these proceeding or has breached a fail to surrender in the past.

Answer 3

- For D’s own safety - Not enough information to deal with bail now - D is already serving a custodial offence

Answer 4

Murder, attempted murder, rape or serious sexual offence - if there is a previous conviction of a similar nature than bail will be refused unless there is exceptional reasons not to. If it murder and there is no previous convictions of a similar nature: bail will be refused if there is a significant risk of someone being harmed by D If it is a offence carrying a life imprisonment - bail will be refused if there significant risk of other offences being committed or failure to attend.

Answer 5

Can be made by prosecutors or defence on advance notice by other party Application should be made to court who granted bail Can be done without a hearing if both parties agree on variation

Answer 6

Breach of any bail conditions - tightening of bail conditions or arrest. Breach of fail to surrender - charged with failing to surrender - following penalties can be imposed depending on which court they fail to surrender to: Magistrate court - 3 months imprisonment or a maximum fine of 5k Crown court - punishable up to 12 months or unlimited fine

Answer 7

*1. Prosecution representations:* the prosecution will summarise the case against the defendant including a summary of evidence and previous convictions. The prosecution may -Declare they object bails and specify grounds - impose confections and specify the purpose they serve *2. Defence representations:* the defence will be allowed to rebut any grounds or mitigate any concerns. They will initially advocate for unconditional bail or otherwise conditions for bail. *3. Right to reply:* for the prosecutions to correct any misstatements by the defence *4. Decision as to bail* the court will announce its decision and reasons. If granted the court will inform the defendant where and when to surrender to custody. If refused, court will serve defendant certificate of full argument

Answer 8

Defence can appeal as soon as it practicable - heard within 48 hours by crown court judge at a full rehearing. Prosecution right is limited: - they must have initially refused bail - offence must be punishable by imprisonment - prosecution indicates at hearing they will be appeal and within 2 hours confirmed in writing. - Appeal is heard within 48 excluding weekends. - magistrates court granted bail - heard by crown court judge - crown court granted bail - heard by an high court judge

Answer 9

1. Indicates plea at first appearance - if non guilty or no plea indicated move to step 2 2. Allocation hearing - Magistrates makes their determination as to suitability based on: - adequacy of magistrates sentencing powers - Representations by the parties - allocation guidelines - should go to crown court - if complex or magistrate sentencing powers are insufficient 3. Defendants choice - if the magistrate court accept summary jurisdiction, then defendant must decide whether they consent to summary trial or elect trial on indictment

Answer 10

They can consider the following and also request an indication of sentence to help them decide

Answer 11

Notices in serious or complex fraud cases Notices in cases involving children Related offences to an indictable offence Related defendants, where one is sent to crown court

Answer 12

As soon as practicable and in any case, not later then the beginning of the day of first hearing. Remedy - trial adjourned and costs awarded to the defence.

Answer 13

Summary only and either way: Plea + bail + representation and legal aid - all dealt with magistrates Indictable: First appearance will still be in MC who will deal with bail and legal aid then sent to crown court who will deal with plea and trial

Answer 14

After applying electronically - and satisfying the two part test. Interest of justice and means test

Answer 15

1. Likely i will loose my liberty 2. I have a suspended sentence which if breached, court can deal with my original offence 3. likely i will loose my livelihood 4. likely i will suffer serious damage to my reputation 5. involves substantial question of law 6. i wont be able to understand the proceeding or present my own case 7. Witness may need to be tracked on my behalf 8. The proceedings may involve expert cross examinations of prosecution witness 9. It is in the interests of another that i am represented 10. Any other reason

Answer 16

Automatically passed if under 18 or on government benefits. Otherwise ..

Answer 17

When tried at crown court and - their disposal income is more than £3398 - when the D is convicted and they move than £30 k in assets and equity

Answer 18

That criminal cases are dealt with justly. This consist of - acquiring the innocent - convicting the guilty - dealing with the prosecution and defence fairly - dealing with the cases efficiently and expeditiously

Answer 19

Within 28 days of sending

Answer 20

*GUILTY* - sentence on that day or adjourned to be sentenced later - court will decide whether d should be remanded in custody *NOT-GUILTY* Case management hearing will start - set trial date - identify issues for the trial - consider witness requirements - provide timetable for the necessary pre trial preparation - give appropriate directions - make provision for any necessary pre trial hearings

Answer 21

- necessary to give more directions for conduct for an effective trial - required to set rules regarding the conduct of questioning witnesses or the defendant

Answer 22

Any information/evidence that they will rely upon and unused material: - that has not been disclosed before - undermines the prosecution test or positively impacts the defendants case.

Answer 23

Continuing duty - yes - to disclose what has yet already been disclose and will undermine the prosecution case or assist the defendant Time limits Magistrates - as soon as reasonable practicable after the defendant pleads not guilty Crown court - as soon as reasonable practicable after the the case has been sent to trial Continuing duty - as soon as reasonable practicable

Answer 24

When they apply to the court for public interest immunity

Answer 25

*Magistrates court* They may serve a defence statement - if they choose to do so - not more than 14 days after the prosecution completes initial disclosure *Crown court* They must serve a defence statement - not more than 28 days after the prosecution completes initial duty of disclosure.

Answer 26

- defendant’s defence - any issues with prosecution offence - any point of law or authority they will rely on

Answer 27

The prosecution always carries the legal burden - to prove the element of the offence beyond reasonable doubt. BUT The burden shifts to the defence when raising specific defences on the standard of balance of probabilities

Answer 28

Evidence that needs to be raised to satisfy the judge that the matter should be argued before the jury. Whoever has the legal burden to prove the fact, carries the evidential burden too.

Answer 29

Defence may argue to exclude confession due to it being obtained: A. By oppression B. unreliably: breaches of PACE, taking advantage of D’s vulnerability or emotional state C. introducing the evidence would have an adverse effect on proceedings (discretionary) A voire dire will be held to determine whether the confession should be excluded. If it was made by oppression or unreliability then the court MUST exclude confession.

Answer 30

- behaviours of misconduct that is not A. Has to do with alleged facts of the offence the D is being charged with B. Is evidence of misconduct related to the investigation or prosecution of the offence.

Answer 31

Under the 7 gateways: 1. All parties agree to the evidence being submitted 2. The evidence is adduced by the D themselves or whilst answering to cross examinations or intended to elicit it 3. The evidence is important explanatory evidence 4. The evidence is relevant to an important issue between D and P - *Propensity* - the likelihood to do something 5. The evidence has important probative value between D and co-defendant 6. The evidence is required to correct a false impression made by D 7. The D has made an attack on another persons character. Prosecution or co-defendant must serve notice

Answer 32

If the court sees that admitting such evidence with have an adverse effect on the fairness of proceedings - e,g if the proviso convictions that prove a propensity happened a long time ago, the court may likely exclude the evidence

Answer 33

judge will determine quality to determine whether jury should have a turnball direction Length of time the witness had the D under observation Whether there was any obstruction to the observation of D Conditions of the identification - i.e. lighting, distance, weather Whether the D was known to the witness previously The length of time that elapsed between observation and identification Whether there are any discrepancies between the witness’s description and the defendants appearance Whether there are any significant discrepancies provided by the defence

Answer 34

- why a warning is being made - direct the jury to the circumstances the witness identification was made - remind the jury of the weaknesses of the evidence

Answer 35

When 6 of these conditions are met: 1,criminal proceedings have begun 2. The alleged failure occurred before or on charge 3. The alleged failure occurred when the D was questioned by police constable 4. The police constable questioning was to discover who and how the alleged offences was committed 5. The defendant relied on a fact in the defence that was not mentioned at the time of questioning 6. It was reasonable for the D to reveal that fact during questioning on or before charge

Answer 36

When refusing to answer a question ‘without good cause’

Answer 37

When an special warning has been issued.

Answer 38

Hearsay is inadmissible evidence made by a person, not orally and is tendered to prove a *matter stated* (make someone believe it is true).

Answer 39

1. when the witness is unavailable (dead, unfit, outside UK and unreasonable to come, cannot be reasonable found, fear) or the evidence is a business document (if it would have been admissible as oral evidence and was created or received by a person in occupation or office, and was supplied by someone who has personal knowledge of the matters stated) 2. Where all parties agree to admit 3. It would be in the interests of justice

Answer 40

Give the court the general right to exclude evidence from the prosecution if it would have an adverse effect on the fairness of the proceedings. This looks at the quality of the evidence and how it was obtained

Answer 41

Special measures - are measure to assist witness to provide better quality evidence. Eligibility test 1. Are they eligible on the grounds of vulnerability or intimidation 2. Would any of the special measures help to improve quality of evidence given by the witness. If yes to both - eligible.

Answer 42

Only live link is available for defendant

Answer 43

Examination of chief - party introducing witness eliciting evidence from them. Cross-examining - opposing party questions the reliability and creditability of the witness Re-examination - original party clarifying or reaffirming any matters that arose form cross examination

Answer 44

Submission to answer is a submission made by the defence to the judge to stop the case because of the weakness of the prosecution evidence. This is made after the prosecution has made its case.

Answer 45

1. If there is no evidence that the alleged crime was committed by the defendant 2. Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury could not properly convict on it

Answer 46

Leading questions (one that suggests an answer) are not allowed in examination of chief unless facts are not in dispute

Answer 47

1. The punishment of offenders 2. Deterrence of crime 3. Reform and rehabilitation of offenders 4. The protection of the public 5. The making of reparations of those harm by the offence These five don’t apply when offence carries a mandatory life sentence

Answer 48

1. Identify the offence category A. Greater harm, and greater culpability B. Greater harm and lower culpability or vice versa C. Less harm and lower culpability 2. Identify starting point (harm and culpability) and then category range (aggravating factors) 3. Consider any mitigation factors 4. Consider guilty plea - mitigation 5. See if dangerousness applies 6. Totality principle - concurrent and consecutive sentences 7. Court must explain and give reasons for sentence and the effect

Answer 49

Culpability - blameworthiness of the individual - look at the intention and planning e..g were they reckless or deliberate Harm - look at the level of harm they cause or risked to

Answer 50

Whether the custodial threshold has been met - there is sufficient severity of the offence and a non custodial offence cannot be justified.

Answer 51

1. It should be the shortest term that is corresponding with the severity of the offence and does not exceed maximum 2. Where the defendant was convicted on indictment, and there is no maximum or mandatory life sentence - the maximum is 2 years otherwise the court is not restricted. 3. If its the magistrates - their sentencing powers

Answer 52

Minimum 14 days Maximum 2 years Breach - suspended sentence takes immediate effect on original term with no alterations - suspended sentence takes immediate effect on substituted lesser term or - fine of no more than £2.5k

Answer 53

When D enters a guilty plea and goes straight into sentencing but there is a factual dispute between prosecution and defence. Newton hearing will - have the judge listen to the evidence and come to the conclusion of what the issue is - judge hear no evidence but submission from the parties - if so judge must favour defendant on their facts and sentence according when there is substantial issue on the facts

Answer 54

- A convicted person may appeal on conviction or sentence - Must serve notice no more than 15 business days after magistrates pass sentence or defer to, otherwise leave is required - if appeal is contested, than have 15 business days to contest

Answer 55

Affirm or reverse decision. Vary sentence to the extent that the magistrates could of imposed it.

Answer 56

- Both parties can appeal on by the way case stated - magistrates were wrong in law or in excess of their jurisdiction -have 21 days after magistrates made the decision, to serve notice to all parties - any contestions to be done with 15 business days

Answer 57

Affirm or reverse decision Amend decision Remit back to magistrates

Answer 58

- when they have leave to appeal and one of the following grounds APPEALS AGAINST CONVICTIONS - when there is an *unsafe conviction* - unfair proceedings - i.e. incorrect use of no case to answer, new evidence in the interest of justice, judge misdirected the jury, ect APPEALS AGAINST SENTENCING - wrong in law - manifestly excessive or wrong in principle

Answer 59

1. When there was a terminated ruling - submission of no answer - If this is the case, then they must state their intentions to appeal when terminated ruling occurs - Court of appeal may affirm, reverse or vary any decision. 2. Retrial of serious offences - appeals against acquittal and for retrial will only be allowed - If D has been acquitted of a qualifying offence - the written consent of the directors of public prosecutors have been obtained and - leave to appeal has been granted

Answer 60

Youths (under the age of 18) must be tried in youth courts

Answer 61

Sent to the crown court for 1. Homocide offences 2. Firearm offences carrying minimum of 3 years sentence 3. Fraud cases or cases involving children 4. They are a dangerous offence A. Charged with a specified offence (violent, sexual, or terrorist offence) B. They are a dangerous offender (significant risk of harm to the public) C. Custodial term of 4 years would be imposed 5, Grave crime - custodial sentence of 14 years or more for 21+ offender - (Robbery, S18 GBH, aggravated criminal damage, arson and aggravated arson) Note - sometimes the court would need to have a trial to know if any of these apply - if so then youths court should retain jurisdiction but sentencing remains open at adult courts

Answer 62

Whether separate trials will cause injustice to the witnesses or to the case as a whole? The age of the youth - the younger more likely to be retained in youth court The age gap between adult and youth - the bigger the gap, the larger desirability for youth court The lack of maturity of the youth The culpability of the youth in comparison to the adult - if minor > youths court The lack of previous convictions of the youth

Answer 63

Prosecution will provide an overview of the offence and previous convictions Defence will make a plea of mitigation Parent or guardian will be invited to make a statement to the court. The chair in the bench may engage in conversation with the youth on what they did and the effect on victims Court must obtain a pre-sentencing report prepared by the youth offending team

Answer 64

Prevent offending of young people and the welfare of youths

Answer 65

- the age of the youth - seriousness of the offence - the likelihood of further offences being committed - the harm at risk if further offences are committed

Answer 66

Model of interventions adopted by Youth offending team. 1. Standard 2. Enhanced 3. Invasive - reflect the likelihood of the child reoffending and risk of them causing serious harm. This will help court to determine what order to make and to what extent

Answer 67

Referral order - to attend meetings with a youth offender panel and comply with a programme to prevent reoffending last 3 to 12 months Must be made - no previous convictions - pleads guilty to imprisonable offence - court not proposing to make a custodial offence, or absolute or conditional discharge - offence does not have a fixed sentence Detention and training order - custodial sentence where a fine or non custodial sentence cannot be justified Youth custodial sentence - community sentence - serious enough to warrant an order