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FLK2 > Criminal Practice > Flashcards

Criminal Practice Flashcards

1
Q

Criminal Justice System

A

Adversarial system

Not guilty means that the prosecution office didn’t prove all the elements beyond reasonable doubt, the court cannot be sure that the defendant committed the offence

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2
Q

Criminal courts of first instance

A

Magistrate court
Crown Court
Youth court

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3
Q

Magistrate Court

A
  • District judge or
  • Panel of magistrates (they are not legal professionals but have a legal adviser supporting them)

Both decide on issues of fact and issues of law meaning that they will rule on the admissibility of the evidence and hear the case.

If the evidence is inadmissible they have to forget what they have heard

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4
Q

Crown Court

A
  • Circuit judges or recorder (professional lawyer) - decide on the matters of law

Panel of jury decides on the matters of facts

The admissibility is decided by circuit judge and jury do not hear inadmissible evidences

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5
Q

Where all the criminal cases start?

A

In Magistrate Court

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6
Q

Classification of offences

A

Summary Only
Either way
Inditable only

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7
Q

Summary only offences

A
  • can be heard only in magistrates’ court
  • least serious offences

(Examples: assault or battery)

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8
Q

Magistrate court sentencing powers

A

Single either way 6 month

Multiple summary only 6 month

More than either way 12 months

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9
Q

Indictable only Offences

A

Can be heard only in Crown (first appearance is still in magistrate courts): if several offences, the most serious decide and all offences go to crown court

Most serious offences

Examples: murder, manslaughter or robbery

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10
Q

Either way

A

Can be heard in Magistrate Court or Crown Court

Decision depends on what is likely the sentence and in what the defendant wants.

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11
Q

Suspect’s rights at police station

A
  • Access to free private legal advice
  • right to notify someone of the arrest
  • right to inspect the police codes of practices
  • right to silence
  • right to be informed of reasons for arrest
  • right to inspect documents
  • right to information on time limits
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12
Q

Free legal advice

A

by phone or in person, the call centre will decide

in person support unless the suspect is detained for non-personable defence, arrested for failing to attend court, driving over the limit, failing to provide specimen, driving unfit, or breach of court bail.

Even for the above in person is possible if maltreatment, identification or interview.

Very rarely the advice may be delayed by the police only to prevent a suspect to interfere the evidence or with witnesses or alerting other suspects (and only for indictable offences)

Any delay has to be supervised in writing by a superintendent or above

Access to legal advice can only be delayed for 36 hours

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13
Q

Informing on the arrest

A

Friend, relative or other person

Can be delayed for 36 hours if the inspector or above approves it if there are reasonable grounds to believe that informing will cause interfering with evidences, witnesses or alerting other susoects

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14
Q

Custody time limits

A

Time limits starts when the suspect arrives at the police station!

  • 24 hours
  • 12 hours with approval of superintendent
  • 36 hours with approval of magistrate court on first application
  • 24 hours with approval of magistrate court on second application

Magistrate court grants approval if
1)Offence is indictable,
2) there are reasonable grounds for believing further detention is necessary to preserve or obtain evidence, and
3) investigation is being conducted diligently and expeditiously

Total - 96 hours

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15
Q

Identification: when must be held

A
  • witness identified or purported to identify suspect
  • witness says they can identify suspect
  • reasonable chance witness can identify suspect

It is a visual identification, if witness knows suspect there is no point in identification.

If knows but haven’t seen the suspect for long time the identification is necessary.

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16
Q

Identification: how

A

1) Formal procedure

2) taking to a facility (to be followed up with the formal identification procedure)

Types of formal procedures:

  • video identification (moving images of suspect and eight or more others)
  • identification parade (8 or more in line)

Others should resemble with suspect in age, height, appearance and position in life, any distinguishing features must be concealed and the suspect has a right to raise objections.

If reasonable objections are not taken, there is a risk of application to exclude evidence at trial.

  • group identification (seeing suspect in the informal group setting, can be done secretly)
  • confrontation (witness must be warned that the suspect may not be present and the suspect has a right to have a solicitor or friend present, suspect cannot be restrained, very rare procedures)
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17
Q

Rights of suspect during identification

A

Legal advice

Advice on the reasons of the procedure

Suspect do not have to cooperate but the failure to cooperate could be raised at trial

Any changes of appearance of suspect before identification could be also raised at trial.

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18
Q

Identification: objections a defendant can raise

A

Police disregarding reasonable objections

Not keeping witness away from the suspect

Not keeping different witnesses apart before the procedure

Not warning witness that the suspect may not shown at all

Objections could lead to the evidence be excluded

The court would consider whether the admission would have such an adverse effect on the fairness of the trial that it ought to be excluded

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19
Q

Police Interview

A

Made in designated rooms
Recorded on audio or video tapes (two copies made simultaneously)

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20
Q

Suspect rights in interview

A
  • right to legal representation
  • right to remain silent (may harm a defence)
  • special caution used when suspect asked to account for specifics at time of arrest (blood on a shirt example)
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21
Q

How the interview is conducted

A

Suspect has three options:

1) answer questions

2) decline to answer questions

3) give written statement and then refuse to answer further questions

Oppression or Inducement should be avoided as it could lead to the exclusion of the evidences.

Oppression - shouting, using violence, having more than one policemen in the room

Inducement - promise of bail, offer of early release from custody, promising cigarette or food, misrepresenting the strength of the case.

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22
Q

Defence representative role in the interview

A

Interrupt in order to seek clarification

Challenge the police about the questioning

Advice the client not to answer the question

Rep cannot tell the suspect what to say or to answer the question on behalf of the suspect. If does they should be warned and if continues they can be removed if authorised by superintendent or above. The suspect should be provided with another rep

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23
Q

Police bail

A

If the decision is made to charge the custody officer should take a decision on police bail pending their first appearance in magistrate court. In making this decision the custody officer will listen to defence rep and look at the same aspects as court would

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24
Q

Bail

A

Every defendant has a right to bail unless there are good reasons to deny or if there is a real prospect of custody on the charges brought.

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25
Q

Exception to Right of Bail

A

1) substantial grounds to believe that defendant would
- fail to surrender
- commit further offences whilst on bail
- interfere with witnesses or obstruct justice

2) indictable offence and defendant was on bail

3) defendant protection

4) belief defendant would commit offence against associated person

5) defendant already serving custodial sentence

6) insufficient information

7) defendant failed to surrender or breached bail

Examples:
second burglary - likely custodian sentence - fail to surrender
Several offences - further offences when on bail

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26
Q

Bail exception: substantial ground factors

A
  • nature and seriousness of offence
  • probable method of dealing with offence
  • previous conviction
  • association and community ties
  • records on complying with bail obligations
  • strength of evidence
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27
Q

Bail Conditions must be

A
  • relevant
  • proportionate
  • enforceable
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28
Q

Common Bail Conditions

A
  • reside at specified address
  • report to police station regularly
  • prohibited from particular area
  • prohibited from contacting certain individuals
  • curfew or electronic tag
  • security (money paid to court)
  • surety (money promised by 3rd party and paid if the defendant don’t answer the bail, have to be proved documentary)
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29
Q

Bail and Murder Charges

A

Presumption against bail

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30
Q

How often can defendant apply for bail

A

2 times

Second time only if there is a change in circumstances

31
Q

Breach if Bail

A

Revoking bail
More stringent conditions

If a defendant fails to to surrender at court - warrant to arrest (plus it is a separate offence)

32
Q

First Appearance

A

Magistrate Court

Summary only:
- defendant pleads guilty or not guilty
Guilty - charges
Not guilty - first appearance and disclosure

Either Way:
Plea before venue process

Indictable only:
Matter sent to Crown Court for trial

33
Q

Tasks of solicitor at first appearance

A
  1. Advice client:

Obtaining disclosure from prosecution
Client accounts to prosecution evidence
Advising client:
whether there are guilty and strength of the evidence, so they make informed decision on their plea,
plus indication on sentence (Lower sentence for pleading guilty (first opportunity - 1/3 reduction of the sentence)

  1. Secure funding:

Pro bono
Private funding
Representation order

To be granted two tests apply
- interest of justice
- means test

3398 - satisfied
Above but below 37500 limited legal aid
Over - no legal aid

34
Q

Plea before venue

A

Indicate guilty or not guilty

Allocation:

if the magistrate declines jurisdiction, the case proceeds to crown court. In deciding the court considers: defendant previous convictions, sentencing powers of the court, presentations made by both sides

If magistrate court accepts, defendant chooses between CC and MC

MC: cheaper, quicker, lower sentencing powers, less of a burden to disclose, district judge, panel magistrates

CC: jury, process of admissibility of evidences

Theft below 200 pounds:

MC cannot decline jurisdiction
Defendant can elect MC or CC

35
Q

MC Case Managenent Form

A

Witnesses who will be called to give evidences
Witnesses whose statements can be read
Estimate length of trial
Likely applications
special arrangements
Confirmation defendant was adviced on guilty plea and the the trial will proceed if defendant fails to attend

36
Q

MC Case Management Directions

A

Prosecution evidence served within 28 days

Defence case statement served within 14

Defence‘s notice of intention to adduce hearsay evidence or bad character evidence served within 14 days

Points of law raised at least 21 days before trial

Certificates of readiness services at least 7 days before trial

37
Q

CC case management

A

Preliminary hearing with 14 days of the case being sent:
Trial likely to last more than 4 weeks
There are case management problems to address
Earlier trial date is needed
One of the defendants is under the age of 18
There is likely to be an early guilty plea

Otherwise - a please and trial preparation hearing 28 days after the case was sent from MC:

Arrainment - defendant please is taken

Defendant can ask for a good year indication

38
Q

Goodyear indication

A

Defendant asks for indication of sentence before entering plea

If defendant pleads guilty the judge is bound by the indication

39
Q

Defence Case Statement

A

Must serve within 14 days of prosecution‘s disclosure

Set out nature of defence, disputed facts, points of law alibi witnesses

40
Q

Turnbull guideline

A

To determine a quality of identification

Amount of time the witness had to observe the perpetrator

Distance between the witness and a the perpetrator

Visibility at the time the witness saw the perpetrator

Obstruction

Known to the witness

Any reason to remember

Time between incident and identification

Errors between first description and actual appearance

41
Q

Turnbull Warning

A

Warn the jury of special need for caution (juries can be mistaken)

Ask jury to consider circumstances in which witness identified defendant

Refer to particular weaknesses in ID evidence

42
Q

Defendant right to silence

A

When Adverse inference on a trial may be drawn

  • failure to give account when questioned or charged
  • silence at trial
  • failure to account for mark on person, item in possession, or presence at scene
43
Q

Benefits of electing trial in MC

A

Limited sentencing powers

Speedier justice

Less stringent disclosure requirements for defence

Disadvantage - higher conviction rates, admissibility of evidences decided by the same judge/panel of magistrates

44
Q

Who will determine where the trial takes place for either way offences

A

The defendant may elect trial in CC or in MC which may decline jurisdiction if the matter is too serious

45
Q

Adverse inference

A

Failure to answer questions at the interview

Failure to comment upon charge

Failure to give evidence at trial

Failure to account for an object in possession, a substance or mark, presence at scene

46
Q

Either way offences

A

Theft
Arson
ABH
Criminal damage
Burglary

47
Q

Indictable only

A

Robbery
Aggravated criminal damage

48
Q

Hearsay

A

Statement, not made in oral evidence, that is relied on as evidence of the matter in it

  1. hearing smb said something
  2. witness statement agreed to be read out in court.
49
Q

Hearsay can be admissible

A

Under statute

By rule of law

By agreement of the parties

In the interest of justice

50
Q

Hearsay admissible under statute

A

Witness unavailable (dead, unfit, outside UK, unable to be found, fear of witness)

Business document (received in a course of trade, business)

Statement prepared for use on criminal proceeding (police office statement)

Previous consistent or inconsistent statements

Expert evidence

Confessions

51
Q

Admissible by Rule of Law

A

Confessions or mixed statements (saying smth in the bar)

Statement made at time of offence

Statement preserved by res gestae (witness so overpowered while making a statement)

52
Q

Interest of Justice Factors

A

Probative value of statement

What other evidences could be given

Importance

Circumstances

Reliability

Whether oral evidence can be given

Difficulty in challenging statement

Likely prejudice causef

53
Q

Multiple hearsay

A

Through several person

Admissible

  • business document
  • inconsistent or consistent statement
  • all parties agree
  • in interest of justice
54
Q

Confession

A

Any statement wholly or partly adverse to the person who made it

Mixed statements (confirming Actus re but declaring self-defence)

55
Q

Challenges to confession admissibility

A

All Confessions related to matter between prosecution and defence are admissible

Challenges to admissibility

  • oppression (torture, inhuman treatment, threats of violence)
  • things said or done likely to render confession unreliable (bail if confessed, overstating evidences, interview smb who is not fit for interview, like being drunk)

There has to be cause or link between above and confession

Burden of proof is on prosecution (beyond reasonable doubt) or confession must be excluded

Decided in the hearing by the judge in an absence of duty in CC

56
Q

Exclusion of evidences

A

Court may exclude evidence if, considering all circumstances, admission of evidence would have adverse effect on fairness of proceedings

It is discretionary not mandatory

The breach has to be substantial

More often applied to legal searches, identifications, undercover operations

57
Q

Bad Character Evidence

A

Evidence of misconduct, commission of offences or other bad behaviour not related to case

58
Q

Seven Gateways for bad character evidence

A
  1. All parties agreed
  2. Introduced by defendant (for example, during cross-examination
  3. Important explanatory evidence (needed to understand other evidences in the case)
  4. Relevant to an important matter in issue (propensity to commit same kind offences demonstrating similar kind of behaviour or be untruthful) no minimum number to show propensity
  5. Substantial probative value to matter and substantial importance (self-defence bad behaviour of victim example)
  6. Correct of false impression given by defendant (saying I would never do that having already convictions for same offences)
  7. Defendant attacks another’s character
59
Q

Procedure for admitting bad character evidence

A

Prosecution must give notice

  • within 28 days of not guilty plea in MC
  • within 14 days of not guilty plea in CC

Notice to oppose shall also be submitted if defendant wishes to oppose

In the course of the trial - trial will be holted to hear application (CC - judge in the absence of jury)

Important matter at issue or attack on another’s character - the court must not admit it if defendant applied for exclusion and the court sees that it will have such an adverse effect on fairness that court must not admit it

Court looks at the amount of time past since the bad character events

60
Q

Good Character Direction

A

Propensity direction (less likely to commit offence)

Credibility direction ( more likely to be credible)

61
Q

Criminal trial

A
  1. Prosecution opening speech
  2. Prosecution calls witnesses (ask questions, defence examine, prosecution re-examine in case of new circumstances)
  3. Defence - no case to answer if applicable (prosecution has not presented enough evidence to amount to to prima facie case) or if there is a case - call witnesses (if defendant gives evidences, they go before the witnesses)
  4. Defence closing speech (in CC both make a closing speech)
62
Q

Examination in Chief and Cross-Examination

A

EC

Witnesses questioned by own side

Only non-leading questioned asked unless the facts are known and non-disputed (otherwise, the other party objects) - background (address, etc) or agreed issues

CE

Witness is questioned by opposite side

The aim is to cast doubts

Leading questions are allowed

63
Q

Witness competence and compellability

A

Competence

Witness able to give evidence in court unless they are unable to understand questions and give understandable answers

Compellability

Witness can be forced to give evidence

Exceptions:

  1. Defefend:
    - neither competent nor compellable to the prosecution
    - competent but not compellable for defence
  2. Defendant spouse/civil partner
    - competent but not compellable for prosecution (unless the offence involves assault, injury, threat of injury, sexual offence on child under 16 or attempting, conspiring, aiding or abetting this offences
    - competent and compellable for defence (unless they are jointly charged)
  3. Co- defendants
    - neither competent nor compellable for prosecution
    - competent but not compellable for defence
64
Q

How to call the judge

A

Circuit Court Judge
- your honour
- his/her honour judge surname

MC
Judge: sir or madam
Magistrates: your worships

65
Q

Sentencing

A

Midrange ABH example

26 weeks can be reduced to community order or increased up to 51 weeks depending on aggregating and mitigating factors

Aggregating factors
Previous convictions
Defence committed on bail
Defence committed against public worker
Presence of children
Alcohol and drugs

Mitigating
First offence, for example

Sentencing should be proportionate

Can be concurrent or consecutive

66
Q

Please of mitigation

A

Defence gives reasons why the lowest possible sentence shall be imposed

Includes reminder on credit for guilty plea (if relevant)

Mitigating factor relating to the offence and the defendant himself (age, health, behaviour, etc) should be addressed

67
Q

Sentencing options

A
  1. Custody - only when offence is so serious that no other form of punishment will suffice (usually half in custody and half on license)
  2. Custody sentence can be suspended but if the defendant breaks the condition of the suspension - they go to prison)
    CC - maximum 2 years
    MC -maximum 6 months of suspension
  3. community order - unpaid work, rehabilitation, program requirements, mental health treatment, curfew
  4. financial penalty
  5. discharge (absolute - only record of offence or conditional - three years no other offences or go to prison
68
Q

Newton Hearing

A

Defendant pleads guilty but doesn’t accept the prosecution version of what happened

Procedure to settle disputed facts before sentencing defendant who pleaded guilty.

69
Q

Appeal procedure

A

From MC

  1. Appeal to CC
  • against conviction or sentence
  • if pleaded guilty only against sentence

Prosecution cannot appeal

21 days to appeal, appeal is aright

Complete rehearing, sentence can reduce or increased, can impose a cost order if appeal is lost

  1. to Divisional court

-Open to prosecution and defence
- appeal by way of case stated: decision wrong in law or in case stated

21 days to appeal

Only legal arguments, no rehearing the evidence

CC

To court of Appeal
Leave to appeal is obtained from decision judge or from court of appeal

Application 28 days to CC, sent to CC, one judge decides and if refused, the defendant can apply to full court

Ground of appeal against to conviction that it is unsafe (evidenced wrongly admitted or excluded, bias, jury problems, etc)

Ground of appeal against sentence:
- wrong in law,
-wrong in principle or
- manifestly accessible

Court cannot increase, any appealed sentence applies to original date of sentencing

Prosecution cannot appeal if defendant is acquitted by the decision of jury.

Supreme Court

Point of law of general public importance is involved

Permission is required to be granted by Court of Appeal or Supreme Court

70
Q

Youth Court

A

Part of Magistrate Court
Defendant aged 10-17
Sent to CC
Murder, attempted murder, manslaughter, rape, terrorism

grave crime with sentence 14 years or more - go to CC)
Jointly charged with adult who is sentenced in CC/MCfor trial

71
Q

Sentencing for Youth (check workbook)

A

To prevent criminalisation

  1. Referral order (cannot be if pleaded not guilty but convicted)

If new offence or violation, the court can choose to continue or to revoke and sentence

  1. youth rehabilitation order (up to 3 years. Unpaid Work up to 12 months or supervision, programming, etc)
  2. detention and training (12 and older years old, up to 15 - persistent offenders and 15-17 if it so serious that only custody is justified - up to 24 months)
72
Q

What statement shallow made at the outset of interview

A

You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.

73
Q

If Identification is weak and there are no supporting evidence

A

The judge should withdraw the matter from the jury and dismiss the case.

74
Q

Benefits of electing CC

A

More time for collating evidences, more effective process for challenging admissibility of evidences, higher acquittal rates

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