Criminal Practice Flashcards
Right to inform someone of your arrest - restrictions on limiting right
1) Up to 36 hours from arrival at police station
2) Rank of inspecting officer
3) Indictable offence
4) Reasonable grounds
Right to legal advice - restrictions
1) 36 hours
2) Rank of superintendent
3) Reasonable grounds
4) Indictable offence
Detention clock
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
Breaches of Code D PACE: Video
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
Breaches of Code D PACE: ID Parade
1) 8 other comparators, similar appearance
2) Cannot speak to each other
3) Choose position in line
Breach of Code D PACE: Photographs
1) 12 photographs of similar type
2) Told a photograph of suspect may not be among them
Adverse Inferences - Silence - Conditions & Assessment
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
Must be able to consult a solicitor
Adverse Inferences - Failing to account for objects/marks - s.36 PACE / or failing to account for presence - s.37 PACE - Conditions
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
Overriding objection to adverse inferences
If the suspect wasn’t able to consult a solicitor
Statue for granting bail
Section 4 Bail Act
When can the court refuse bail?
Indictable or either way and reasonable grounds to believe defendant would:
1) Fail to surrender
2) Commit offence
3) Interfere with witnesses
Even if exceptions apply, what must there be for bail to be refused?
A real prospect of a custodial sentence if convicted
What must court consider when taking into account exceptions to bail
S strength of evidence
E existing criminal record and character
R record of previous bail
I impact of offence
O other factors
U undermining public confidence
S social and community ties
Is absconding whilst on bail a criminal offence ?
Yes unless they had reasonable cause and surrendered when reasonably practicable to do so
Is breaching a bail condition a criminal offence?
No, but arrested and goes before magistrates court
Process for summary offences
Guilty plea leads to leads to summary of facts and plea in mitigation, then sentecned
Not guilty plea, trail date and case management by magistrates
When do the exceptions to bail apply?
When there is a real prospect of a custodial sentence if convicted
Arguments against exception 1) risk of absconding
Must be significant risk, stress personal responsibilities, weak evidence means less likely, stress good bail record or qualify bad instances, wishes to clear name
Arguments against exception 2) interference with witnesses
Significant risk, police had enough time to contact witnesses
Arguments against 3) risk of committing offences on bail
Significant risk, downplay previous convictions and instances of offending on bail
What is hearsay?
A representation of fact or opinion made by a person other than in oral evidence in the proceedings and relied on as evidence that the contents are true
When and how is hearsay admissible (non-common-law)?
A - agreement of parties (NOTICE)
B - business documents & other docs - where prepared for purpose of proceedings, (NOTICE)
I - Interests of justice (NOTICE)
G - Gone witness (dead, ill, outside UK, lost, afraid) (NOTICE)
C - consistent / inconsistent statements of witness (e.g. where pressured to change statement) (NO NOTICE)
R - reports of experts
E - expert preparatory work (NO NOTICE)
C - co-accused confessions
Key statutes in hearsay
114 CJA - agree / interests of justice
118 CJA - common law exceptions
When is hearsay admissible (common law under s.118 CJA)
NO NOTICE REQUIRED
C - common enterprise
R - reputation as to character (check bad character requirements)
R - res gestae
A - admissions by agent
P - public information
E - expert reliance
D - D’s confessions
What are the different ways to challenge admissibility of witness evidence generally?
1) Could be irrelevant
2) Opinion not fact
3) Turnball guidelines
4) Attack witness credibility - bad character (only with court leave), point to character / context
5) Argue that an exception doesn’t apply, or argue if admissible that it would be unsafe to convict of wholly or partially reliant on hearsay or if results in undue waste of time by admitting it.
6) Challenge expert evidence (not relevant, no sufficient knowledge, expert is biased, non compliance with rules)
7) S.78 - adverse effect on fairness of proceedings.
For what types of hearsay do you need to provide the court with notice of hearsay evidence?
J - interests of justice
U - unavailable
M - multiple hearsay
P - prepare statement for proceedings
What are the timings for opposing hearsay and what should response contain?
You need to object to the hearsay evidence with reasons within 10 days of: 1) receipt of notice, 2) receipt of evidence or 3) defendant’s not guilty plea (whichever is last).
Response contains why no admissible, or if admissible, why I shouldn’t be admitted!
If not, evidence is taken to be admissible by the agreement of the parties
Timelines for submitting hearsay notice to court
Prosecution - not more than 20 business days for magistrates, and 10 business days for crown court.
Defendant - as soon as reasonably practicable
Limits on attaching witness credibility with bad character evidence to object to hearsay
1) only admissible with court leave
2) previous inconsistent statements can be admitted as hearsay
Matters to consider when judging quality of ID evidence ? (turnball)
A - amount of time under observation
D - distance
V - visibility
O - obstruction from view
K - witness been accused before?
A - any special reason?
T - time elapsed
E - errors
What is a Turnball warning and when is it given?
Given when prosecution relies wholly or substantially on one or more disputed pieces of visual ID. Judge needs to warn jury to take extra care, remind jury of weaknesses and stress possibility of a mistaken witness
What are the 7 gateways to adduce bad character evidence under what statute?
101 CJA
C: Co-defendant issue — Evidence relates to an important issue between the defendant and a co-defendant.
R: Reputation attack — Defendant made an attack on another person’s character.
I: Important explanatory evidence — Evidence is substantial for understanding the case.
M: Misleading impression — To correct a false impression given by the defendant.
P - propensity — Evidence shows a propensity to commit the offense or be untruthful (matter in issue between defendant and prosecution)
A: Agreement of parties — All parties agree to admit the evidence.
S - shot in foot by adduces own bad character
How to admit and exclude bad character evidence (application and timings)?
__ days after defendant pleads not guilty plea in magistrates court, notice must be served on the court and the defendant
20 business days - magistrates court
10 business days - crown court
Defendant then has 10 business days to object via application to prosecution and court
If defendant, as soon as reasonably practicable
Dealt with at plea / case management hearing in CC or specific trial hearing in MC
Conditions to admit bad character evidence of a non-defendant (e.g. question validity of witness)
100 CJA
I - important explanatory evidence (court leave required)
S - substantial probative value (court leave required)
A - agreement of parties
Process to admit and exclude bad character evidence of non defendant?
Notice served on court as soon as reasonably practicable, but not more than 10 business days after disclosure of unused material by the CPS
Other party with application to object within 10 BD
How do you exclude confession evidence under s.76 PACE and what are benefits of this?
Yes you can, if it was obtained by oppression (torture, inhumane treatment etc), or things said or done which would render the confession unreliable (look for blackmail, promise for future, emotional distress, no caution etc)
Must be casual link & can consider the character / experience of suspect in deciding.
NON DISCRETIONARY!!
Burden of proof on prosecution!!
How to you exclude confession evidence under s.78 PACE and what are the courts powers?
Any evidence (bad character, hearsay, confessions) and can be excluded where it may have an adverse effect on the fairness of proceedings (breach of PACE will do but must be significant and substantial (R v WALSH)
This is discretionary
How does a trial in the magistrates court play out?
CPS will give case, then examine in chief witnesses, defence will then cross examine witnesses.
(NO CASE TO ANSWER THEN SUBMITTED)
Then defence will present case and defendant gives evidence, is cross examined by the CPS, then defendant re examined.
Followed by closing speech and verdict
Difference between competence and compellability
Competence is whether the witness is allowed to give evidence, compellability is whether you can force them to do so
Rules on the defendant as competent or compellable for defence / prosecution
Defence - competence, not compellable
Prosecution - neither competent nor compellable
Rules of competence and compellability of a spouse
Defence: competent and compellable
Prosecution: competent but not compellable - unless assault, injury / threat to spouse or child under 16 / sexual offence against child under 16
Rules on competence v compellability of co defendant witness
Defence: competent but not compellable (unless they cease to become a co-defendant)
Prosecution: neither competent nor compellable
Special measures - how to apply and timelines involved
Apply __ business days after defendant pleads not guilty
Magistrates - 20
Crown court - 10
If defendant objects, can do this up to 10 days after request
What is a Newton hearing?
A hearing after conviction (GUILTY PLEA) without a jury to determine a dispute on the facts; witnesses can be examined and cross-examined
Used where the defendant pleads guilty but disputes the facts to such an extent that it will have a difference on the sentence (judge must agree)
What are magistrates sentencing powers?
Remember it’s 6 months PER either-way offence (maximum of 12 months for two either way offences)
Process for using Sentencing Guidelines:
1) Assess harm and culpability, starting point of offence
2) Apply statutory aggravating / mitigating factors
3) Adjust for any assistance given to CPS
4) Make reduction for any guilty plea
5) Consider totality principle
6) Hand down sentence
Appealing sentence - crown court from magistrates court. Timings and eligibility
You need 15 working days from the date of sentence, sentence deferral or commital, or after sentence (if missed, need court leave but NO PERMISSION REQUIRED!)
Can appeal either sentence or conviction (conviction only when plea was guilty)
New evidence can be called
Appealing sentence - magistrates to crown court - crown court powers
Crown court judges can reverse, confirm or change if they want but changing is limited to magistrates sentencing powers
When is it okay to appeal to the High Court?
Only by way of case stated where there has been an error of law or sentence was beyond MC’s powers. No evidence, just pure fax.
Appealing from magistrates court to high court by way of case stated - application timings and process
This needs to be submitted within 21 days of the sentence or conviction
Application to magistrates court
On,t for errors of law or excess of jurisdiction
Appealing from crown court to court of appeal - timings
Application made within 28 days of conviction or sentence - usually permission is required
Under what circumstances can you appeal to the court of appeal from crown court
With court leave, for conviction - only where the right to a fair trial has been breached.
Usually allowed where there’s been an error made by the trial judge or something else has gone seriously wrong
For sentence - too excessive, wrong in principle or in law
Doesn’t matter about plea
Powers of court of appeal on appeal
1) Quash conviction
2) Dismiss appeal, confirm crown court’s decision
3) Find defendant guilty of alternative offence
4) Allow part of the appeal
5) Order a retrial
6) Oppose any sentence within powers of crown court
Can the prosecution appeal to court of appeal?
Yes,
1) attorney general can refer to the case to the court of appeal if it is deemed to be too lenient if granted leave by the court of appeal
2) evidential rulings seriously weakened prosecution case
3) To quash an acquittal
What ages does the Youth Court cover?
Ages 10-17 (children below 10 cannot commit a crime)
At what age must a child attend with a guardian?
16 (unless court is satisfied it would be unreasonable)
When will a youth not attend the youth court?
If charged jointly with adult for indictable offence / related offence - will go to CC in necessary / in interests of justice, then on a guilty plea goes to YC
Custody officer refuses youth bail and no YC available, will go to MC
Serious offences - straight to crown court
Grave crimes where real prospect they will receive custodial sentence of 2 years or more
Define serious offences (youth court)
Homicide, firearm offences, serious or complex fraud, involving child witnesses, danger to public
Define “Grave Crimes” and what’s the implication
Tried in the crown court where there is a real prospect that their sentence for detention will be for more than 2 years making sentencing powers insufficient (mostly sexual offences)
What is a referral order in the youth court?
It’s a community order under which the child is referred to a community panel to agree on some work for the child to do for 3 - 12 months.
When must a referral order be made (YC)
Where the child has pleaded guilty to an offence with a possible custodial sentence, but hasn’t committed an offence to date.
When is a detention and training order used? (Youth court)
Used where the offence is so serious that a fine or community order is insufficient (need a pre-sentence report saying possible custodial sentence)
What is involved in a detention and training order?
First half in custody / second half in community service
Lots of training and rehab
Minimum of 4 months, maximum of 24
CANNOT BE IMPOSED ON A CHILD OF UNDER 12, AND ONLY IMPOSED ON CHILDREN BETWEEN 12–14
What is a youth rehabilitation order?
Community sentence with certain requirements / targets within a certain time (e.g. 3 years)
Fines can be imposed for breaching the order
s.34 CJPOA
Adverse inference from silence
s.36 CJPOA
Adverse inferences - failing to account for objects, substances or marks
s.37 CJPOA
Adverse inferences - failing to account for presence
When advising a client on how to approach police interview, what must you make sure of?
That you make it clear you are only offering advice and stress that the decision is ultimately his!!
Who can be issued with a witness summons and what forms can these take
Competent and compellable witnesses
1) summons requiring a person to give evidence
2) summons requiring a person to produce documents needed as evidence
What will court take into account with a witness summons application
Whether it’s in the interests of justice
Consequences of failing to abide by witness summons
Punished for contempt for court with a fine, and or a prison sentence.
Can be arrested and taken to court
What to weigh up as a solicitor when thinking about a witness summons
Balance benefit of having evidence heard with risk of reluctant witness cashing more harm than good
What are special measures, when are they needed, and what be taken into consideration by the court?
When witness feels too intimidated to give evidence.
Court satisfied that quality of witness evidence is not lessened by fear or distress
When is a pre sentence report necessary
1) when considering custodial / community sentence
2) where D poses significant risk of causing harm to public by reoffending
What are time limits on suspended sentences
Period of 6 months to 2 years
When is a suspended sentence considered
When there is a realistic prospect of rehab, strong personal mitigation and immediate custody would result in significant or harmful impact to others
What levels of reduction in sentences exist
First hearing - one third
Second hearing - one quarter
After second hearing until trial - decreased on sliding scale
On first day of trial - one tenth
What is the totality principle
Total seriousness should not be disproportionate to the seriousness of the overall offending behaviour
Is permission required to appeal to crown court?
No so long as before deadline (15 business days)
Crown court appeals - substance
Case is heard de nova - parties can call new evidence, and sentencing powers gone through again
If you lose your appeal in crown court, what can you do?
No right of appeal to court of appeal in appelete capacity.
High court by way of case stated or judicial review
Ask criminal case review commission - can send a case back to appeal
Prosecution powers of appeal
From MC to CC : none
From MC to HC: both for sentence and conviction
How is the means test satisfied?
1) under 18 or passporting benefits (i.e. income support/job seekers)
or if not,
2) Defendant’s income sufficiently low to qualify
How is the merits test satisfied?
1) Real and practical likelihood (not risk) than D will lose liberty
2) Defendant likely to lose livelihood (salary or maintenance)
3) Suffer serious damage to reputation (e.g. profession)
4) There are substantial questions of law involved (admissibility of evidence, Turnball, bad character / hearsay, adverse inferences)
5) Inability to understand proceedings / present case
6) Interests of another person
7) Tracing / interviewing of witness
8) Cross examination of prosecution witness needed
9) Other relevant circumstance
Legal aid in crown court - merits test
Merits is automatically satisfied
Legal aid in crown court - means
If disposable income is above £3,398 and less than £37,500 = income contribution but nothing more
Form for applying for legal aid
CRM14 to legal aid agency at earliest opportunity
No case to answer test and name of case
R v Galbraith -
Limb 1 = No evidence
Limb 2 - Evidence is insufficient for a reasonable court to properly convict. Judge must assess the evidence as a whole. The issue is the amount of evidence put forward, not reliability / credibility
Statute for failing to surrender whilst on bail
s.6 Bail Act
Statute for adverse inferences
s.34 (facts)
Statute for non-D bad character evidence
s.100 cJA
Statute for hearsay = inadmissible
s.114 CJA
Statute for bad character evidence
s.101 CJA
What do sections 103(3) and s.101(4) of CJA do?
103 (3) = previous convictions will not be considered as evidence of bad character if unjust after length of time
101 (4) = court must consider length of time
How to object to bad character evidence as defence
s.101 (3) CJA - adverse effect on fairness of proceedings (gateways propensity and counter-attack on another) NON-D
s.78 PACE
Length of time (s.103(3), s.101(4)) e.g. with propensity
Untruthful does not equal dishonest - must be deception / false statements
Point out differences in convictions for propensity
What is the custody threshold test?
“Was the offence so serious that neither a fine nor a community sentence can be justified for the offence”
Prosecution duty to disclose - magistrates court (and difference between guilty v not guilty plea)
Initial details of case (sufficient for a plea to be entered) required by first hearing day.
For not guilty plea, need to disclose unused material too (as soon as possible after not guilty plea entered)
Prosecution duty to disclose - crown court (and difference between guilty v not guilty plea) + timeline
Disclose all evidence on which seek to rely (within 50 days after sending for trial) + unused material as soon as practicable after the case is committed / transferred
Consequences of failing to disclose (prosecution)
Ongoing duty therefore, failing to comply is an abuse of process (application needed) + can make application for further disclosure
Defence duty to disclose - magistrates court
Must disclose witnesses within 14 days after initial prosecution disclosure but not duty to disclose defence statement
Defence duty to disclose - crown court, and timing?
Duty to disclose defence statement on court, prosecution and co-Ds + witness details (within 28 days after initial prosecution disclosure)
Why would you provide a defence statement
As without one you cannot apply for an order of prosecution disclosure
Definition of bad character evidence
Any evidence of misconduct on other occasions (bad behaviour, caution, previous convictions)
Indictable offences - journey
1) First appearance in MC (bail, representation order)
2) Plea and Trial prep hearing - indicates plea - either adjourned for trial or adjourned for sentence
3) Jury
4) Acquitted or convicted
Either-way - journey
1) Plea before venue hearing - if guilty plea and enough sentencing powers, sentence. If not, send to CC.
If not guilty - “MODE OF TRIAL PROCEEDINGS”
(2) Mode of trial proceedings - representations as to venue, then magistrates decide to accept or decline jurisdiction, where they do: Defendant’s decision!
3) Convicted or acquitted
Sentence indications - Magistrates
Can seek this if they decide to remain in MC
Custodial v non custodial, not required on court but indication is binding if D pleads guilty (non guilty plea, ceases to be binding)
Sentence indications (good year) - Crown court
Can seek this if plea guilty.
Maximum sentence - any indication is binding.
Jury not informed.
What is the custodial threshold
No definition but generally reserves prison for serious crimes and only when offence or combination of offences so serious that neither a community sentence or fine can be justified
Lying in court
Duty 1.4 of solicitor code of conduct - not to mislead court, clients or others either by own act or omissions or allowing or being complicit in acts or omissions of others
