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.
