Criminal Practice Flashcards
What must a court be satisfied of before imposing a community order?
That is is the most suitable sentence.
D can receive more than 1. Probation may be asked to produce a report but not requirement.
Is everyone entitled to free legal advice at the police station?
Yes, all entitled to free telephone advice, defence solicitors call centre will determine whether in person advice necessary.
If offence is imprisonable, DSCC will offer in person but not available to all suspects.
Legal aid test doesn’t apply at police station, only court.
When might the court exclude improperly conducted ID procedure or breaches of PACE?
Court may exclude evidence if, considering all of the circumstances, the evidence would have an adverse effect on the fairness of the proceedings.
Discretionary.
May arise:
- improperly completed ID procedure
- illegal searches
- improperly conducted covert surveillance.
What must a caution set out?
- right to silence
- exercising right may result in adverse inference being drawn at trial
- interview recorded to be used as evidence
When might a confession in interview be excluded?
If contained by inducement or oppression and if causal link between that and confession
If a D elects crown court trial at plea before venue, when would he expect his first hearing in Crown Court?
- plea and preparation hearing 28 days after dent from magistrates
What should a judge do when they consider the identification evidence is weak and there is no supporting evidence?
Withdraw the matter from the jury, direct acquittal and dismiss the case
What must the court find to impose a custodial sentence?
That the offence is so serious that neither a community order nor fine can be justified
What are the requirements for a representation order?
1) interests of justice
- consider whether likely to lose livelihood or liberty. Seriousness & nature. Good character & standing. Whether complex proceedings eg witnesses and XX
2) means test
- annual disposable income must be below threshold
When are referral orders not available?
Where D has pleaded not guilty to all charges and then convicted after trial.
When are detention and training orders available to youths?
Not available between 10-11
12-14 only persistent young offenders (sentenced on 3 or more occasions for imprisonable offence)
15-17 can only be imposed if court thinks case is so serious that only custodial sentence is justified
What’s the overriding objective of criminal law?
In CPR, criminal cases be dealt with justly, includes acquitting innocent, convicting guilty, dealing with prosecution and defendants fairly, recognising defendants rights, respecting interests of witness, victims and jurors and dealing with case efficiently and expeditiously
What are a suspects rights at the police station??
PACE
- right to free legal advice, medical hell or interpreter
- right to notify someone of their arrest
- to inspect the police code of practice
- The right to silence
- The right to be informed but the reason of their arrest
- The right to inspect documents relating to their arrest and detention
- The right information on detention time limits
When can right to legal advice be limited?
When:
- suspect arrested in indictable only or either way offence
- superintendent or above authorised in writing and
- reasonable grounds to believe that exercise of the right will lead to interference wi the evidence, others, altering other suspects or hindering recovery of property
36 hours at most
Rare to be delayed as fundamental
When can right to have someone informed of arrest the limited?
- indictable only or either way office
- office of rank of inspector or higher consents in writing and
- officer has reasonable grounds for believing that will lead to interference with evidence, others, altering other suspects or hindering recovery of property
Max 36 hours.
Only as long as necessary and proportionate.
What are the custody time limits?
Max 24 hours from when enter police station.
12 hour extension can be granted if:
- arrested on indiable only or either way offence
- superintendent or higher authorised it
- reasonable grounds for believing further detention necessary to secure or preserve evidence or obtain by questioning and
- investigation being conducted diligently and expeditiously
Can be held beyond 36 hours if warrant for further deterntion sought from Mags.
36 hours on first app, 24 hours on seconds.
Absolutely max - 96 hours
Court will authorise if:
- indictable or either way
- reasonable grounds to be believe necessary
- investigation diligently and expeditionary
When must ID procedure be held?
Where witness identified or purported to identify suspect
Witness expresses ability to identify or
Reasonable chance of eye witness being able to identify suspect
When shouldn’t an ID procedure be carried out?
Where W knows them
What are the rights of a suspect in an ID procedure?
- have the purpose explained
- free legal advice and have a solicitor or friend present
- obligations and consequences explained - namely that need not cooperate but a procedure may be conducted covertly and fairly to cooperate may be raised at trial and if the suspect changes their appearance between notification and conduct of the procedure, it might affect the conduct of the procedure and may be raised at trial
What are the different types of identification procedure?
1 - video identification (most common, under PACE Code D, must be considered and used if practicable to do so)
2 - identification parade
3 - group identification
4 - confrontation
What are some possible objections to identifications?
Failures take into account reasonable objections to the appearance of others in the procedure
Failure to keep the witness away from the suspect before or during the process
Failure to keep witnesses apart before or during the process
Failure to warn witnesses that the suspect might not be shown at all
What is the starting point on an application for bail?
Each D has right to bail unless good reasons not to
For murder - presumption against bail
When can court deny bail?
1) Where exception to bail applies and
2) real prospect of custodial sentence - crime serious enough?
What are exceptions to right to bail?
1) Substantial grounds to believe defendant would:
- fail to surrender
- commit further offences
- interfere with witnesses or obstruct justice
2) Indictable offence and was on bail at time of offence
3) Custody for own protection
4) Substantial grounds to believe defendant would commit offence against associated person
5) Defendant already serving custodial sentence
6) Insufficient information to make decision
7) Failure to surrender or breached conditions in current proceedings
How does court know if substantial grounds for executions to bail?
- All circumstances
- Nature and seriousness of offence
- Probable method of dealing
- Prev convictions or absconded before
- Associations and community ties
- Record on complying with obligations
- Strength of evidence
What must bail conditions be?
Relevent
Proportionate
Enforceable
What are some common bail conditions?
- address requirements
- report to police station
- prevent going to areas
- preventing contacting people
- curfew
- tag
Who can hear an application for bail for the offence of murder?
Crown court judge
Presumption against bail
When might a defendant be granted bail when charged with murder?
Only if no singing can’t risk that D would commit an offence likely to cause physical or mental injury to another
How often can apply for bail?
Considered at each hearing but only 2 bail applications. First 2 hearings.
After this can only apply if change in circumstances eg better address
What happens if D breaches bail conditions?
Arrested, taken into custody and presented to court
Court can then decide
Can remove bail and remand or more stringent conditions
What happens if D fails to attend court?
Warrant for their arrest issued. Failure to surrender is offence
Once arrested produced before court and bail reconsidered
Where is first appearance and what is the solicitors role?
- all prosecutions begin in Magistrates as long as over 18
- what happens depends on type of offence
Summary only - pleads guilty or not guilty. If guilty sentenced, if NG, set for trial
Either way - proceeds to plea before venue
Indictable only - sent to crown court
2 key tasks for sol
- advice
- securing funding
What advice should be given to a client at first appearance?
- obtain disclosure from prosecution, need enough info to be able to advice properly. If indictable only won’t have much disclosure. Need to obtain whatever can provide, case summary, witness statements, interview, other evidence eg.
- take instructions, find out account
- give advice, advice is guilty and on strength of evidence so can decide on plea
- sentence indication and credit for guilty plea
- process and evidence, bail
How is funding sorted at first appearance?
Need to apply for representation order
To court dealing with case
2 tests
- interests of justice. How serious to defendant charged, likely to lose job, understand?
- means test. If claim benefits satisfied. If below £3,398 each year after outgoings, entitled to it. If above £3398 but below £37,500 limited. If over nothing.
Need to get all legal aid forms completed
What is plea before venue?
Before plea entered, need to decide if mags or crown best to hear case
Happens when charged with either way offence
What is the process at plea before venue?
- charge read out
- clerk explains that D doesn’t have to indicate a plea but may indicate if they would plead guilty the court would proceed to sentence
- then ask if indicated plea
- if guilty will proceed to sentence, may include committing to crown for sentence
- if not guilty, court proceeds to allocation
What happens at allocation?
1) Magistrates decide whether to accept jurisdiction. Sentencing powers adequate? If decline will go to crown.
Considers prev convictions, sentencing powers, submissions made on mode and powers
2) if accepts, defendant choses between mags and crown. Benefits
What approach is taken where the offence is theft under £200?
Either way offence but magistrates cannot decline jurisdiction (treated as summary only) however treated as either way in the sense that D can still elect crown court trial
What happens at first appearance if indictable offence?
Sent straight to Crown
No plea entered
Other offences charged alongside are sent to crown to be dealt with also
What are some standard directions in magistrates?
Once NG received, case management form completed, includes witnesses to be called, statements to be read out, estimated length of trial, likely applications to court, special arrangements, confirmation been advised on credit for NG plea
- pros to give evidence without 28 days before hearing
- D to serve case statement within 14 days
- witness requirements and objections to bad character within 7 days
- D intention to adduce hearsay or bad character evidence 14 days before
- points of law raised at least 21 days before trial
- certificate of readiness served at least 7 days before trial
What case management considerations are there in the Crown Court?
Sometimes preliminary hearing within 14 days of trial likely to last more than 4 weeks, case management issues, D under 18, or early guilty plea otherwise
Plea and trial preparation hearing takes place 28 days after sent from Mags.
Plea taken - arraignment.
If guilty proceeds to sentence, can ask for indication - Goodyear indication. If given and D pleads guilty, bound.
If pleads NG, trial set, date has to be found.
What are standard directions in crown?
- prosecution has 50 days (70 if on bail) to provide disclosure. Must disclose all evidence intends to rely on at trial and also unused material which might reasonably be considered capable of undermining the case or assisting the defence. Ongoing duty.
- defence case statement must be sent 28 days after prosecutions disclosure. Contains nature of defence, disputed facts, points of law, alibi. If fails to be accurate, P can comment on it and jury can draw adverse inference.
What are standard directions in crown?
- prosecution has 50 days (70 if on bail) to provide disclosure. Must disclose all evidence intends to rely on at trial and also unused material which might reasonably be considered capable of undermining the case or assisting the defence. Ongoing duty.
- defence case statement must be sent 14 days after prosecutions disclosure. Contains nature of defence, disputed facts, points of law, alibi. If fails to be accurate, jury can draw adverse inference.
What are the turball guidelines?
Set out factors to determine quality of identification evidence. Must be followed where case relies on it of defence disputes it.
A - amount of time observed
D - distance between S & W
V - visability
O - obstruction between S&W.
K - known or unknown? If known less likely to be wrong
A - any reason to remember? Distinctive features
T - time between incident and procedure
E - errors in account
If judge concludes evidence weak what must they do?
If weak and no supporting evidence, should withdraw case from jury and direct acquittal
What should judge do if they consider the ID evidence to be strong?
If strong or corroborating evidence to support will leave case to jury to decide
At trial defence will seek to undermine using same factors
In summing up, judge must give turnball warning
What is turnball warning?
Set script
Judge should
- warn of special need for caution before convicting in reliance on identification evidence, mistaken witnesses can be convicting and several witnesses can be mistaken
- ask jury to consider circumstances in which witness identified defendant and
- refer to particular weaknesses considering factors
Can an adverse interference be drawn from silence?
Section 34 criminal justice act
If D fails to give an account when questioned or charged, at trial of fail to account for mark on person, item in position or presence at scene, adverse inference may be drawn.
Cannot convict on an adverse inference alone. prosecution must bring prima facie case and make out each element
Can an adverse interference be drawn from silence?
If D fails to give an account when questioned or charged, at trial of fail to account for mark on person, item in position or presence at scene, adverse inference may be drawn.
Cannot convict on an adverse inference alone. prosecution must bring prima facie case and make out each element
What is hearsay?
Second hand evidence
Statement not made in oral evidence, that is relied on as evidence of the matter in it. Can also be witness statements that are agreed to be read out in court.
Cannot be tested by XX
Strict rules on when can be admitted
When can hearsay be admissible?
- under statute
- by rule of law
- agreement
- interests of justice
What is hearsay admissible under statute?
- Where witness unavailable (s116) used to read witness statements out. Includes dead, medical condition, outside of UK and not reasonable practicable to secure attendance or unable to be found despite reasonable steps, fear.
- business documents can be used if created or received in course of trade, person who supplied information may reasonably be supposed to have personal knowledge of matter and if received by another person it was done in course of trade. Statements of accounts may be adduced under this ground. Can include texts emails etc in course of trade.
- statements prepared for use where relevant person cannot be expected to recollect. Police officer statements
- previous consistent or inconsistent statements
- expert evidence
- confessions
When is hearsay admissible under the rule of law?
- confessions or mixed statements
- statements made at time of offence
- statement preserved by res gestae which includes statements made when so emotionally overpowered that possibility of making it up can be disregarded, statements made accompanying an act, statements relating to physical or mental state
When is hearsay evidence admittance under the ground of interest did justice?
Court will use this if evidence doesn’t fall into the other grounds
Factors:
- probatice value
- what other evidence can be given
- importance of evidence
- circumstances
- reliability
- whether oral evidence can be given
- amount of difficulty in challenging it
- amount of prejudice caused
What does the court do if multiple hearsay?
Stricter rules
Only if
- business document
- inconsistent or consistent statement
- all parties agree
- in interests of justice
When are confessions admissible?
Type of hearsay. Special rules.
Includes mixed statements.
Can be admissible if relevant
How can D challenge admissible of confession?
Grounds
- oppression
- things said or done likely to render unreliable
Oppression - includes torture, inhumane or degrading treatment, use of threat of violence
Things said or done - promises to let go, over stating evidence, interviewing if not fit for interview
Need causal link between these and confession.
Burden on prosecution to show no oppression or things said or done to render unreliable. If can’t, court must disregard confession, no discretion.
How does court decide if confession should be admitted?
In Crown - Voir der hearing. Without jury
In Mags - before mags, if inadmissible must put from mind
When can the court exclude any other evidence?
S78 PACE, court has power to exclude any evidence if:
- considering all circumstances, admission of evidence would have an adverse effect on the fairness of proceedings
Discretionary not mandatory. Where duties under PACE breached substantially and renders unreliable. Can apply to any prosecution evidence.
When can bad character evidence by adduced?
7 gateways s101 CJA 2003 - as extremely prejudicial. Has to be relevant. Court can exclude if such an adverse effect on fairness, court must take into account length
1) all parties agree
2) evidence adduced by defendant or given in cross examination
3) important explanatory evidence. Means evidence needed to properly understand other evidence and value to understanding as a whole is substantial. Court will consider if jury will find it difficult to properly understand other evidence and value for understanding case as a whole is substantial .
4) evidence is relevant to important matter in issue. Any apply to any issue including propensity to commit offences or be untruthful. Offences of same kind eg violent or dishonest offence. Gateway for propensity to commit dishonest acts
5) substantial probative value to matter in issue between co defendants. Valuable if running cut throat defence against the other
6) correct false impression given by D
7) defended attacked another’s character - can be in interview
How many offences needed to show propensity?
No min number but more offences there are easier to show.
If weird or unusual crime will be less eg single conviction
What is the procedure for prosecution admitting bad character evidence?
Prosecution must provide notice
In Mags - within 28 days of NG plea
In Crown - within 14 days of NG plea
Set form. App decided in pre trial hearing or first day of trial.
If arises in course of trial, trial halted to hear. In Crown, court will consider in absense of jury, in Mags must put from mind
If a gateway is made out, what happens?
Evidence admissible.
BUT If bad character evidence admissible under gateway of important matter in issue or D’s attack on another’s character. Court must not admit it if:
- D make application to exclude it and
- it appears to the court that admitting the evidence that it would have such an adverse effect on the fairness that the court must not admit it.
Court must have regard to amount of time passed since bad character.
When can bad character evidence of another party be introduced?
3 grounds
1) all parties agree
2) important explanatory evidence or
3) substantial prohibitive value in relation to a matter in dispute and is of substantial importance to context as a whole
What happens if D is of good character?
Entitled to good character direction from judge if no prev convictions
Propensity direction
- person of good character less likely to commit this offence
Credibility direction
- person of good character more likely to be credible when assert their innocence
What is the process of trial?
Prosecution makes opening speech
Prosecution witnesses (if D making app for no case to answer will do it after this)
Defence calls witnesses
Closing speeches in crown
Summing up
Verdict
When can leading questions be asked in examination in chief?
Where matters agreed. If not otherside can object.
What is competent and compellable?
Competence - witness able to give evidence in court. Most competent unless unable to understand questions and give understandable answers
Compellable - witness can be forced to give evidence. General rule, all competent witnesses are compellable. Exceptions for defendant
When can a defendant be required to give evidence?
Neither competent or compellable for prosecution
Competent for defence but not compellable. Don’t have to give evidence if don’t want but adverse inference can be drawn by jury.
Court gives direction to jury.
- D entitled not to give evidence,
- jury may draw such inferences as appear proper
- failure to give evidence on its own cannot prove guilty but depending on circumstances, jury may hold this against the defendant and
- if the jury think only sensible explanation not to give evidence is that has no answer to the case against him or not one that could stand up to XX, would be open to jury to hold that against D
Basically if jury think that the CPS has a strong case and the reason why D isn’t giving evidence is cos have no answer, can draw adverse inference.
Jury may hold this against D but cannot convict on a adverse inference only
Can a defendants spouse be forced to give evidence?
Competent but not compellable for prosecution
Competent and compellable for defence
Can co defendants be forced to give evidence?
Neither competent or compellable for prosecution
Competent but not compellable for defence
What must court consider when passing sentence?
Punishment, reduction in crime, rehabilitation, protection of public
Sentencing guidelines
What do sentencing guidelines do?
Provide range and starting point and mitigating and aggravating factors
What aggravating factors must court take into account?
- Relevent previous convictions
- That offence committed on bail
- If motivated by racial or religious hostility
- Offence motivated by sexual orientation, transgender identity or disability
What aggravating factors may court take into account?
- That offence was premeditated
- Committed in a group
- Targeted vulnerable victim
- Committed under influence of drugs or alcohol
- Involved abuse of position
- V was providing service to public
- use of weapons
What mitigating factors may the court take into account?
- offence committed on impulse
- D highly provoked or acted out of fear
- D has disability or mental illness
- minor role
- attempted to make reparation to victim
- D is very young or old
May also take into account age, health, good character, home/work situation, progress since committed, remorse, efforts to address
What must court take into account when sentencing?
Totality principle
Sentence imposed must not be disproportionate to the overall seriousness of the offending behaviour.
Court more likely to impose consecutive sentences rather that concurrent where D found guilty of multiple offences that did not arise out of same conduct
What are concurrent and consecutive sentences?
Concurrent - run alongside eachother
Consecutive - one after the other
If offences arise out of same matter and connected, if D found guilty or more than 1, usually concurrent.
If multiple offences not same matter, more likely to be consecutive. Subject to totality principle, overall sentence must not be disproportionate.
What happens before sentencing?
Plea in mitigation by defence. Reasons why lowerest possible sentence should be imposed
Credit for guilty plea
What types of sentences are there?
Custodial sentence
Suspended sentence
Community order
Fines
Discharge
When can custodial sentence be passed?
Only where custody threshold passed. No offender should be sentenced to custodial sentence unless offence so serious that neither fine or community order can be justified
Must be shortest period that commensurate with seriousness
Generally 1/2 in custody 1/2 on licence
What is a suspended sentence?
If custody threshold passed, can suspend sentence instead of immediate custody
If break any conditions or commit offences can be sent to prison straight away.
Max = 2 years, min 14 days
Crown can suspend 2 year sentence
Mags can suspend 6 month sentence
What is a community order?
Carried out in community.
Vary conditions eg unpaid work, rehabilitation, programmes, curfew, MH treatment, drug rehabilitation
If breached can be amended or resentence
What is a Newton hearing?
Where D wishes to plead guilty but doesn’t agree with the prosecutors case.
D can offer written basis of plea, if accepted by P, then can be sentenced on that basis
If P doesn’t accept, court will hold a Newton hearing to settle disputed facts.
Takes the form of a trial.
If settled in P’s favour, D loses any credit for guilty plea
If settled in D’s favour, retains credit for guilty plea
When can conviction or sentence be appealed?
D can appeal conviction or sentence. P’s rights are more limited
Who can appeal from Magistrates to Crown Court?
D has right to appeal against either sentence or conviction, if pleaded guilty can only appeal sentence
P has no right to appeal
What is the process of appealing from mags?
D must lodge written notice with court within 21 days. No requirement to set out bases as court cannot decline.
How is an appeal from the mags to crown heard?
Heard by crown court judge supported by at least 2 and no more than 4 mags
Complete rehearing new evidence
Crown can increase or reduce sentence, limited to mags powers. Power to impose costs if unsuccessful.
Who can appeal from magistrates to the divisional court?
Both P & D by way of case stated
1 ground
- decision wrong in law or in excess of jurisdiction
App must be made within 21 days in writing, outline points of law, heard by 3 judges, only legal arguments, no rehearing.
Used where legal error alleged or sentence beyond powers.
If high court disagrees with D, can send straight to Supreme Court if it is of general public importance
Where do appeals from crown court go?
Go to Court of Appeal
D must obtain leave from trial judge or CoA if D seeks leave from them, must serve notice of application for leave to appeal within 28 days at Crown Court who app to CoA, single judge decides. If unsuccessful can apply again
What are the grounds for appealing to CoA against conviction?
1 ground - conviction is unsafe.
Means evidence wrongly admitted or excluded, errors with judge, jury, summing up.
What options to CoA have when deciding an appeal?
Quash conviction, order acquittal, retrial, dismiss, alternative offences
What are the grounds for appeal against sentence to the CoA?
- wrong in law
- wrong in principle
- manifestly excessive
CoA can quash sentence and impose any sentence deemed appropriate but cannot exceed sentence crown court have
When can the prosecution appeal to CoA?
Cannot appeal decision by jury to acquit
Can appeal rulings made by judge during trial
Attorney General can also refer if think too lenient
When can an appeal be made to the Supreme Court?
Can be appealed by D or P but only if:
- CoA or SC grant leave and
- CoA certifies that the point of law is of general public importance
Where is the youth court?
Mags 10-17
What cases are not dealt with in the youth court?
Murder, attempted murder, manslaughter, firearms, sexual or terrosist related offence where youth considered dangerous
Grave crimes where if adult would be sentenced to over 14 years eg robbery, rape, firearms or sexual offences if youth court declines
When charged jointly with an adult and they are sent to crown or mags
What must youth court consider if youth charged with grave crime?
Consider adequacy of sentencing powers in determining whether to accept jurisdiction. If think insufficient should sent to crown.
Court must conclude real prospect of custodial sentence of substantially more than 2 years to decline
What sentences can a youth be subjected to?
Objectives - prevent offending and rehabilitation, prevent criminalisation
Referral order
Youth rehabilitation order
Detention and training orders
What’s a referral order?
Youth referred to youth offender panel
Contract between them and family for 3-12 months aiming to address offending, make changes and restitution to victim
Must be made if
- D pleads guilty to first imprisonable offence and discharge or sentence not on the cards. Mandatory
May be made if:
- D pleads guilty to some but not all offences or
- previously has a referral order
Cannot be made if:
- D pleaded NG to all offences and convicted
If commits further offences or breaches, court has discretion on whether to continue or revoke and resentence
What is a youth rehabilitation order?
Can last up to 3 years and include conditions eg supervision, unpaid work up to 240 hours over max 12 months, activities, programmes, curfews etc
What is a detention and training order?
Custodial sentence available to youth court
If aged 10-11 not available
If 12-14 only for persistent young offenders
15-17 available as long as court thinks case is so serious that custodial sentence is justified
Can last 4,6,8,10,12, 18 or 24 months.
First 1/2 in custody, second 1/2 under supervision of youth offending team. They decide conditions in supervision period.
If supervision period breached, court can send back to custody.
When might a document be admissible as hearsay?
Where
1) business document - s117(2) CJA
2) statement prepared for use in criminal proceedings but giver is unavailable or can’t remember s117 (4 & 5)
Who must be present to interview a child?
Under PACE Code C, if young or vulnerable, appropriate adult but be present and a solicitor. May be parent or guardian or social worker.
What must court be satisfied of when deciding whether to admit hearsay evidence due to witness not being able to attend through fear?
Must be satisfied in interests of justice to admit and that special measures cannot be used - s116 (4)
Can a witness ask participants in an ID parade to speak?
Yes only after police have asked witness if they need them to speak and remind them that they have been selected on the basis of appearance only. If witness insisted they can speak.
What is the process for bail applications?
First application at mags then can chose between mags and crown if mags refuse.
If mags refuse, will issue full argument certificate which allows to appeal to mags again for bail or to crown
When can blood be take from a suspect?
Must be by registered health care professional
Suspect must consent
Inspector must authorise and have reasonable grounds for suspecting involvement in offence and believing sample will confirm or disprove involvement.
Suspect must be informed of reason, offence, authorisation given
