Criminal Practice Flashcards
How long can access to legal advice be denied initially?
36 hours
Three occasions when formal identification procedure must be conducted
- a witness has identified or purported to identify the suspect
- a witness expresses an ability to identify a witness
- there is a reasonable chance of a witness being able to identify a suspect
What kind of offence is fraud?
Either way offence
Turnbull warnings relate to the identification of _____ but not ______.
People; objects
What kind of offence is robbery?
Indictable only
How soon is the preliminary Crown Court hearing for indictable only offence once sent by Magistrates’ Court?
14 days - if one of the conditions is met
When can the court refuse bail?
- it finds there is a real prospect of a custodial sentence handed down; and
- one of the exceptions to the right of bail applies
What kind of offence is criminal damage?
Either way offence
What kind of offence is ABH?
Either way offence
What kind of offence is battery?
Summary only
What kind of offence is assault?
Summary only
What evidence must the prosecution disclose?
- Evidence they intend to rely on in court;
- Any evidence that may undermine the prosecution’s case or assist the defendant’s case
What kind of offence is burglary?
Either way offence
What are the three main advantages of selecting the Magistrates’ Court?
- Limited sentencing power
- Faster trials and lower cost
- Less onerous disclosure requirements
Maximum sentence the Magistrates’ Court can hand down for single either way offence?
6 months
Which criminal court has higher conviction rates?
Magistrates’ Court
What kind of offence is theft?
Either way offence
Amount of ‘low value theft’?
up to £200
How court is chosen in ‘low value’ theft case?
Defendant can choose Crown Court or Magistrates’ but Magistrates cannot decline jurisdiction
(Treated as summary only offence from court’s perspective and either way offence from Defendant’s perspective)
Adverse inference can be drawn from what three scenarios?
- Defendant’s silence during police interview
- Defendant does not comment upon charge
- Defendant does not give evidence at trial
What kind of offence is arson?
Either way offence
What court(s) hear(s) either way offences?
Magistrates’ Court or Crown Court, depending on seriousness of case and defendant’s wishes
Where do ALL criminal cases begin?
Magistrates’ Court
Burden and standard of proof in criminal trial
Prosecution must prove guilt beyond reasonable doubt
What does Magistrates’ Court do with indictable only offence at first hearing?
Send it straight to Crown Court
Maximum period of custody if all extension are granted – calculated from what moment?
96 hours (4 days) from arrival at police station (‘relevant time’)
Who bring the majority of criminal cases to court?
Crown Prosecution Service (CPS)
In addition to CPS, who else can bring criminal charges? (5)
Local authorities
Government agencies
private citizens
organizations
charities
What does acquittal mean?
Court cannot be sure the defendant did commit the offence
What does acquittal not mean?
The defendant is innocent
What is a summary only offence?
Lower level offence that can only be tried in the Magistrates’ Court
What is an indictable only offence?
Most serious offences that can only be tried in the Crown Court
What is an either way offence?
Offence that can be tried either in Magistrates’ Court or Crown Court, depending on seriousness and the defendant’s wishes
Who presides over the Magistrates’ Court
District Judges (DJs) and panel of 2-3 lay magistrates
Who presides over the Crown Court?
Crown Court Judge
The Crown Court Judge is tasked with deciding matters of _________ and the jury decides matters of _____________.
Law (ex. admissibility of evidence); fact
How many people make up the jury in the Crown Court?
12
Which court has higher rate of acquittal?
Crown Court
When would a summary only offence be heard in the Crown Court?
If it was charged together with a more serious offence that is being tried in the Crown Court
Police and Criminal Evidence Act 1984 (PACE) relates to ________
suspects rights when detained by the police
7 main rights of suspects under PACE
- free legal advice
- notify someone of their arrest
- right to inspect PACE
- right to silence
- to be informed of reason for arrest
- right to inspect documents related to arrest
- right to info related to detention time limits
Under what circumstances can access to legal advice at police station be delayed?
- suspect arrested on indictable only or either way offence
- police officer of rank of superintendent or higher has authorised in writing
- officer has reasonable grounds to believe that access to legal advice will lead to interference with evidence, interference with others, alerting other suspects, or hindering recovery of property
How long can access to legal advice be delayed?
36 hours
How long can a suspect’s right to inform someone of their arrest be delayed? And under what grounds?
36 hours; same as delay of legal advice but can be by rank of inspector (much lower rank)
General rule - maximum time a suspect can be kept in custody without being charged
24 hours from relevant time
What is ‘relevant time’ in context of how long a suspect can be kept in custory
When the suspect has entered the police station
What is the absolute maximum of time a person arrested for a summary only offence can be held without being charged?
24 hours - no extensions possible
First extension of custody time limit - how long?
12 hours
Which rank of police officer can authorize extension of custody time limit?
Superintendent or higher
On what grounds can detention be extended first time round?
- indictable only or either way offence
- officer has reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning
- investigation is being conducted diligently and expeditiously
- by officer of rank of superintendent or above
Total maximum detention of person without charge if all extension are granted?
96 hours (i.e. 4 days) from ‘relevant time’
Second extension of custody time limit - how and how long?
By warrant from the Magistrates’ Court
36 hours on first application and another 24 hours on second application
Three scenarios when identification procedures MUST be held
- when a witness has identified or purported to identify a suspect
- when a witness expresses an ability to identify a suspect
- when there is a reasonable chance of a witness being able to identify a suspect
When is the identification procedure not necessary?
When the suspect is known to the witness - unless they have not seen each other in a long time
Rights of suspect related to identification procedure (3)
- to have purpose of procedure explained
- have free legal advice and to have solicitor/friend present
- have obligations and consequences explained - are not obligated to cooperate but may be raised at trial; if they change appearance, this may be raised at trial
4 types of identification procedures - which is most common?
- video identification (most common)
- identification parade - suspect and 8 others min
- group identification
- confrontation
What does the court consider when deciding whether to exclude or admit identification evidence that has been challenged (breach of Code)?
Whether the admission would have such an adverse effect on the fairness of the trial that it ought to be excluded
What is a custody record?
A log of a suspect’s time in detention at the police station
Interviews of suspects by police officers at the police station must be ________
recorded
Suspect’s legal representative can inspect ____ and obtain____ before interview but police are NOT required to disclose ______
the suspect’s custody record; sufficient information to help them understand nature of offence and reason detainee is under suspicion; evidence
If suspect fails to mention something in interview that they later rely on in court
Adverse inference may be drawn by court regarding why the defendant did not raise the matter when questioned
Suspects’ three options during police interview
- Answer questions and give full account
- decline to answer
- hand in written statement
What happens if police do not follow rules or give required cautions during interviews?
Evidence obtained in interview can be excluded from trial
When should a police officer give a special caution when interviewing a suspect? What is the special caution?
If defendant failed to account for their presence at the scene of the crime or of an object, substance, or mark found on the defendant at the time of arrest - the court can draw an adverse inference
Who is considered ‘vulnerable’ for police safeguarding?
Persons under 18 or suspects with mental disorders or other vulnerabilities
Important safeguard for vulnerable suspects
Access to an appropriate adult - should be someone NOT affiliated with the police. This person needs to be present at questioning (active participation required)
What constitutes ‘oppression’ during police interviews?
torture, inhuman or degrading treatment, use or threat of violence
What constitutes ‘inducement’ during police interviews?
Promise of a lower sentence; promise of anything in exchange for a confession
ONLY role of solicitor at police station
protect and advance the legal rights of their client in the face of the police investigation
What should a solicitor NOT do during a police interview?
tell the client what to say or answer on behalf of the client
If a solicitor obstructs an interview, which rank of police officer may remove them from the interview?
Superintendent
Who decides if a suspect should be remanded in custody or remanded on bail in the first instance?
The custody officer at the police station
What must the court give to the defendant if they refuse bail?
Certificate of full argument which states that court heard full argument on the application for bail before refusing
General presumption surrounding bail
presumption that defendant should be released on bail after appearing in Magistrates’ Court (EXCEPT homicide cases)
The court can remand a defendant in custody (instead of bail) only IF (1) ________ and (2) _________
(1) an exception to the right of bail applies
(2) there is a real prospect of a custodial sentence being imposed if convicted
Exceptions to right of bail
- There are substantial grounds for believing that the defendant would
a. fail to surrender;
b. commit further offences;
c. interfere with witnesses or obstruct justice;
d. commit offence on bail - breached bail before;
- are currently serving sentence;
- custody for own protection;
- insufficient evidence to make bail decision
What factors will the court consider when assessing the ‘substantial grounds’ for bail applications
- nature/ seriousness of offence
- how the offence will be dealt with (custody, fine, etc)
- defendant’s character, previous convictions, etc
- defendant’s record for complying with bail
- strength of evidence`
- risk D might engage in conduct that would cause physical/mental injury
Conditions to bail may be imposed but only if they are ______, ________, and _______
relevant, proportionate, and enforceable
Common conditions to bail
- reside at specific address
- report to local police station at intervals
- prevent D from going to certain places
- prevent D from contacting certain people
- curfew
- electronic tag
- have someone (surety) pay money into court (security) that will be lost if D fails to surrender
Bail in murder cases - how is it different from all other cases
Only heard in Crown Court
Presumption is opposite - no right to bail unless there is no significant risk that D will commit an offence likely to cause physical/mental injury to another person
How many applications for bail can a defendant make with same facts/submissions? And after that?
Two; then only if there is a change in circumstance (i.e. new evidence that weakens prosecution’s case; change in bail address)
What happens if defendant breaches bail conditions? 3 options
What if defendant fails to surrrender to bail?
They can be arrested without a warrant; bail can be withdrawn; court can impose more stringent conditions
They commit a separate offence and risk their bail being revoked
What does the defence solicitor have to apply for to represent defendant at hearing? When not required?
Representation order; not required if defendant is privately funded
What two requirements must a defendant satisfy in order for a representation order to be awarded?
- interest in justice test; and
- means test
In what cases is the means test for a representation order automatically satisfied?
If under 18; if receiving income support, job seeker’s allowance, state pension
Disposable income threshold for means test for legal aid
£3,398 per year
For which type of offence is a ‘plea before venue’ used?
either way offence
Main advantages of Magistrates’ Court
lower sentencing powers, quicker, lower cost, less stringent disclosure requirements
Maximum sentencing power of Magistrates’ Court
up to 6 months for single summary only or either way offence or 12 months for 2 or more either way offences
Main advantages of the Crown Court
higher rates of acquittal, longer delay before trial, more easily challenge admissibility of evidence
What happens when Magistrates’ Court declines jurisdiction on either way offence (after D has plead not guilty)?
Case goes to Crown Court for trial
What happens when Magistrates’ Court accepts jurisdiction on either way offence?
Defendant can choose summary trial (Magistrates) or trial at Crown Court (with jury)
Low value theft - threshold
Up to £200 in value
Low value theft hybrid procedure for court allocation
Treated as summary only in that Magistrates’ Court cannot decline jurisdiction but treated as either way offence in that the defendant can still elect Crown Court
Magistrates’ Court directions - when must prosecution serve evidence
Within 28 days
Magistrates’ Court directions - when does defence serve defence statement
within 14 days of receiving prosecution evidence
Magistrates’ Court directions - when does defence notify which prosecution witnesses are required to attend
within 7 days of receiving prosecution evidence
Crown Court - when is preliminary hearing for indictable only offence?
within 14 days of being sent if trial is likely to last for more than 4 weeks (and other factors)
Crown Court - when does plea and trial preparation hearing take place? What is the name of this type of hearing?
28 days after case was sent from Magistrates’; ‘arraignment’
What is a Goodyear indication?
A defendant may ask for an indication of sentence before entering a plea before the Crown Court
Is a judge bound by a Goodyear indication?
Yes, if the Defendant pleads guilty after the indication is given
How long does the prosecution have to complete disclosure in Crown Court trials?
50 days (or 70 days if defendant is on bail)
What must prosecution disclose?
All material they intend to rely on at trial AND any material which might reasonably be considered capable of undermining the prosecution’s case or assisting the case for the defence
The prosecution’s duty for disclosure is _______.
Ongoing
Under what circumstance can the prosecution withhold evidence and how?
If matter of national security; by application to the court
Timeline for defence to file defence case statement in Crown Court trial?
28 days after prosecution has made disclosure
What happens if defence does not file defence case statement on time?
Adverse inference may be drawn
What are Turnbull Guidelines used for?
To determine the strength of identification evidence if it forms a major part of the case and the defendant disputes it
Turnbull Guidelines - pneumonic
ADVOKATE
Amount of Time
Distance
Visibility
Obstruction
Known or unknown to witness
Any reason to remember suspect (tattoo, piercing)
Time between incident and identification
Errors in first description
What happens if judge decides that identification evidence fails after Turnbull guidelines?
Withdraw case from jury and direct acquittal
What is a Turnbull warning, who gives it, and when?
judge gives warning to jury at summing up at the end of the trial related to identification evidence
Components of Turnbull warning (3)
- warn jury of special need for caution when convicting defendant based on identification evidence
- ask jury to consider the circumstances in which witness identified the defendant; and
- refer to weaknesses considering ADVOKATE
Can a defendant be convicted solely on an adverse inference from their silence?
No
Other name for secondhand evidence
Hearsay evidence - evidence of something someone else said out of court
Four main categories under which hearsay evidence can be admissible
- under statute
- by rule of law
- by agreement of all parties
- in the interest of justice (catch all discretion of the court) - aka res gestae
Admissibility of hearsay evidence under statute
- Witness not available (dead, outside UK, can’t be found)
- Business docs
- Statements prepared for use of criminal proceedings and relevant person cannot be expected to recollect (police officer statement)
- previous consistent/inconsistent statements from a witness
- expert evidence
- confession
What is multiple hearsay?
when a statement has been relayed through more than one person before it gets to court
When can multiple hearsay evidence be admitted?
- business doc
- consistent/inconsistent statement
- all parties agree
- value of evidence is so high that it is in interest of justice
Any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority and whether made in words or otherwise
Confession
A confession can be partly _________ and partly ________
exculpatory; incriminating
When is a confession admissible?
If it is relevant to a matter in issue
On what grounds can the defence challenge the admissibility of a confession?
Oppression or unreliability (defence must show causal link)
Burden of proof re admissibility of confession
Prosecution must prove beyond reasonable doubt that there is no oppression or unreliability
Crown Court - who decides on admissibility of confession, why, and what type of hearing?
The judge in absence of the jury as it is a matter of law (not fact); voire dire
Magistrates Court - who decides on admissibility of confession
The bench - they decide both issues of law and fact
Under what circumstance can the court choose to exclude evidence offered by the prosecution?
If the evidence would have adverse effect on the fairness of the proceedings
Under what circumstances MUST the court exclude evidence?
Confession based on mistake, untruth, oppression, unreliability
Seven grounds (under statute) for admission of bad character evidence of defendant
- all parties agree
- Adduced by the defendant
- evidence is needed to properly understand other evidence
- evidence is relevant to an important matter in issue (ex. similar previous convictions) - propensity to commit similar offence
- where co-defendants blame one another (substantial probative value)
- to correct a false impression given by defendant
- if defendant or rep attacks another’s character
Three grounds for adducing non-defendant’s bad character
- All parties agree
- It is important explanatory evidence; or
- It has substantial probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole
When can the court exclude bad character evidence even if one of seven gateways are made out?
If admitting the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it
Timelines to adduce bad character evidence - Crown Court/Magistrates’
20 business days from not guilty plea at Magistrates and 10 business days from not guilty plea at Crown Court
Good character direction consists of the _________ direction and the _______ direction
propensity and credibility
When will a judge give a good character direction to the jury?
When the defendant has no previous convictions (or old unrelated convictions)
What type of question can be asked in examination in chief?
Non-leading questions
When can advocates ask leading questions?
In cross-examination or during examination in chief if regarding background and/or agreed matters
Competence vs compellability of witnesses
Competence - witness is allowed to give evidence
Compellability - witness can be forced to give evidence
The defendant is _______ for the defence, but they are not_________ (witness)
Competent, compellable
Is the defendant a competent and/or compellable witness for the prosecution?
Neither
For the prosecution, a defendant’s spouse is __________ but not _________ (as a witness)
Competent; compellable
Are co-defendants competent and/or compellable for the prosecution? And defence?
Neither for prosecution; competent but not compellable for defence - (unless they have plead guilty or case has been dropped)
‘no case to answer’ - who presents it and when
the defence can present it after the prosecution has called its witnesses
‘no case to answer’ - what is it?
The defence arguing that the prosecution has not presented enough evidence to amount to a prima facie case
Who hears a ‘no case to answer’? What happens if successful?
Judge in absence of the jury; defendant is acquitted
How are magistrates addressed?
‘judge’
How is the Magistrates’ bench referred to collectively?
Your Worships
How is a District Judge referred to?
Judge
How is a Crown Court judge addressed?
Your Honour
What aggravating factors MUST the court take into account when handing down sentence? (4)
- previous convictions if reasonable to do so
- offence committed on bail
- racial/religious aggravation
- hostility based on sexual orientation, transgender identity, or disability
Sentence credit for guilty plea at first opportunity (maximum)
1/3 reduction
Mitigating factors related to the defendant in relation to sentencing (at court’s discretion)
Age, health, good character, remorse/voluntary compensation, early guilty plea, family situation
Defendant will usually serve _______ of their sentence in custody and the rest on ________
1/2; license
What is a suspended sentence?
In place of custody sentence; will not need to be remanded in custody unless they break a condition imposed or commit any further offences
Maximum period of sentence suspension?
2 years
Sentencing - what is an absolute discharge?
no punishment whatsoever, except for recording of offence on the record
What is a Newton hearing?
When the defendant offers a basis of plea (where they accept culpability but dispute full facts) to the prosecution but the prosecution does not accept - court will hold Newton hearing to settle the disputed facts
What format is a Newton Hearing?
takes form of a trial in which witnesses are called to give evidence
What happens if a Newton hearing is settled in prosecution’s favour? And defendant’s?
Prosecution’s favour - D will lose any credit for guilty plea
Defendant’s favour - D will retain any credit for guilty plea
Who can appeal from the Magistrates’ Court? Who hears appeal? Who cannot appeal via this route?
Defendant can appeal conviction (unless they plead guilty) and sentence to Crown Court; prosecution cannot appeal
Timeline for the defendant to appeal Magistrates’ Court decision?
15 business days to lodge a written notice of appeal with convicting/sentencing court
Can the Crown Court decline jurisdiction for appeals from Magistrates’ Court?
No
In appeal cases from Magistrates’, the Crown Court has the power to _____ and _______ the sentence imposed but are limited to sentencing power of ________
Increase/decrease
Magistrates’
Both the defendant and the prosecution can appeal from the Magistrates’ Court to ________ but it must be on the grounds of ________ or _______.
Divisional Court (High Court)
decision is wrong in law
excess of jurisdiction
Timeline for application to appeal to Divisional Court (High Court)
21 days from decision
A defendant can appeal from the Crown Court against _______ and _______ to the ________ but must obtain _________ as a first step (from which Court)
Sentence; conviction
Court of Appeal
leave to appeal from Crown Court or Court of Appeal
Timeline to submit application of leave to appeal to the Court of Appeal
28 days from decision
Grounds on which a defendant can appeal a conviction from the Crown Court
conviction is unsafe - evidence wrongly admitted, direction wrongly given, judge demonstrated bias, wrongful exercise of discretion
Sentence is wrong in law, wrong in principle, or manifestly excessive
Grounds for defendant appealing sentence from the Crown Court
wrong in law, wrong in principle, manifestly excessive
What can the Court of Appeal do with sentence appeals from the Crown Court? And what can it not do?
Quash sentence, impose any sentence it deems appropriate
May not exceed sentence imposed by Crown Court
Youth Court is part of ___________ Court
Magistrates’
Age group covered by Youth Court
between 10 and 17
On what grounds can the prosecution appeal to Court of Appeal? And what can it not appeal?
Ruling made by judge during trial; cannot appeal a decision by the jury to acquit
When can an appeal be made to Supreme Court?
Leave give by CoA or SC
CoA certifies that a point of law of general public importance is involved
What youth crimes MUST be sent to the Crown Court
- Murder, attempted murder, manslaughter
- certain firearm offences
- Specified violent, sexual, terrorism offences
Definition of a ‘grave crime’ and what does Youth Court do with them?
crime punishable by imprisonment of 14 years or more in adult court
Youth court may send these to Crown Court if they do not have adequate sentencing power
Youth jointly charged with adult on trial - which court?
Same court as adult
What is the primary focus of sentencing in the Youth Court?
prevent offending (rather than punishment)
Name of order used to send youth to Youth Offender panel
referral order
How long is ‘contract of conduct’ between Youth Offender panel and youth (and family)
3 to 12 months
What is a ‘detention and training order’ (DTO)
order requiring youth to spend first half of sentence in custody and second half reporting to Youth Offending Team
Maximum duration of a ‘detention and training order’ DTO?
2 years
DTO
10-11 years old
12-14 years old
15-17 years old
10-11 - not available
12-14 - only if they are persistent young offenders (sentenced on 3 occasions for offences punishable by imprisonment)
15-17 - whenever court determines only a custodial sentence is justified
If parties wish to use Welsh language during proceedings, what must be done depending on which court?
Crown Court - prior notice so provision for interpretation can be made; Magistrates - no notice required
Is a suspect required to cooperate with identification procedure? And what happens?
No, they are not; but procedure could be held covertly and failure to cooperate may be raised at trial
