Criminal Practice Flashcards
Which laws, procedures and processes is PACE Code C concerned with?
Code C covers requirements for the detention, treatment and questioning of suspects in police custody.
What rights does someone have to legal advice? Code C PACE 1984 - 6.1
6.1 - all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available
What rights does a suspect have to have someone informed of their arrest under PACE 1984 Code C 5.1?
5.1- any person arrested and held in custody at a police station or other premises may, on request, have one person known to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable. If the person cannot be contacted the detainee may choose up to two alternatives. If they cannot be contacted, the person in charge of detention or the investigation has discretion to allow further attempts until the information has been conveyed.
What are a suspects rights in terms of detention time limits under PACE 1984 Code C s.41?
Initial period before charge is no more than 24 hours from the ‘relevant time’
Volunteer attending police station - at the time of arrest at the police station
Suspect on ‘street bail’ - at time of arrival at police station
Suspect arrested away from police station - at the time of arrival at the first police station
In terms of detention what are the suspects rights for periodic review of this detention? under s.40 PACE 1984
First review- within 6 hours of detention being authorised (by officer not below rank of inspector)
Second review- within nine hours of first detention review (15hrs from first detention) (by officer not below rank of inspector)
Third Review- Within nine hours of second detention review (24hrs in detention) (by officer not below rank of inspector) to charge, seek an extension or release suspect without charge
What are the rules regarding extending a detention beyond 24 hours up to 36 hours by an officer of the rank of superindendent or above? S.42 PACE 1984
If detention is necessary to secure or preserve evidence relating to an offence for which they are under arrest or to obtain such evidence by questioning them; and
If the offence for which the suspect has been arrested in connection with is an indictable offence; and
If the investigation is being carried out dilligently and expeditiously
What are the rules regarding extending a detention beyond 36 hours up to a maximum of 72hrs by an officer of the rank of superindendent or above? S.43 PACE 1984
If the offence for which the suspect has been arrested in connection with is an indictable offence;
If detention is necessary to secure or preserve evidence relating to an offence for which they are under arrest or to obtain such evidence by questioning them; and
If the investigation is being carried out dilligently and expeditiously.
What are the rules regarding extending a detention beyond 36 hours up to a maximum of 96hrs in total by the magistrates courts? S.44 PACE 1984
If grounds under s.43 are satisfied; and
There are reasonable grounds for believing that further detention is justified.
This is the MAX period for which a suspect can be detatained (96hrs - 4 days) after which they must be released or charged.
Which laws, procedures and processes is PACE Code D concerned with?
PACE Code D is a set of guidelines that govern how police identify people during criminal investigations. i.e. identification procedures.
When must an identification procedure be held under PACE 1984, Code D 3.12?
If the suspect disputes being the person the eye witness claims to have seen on a previous occasion:
An eye witness has identified a suspect or purported to have identified them; or
There is an eye witness avaliable who expresses an ability to identify the suspect; or
There is a reasonable chance of an eye witness being able to identify the suspect.
When is an identification procedure not necessary under PACE 1984, Code D 3.12?
The suspect admits being at the scene of the crime and gives an eye witness account which does not contradict the eye-wiutness; or
It is not disputed that the suspect is already known to the eye-witness
What are the different types of identification procedure under PACE 1984, Code D?
Video identification- selection of images on a screen, including an image of the suspect
Identification parade - a suspect is lined up with the others who look similar
Group identification - Witness sees the suspect in a informal group of similar people
Witness confrontation - Suspect is directly confronted by the witness
What is the most suitable identification procedure under PACE 1984, Code D 3.14?
Suspect is initially invited to take part in a video identification unless:
Not practicable;
An identification parade is both practical and more suitable;
Group identification is considered more suitable by the officer in charge of the investigation than video or parade.
Process for video identification, PACE Code D, Annex A:
1) Images must include the suspect and at least 8 other people who resemble the suspect in age, height, general appearance and position in life
2) The suspect must be given reasonable opportunity to see the complete set of images before it is shown to any eyewitness
3) If the suspect has reasonable objection to the set of images, or any of the participants, the suspect shall be asked to state the reasons for the objection, and if practicable, steps shall be taken to remove the grounds for objection
4) Unusual features of the suspect which other participants don’t have (e.g. scar or tattoo) should be concealed or replicated on other people
Process for Identification Parade, PACE Code D, Annex B:
1) May take place in a normal room or one with a screen permitting witnesses to see members without being seen
2) Must consist of at least 8 other people who resemble the suspect in age, height, general appearance, and position in life
3)Unusual features of the suspect which other participants don’t have (e.g. scar or tattoo) should be concealed or replicated on other people
4) If the witness wishes to hear any indetification parade member speak, adopt any specified posture or move, they shall first be asked whether they can dentifiy any person on the basis of appearance only.
Process for identification parade, PACE Code D, Annex B:
A suspect is lined up to others who look similar
May take place in a normal room or one with a screen permitting witnesses to see members without being seen.
At least 8 other people who resemble the suspect in age, height, general appearance and position in life.
Unusual features must be concealed
If the witness wishes to hear one of them speak, adopt a particular stance, they shall first be asked whether they can identify on appearance alone.
Process for confrontation, PACE Code D, Annex D:
1) Face to face confrontation should be used as a last resort
2) Must take place in the presence of the suspect’s solicitor (unless this would cause unreasonable delay)
Which laws, procedures and processes is PACE Code E concerned with?
Code E covers audio recording of interviews with suspects in the police station.
What is a suspects right to silence?
A person arrested in connection with a suspected criminal offence has the right to remain silent when interviewed at the police station, however, at trial the court may be allowed to draw adverse inferences from this earlier silence when being questioned under caution.
What happens where a suspect remains silent on the legal advice of a solicitor and seeks to later rely on a fact at trial which was not disclosed?
1) If the suspect genuinely and reasonably relied on the advice of a solicitor to remain silent, no inferences can be drawn
2) If the suspect used the advice to hide the fact that they have no defence, or it was not reasonable for them to rely on the advice, then adverse inferences may be drawn.
Who should the police contact in the case of a juvenile when obtaining an appropriate adult?
1) Parent or guardian
2) Social worker
3) Responsible adult who is not connected to the police
What is the Solicitor’s role during the interview? Code C, 6D
Open with a statement explaining their role and grounds on which they will be intervening in the police questioning such as innapropriate or improper police questioning or the need to give the client further legal advice.
Protect and advance the legal rights of their client
May advise client to avoid giving evidence which would strengthen the prosecution case
May intervene to seek clarification, challenge an improper question to their client, or the manner to which it has been put to them.
May advise their client not to rely to particular questions or give their client further legal advice.
When may a Solicitor be asked to leave during an interview? Code C, 6.9
If their conduct is such that the interviewer is unable to properly put questions to the suspect.
Examples - answering questions on the suspects behalf, or providing written replies for the suspect to quote
Who should the police contact in the case of a vulnerable adult when obtaining an appropriate adult?
1) Relative, guardian, or other person responsible for their care
2) Someone experienced in dealing with vulnerable persons but who is not connected to the police
3) Responsible adult
Who should never be an appropriate adult?
Solicitor acting for the juvenile or vulnerable person
Police officer or employee
Suspect, witness or victim connected to the investigation
Person who has received prior admissions from the suspect
Estranged parent
When is there a general right to bail as per Bail Act 1976?
1) An accused before conviction when he:
- Appears or is brought before a Magistrates’ Court or the Crown Court in the course of or in connection with the proceedings fro an offence; or
-Applies to the court for bail (or a varation of bail conditions) in connection with proceedings
2) An offender after conviction during adjournment for reports
3) An offender who, after being convicted of an offence, appears or is brought before a Magistrates’ Court or the Crown Court for breach:
- Of a requirement of a community order
- Of a reparation order
- Revocation/amendment of a youth rehabilitation order
The general right to bail is subject to statutory exceptions on refusing bail which vary depending on the classification of the offence. What are they when the defendant has been accused or convicted of idictable and either-way imprisonable offences?
Most common grounds to refuse bail are that there are substantial grounds for believing that the defendant will:
Fail to commit to custody;
Commit an offence whilst on bail; or
Interfere with a witness to the case
The general right to bail is subject to statutory exceptions on refusing bail which vary depending on the classification of the offence. What are they when the defendant has been accused or convicted of summary only imprisonable offences?
Bail may be refused on the following grounds:
Failure to surrender to custody
Commission of further offences
Fear of comission of offences likely to cause another person to suffer or fear physical or mental injury
Defendant’s own protection
Defendant serving custody
They have been arrested for absconding or breaching bail conditions and there are substantial grounds for believing that they would fail to surrender, commit an offence, interfere with witnesses or obstruct the course of justice
Lack of sufficient information to determine bail
The general right to bail is subject to statutory exceptions on refusing bail which vary depending on the classification of the offence. What are they when the defendant has been accused or convicted of non-imprisonable offences?
Bail would be refused on the following grounds:
They have been convicted of the offence, having been previously granted bail and failed to surrender and the court believes that they would fail again to surrender to custody if granted bail
They should be kept in custody for their own protection or welfar (if they are under 18 years old)
They were already serving a custodial sentence
They have been arrested for absconding or breaching bail conditions and there are substantial grounds for believing that they would fail to surrrender, commit an offence, interfere with witnesses or obstruct the course of justice.
What are the statutory factors that the court must take into account when deciding if there are ‘substantial grounds’ for refusing bail?
Nature and seriousness of the offence
Character of the defendant
Antecendents
Associations
Community ties
Defendant’s record in relation to previous grants of bail
Strength of evidence against the defendant
When may conditions to be added to the defendant’s bail?
Only if such conditions are ‘necessary’ to:
Ensure attendance at court
To prevent offending while on bail
To prevent interference with witnesses or obstruction of the course of justice
For the defendant’s own protection
To ensure the defendant is avaliable to assist with enquiries or preparation of reports
To ensure the defendant attends an appointment with their legal representative before the next hearing.
If their is a risk of comission of further offences, what are the conditions that would be used?
Curfew
If their is a risk of interfering with witnesses, what are the conditions that would be used?
Non-contact with witnesses
Restriction on entering an area
What is the procedure for applying for bail?
The Justices’ Clerk will provide details of:
- the case history
- Any previous bail hearing decisions
The prosecution will provide details of:
- the current allegation
- any previous convictions
-the results of any drug tests
-any bail representations
The defence will provide details of:
-its version of the allegation
- the defendant’s circumstances
-any bail represenations
There is no requirement for formal evidence to be given.
The court will then consider:
-If the right to bail applies
-if the offence is indictable only, either-way or summary imprisonable, whether if convicted, there is no real prospect of a custodial sentences being imposed
-Whether there are any statutory exceptions to the right to bail
What happens if bail is refused and the defendant appeals?
At the first hearing after the intial hearing where bail was refused, a full application for bail using any arguments as to fact or law may be permitted
What are the 3 classifications of offences?
1) Summary only- least serious - only triable in magistrates court
2) Either-way offences - capable of being tried in magistrates court or crown court depending on seriousness
3) Indictable only- can only be dealt with in Crown Court
What are the penalties for absconding?
- Magistrates may impose a fine of up to £5000 and a sentence of up to three months
- Crown Court may impose an unlimited fine and a sentence of up to one year
What is ‘The Interests of Justice Test’ in the context of legal aid?
Apply the widgery criteria:
It’s likely the applicant will lose their liberty
It’s likely the applicant will lose their livelihood
It’s likely the applicant will suffer serious damage to their reputation
A substantial question of law may be involved
The applicant may not be able to understand the court proceedings or present their own case
The applicant may need witnesses to be traced or interviewed
The proceedings may involve expert cross-examination of a prosecution witness
It’s in the interests of another person that the applicant is represented
What is ‘A Means Test’ in the context of legal aid?
Considers applicant’s financial position, such as their household income, capital and outgoings. The means test determines whether an applicant will be eligible for legal aid depending on the trial venue of the Magistrate’s Court or the Crown Court.
Defendant’s under the age of 18 or on certain government welfare benefits automatically pass the means test.
What will happen at a hearing for an application for representation?
Prosecution required to serve ‘initial details of the prosecution case’ which for summary and either way offences broadly includes:
1. Summary of offence and any account given by the defendant at interview
2. The defendant’s criminal record
3. Witness statements and exhibits
4. Victim impact statement
5. Medical or other evidence.
What is the role of a defendant solicitor at the hearing?
Review the initial details of the prosecution case (IDPC) and strength of prosecution case and evidence
Interview the client and review their evidence
Advise the client on plea (including reduced sentence for early guilty plea) and trial venue
Advise the client as to any bail application
Make any necessary representation order.
What is a plea?
A plea is the response given by a defendant to a charge laid against him by a court. An accused can please guilty or not guilty.
Where are summary only offences dealt with at plea before venue?
Magistrates Court
Guilty Plea - Magistrate will sentence immediately or adjourn for any pre-sentence reports required
Not Guilty Plea - Magistrates with adjourn and set a date for trial
Where are indictable only offences dealt with at plea before venue?
Magistrate will sent to the Crown Court due to the seriousness of the offence
Guilty Plea - The Court must make arrangements for the Crown Court to take the defendant’s plea as soon as possible
Not Guilty Plea- The Court must make arrangements for a case management hearing in the Crown Court
Where are either way offences dealt with at a plea before venue? and how does this differ if the plea is guilty or not guilty?
The Magistrates must decide whether the offence is more suitable for trial in the Magistrates’ Court or the Crown Court. This is known as the allocation decision.
Guilty Plea - if the magistrate’s sentencing powers are sufficient, the defendant will be sentenced. If not, he will be committed to the Crown Court for sentencing.
Not Guilty Plea - The Magistrates will proceed to an ‘Allocation Hearing’ where the court will take a number of factors into account when determining the trial venue.
What are the advantages of the Crown Court?
Greater chance of aquittal
Better procedure for challenging admissability of prosecution evidence
More time to prepare for trial
Trial by jury
What are the advantages of Magistrates’ Court?
Limited sentencing powers - 6 months for a single offence and 12 months for two or more either-way offences.
Faster trial, less formal
Smaller contribution to prosecution costs
If funding privately, defence costs likely to be less
No requirement to serve defence statement to prosecution
More options to appeal
What is an allocation hearing?
The allocation hearing is where the magistrates decide whether the case is more suitable for a summary trial in the magistrates court or a trial on indictment in the crown court.
What is the allocation hearing procedure?
Hearing consists of two stages:
1) plea before venue stage - which the defendant indicates whether a guilty plea will be entered, and
2) the allocation stage, in which magistrates and the defendant determine whether the case will be heard in the crown court or magistrates court.
Proceedings may be conducted by live television link.
What happens at the plea before venue stage (indication of plea)?
The court clerk reads out the charge
clerk explains to D that they may indicate if they would plead guilty if the case went to trial, and if they indicate a guilty plea, the court would treat it as such and prcoeed to sentence
the clerk asks the defendant for their plea
What happens if a defendant indicates a guilty plea at a plea before venue hearing?
The court will proceed to sentence immediately
Adjourn for sentencing reports; or
Commit D to the Crown Court for sentence if the magistrates powers are insufficient; and
if the Defendant indcates a not guilty plea or does not give an indication, the court will proceed to an allocation hearing.
What happens at an allocation hearing?
Follows immediately after plea before venue:
Magistrates decide if they accept jursidiction;
If accepted, D is given opportunity to elect CC tria, if they choose CC, it is the end of the allocation hearing as magistrates cannot override this decision;
If jursisdiction is declined, then case is sent to CC and the defendant has no choice.
In deciding, the magistrates can hear representations from both the prosecution and the defence.
What factors do the magistrates take into their decision as to whether to accept jurisdiction?
Whether their sentencing powers are sufficient
representations of the parties
any allocation guidance issues (generally should accept unless likely sentence exceeds their powers); and
any relevant previous convictions, likely to increase sentence.
If the defendant gets a choice between magistrates and crown court, what can help make their decision?
Can ask the magistrates to indicate whether, if they were to be convicted in their court, the magistrates would impose a custodial or non-custodial sentence. It is at the discretion of the magistrates to give an indication. If they do, it is very general.
Once they have given an indication, they are bound by it, provided the defendant immediately indicates their guilty plea. It is not binding if the defendant decides to plead guilty at a later stage.
What are the special procedures for criminal damage and shoplifting?
Criminal damage (without arson) becomes summary only if the value of items destroyed or damage is under £5000 = no right to elect CC
Low value shoplifting for items under £200 from a shop/business where the defendant is alledging to be a customer, is summary only, but the defendant can still elect a trial in CC.
What are the three types of evidence?
Testimony- spoken evidence of witnesses and includes evidence given by police officers and expert witnesses. Can be pre-recorded or given by live link under “special measures directions”.
Documentary evidence - Inlcudes any evidence contained in writing, on a computer, or audio/video recording, if it is not given under oath as part of the trial; and
Real evidence - includes any objects, items, or other things that “speak for themselves” i.e. murder weapon
What is the role of the tribunal of law?
Makes decisions on legal matters including the meaning of the law, the procedures to be followed, the admissability of evidence and any sentence to be imposed following conviction.
In the CC, the judge is the tribunal of law.
In the magistrates court, the lay magistrates or district judge are the tribunal of law.
What is the role of the tribunal of fact?
Makes decisions on the factual issues in the case
In the CC, the jury is the tribunal of law.
In the magistrates court, the lay magistrates or district judge are the tribunal of fact as well as the tribunal of law. This means that they make decisions as a tribunal of law, on the admissability of evidence to themselves, as tribunal of fact.
Key stages of a trial in the magistrates court
1) Prosecution opening speech
2) Prosecution calls evidence
3) Defence makes a submission of no case to answer, if appropriate
4) Defence call evidence (if they wish)
5) Speeches
6) Magistrates deliberate
7) Verdict with reasons
Key stages of a trial in the Crown Court
1) Jury is sworn
2) Prosecution opening speech
3) Prosecution calls evidence
4) Defence makes a submission of no case to answer, if appropriate
5) Defence call evidence (if they wish)
6) Speeches
7) Summing up to jury
8) Jury retires to deliberate
9) Verdict
What is a ‘Galbraith submission’ by the defendant?
Submission of ‘no case to answer’ - application is in the absence of a jury. Two limb test:
1) There is no evidence that the crime alleged has been committed by the defendant
2) Where the prosecution case, taken at its highest, is such that a properly directed jury could not properly convict on it. It might be weak or vague.
Prosecution can answer the defence submission no case to answer.
If the submission succeeds, the judge should direct the jury to acquit the defendant. Trial may continue if there are outstanding counts.
What are the the key elements of prosecution disclosure?
Prosecution must provide the defence with disclosable material it intends to rely on together with a non-sensitive material schedule. In addition to the duty to serve the IDPC no later than the beginning of the day of the first hearing.
What are the key elements of defence disclosure?
Defence must serve a defence statement - only applies if defendant is facing a trial in the CC.
If the defence statement is not provided/late/inconsistent/incomplete the CC may draw an adverse inference against the defendant.
What are the key elements of unused material disclosure?
continuing duty imposed on the prosecution to make avaliable any relevant material which meets the disclosure test but which they do not intend to use (‘unused material’). The disclosure test is relevant material that might reasonably be considered capable of:
Underminding the case for the prosecution;
Assisting the case for the defence.
What is the legal burden of proof?
Prove D is guilty beyond reasonable doubt of all elements of the offence, or disprove any specific defence raised by the defence.
What is the evidential burden of proof?
Obligation to adduce sufficient evidence on a fact in issue to justify, as a possibility, a favourable finding on that issue by the magistrate or judge.
The burden on the prosecution- present sufficient evidence to justify a finding of guilt. If they fail, the defence will make a submission of no case to answer.
The burden on the defence will apply where the defence is raising a specific defence. The defence merely has to raise sufficent evidence for the matter to be considered by the court. The burden then passes to the prosecution to disprove the defence beyond reasonable doubt.
What are the two options for the standard of proof?
Criminal standard - beyond reasonable doubt i.e. must be sure
Civil Standard - on the balance of probabilities i.e. more likely than not
What are the rules for visual identification evidence?
Will be excluded if obtained in breach of code D. although not automatic, an applicatiuon to exclude identification evidence on the grounds of unfairness under s.78 PACE must establish:
1) That there has been significant or substantial breach of Code D; and
2) Prejudice has been caused to the defendant as a result.
What are the Turnbull guidelines?
Apply when the case against the defendant depends wholly or substantially on the correctness of the identification and when that identification is in dispute.
Court is required to closely examine the circumstances of the identification i.e. how long the witness had the accused under observation.
Where the visual identification is poor i.e. based on a fleeting glance, the guidance states that the judge should withdraw the case from the jury.
Failure to follow the guidelines may create grounds for appeal if a defendant is convicted wholly or substantially on disputed visual identification evidence.
What key points must the jury be directed on with the Turnbull guidelines?
The special need for caution before convicting a defendant on the basis of identification evidence and the risks of identification evidence
To look closely at the circumstances of the identification by the witness and pay close attention to:
- The amount of time the witness had the suspect under investigation
- The distance between the witness and the suspect
- The lighting conditions
-Whether observation was impeded by an obstruction
-Whether the witness had seen the defendant before and had any particular reason to remember them
-Any delay between intial observation and the subsequent identification to the police, and
- Whether there were any discrepancies between the witness’s description of the defendant and the defendant’s appearance at the time.
Any particular weaknesses in the particular identification evidence
Even recognition of an already known person can be mistaken.
What are the inferences from silence that can be made?
s.34 - when questioned before cahrge or at the time of charge and failing to mention a fact that he later relies on in his defence or might reasonably be expected to have mentioned at the time
s.35- A defendant who fails to give evidence on his own behalf at trial or who refuses to testify
s.36- When interviewed by the police, the defendant refused or failed to account for the presence of an object, substance, or mark
s.37- when interviewed at the police station, the defendant failed to account for his presence at a particular place or about the time the offence was committed
s.38(3) - a person shall not have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as it mentioned above.
What is the definition of hearsay evidence?
Oral testimony given in circumstances where the witness did not have personal knowledge of the facts
‘A statement, not made in oral evidence, that is relied on as evidence of a matter in it’.
What are the grounds for admitting evidence?
Generally inadmissable
Can be admitted in the following circumstances:
- to allow evidence from an absent witness where the witness is dead, unfit, outside the UK, cannot be found, or is in fear of giving evidence (s.116 CJA). Applies to first hand hearsay not multiple hearsay.
- To allow the admission of statements in business documents (s117)
- Where there is a preserved common law exception such as res gestae (i.e. ‘the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded’) (s.118)
-Where there is an agreement between all parties that hearsay evidence should be admitted (s114(1)(c))
- Where it is in the interests of justice to admit hearsay evidence (s.114)
What is the definition of confession evidence?
A confession is defined as including (s.82 PACE):
-Any statement wholly or partly adverse to the person who made it
- Whether made to a person in authority or not
-Whether made in words or otherwise
What are examples of a confession?
- Something said during police interview or during any other contact with the police e.g. under arrest or in custody
- Comments made during a regulatory or disciplinary investigation
- Comments made during civil litigation
-Comments made to any third party in almost any circumstance
What are the rules around admissibility of a confession?
Confessions by an accused person are admissable as evidence in proceedings against him if:
- It is relevant to any matter in issue in the proceedings
- It is not excluded by the court under s.76 PACE
How can the admissability of a confession be challenged under s.76 PACE?
If the confession may have been obtained by:
Oppression of the person who made it; or
In consequence of anything said or done which was likely to render unreliable any confession which might be made by him;
The court must not allow the confession to be given in evbidence unless the prosecution proves to the court, beyond reasonable doubt, that the confession was not obtained in these circumstances.
What would be considered an unreliable confession?
- Confessions obtained as a result of inducement e.g. promise of bail;
-Hostile and aggressive questioning
-Failure to record accurately what was said
-Failure to caution
-Failure to provide appropriate adult if required
Where might s.78 PACE 1984 be used?
Where the court considers that the admission of the confession would have an adverse affect on the fairness of the proceedings.
Where:
-The defendant accepts having made the confession but alleges the police breached the codes or provisions of PACE; or
-The defendant denies having made the confession e.g. being apoproached and questioned by the police outside the police station.
When is a defendant entitled to a good character direction?
Absolute good character - no prev convictions, no other reprehensible behaviours proven against them. No requirement to prove positively good character; and
Effective good character- if the defendant has previous convictions or cautions that are not relevant to the charge, or are old/minor. The defendant may be entitled to be treated as effective good character. This is a discretion of the court based on all the evidence and the issues in the trial.
What should be said in a good character direction?
A person of absolute or effective good character is entitled to a full good character direction. There are two limbs:
1) A credibility direction - jury should take D’s character into account when deciding whether what they say may be true.
2) A propensity direction- The jury should take the good chracter into account when deciding whether the defendant is likely to have committed the offenced.
What are the 7 gateways for bad character (S.101(1))?
a) all parties to the proceedings agree to the evidence being admissible (all parties);
b) the evidence is adduced by D himself, or given in an answer to a question asked by him in cross examination and intended to elicit it (defendant);
c) the evidence is important explanatory evidence, court would find it impossible or difficult to properly understand other evidence in the case, or where the value for understanding the case as a whole was substantial (prosecution);
d) the evidence is in relation to an important matter in issue between the defendant and the prosecution relating to the propensity of the defendant to either:
-commit the offences with which he is charged; or
-to be untruthful (Prosecution);
e) the evidence has substantial probative value in relation to an important matter in issue between the defendant and co-defendant (co-defendant);
f) it is evidence to correct a false impression given by the defendant (Prosecution); and
g) the defendant made an attack on another person’s character (prosecution).
What is the procedure for admitting bad character evidence?
A prosecutor or co-defendant who wishes to introduce such evidence must serve a notice on the court officer and each other party.
A prosecutor must serve the notice no more than:
Magistrates - 20 business days after the defendant pleads not guilty
CC- 10 business days after the defendant pleads not guilty
A co-defendant must serve the notice:
As soon as reasonably practicable; and in any event
Not more than 10 business days after the prosecutor discloses material on which the notice is based.
What must a party do if they object to the application to introduce bad character evidence?
Apply to the court to determine the objection and serve the application on the court officer and each party, not more than 10 business days after service of the notice. In the application, a party must explain:
- Which, if any, facts of the misconduct set out in the notice they dispute;
-What, if any, facts of the misconduct that oart admits instead;
-Why the evidence is not admissable;
-Why it would be unfair to admit the evidence;
- Any other objections to the notice.
What should a defendant do if they wish to introduce bad character evidence of their own?
Give notice, in writing, or orally:
As soon as reasonably practicable; and in any event
Berfore the evidence is introduced, either by the defendant or in reply to a question asked by the defendant of another party’s witness in order to obtain that evidence.
What is the courts power to exclude bad character evidence (101)(3)?
The defendant can apply to exclude evidence of his bad character under either s.101(1)(d) or (g), where it appears to the court that the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
What are the three gateways for evidence of bad character of a person other than the defendant?
In criminal proceedings, evidence of the bad character of a person other than the defendant is admissable if and only if:
1) It is important explanatory evidence;
2) It has substantial probative value in relation to - a matter in issue in the proceedings, and is of substantial importance in the context of the case as a whole, or
3) All of the parties to the proceedings agree to the evidence being admissable.
What are the rules around retirement of the jury and the verdict?
The deliberations of the jury must be kept privatye
the jury should reach a unanimous verdict, although a majority verdict of 11:1 or 10:2 may be accepted, if after at least 2 hours and 10 minutes, a unanimous verdict is not possible.
How to address a judge in the Magistrates Court?
Lay Magistrate - Sir, Madam, Your Worships
District Judge - Sir, Madam
How to address a judge in the Crown Court?
Circuit judge - Your honour
High Court Judge- My Lord, My Lady
When can leading questions be used?
Examination in chief / re-examination - leading questions are not allowed
Cross Examination - leading or closed questions are allowed
What are the rules surrounding competence and compellability?
At every stage of criminal proceedings, all persona are competent to give evidence. A person is not competent if they are unable to understand questions put to them, or you are unable to put answers to them that they can understand. The exceptions are usually children and those with mentail impairments.
A compellable witness who is not willing can be served with a witness summons.
Which are the only witnesses who are not compellable?
The defendant in their own defence (although adverse inferences may be drawn)
The defendant for the co-defendant
The defendant’s spouse/civil partner unless the defendant is charged with a specifed offence such as ‘domestic violence’.
Who may be entitled to apply to the court for special measures?
Avaliable to vulnerable or intimidated witnesses such as:
Children under the age of 18
Persons suffering from a mental or physical disorder
Persons whose evidence is likely to be affected by fear or distress
Complainants in sexual offences
Witnesses to certain gun and knife crimes
What are special measures that can be put in place for vulnerable or intimidated witnesses?
Screening the witness from the defendant
Evidence by live link
Evidence given in private
Video recording of the evidence in chief
Video recording of the cross examination and re-examination
Examination of a witness through an intermediary e.g. an interpreter
Aids to communication
Only one avaliable to the defendant is the use of a live link when giving evidence.
What are the Solicitor’s duties to the court?
Uphold rule of law and adminisration of justice
Overriding duty not to mislead the court
Duty of confidentiality to the client
Requirement that the parties help the court to further the overriding objective i.e. dealing with the case justly and proportionately in so far as is practicable.
What are the roles of the sentencing guidelines?
- To punish the offender
-To reduce crime
-To reform and rehabilitate
-To protect the public
-To make the offender give something back
What does the court have a duty to do when making a sentencing decision?
Determine the sentencing category for the particular offence according to the guideline, and
Impose a sentence which is in the offence range according to the guideline but not necessarily the category range (although failure to do so may result in an appeal).
What is the process to be followed when imposing a setence?
- Use culpability and harm to determine the offence category
-Use the offence category to determine a starting point and category range
-Adjust the category range according to the aggravation and mitigation
-Reduce the setence for a guilty plea
-Reduce the sentence for assistance by the offender
What are the general guidelines around reducing a sentence following a guilty plea?
Usually reduced by one-third for a plea at the first hearing. If there was not a guilty plea at the first hearing, then the maximum possible reduction is one-quarter. The reduction of sentence for a guilty plea reduces from one-quarter to one-tenth. One-tenth being if the defendant pleads guilty at the last minute i.e. on the day of/during trial.
What are the general guidelines around reducing a sentence if the defendant offered assistance to investgating authorities?
There is no statutory measure for this type of reduction. It will depend on the facts and, particularly, the quality, quantity, accuracy and timeliness of the information.
What are the statutory aggravating factors which may increase the seriousness of an offence?
Previous convictions (including the nature, relevance, and how historic they are)
Offences committed whilst on bail
Racial or religious aggravation
Hostility based on race, religion, disability, sexual orientation, or transgender identity.
What are the non-statutory aggravating factors which may increase the seriousness of an offence?
Pre-meditation
Targeting vulnerable victims
Being under the influence of drink/drugs
Use of a weapon
Abuse of position of trust
Offence committed whilst on license
Gratuitous violence
What are the mitigating factors which may be taken into account during sentencing?
Lack of previous convictions
Good character
Remorse
Age and lack of maturity
Role of sole or primary care
Offence committed on impulse
High degree of provocation led to the offence
What is meant by concurrent sentences?
Where a person has committed multiple offences i.e. four thefts, they may get one long sentence for all four crimes i.e. two years. If the offences arise out of the same incident or facts, or are part of a series of offences, especially if committed against the same person.
What is meant by consecutive sentences?
Imposed where the multiple offences arise out of separate facts, they may be similar, but the overally criminality will not be sufficiently reflected by concurrent sentences.
When can the court pass a custodial sentence?
They are of the opinion that:
The offence, or
The combination of the offence and one or more offences associated with it,
Was so serious, that neither a fine alone nor a community sentence can be justified for the office.
Must be for the shortest term compatible with the seriousness of the offence.
What is a suspended sentence?
Where the offender is not imprisoned immediately, given opportunity to demonstrate that they will not reoffend whilst on release.
Suspended for a period called ‘operational period’ during which they may have community requirements.
Custodial sentence can only be suspended if it is between 14 days and two years. The sentence can be suspended for up to two years.
What happens if someone breaches their suspended sentence?
Where there is a breach, the suspended sentence will be ‘activated’ and the offender will have to serve the term of imprisonment unless ‘it would be unjust to do so’.
The court may:
Impose more onerous requirements
Extend the operational period
Impose a fine.
What is a community order?
This type of sentence is passed where the seriousness of the offence does not warrant a custodial sentence and the sentence is suitable to be carried out in the community.
There are a range of community requirements that cna be included on an order and at least one must be imposed for the purpose of punishment, or a fine imposed in addition to the order. The requirements include:
Unpaid work
A curfew
Mental health treatment
Supervision
Residence
Prohibiting an activity
Alcohol and drug treatment
Usually imposed with the assistance of a pre-sentence report which identifies the requirements that would best address the offending behaviour.
What are Newton Hearings?
When in criminal proceedings the defendant pleads guilty to the offence but there is a disagreement with the prosecution as to the material facts on which the defendant must be sentenced.
Purpose is to resolve the dispute and ascertain the correct factual basis for the sentence to be imposed.
Burden of proof lies with the prosecution to satisfy the court beyond reasonable doubt that their version of events is correct.
What are the two routes avaliable to a defendant who wishes to appeal against a decision made by a magistrate?
Appeal to the crown court against the conviction or sentence (defendant only) - leave to appear is not required if the appeal is submitted within 15 days from the date of the sentence or the date on which the sentence is deferred. The CC may confirm, reverse, or vary any part of the decision appealed.
CC has the power to impose a sentence more or less severe than that given by the magistrates.
Appeal to the High Court by way of case on an error of law or a decision taken in excess of jursidiction (by either prosecution or defendant) - Appellant must apply in writing for the magistrates to state the case for the opinion of the high court. App must be made within 21 days of decision made by the magistrates. The magistrates clerk will prepare a draft statement of case and sent to the prosecution and defendants solicitors for review before being lodged with the high court. The hearing at the high court will be confined to points of law based on agreed facts in the statement of case. Any decision of the High Court by way of case stated may be appealed to the supreme court (with leave from either the High Court or Supreme Court) provided it is a point of law of general public importance.
What are the two routes to bring an appeal before the Court of Appeal if a defendant wants to appeal a decision made in the Crown Court?
1) Either the trial judge’s certificate that the case is fit for appeal must be obtained; or
2) The leave of the Court of Appeal must be sought and obtained.
Notice of an application for leave to appeal must be made within 28 days from the date of conviction or sentence.
The CoA may give or refuse leave to appeal granting leave to only those cases which raise an arguable point.
The single judge will review the application for leave to appeal on the papers submitted without a hearing.
If appeal is granted, an appeal will be heard at the CoA (usually 3 judges)
What are possible outcomes following an appeal in the Court of Appeal?
- Quashing of the conviction and enter the verdict of acquittal
-Allow an appeal in relation to part of the indictment
-Subsitute the verdict - Where the offence is not known to law, quash the conviction as the trial process was a nullity
- Order a re-trial where it’s in the interests of justice to do so.
Who does the Youth Court deal with?
Children under the age of 18.
Children between 10-13 and 14-17 are normally dealt with by specially trained magistrates in the YC.
Exceptionally grave crimes such as homicide or firearms offences committed by 10-17 year olds may be committed for trial at the Crown Court.
How are cases allocated in the Youth Court?
Sometimes the YC can sent cases to the CC, this is usually done at the first appearance. This will only happen where the child has an adult co-defendant and if the offence is a serious one.
Mandatory minimum weapons offences sentencing
If youth is aged between 16-17 and is charged with a firearms offence and the youth faced a “mandatory minimum” sentence of 3 years, the case must be sent to the CC for trial.
What happens when a youth is jointly charged with an adult and adult is to be tried in the Crown Court?
If adult is going to be tried in the crown court, then the youth, if pleading not guilty, will be sent to the CC for trial if it is in the interests of justice to be tried jointly.
Usually in the interests of justice to try them separately, but may not be the case.
The fact that the adult and youth need to be sentenced together is not a reason to try them together as the youth can be committed to the CC for sentence for a grave crime.
If youth is transferred to CC and convicted there, the CC must consider sending the youth back to the YC for sentencing. This should happen in most cases given the YC’s greater expertise in youth sentencing and the power to impose referral orders, but may not be appropriate if a significant sentence is necessary.
What happens when a youth is jointly charged with an adult and adult is to be tried in the Magistrates Court?
If the offence is summary-only or either-way offence for which the magistrates court has retained jursidiction, then the youth will be asked to indicate a plea at the plea before venue hearing.
If the youth and the adult plead not guilty, then the adult magistrates court must try the youth. There is no interests of justice test here.
If the adult pleads guilty and the youth pleads not guilty, the adult magistrates court may try the youth, or remit the youth to the YC for trial.
If the youth pleads guilty, then they will be remitted to the YC for sentencing if the sentence that the adult court can impose is inapropriate for the offence. This is also the case if the youth is found guilty during the trial.
What factors are taken into account when deciding if a youth should be sent to the crown court rather than have a trial in the youth court?
-Whether separate trials will cause injustic to the witnesses or to the case as a whole;
-The age of the youth; the younger the youth, the more desirable that they are tried in the YC;
-The age gap between the youth and the adult: a substantial gap in age influences in favour of the youth being tried at the YC;
-The lack of maturity of the youth
-The relative culpability of the youth compared with the asult and whether the alleged role played by the youth was minor; and
-The lack of previous convictions on the part of the youth.
What are the definitive guidelines when sentencing children and young people?
- Main aim is to prevent re-offendingby children and young people
- The welfarte of the child includes removing them from undesirable surroundings, ensuring proper provision is in place for their education and training;
-The best interests of the childshould always be a primary consideration.
-When deciding the appropriate sentence, the judge will often ask for a pre-sentence report prepared by the Youth Offending Team.
What are referral orders?
An option for children who have pleaded guilty. If given a referral order a child is referred to the Youth Offender Panel;
The child agrees a contract with the panel; and
A referral order can be from 3-12 months.
Must be imposed where:
The defendant has been convicted of an imprisonable offence
the defendant has no previous convictions
the defendant has pleaded guilty; and
a discharge, a hospital order or custody is not appropriate.
If not ALL of the above apply, it is discretionary unless a custodial sentence or discharge is required by law or is more appropriate.
What are the rules surrounding detention and training orders?
A prison sentence for 12-17 year olds which can be for four months but not exceed a total of 24 months.
Childeren aged 12-14 can only receive a detention and training order if they are considered a persistent offender and if court has received a pre-sentence report that addresses custody as a sentencing option;
For the first half of the sentence children are in custodfy and for the second half they are supervised by the Youth Offending Team.
Breach of the supervsion requirements can lead to the young person being sent back to custody for up to 3 months.
What are the exceptions to the general presumption that children between 12-17 will be remanded in local authority accomodation rather than youth detention accomodation?
- The juvenile must be aged 12-17 years;
-The juvenile must usually have legal representation;
-The offence will need to be either a violent or sexual offence or one which an adult could be punished with a term of imprisonment of 14 years or more and that is very likely the child will receive a custodial offence for the present offence; or the juvenile will need to have a recent and signficant history of absconding whilst remanded to the local authority accomodation or youth detention accomodation; or a recent and significant history of committing imprisonable offences whilst on bail or remanded to local authority accomodation or youth detention accomodation.
-The court must believe that this approach is necessary to protect the public from death or serious personal injury or to prevent the commission by the juvenile of further imprisonable offences and the risk cannot be managed in the community.
What are youth rehabilitation orders?
Community sentences given to children and can be tailored to address the needs of the individual child, the risk of harm and risk of re-offending.
Each sentence includes different requirements and can last between six months and three years.
Which sentences cannot be imposed unless the child is a “persistent offender”?
YRO with intensive supervsion and surveillance - Under 15
YRO with fostering - Under 15
DTO - 12-14
What are the 15 different Youth Rehabilitation Order requirements?
- Activity requirement (max 90 days)
-Supervision requirement
-Unpaid work (16-17 year olds only (40-240 hours))
-Programme requirement
-Attendance centre requirement (max 12 hours for children aged 10-13; between 12 and 24 hours for 14-15 year olds; and between 12 and 36 hours for 16-17 year olds)
-Prohibited activity requirement
-Curfew requirement (max 12 months and between 2-16 hours a day)
-Exclusion requirement (max 3 months)
-Residence requirement (16-17 year olds)
-Local authority residence requirement (maximum 6 months but not for any period after young person attains age of 18)
-Mental health treatment, drug treatment, drug testing (14-17yrs old)
-Intoxicating substance treatment - Education requirement.
What are the two requirements that can only be imposed for offenders aged 15 years or older and if the offence is imprisonable and passes the custody threshold?
A fostering requirement - max 12 months D is in the care of a different foster parent. Only imposed if where D lived at the time was a factor to the commission of the offence.
An intensive supervsion and surveillance requirement- includes between 90-180 days of extended activity requirements plus supervion and curfew and electronic monitoring requirements.
What requirements can only be imposed on those 16 years or older on the day of finding guilt?
a residence requirement
an unpaid work requirement (between 40-240 hours), or
an attendance centre between 12 and 36 hours.
What is a reparation order?
places a youth offender under an obligation to carry out up to 24 hours of supervised reparation, either to a person or the community over a three month period.
Where a fine is imposed, the court must order the parent or guardian of a child under 16 to pay it and may do so for a child aged 16 and over.
