Criminal Practice Flashcards
Three grounds for objecting to bail
If D released on bail, there are ‘substantial grounds’ for believing that D would:
- Fail to attend a subsequent hearing / surrender to custody
- Commit further offences on bail; and/or
- Interfere with witnesses, or otherwise obstruct the course of justice (e.g. destroy evidence)
The above are available for any indictable offence
Summary offences: three grounds are activated by a trigger event (D being arrested for breach of bail)
‘Need not be granted bail’
- A remand in custody would be for the defendant’s own protection
- Defendant is already serving a sentence in custody
- Court has insufficient information to deal with the issue of bail, and so remands in custody for a short period for the production of sufficient evidence
Bail conditions
Residence at a given address
Curfew (only appropriate where relevant)
Restriction on where D may go/who they can contact during bail
Surety and security
Electronic monitoring/tagging (reserved for severe cases)
Reporting to a police station
Surrendering a passport to the police
Plea in mitigation
Factors to consider
- The timing of the defendant’s guilty plea
o Guilty plea at first stage of proceedings – max 1/3
o Guilty plea after the first stage of proceedings – max 1/4
o Guilty plea on the day of trial – sliding scale with max 1/10
- Sentencing guidelines
- Mitigating and aggravating factors
- Pre-sentence report
Helpful phrases
- ‘I ask the court to take this into consideration’
- ‘May I draw the court’s attention to ___’
Potential structure
1. Set out the structure that you will adopt for your oral submission
2. Identify the starting point of sentencing and the category from the guideline
3. Address/minimise any aggravating factors
4. Outline any mitigating factors, including ones from personal life
5. Apply any guilty plea discount (if there was a guilty plea)
6. Conclude with a summary and suggested sentence
Appeal against conviction: Magistrates Court
Slip rule: MC has the power to vary a sentence / set aside a conviction if it is in the interests of justice to do so
Grounds: error in fact or law
Appeal against conviction: Crown Court
Test: whether or not the conviction is unsafe
Common grounds for appeal against conviction:
- Wrongful admission / exclusion of evidence
- Wrongful rejection of a submission of no case to answer
- Wrongful withdrawal of issues from the jury
- Misdirection on law / facts in the course of summing up
- Conduct of the trial judge
- Inconsistent jury verdicts
- Fresh evidence
- Defects in the Indictment
- Conduct of lawyers
Appeal against sentence: Crown Court
Permission to appeal will only be granted if the court thinks the defendant should have been sentenced differently
Common grounds for appeal against sentence:
- Wrong in law
- Wrong in principle
- Manifestly excessive
- Judge fails to take account of relevant matters
- Judge takes account of improper considerations
- Unjustified disparity between co-defendants
- Failure to distinguish between offenders
- Legitimate expectation
Bad character: propensity
R v Hanson
- Is the history of convictions capable of establishing propensity to commit offences of the kind with which D is charged?
- Does the propensity make it more likely D committed this offence?
- The strength of the prosecution case such that no conviction is admitted to bolster an otherwise weak case
Hearsay definition
Statement made out of court
Person that made it intended another person to believe it
It is adduced as evidence of the matter stated
General discretion to exclude hearsay (in addition to s 78 PACE)
Section 126(1) CJA 2003 gives court general discretion to refuse to admit hearsay evidence if ‘the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence’
Grounds for admitting hearsay evidence
All parties agree
Defendant’s/co-accused’s confession
Witness’s previous consistent/inconsistent statement
Unavailable witness (death, illness, fear, outside of the UK)
Business documents created/received in the course of a trade/profession and the person who supplied the information might reasonably be expected to have had personal knowledge of the matters dealt with in the statement
Agreed witness statements
Res gestae (statement made by someone emotionally overpowered)
Public documents (registers, court records, maps)
Court considers it in the interests of justice, using its discretion to consider the following:
o credibility of the statement’s maker
o statement’s probative value
o reason why oral evidence cannot be given
o statement’s importance to the party’s case
o difficulty to the other side in challenging hearsay
Section 76 PACE
Court must not allow confession evidence if it was or may have been obtained:
- By oppression (torture, use or threat of violence) of the person who made it; or
- In consequence of anything said or done which was likely to render it unreliable in the circumstances
The prosecution must prove beyond reasonable doubt that the confession was not obtained as set out above
Witness summons: competence
Defendant / accused: not competent to be a prosecution witness; where there’s multiple Ds, none can be P witnesses for each other
Children / persons with a disorder or disability – a test applies:
1. Whether they can understand questions
2. Whether they can give comprehensible answers
Witness summons: compellability
Defendant: cannot be compelled to give evidence
Spouses / civil partners:
Can be compelled to give evidence for their defendant spouse / partner
Can only be compelled to give evidence for the prosecution if the offence charged against their partner is:
o Assault, injury or threat of injury (domestic violence)
o Assault on, or injury, or threat of injury, to a child under 16
o A sexual offence against someone under the age of 16
o Attempts, conspiring, aiding and abetting any of the above
Special measures for vulnerable or intimidated witnesses
Witness may give evidence from behind a screen / through a live video link
Witness may give evidence in private
Removal of lawyers’ wigs and judges’ gowns
Witnesses may video-record their evidence-in-chief
Witnesses may video-record their cross-examination and re-examination
Witness may give evidence through an intermediary
Witness may give evidence with the benefit of a communication aid
