Criminal Practice Flashcards
1
Q
What are the grounds for detention?
A
- Reasonable grounds that detaining the suspect without charge will secure/preserve evidence
- Necessary to obtain evidence by questioning
2
Q
In what circumstances can the right to legal advice be delayed?
A
If legal advice:
a) interferes/harms evidence of indictable offence/interference/physical injury to other people
b) Alerts other persons suspected of having committed the offence but have not yet been arrested
c) It would hinder the recovery of any property obtained
Can only be delayed up to 36 hours and can only be authorised by a rank of at least superintendent
If suspect changes their mind on wanting legal advice, this has to be confirmed:
a) In writing; and
b) Authorised by an officer not below the rank of inspector
3
Q
In what circumstances can a right to inform someone of arrest be delayed?
A
If it is an indictable offence
At least an inspector
Max 36 hours
Cannot delay this right for a juvenile
4
Q
In what circumstances can an extension of detention be authorised?
A
- Detention without charge is necessary to secure/preserve evidence/obtain evidence through questioning
- Indictable offence
- Investigation is being carried out diligently and expeditiously
At least superintendent for a max of 36 hours from relevant time
Further extension can be granted by magistrates’ court for a further 36 hours
- Cannot be later than 96 hours (4 days)
4
Q
How often should a review be held of a suspect’s detention?
A
First review = 6 hours after detention of the suspect was first authorised
Second = 9 hours after first
Subsequent = no more than 9 hour intervals
At least an inspector
Failure to carry out reviews renders detention after such a time unlawful and will amount to the tort of false imprisonment
5
Q
Charging juveniles: what is a community resolution?
A
Non-statutory disposal between parties
Aimed at first-time offenders who have admitted guilt
Will not form part of criminal record
6
Q
Charging juveniles: when can a youth caution be issued?
A
- There is sufficient evidence to charge
- Offender admits offence
- Police believe it is not in the public interest to be prosecuted/give a youth conditional caution
7
Q
When must an identification procedure be held?
A
- Witness has identified/purported to have identified a suspect
- Witness thinks they can identify a suspect/there is a reasonable chance of identification and suspect disputes being the person the witness claims to have seen
8
Q
What is required for a video identification procedure?
A
Moving images
1 suspect = 8 other people
2 suspects (of similar appearance) = 12 people
Resemble the height/age/general appearance/position in life
Same position carrying out the same sequence of movements
9
Q
What are the requirements of an identification parade?
A
At least 8 people
Suspect can choose their own position, but not alter the order of the life
Witness must have looked at each member twice before making a decision
10
Q
What are the 3 classification of offences and in which court are each of these offence tried?
A
- Triable only on indictment = most serious offence
- Must be dealt with in CC - Either-way offence = choice between CC and MC
- Low-value shop theft (<£200) cannot be committed to CC if D pleads guilty
- Criminal damage of <£5,000 are summary unless caused by fire; anything above £5,000 is treated as an either-way offence - Summary offence = only be dealt with in MC
11
Q
For a representation order, D must satisfy the interests of justice test and the means test. What are each of these test?
A
Interests of justice test:
1. Is D at risk of losing their liberty/livelihood/serious damage to reputation
2. Do proceedings involve a substantial question of law
3. Is D unable to understand proceedings/state their own case
4. Would proceedings involve tracing/interviewing/expert cross-examination of witness on behalf of D
5. Is it in the interest of another person that D be represented?
- Do have right of appeal by either (a) adding more information on CRM14; or (b) requesting appeal
Means test:
1. Applicant receives welfare benefits
2. Under age of 18
- Do not have right of appeal
12
Q
What are the advantages of being tried in the CC?
A
- Greater chance of acquittal
- Better procedure for challenging the admissibility of prosecution evidence
- More time to prepare case for trial
13
Q
What are the advantages of being tried in the MC?
A
- Limited sentencing powers
- Speed and stress
- Prosecution costs
- Defence costs
- No obligation to serve defence statement
- Cases are listed for trial much sooner
14
Q
In what circumstances can an either-way offence be sent straight to the CC without allocation?
A
- Where notice in serious/complex fraud cases have been given by DPP
- Notice in certain cases involving children has been served
- An either-way offence is linked to an offence triable only on indictment
15
Q
What are the custody time limits for remands before conviction?
A
Basic rule: No more than 8 clear days
Can be up to 28 days if:
1. D has been previously remanded for the same offence
2. Are before the court; and
3. Court can set a date to remand them on which it expects the next stage of proceedings to take place
Either-way offence MC = 70 days (unless allocation hearing takes place within 56 days, in which case it is reduced to 56 days)
Summary-only in MC = 56 days
Bail = any period of time
16
Q
What are the time limits for remands after conviction?
A
Custody = no more than 3 weeks
Bail = no more than 4 weeks
17
Q
What grounds are the exceptions to the right to bail?
A
Substantial grounds for believing that D will:
1. Fail to surrender to custody
2. Commit an offence whilst on bail
3. Interfere with a witness
18
Q
When can a defendant make an appeal against the decision on bail?
A
Can appeal the decision to the CC if the MC has issued a certificate of full argument
Must complete notice of application and send to CC, MC and CPS
19
Q
How can the prosecution appeal the decision on bail?
A
- Oral notice must be give by the prosecution at the end of the hearing/before D is released from custody
- The notice must be confirmed in writing and served on the defendant no later than 2 hours after telling the court of their decision to appeal
- CC must hear the appeal, no later than 2 business days after the appeal notice was served
20
Q
When can the police arrest a D for breaching bail and what must they do?
A
If they reasonably believe D:
1. Is not likely to surrender to bail
2. Has broken/is likely to break bail conditions
D will be detained in police custody and must be brought before the MC within 24 hours
21
Q
When will the Turnbull guidelines apply?
A
If the witness:
1. Picks out the defendant informally
2. Identifies the defendant at a formal identification procedure at the police station; or
3. Witness claims to recognise the defendant as someone previously known to the them
And the defendant disputes the visual identification made by the witness
22
Q
In the Crown Court, what happens if the visual identification is:
1. Of good quality
2. Poor but supported
3. Poor and unsupported
A
- Judge will point out dangers of relying on identification evidence and the special need for caution when such evidence is relied on
- Judge will give a ‘Turnbull warning’: still point out the dangers and draw attention to the weaknesses of the identification evidence and ask the jury to look for other supporting evidence
- Judge should stop trial at the end of prosecution case and direct the jury to acquit the defendant
23
Q
In the magistrates court, what happens if the visual identification is:
1. Poor and unsupported
2. Good/poor but supported
A
- Defendant’s solicitor should make a submission of no case to answer at the end of prosecution case
- Defendant’s solicitor should address guidelines in their closing speech and point out how IE is notriously unreliable
24
When can adverse inferences be drawn in an interview? What are the conditions that must be met before an inference can be drawn?
1. Failed to mention a fact relied on in their defence; or
2. On being charged with an offence/officially informed they might be prosecuted, they failed to mention any such fact
Conditions:
a) Interview was under caution
b) Failure to mention the fact relied on occurred before the defendant was charged
c) Interview must have been directed at discovering whether or whom the alleged offence had been committed
d) Must be a fact reasonably expected to mention when questioned
25
A special caution must be given to a suspect for adverse inferences to be drawn under ss. 36 (presence of object) and 37 CJPOA 1994 (presence at particular place). What amounts to a special caution?
Suspect must be told:
1. What offence is under investigation
2. What fact the suspect is being asked to account for
3. Officer believes this fact is due to the suspect taking part in the commission of the offence in question
4. A court may draw adverse inferences from failing to comply with the request
5. Record is being made of the interview and it may be given in evidence at trial
26
Define hearsay evidence
A statement made by a person:
a) Outside of court
b) Where purpose is to cause another to believe/act on the content of that statement; and
c) Where the statement is relied on as evidence of the matter stated
27
What are the grounds for admissibility of hearsay evidence?
1. Parties agree for it to be admitted
2. A preserved common law rule makes it admissible:
a) Evidence of confession
b) Evidence admitted as part of the res gestae = spontaneity of the statement means that any possibility of concoction can be disregarded
3. Court is satisfied that it is in the interests of natural justice to admit it
4. Admissible under another statutory provision:
a) Witness is missing
b) Business document
28
Define when the 'witness is missing' ground is available to admit hearsay evidence
1. Oral evidence would in theory be admissible
2. Person who made the statement is identifiable; and
3. Witness is unavailable because they are:
a) Dead
b) Mentally or physically unfit
c) Outside of the UK and it is not practicable to secure their attendance
d) Cannot be found and reasonable steps have been taken
e) Afraid to testify and the court grants leave
29
What constitutes a business document with regards to admitting hearsay evidence?
1. Created/received in course of business
2. Where person supplying had personal knowledge of the matters dealt with; and
3. Everyone receiving the information was in the course of a business
30
What is the procedure for admitting hearsay evidence?
Party wishing to use the hearsay evidence should serve notice on the court and all other parties
Should be served as soon as reasonably practicable and no more than:
a) Not guilty MC = 20 business days
b) Not guilty CC = 10 business days
31
Define confession evidence and what are the grounds to admit such evidence?
Statement wholly/partly adverse to the person who made it
Admissible insofar as it is relevant to any matter in issue in proceedings
32
How can a defendant challenge the admissibility of confession evidence under s 76 PACE 1984?
1. They did not make a confession at all/person who heard the confession was mistaken/fabricated evidence of confession
2. Did make a confession, but is should not be admitted to evidence because it was obtained:
a) By oppression of the person who made it; or
b) In consequence of anything said/done which was likely to render confession unreliable
For prosecution to prove beyond all reasonable doubt that the evidence was not obtained in such a way
33
How can a defendant challenge the admissibility of evidence under s 78 PACE 1984?
Admission of confession would have such an adverse effect on the fairness of proceedings that it ought not to be admitted
Probative value of the evidence must be overriden by the prejudicial effect it will have
34
What is the procedure for admitting confession evidence at the Crown and Magistrates' Court?
Crown Court = determined by a judge in absence of jury at voir dire
Magistrates' court = normally seek to exclude it when interviewing officer gives evidence
To exclude evidence under s 76 and s 78 must hold a voir dire
- If only relying on s 78, do not need to hold a voir dire
35
What are the 7 gateways that are used to admit bad character evidence?
a) Parties agree
b) D brings evidence to the court
c) It is important explanatory evidence
d) Relevant to an important issue between D and the prosecution
e) Evidence has substantial probative value to a matter at issue in the case
f) To correct a false impression given by D
g) D has made an attack on another person's character
Only prosecution can use gateways (c), (d), (f) and (g)
Only defence can use gateway (e)
36
What power does the court have to exclude evidence of the defendant's bad character?
No power to exclude evidence under gateway (d) and (g)
Other gateways are automatically admissible if requirements of each gateway are met
Courts do retain their discretion to exclude evidence under s 78 if admission would have an adverse effect on proceedings
37
On what grounds can bad character evidence of someone other than the defendant be admissible?
1. It is important explanatory evidence
2. It has substantial probative value in relation to a matter which:
a) Is a matter in issue in the proceedings; and
b) Is of substantial importance in the context of the case as a whole
OR
3. All parties agree to the evidence being admissible
38
Under what circumstances can a preliminary hearing take place?
Offence is triable on indictment and:
1. There are case management issues CC need to resolve
2. Trial is likely to exceed 4 weeks
3. Desirable to set an early trial date
4. Defendant is under 18; or
5. Likely to be a guilty plea and D could be sentenced at preliminary hearing
This hearing must take place within 10 business days from date MC send case to CC
39
When must the prosecution disclose unused material?
If D enters a not guilty plea and the unused material is capable of:
1. Undermining the prosecution case; or
2. Assisting D's case
Can only withhold such material if it is protected by public interest immunity
40
When must the defence disclose a defence statement?
MC: no duty to serve defence statement
- If they choose to do so, must be within 14 days of prosecution disclosure
CC: must provide defence statement within 28 days of prosecution's initial disclosure
41
What are the requirements of a defence statement?
1. In writing, setting out defence
2. Identify any matters of fact which D takes issue with and why
3. Identify any points of law (with authorities) which D intends to rely; and
- Eg: admissibility of hearsay, confession or bad character evidence
4. Details of any alibi defence and any alibi witnesses
Usually signed by the defendant's solicitor
- Defendant may sign a copy of the statement/solicitor must ensure that the defendant has approved the contents of the defence statement
42
What is the general rule and exception for the competence and compellability of witnesses?
General rule = all persons are competent and thus compellable
Exceptions: Person is
1. Unable to understand questions put to them as a witness; and
2. Unable to give answers to them which can be understood
43
Under what circumstances can a co-accused be called as a witness for the Crown?
1. AG files a nolle prosequi
2. If an order is made for separate trials
3. If the accused is formally acquitted
4. If the accused pleads guilty, allowing them to give evidence against co-accused
44
What are the categories of witnesses who can apply to the court for special measures?
1. Under 18
2. Mental/physical disorder or disability/impairment which will affect their evidence
3. Fear/distress of giving evidence
4. Complainants of sexual offences
5. Witnesses in specified gun/knife crimes
45
Under the sentencing guidelines, how does a court consider the seriousness of an offence?
1. Offender's culpability in committing the offence; and
2. Any harm which the offence caused/was intended to cause/might have foreseeably have caused
Consider any aggravating or mitigating factors
46
What are the 8 main situations which might give rise to an aggravating factor when sentencing?
1. Previous convictions (recent, similar type of offence)
2. Offences committed whilst on bail
3. Racial or religious aggravation
4. Hostility based on sexual orientation or disability
5. Assault on someone who provides a public service
6. Terrorist connection
7. Using a minor to mind a weapon
8. Supply of controlled drug near a school
47
What are the mitigating factors that may be taken into account when sentencing D?
1. D acted on impulse
2. D has experienced greater degree of provocation
3. D suffers from mental illness/physical disability
4. D is particularly old/young
5. D only played minor role in offending
6. D was motivated by genuine fear
7. D made attempts to make reparation to their victim
48
Under what circumstances can a reduction of a guilty sentence occur, and what is the reduction that would apply?
If guilty plea was entered at:
1. First stage of proceedings = full, 1/3 discount
2. After first stage (PTPH) = 1/4
3. First day of trial = 1/10
4. During trial = 0
49
Define the custody threshold test and how 'early release' operates in relation to custodial sentences
Test = if the offence was so serious that neither a fine alone nor a community sentence can be justified for the offence
Early release:
a) Up to 2 years = released halfway on licence in community
b) Over 2 years = same, unless D is an offender of particular concern
=> not entitled to automatic release, but can apply for parole and be released anytime from halfway up until the end of their sentence
50
Define suspended sentence and what happens if D breaches the suspended sentence
A custodial sentence between 14 days - 2 years may be suspended for 6 months - 2 years
Sentence of imprisonment will take effect if:
a) D fails to comply with requirements imposed; or
b) During operation period, D commits further offence and sentencing court for new offence believed sentence of imprisonment should take effect
Must order for custodial sentence to take effect unless it is unjust to do so
- If unjust, can order for more onerous requires to apply to SS or to extend operational period
51
What are the options available to the court when dealing with a defendant who has breached their suspended sentence?
a) Order custodial sentence to take effect unaltered
b) Order custodial sentence to take effect for shorter period of time
c) Amend original order imposing more onerous community requirements
d) Amend original order by extending operation or supervision period
Court must make order under (a) or (b), unless it would be unjust to do so
Imprisonment of original offence will be consecutive to sentence imposed for new offence
52
What happens if D breaches a community order?
First receive a warning
If within 12 months they fail to comply again, Probation Service officer will report this to the court, who will then:
a) Amend order to have more onerous requirements
b) Revoke order and re-sentence; or
c) If D has persistently and wilfully failed to comply with order, revoke order and impose custodial sentence
53
Appeals from MC to CC: When can appeals against conviction and sentence be made? What is the procedure and what are the powers of the CC?
Against conviction = errors of fact/law
Against sentence = sentence imposed is excessive
Procedure:
- File notice of appeal with MC and CPS within 15 business days from MC passing sentence
- Full rehearing of case
Powers: impose any sentence MC would have power to impose
Prosecution do not have a right of appeal to CC
- Can appeal to HC by way of case stated on a point of law
54
When can an appeal be made from the MC to the High Court by way of case stated?
1. Magistrates made error in law; or
2. Magistrates have acted outside of their jurisdiction
Must apply to MC within 21 days, identifying question of law which aggrieved party seeks view of HC
Hearing is confined to legal arguments based on agreed facts
- No evidence from witnesses
55
Who and how can an appeal be made to the SC?
Available to both D and CPS
Must be on point of law
HC must certify it to be a point of law of general public importance
HC or SC must grant leave of appeal
Same applies for CoA
56
Appeals from CC by defendant: when can an appeal against conviction be made and what is the procedure?
1. CoA grants leave of appeal; or
2. Trial judge grants certificate that case is fit for appeal
To obtain leave of appeal, D must serve a notice of appeal with draft grounds on Registrar of Criminal Appeals at CoA within 28 days of conviction (NOT sentencing)
57
Appeals from CC by defendant: when can an appeal against sentence be made and what are the powers of CoA?
Same as conviction:
1. CoA grants leave of appeal; or
2. Trial judge grants certificate that case is fit for appeal
confined to legal submissions
Ground = sentence must be wrong or excessive
Cannot increase sentence imposed by CC
58
When do the prosecution have a right of appeal?
Have right of appeal to CoA if AG considers CC have passed a sentence which is unduly lenient
Must be an offence triable on indictment or specified either-way offence
CoA must have given permission
59
Define a persistent young offender
Juvenile who has been sentenced on 3 separate occasions for one or more recordable offences
60
Youth Court Procedure: What are the 5 circumstances where a case must or may be sent to an adult court?
1. Homicide offence = must be dealt with in CC
2. Firearms offence = if 16+ at the time of the offence, must be sent to CC
3. Grave crimes = youth court may accept jurisdiction or send case to CC
- Grave crime = max custodial sentence of 14+ years
4. Specified offences = may be sent to CC where D is regarded as a dangerous offender
5. Jointly charged with an adult:
a) Adult's case dealt with in CC = may be sent to CC, only if necessary in the interests of justice
b) Adult's case dealt with in MC = must be tried together, with juvenile usually remitted back to youth court for sentencing
61
What 4 conditions need to be met for a juvenile to be sent to a youth detention accommodation (if J is refused bail)?
1. Juvenile is aged 12-17
2. Juvenile has legal representation
3. Offence is:
a) Violent/sexual; or
b) One an adult would receive 14+ years and likely juvenile will receive custodial sentence; or
c) Recent and significant history of absconding/committing imprisonable offences while on remand
4. YDA is necessary to protect public from:
a) Death/serious PI; or
b) Commission of further imprisonable offences
If not, will be held in a local authority accommodation
62
When will a referral order be made?
Must be made for juvenile who has never been convicted before and pleads guilty
Will be referred to a youth offender panel, where they will agree a youth offender contract designed to prevent juvenile from re-offending
Lasts between 3-12 months
63
When will a detention and training order be made?
Last resort for very serious crimes
10-11s = cannot be made
12-14s = can be made if persistent offender
15+ = no restriction
YOT pre-sentence report must specify custody as a potential sentencing option
Held in young offender institution for one half of the order, other half are under supervision in community
Run for at least 4 months, cannot exceed 24 months
64
When does the detention clock start when suspect arrives:
a) Voluntarily
b) Street bail
c) Arrested away from station
a) Time of arrest
b) When they arrive at police station
c) When they arrive at police station
65
What is the order for contacting an appropriate adult and in what circumstances can an appropriate adult be removed?
1. Parents/guardian
2. Social worker from LA
3. Responsible adult over 18 who is not connected to the police
If they are preventing the interviewing officer from putting proper questions to the suspect
The appropriate adult needs to be replaced for the interview to continue
At least rank of superintendent
66
How often should breaks be held during interviews?
Refreshment breaks every 2 hours
Break at every meal time
If the interview takes place over more than 1 day in any 24-hour period, must be given an 8-hour continuous break
67
When can a youth conditional caution be given?
1. Sufficient evidence to provide realistic prospect of conviction
2. Determine YCC should be given
3. Offender admits offence
4. Effect of caution is explained to offender
5. Offender signs document detailing offence/admission/consent to be given YCC and details of conditions are attached
Conditions must have one of 3 objectives:
a) Rehabilitation
b) Reparation
c) Punishment
Must be capable of being completed within 16 weeks, no later than 20 weeks
68
What is the scope of a representation order?
Summary/either way:
a) MC = covers all work done
b) CC = may be extended to cover an appeal in CC
Either-way and D elects trial in CC = automatically covers
Indictment only = covers proceedings in both MC and CC
May be required to make contributions to their costs in CC
69
What are the defence's witness obligations in:
a) MC
b) CC
D must serve CPS notice of any witnesses they intend to call setting out their:
a) Names
b) Addresses
c) DoB
MC = only if D pleads not guilty
CC = any plea
70
When is the spouse of the accused compellable for:
a) Crown
b) Accused
Crown = If:
1. Offence is assault/(threat of) injury to spouse/person under 16; or
2. (attempted) Sexual offence of person under 16/aiding and abetting this offence
Accused = spouse is compellable
71
What factors are taken into account when deciding whether any grounds for bail are satisfied?
1. The nature and seriousness of the offence (probable sentence D will receive for it)
2. Character, antecedents, associations and community ties of D
3. D's record in respect of previous grants of bail
4. Strength of evidence against D
72
When should a PTPH be held and what are the time limits for holding such a hearing?
Must be held on every criminal case sent to the CC
Should be listed within 28 days of the transfer, but in any event, no more than 35 days from transfer
D is in custody = draft details of the indictment and prosecution case must be served 7 days before the hearing
D is on bail = above details must be served by the hearing
73
When would the MC give case management directions? What would these directions normally involve?
Take place if D is pleading not guilty
- Usually happen at the same hearing as the plea, but can happen at a subsequent hearing
Allow 8 weeks to prepare for trial (or 14 if expert evidence is being used)
Parties complete a Preparation for Effective Trial form:
1. Details of parties
2. Prosecution evidence
3. Aspects of prosecution evidence disputed by D
4. Directions for an effective trial
74
What is a Newton hearing and when are they held?
Applies when D admits guilt, but disputes the prosecution's versions of the events which will have an effect on the sentence they receive
Can invite the prosecution to agree to their factual basis of plea
- If no agreement can be reached then the sentencing court will usually hold a separate Newton hearing to determine the facts upon which D will be sentenced
75
When could a s 9 witness statement be used?
Should be used for evidence which is not in dispute
It will be admissible at trial, provided that:
1. It is signed and dated
2. It contains a declaration
3. A copy has been served before the hearing on the other parties in the case; and
4. None of the parties have objected within 7 days
76
What is a group identification and what is the procedure for it?
A group identification occurs when the witness sees the suspect in an informal group of people
Can happen with the suspect's consent or covertly
Suspect will be taken to a place where other people are passing around informally and the suspect is able to join these people and be seen by the witness
77
What is confrontation and what is the procedure for it?
When the witness is brought face-to-face with the suspect in the police station
Very rare and should be used as a last resort, normally because suspect has refused to take part in other identification procedures
Normal to have suspect's solicitor present
78
What conditions of bail can be imposed?
Failing to surrender to custody:
1. Sureties
2. Security
3. Reporting to a police station
4. Residence
5. Surrender passport
Committing offences whilst on bail:
1. Reporting to police station
2. Residence
3. Curfew
4. Non-communication with prosecution witnesses
5. Restrictions on entering specified areas
Interfering with a witness:
1. Non-communication with prosecution witnesses
2. Restrictions on entering specified areas
79
If hearsay evidence was admitted on the ground that it was in the interests of justice, what factors would the court consider in determining whether to admit such evidence?
1. The probative value of the evidence/how valuable the evidence is in understanding the case as a whole
2. Whether any other evidence can be admitted on the matter
3. How important the proposed evidence is to the case as a whole
4. The reliability of the statement-maker
5. The reliability of the evidence of making the statement/the circumstances in which it was made
6. The amount of difficulty that would be involved in challenging the statement
7. The extent to which that difficulty would prejudice the party facing it
