Criminal Practice

Question 1

Right to inform someone of your arrest - restrictions

Answer 1

1) Up to 36 hours from arrival at police station

2) Rank of inspecting officer

3) Indictable offence

4) Reasonable grounds

Question 2

Right to legal advice - restrictions

Answer 2

1) 36 hours

2) Rank of superintendent

3) Reasonable grounds

4) Indictable offence

Question 3

Detention clock

Answer 3

24 hrs - 6,9,9 authorised by review officer

+12

36 hrs - indictable offence, superintendent, grounds (preserve or gain more evidence in questioning)

+36hrs

72hrs - warrant from magistrates, indictable

+ 24 hrs - another warrant

96hrs - charged/released unconditionally

Question 4

Breaches of Code D PACE: Video

Answer 4

1) 8 other images

2) Steps taken to conceal distinctive features

3) Resemble suspect in age, height, position in life

4) Solicitor needs to see images and attend

5) Suspect can see images and object

Question 5

Breaches of Code D PACE: ID Parade

Answer 5

1) 8 other comparators, similar appearance

2) Cannot speak to each other

3) Choose position in line

Question 6

Breach of Code D PACE: Photographs

Answer 6

1) 12 photographs of similar type

2) Told a photograph of suspect may not be among them

Question 7

Adverse Inferences - Silence - Conditions & Assessment

Answer 7

Conditions:

1) Caution (under caution)
2) Relate (failure relates to facts relied on his later defence)
3) Expected (reasonably expected to mention facts)
4) Proceedings (questions relate to the proceedings and aim to know whether or by whom)

Assessment if reasonable:

1) Disclosure - no sufficient disclosure

2) Evidence - little to no evidence at the time

3) Argent (R v Argent, relied on legal advice, did the D genuinely and reasonably rely on the advice, conduct of D what matters)

4) Disadvantage - appropriate adult or not fit, drunk etc

Question 8

Adverse Inferences - Failing to account for objects/marks - s.36 PACE / or failing to account for presence - s.37 PACE

Answer 8

1) Suspect must be under arrest

2) Is under special caution: importantly - what offence, what fact and its relation to the offence, warning of adverse inference in court, and record being made of questioning

Question 9

Overriding objection to adverse inferences

Answer 9

If the suspect wasn’t able to consult a solicitor

Question 10

Statue for granting bail

Answer 10

Section 4 Bail Act

Question 11

When can the court refuse bail?

Answer 11

Indictable or either way and reasonable grounds to believe defendant would:

1) Fail to surrender
2) Commit offence
3) Interfere with witnesses

Question 12

Even if exceptions apply, what must there be for bail to be refused?

Answer 12

A real prospect of a custodial sentence if convicted

Question 13

What must court consider when taking into account exceptions?

Answer 13

1) Strength of evidence
2) Nature and seriousness of offence
3) Character and criminal record
4) Previous bail record
5) Community ties
6) Other factors

Question 14

Is absconding whilst on bail a criminal offence ?

Answer 14

Yes unless they had reasonable cause and surrendered when reasonably practicable to do so

Question 15

Is breaching a bail condition a criminal offence?

Answer 15

No, but arrested and goes before magistrates court

Question 16

Process for summary offences

Answer 16

Guilty plea leads to leads to summary of facts and plea in mitigation, then adjourned

Not guilty plea, trail date and case management by magistrates

Question 17

When do the exceptions to bail apply?

Answer 17

When there is a real prospect of a custodial sentence if convicted

Question 18

Arguments against exception 1) risk of absconding

Answer 18

Must be significant risk, stress personal responsibilities, weak evidence means less likely, stress good bail record or qualify bad instances, wishes to clear name

Question 19

Arguments against exception 2) interference with witnesses

Answer 19

Significant risk, police had enough time to contact witnesses

Question 20

Arguments against 3) risk of committing offences on bail

Answer 20

Significant risk, downplay previous convictions and instances of offending on bail

Question 21

What is a part 20?

Answer 21

Claim by defendant against 3rd party.

Question 22

Rules regarding part 20 claims

Answer 22

If counterclaim against D and another party, needs leave from court.

If seeking contribution or indemnity from another party, only need leave from court if claim form not served at the same time as defence

Question 23

Rule on replying to defence / counterclaim

Answer 23

No obligation to, but may seek to clarify things. Cannot raise new causes of action, must be filed at court with directions questionnaire (28 days from allocation notice)

Question 24

Rule on amending statements of case

Answer 24

Can do so with leave of court, must apply. Depends on extent of prejudice to other party, and the earlier the application the more likely to be accepted