Criminal Practice Flashcards
Types of offences
Summary only - Can only be tried in Magistrates court
Either way - Tried in either Magistrates or Crown court depending on seriousness of offence and defendant’s wishes
Indictable - Can only be tried in Crown Court
All court proceedings begin in Magistrates Court regardless of offence
Examples of each offence
Summary only - Assault, Battery
Either Way - ABH, S.20 GBH, Criminal Damage, Arson, Fraud
Indictable - S.18 GBH, Murder, Manslaughter (all types), aggravated criminal damage,
Rights of a Suspect Detained by Police
Key Rights Under PACE 1984:
Access to free legal advice, medical help, and an interpreter.
Notify someone of their arrest.
Inspect police Codes of Practice.
Right to silence.
Be informed of the reason for the arrest.
Inspect arrest and detention documents.
Information on detention time limits.
Right to Legal Advice
Suspects can receive free, private, independent legal advice at any time.
Defense Solicitors Call Centre (DSCC) contacted unless private solicitor requested.
Delays in access allowed only under strict conditions (e.g., risk of evidence interference).
Maximum delay: 36 hours (approved by Superintendent).
Right to Have Someone Informed of Arrest
Right to inform a friend, relative, or other person.
Delays allowed if:
Arrest on indictable/either way offence.
Inspector authorizes delay with reasonable grounds.
Maximum delay: 36 hours (approved by inspector)
Custody Time Limits at Police station
Basic Limit: 24 hours without charge.
Extensions:
+12 hours by superintendent for indictable/either way offences.
Court can grant:
First application: +36 hours.
Second application: Additional +24 hours.
Total maximum custody time: 96 hours.
Identification Procedures
Held when witnesses has identified or purported to identify a suspect, a witness expresses an ability to identify a suspect or there is a reasonable chance of the witness being bale to identify the suspect
Types:
Video Identification: Moving images of suspect and 8+ others.
Parade: Suspect and 8+ others in line.
Group Identification: Informal group setting, may take place with or without the suspect’s consent.
Confrontation: Rare; suspect directly presented to witness. Happens mainly at the Police Station.
Suspect’s rights include explanations, legal advice, and protection against covert procedures or misuse.
How police interviews are conducted
Recorded (must be audio/can be video) for evidence.
Key cautions:
Right to silence.
Statements can be used as evidence.
Failure to mention facts later relied on in court may lead to adverse inference.
Legal representatives ensure fairness and protect client’s rights.
Special Caution:
Required if suspect must explain their presence, possession of objects, etc.
Failure to explain may result in adverse inferences at trial.
Requirements for Vulnerable Suspects in police interviews
Includes youths (<18) and those with mental disorders.
Must have access to an appropriate adult (e.g., parent, social worker, volunteer not associated to the police).
Interviews without appropriate adults may result in excluded evidence.
Rules of Oppression and Inducement in police interviews
No torture, inhuman treatment, or threats.
No promises or inducements for confessions.
Interviews must occur in proper environments (heated, ventilated).
Solicitor’s Role at Police Station
Protect client’s legal rights.
Obtain disclosure.
Advise on interview conduct (e.g., silence vs. answering).
Intervene against improper questioning or intimidation.
Professional Misconduct by Solicitors at police station
Solicitors cannot:
Obstruct interviews.
Tell suspects what to say.
Answer on behalf of suspects.
Obstruction may lead to solicitor’s removal (rare).
Police Bail After Charge
Custody officer decides between remand in custody or bail.
Factors considered: risk of reoffending, absconding, and evidence tampering.
Rule of Evidence at bail hearings
This far more relaxed compared to a trial as evidence is not yet generally collected or served
Court procedure for bail restrictions
The courts will give reasons for refusing bail or for putting certain conditions in place. The courts will issue a certificate of full argument should they deny bail after hearing a full argument of the application
Rights to bail
Defendants have a general right to bail and the courts can impose condition of their bail or it can be unconditional. Courts can remand a defendant into custody if:
An exception to the right of bail applies; and
There is a real prospect of a custodial sentence being imposed
Exceptions to the right of bail
There are substantial ground for believe the defendant would:
Fail to Surrender
Further commit other offences
There are charged with an offence that is only tried in the crown court, whilst there were on bail
Custody for their own protection
Already serving custodial sentence
Conditional bail aspects the court can impose
Require the defendant reside at a certain address
Require the defendant to report to the police station at certain intervals
Stopping the defendant form going to a certain area
stopping the defendant from contacting certain people
Require the defendant to comply with a curfew
Require the defendant to wear a tag
Bail conditions for murder
The view is reversed by the courts i.e they will look to reason against release rather than for it.
Further applications for bail
A court must consider bail at each hearing, although a defendant can only make one further application based on same facts and submission. Any additional requests for bail can be made if there is a change of circumstance i.e. new evidence
How does prosecution begin
Summary only - Defendant pleads guilt or not guilty, if pleading guilty, courts will go straight to sentencing. If pleading not-guilty, a date for trial will be set around 6 - to 8 weeks from then.
Either way - Courts proceed to plea before venue process
Indictable - matter sent immediately to the Crown court
Obtaining disclosure
Defendant’s solicitor must acquire this from the prosecution, the disclosure will vary on the matter of offence:
Indictable only - very little information is disclosed at first appearance,
Summary only and either way - Amount of disclosure depends on if the defendant was in custody prior to first appearance
Representation order
Unless privately funded, a defence solicitor attending court to represent defendant needs to supply a representation order. Two requirements must be satisfied for this:
Interests of justice test - likely to lose their liberty or livelihood, case requires determination of a substantial question in law, defendant is unbale to understand proceedings or state their own case etc.
Means Test - under 18, on job seekers allowance, state pension,
Magistrates sentencing powers
No more than 6 months for single offence
No more than 12 months for two or more either way offences
Allocation - Court’s discretion
If a defendant pleads not guilty, the court will consider whether the offence can be heard in the Magistrates or Crown court. Courts will consider:
Previous convictions
Court sentencing powers are adequate
Representation of defendant and prosecution
If Magistrates declines, it will be sent to the Crown court
Allocation - Defendant’s choice
If the Magistrates accepts jurisdiction, the defendant will have the choice on whether they wish to be tried in either the Magistrates or Crown court
Hybrid version for low value theft
Theft is an either way offence however theft of a value less than £200 is a hybrid offence. It is treated as a summary only offence being that Magistrates cannot decline jurisdiction. However, it is an either way offence where the defendant can choose which court they wish for the trial to take place in.
Case management - directions Magistrate
Prosecution must serve evidence within 28 days
Defence must serve a statement within 14 days and notify which prosecution witnesses are required to attend within 7 days
Preliminary hearing - Crown court
Preliminary hearing will be heard in Crown court within 14 days of being sent if the trial is likely to be more than 4 weeks.
Crown Court - plea and trial preparation
A plea and trial preparation takes place 28 days after the case was sent from Magistrates.
If guilty plea entered, a defendant may ask for an indication of sentence (good year indication) from the courts. They will be bound if they give one and the defendant accepts this.
If non guilt plea entered, judge will set trial date after being advised on facts of case, number of witnesses, availability and special measures
Prosecution duty to disclose
Prosecution has 50 days (70 if defendant on bail) to complete disclosure. Must disclose all evidence they intend to rely on and any unused evidence which might be reasonably considered capable of undermining the case of the prosecution or assisting the defence
Defence duty to disclose
Defence must serve a defence statement within 28 days of the prosecution making disclosure. Statement must be served on prosecution and court
Burden and Standard of Proof in criminal cases
The burden of proof lies on the prosecution, which must prove the defendant’s guilt beyond a reasonable doubt. The defendant does not need to prove their innocence. An acquittal means the court cannot be sure of guilt, not necessarily innocence.
What are the Turnbull Guidelines (Visual Identification Evidence)
If the case relies wholly or substantially on witness evidence and the defendant disputes this evidence, the Turnbull guidelines must be followed, these are:
Amount of time observed
Distance from suspect
Visibility conditions
Obstruction present
Known or unknown to witness
Any reason to remember
Time lapse between incident and identification
Errors in witness description
What is Hearsay Evidence?
Hearsay is secondhand evidence, often less reliable as it cannot be cross-examined. Examples include out-of-court statements and business documents.
It is admissible only under specific exceptions:
statute
rule of law
agreement of all parties
interest of justice
Admissibility of Confessions
Confessions are admissible if relevant but can be excluded if obtained through oppression or actions making them unreliable. The prosecution must prove beyond reasonable doubt the absence of such factors under s76 PACE 1984
Adverse Inferences from Silence
Explanation: Remaining silent may lead to adverse inferences (e.g., failure to mention facts or explain presence at a crime scene). However, these inferences alone cannot secure a conviction.
Contrast of Character Evidence
Bad Character Evidence: Demonstrates a disposition towards misconduct.
Good Character Evidence: Indicates a lack of misconduct and enhances credibility or shows lower propensity for offences.
Seven Gateways to Bad Character Evidence
Includes:
Agreement of all parties
Defendant adduces evidence
Important explanatory evidence
Relevant to important matters in issue
Issues between co-defendants
Correcting false impressions
Attacking another’s character
Discretion of excluding evidence
Courts can exclude evidence from the prosecution if it appear considering all circumstances it would an adverse effect on the proceedings.
This differs from exclusion by mistake, untruth, oppression, or unreliability. if true, the courts MUST exclude the evidence.
Evidence of good character
If a defendant has no previous conviction, they are entitled to a good character reference. This consists of two parts
Propensity Direction - person of good character less likely to commit offence
Credibility Direction - Person of good character is more likely to be credibly when asserting their innocence
Burden and Standard of Proof
The prosecution bears the burden of proving the defendant’s guilt. The standard of proof is “beyond reasonable doubt.” Prosecution witnesses testify first, followed by defense witnesses. The defendant can testify but is not compelled to.
Stages of a Criminal Trial
Prosecution opening speech.
Prosecution calls witnesses.
Defense calls witnesses.
(Crown Court) Jury deliberation.
Verdict delivery by judge or jury.
Sentencing, if applicable.
Examination in Chief
The party calling a witness questions them using non-leading questions (e.g., starting with who, what, where). Leading questions are prohibited during this phase unless clarifying prior testimony.
Cross-Examination
Conducted by the opposing side to challenge the witness’s credibility and testimony. Advocates may use leading questions to put their case to the witness effectively.
Competence and Compellability
of parties in a criminal trial
Competence: The ability of allowing a witness to give evidence.
Compellability: The obligation to give evidence.
Defendant - neither competent nor compellable for prosecution. For the defence, is competent but not compellable. (jury can draw adverse inference if they do not give evidence)
Spouses are generally competent but not compellable unless specific crimes (e.g., violence or sexual offenses) are involved
Co-defendants - treated the same as defendants. However if they plead guilty they are treated as normal witness making the competent and compellable for both sides
Special Measures for Witnesses
Witnesses under 18, those with disabilities, or those fearful of testifying may receive accommodations like video links, pre-recorded testimony, or screens separating them from the defendant.
Submission of No Case to Answer
Defense may argue that prosecution evidence is insufficient or unreliable. If accepted, the defendant is acquitted without presenting further defense evidence.
Solicitor’s Duty to the Court
A solicitor must act ethically, ensuring accurate legal representation, flagging legal errors, and not misleading the court. They must prioritize professionalism, even if detrimental to the client’s case.
Principles of Passing Sentence
When sentencing, courts consider:
Punishment of the offender.
Crime reduction.
Reform and rehabilitation of the offender.
Protection of the public.
Reparation by the offender.
Pre-sentence or psychiatric reports may be requested to assess sentencing options.
Role of Sentencing Guidelines
Sentencing guidelines promote consistency. They offer a starting point and list aggravating factors and mitigating factors, which adjust the sentence. Courts must follow them unless it conflicts with justice.
Aggravating and Mitigating Factors
Aggravating factors -
MUST be taken into account: previous convictions if reasonable to do, offences committed whilst on bail, racial or religious aggravation, hostility based on sexual orientation
MAY be taken into account: Premeditation, group, use of weapon, targeting elderly, gratuitous violence, offence person serving the public
Mitigating factors: Impulse actions, high provocation, mental illness, remorse. offender is very young /very old
These factors help courts determine offense seriousness.
Concurrent vs. Consecutive Sentences
Concurrent: Sentences for related offenses served simultaneously.
Consecutive: Sentences for unrelated offenses served one after another.
The totality principle ensures proportional overall sentences.
What are Custodial Sentences
Applied when offense seriousness surpasses the custody threshold. The sentence must be the shortest term fitting the offense. Usually, offenders serve half in custody and half on license. Breaches of license terms result in custody resumption.
What are Community Orders
Imposed for suitable offenders, community orders include unpaid work, rehabilitation, curfews, or treatment programs. Breaches can lead to stricter conditions or custody.
What are Newton Hearings
Held when a defendant pleads guilty but disputes prosecution facts. A trial-like process resolves the issue. If the prosecution’s version prevails, guilty plea credit is lost; otherwise, credit is retained.
Victim Surcharge and Other Sentencing Types
Victim surcharge: A compulsory payment pooled for victims, in addition to any other sentences.
Fines: Imposed alone or with other penalties.
Discharges -
Absolute: No punishment beyond recording the offense.
Conditional: No re-offending during a specified period prevents sentencing for the original offense.
Defendant’s rights to appeal
In Magistrates, they may appeal the conviction or sentence. If pleaded guilty, may appeal to Crown Court only on their sentence. Prosecution cannot appeal
Timeframe for appeal
Defendant must lodge written notice of appeal within 15 business days
Appeal procedure in Crown court
New evidence can be admitted to the trial, Crown court has power to increase or decrease the sentence but no beyond the sentencing power of the Magistrates. Can also impose cost order
Appeal by way of case stated
Both prosecution and defendant can appeal. Basis must be the case is wrong in fact of law or in excess of jurisdiction. Must be in writing within 21 days. Appeal heard by 3 judges, no new evidence can be admitted.
Appeal from Crown court
Must obtain leave from the court to appeal to Court of Appeal. Must be done within 28 days. Singles judged will decide whether leave to appeal should be granted. Can only appeal on the grounds that it is ‘unsafe’.
Appeal procedure in Court of Appeal
Court can quash any sentence from Crown court and impose any sentence they feel appropriate, it cannot exceed the sentence imposed by Crown court.
What is the Youth Court
Handles cases involving youths aged 10-17.
Proceedings occur in a closed courtroom, excluding the public but allowing the press with reporting restrictions.
Less formal than adult courts, focusing on plain English and inclusivity for youth understanding
What is the Youth Court Jurisdiction
Youths turning 18 during proceedings may still be tried in Youth Court or transferred to the adult Magistrates’ Court.
The full range of adult sentencing options becomes available upon conviction.
Types of offenses committed by youths sent to Crown Court
Youth cases sent to Crown Court include:
Murder, attempted murder, or manslaughter.
Specific firearm offenses.
Violent, sexual, or terrorism offenses where the youth is deemed dangerous.
What are Grave Crimes for youths?
Offenses punishable in adult court by 14+ years (e.g., robbery, rape).
Youth Court retains jurisdiction unless sentencing powers (max 2 years) are deemed insufficient for the offense.
Youth Sentencing Principles
The Sentencing Children and Young People Definitive Guidelines emphasize:
Preventing reoffending.
Rehabilitation over punishment.
Avoiding unnecessary criminalization.
Encouraging responsibility for actions.
What are referral orders?
Youths referred to a panel of community representatives and Youth Offender Team members.
A contract (3-12 months) is agreed upon to address issues and promote restitution.
Breaches may lead to resentencing or continuation at the court’s discretion.
What are Youth Rehabilitation Orders (YROs)?
Flexible sentencing lasting up to three years.
Conditions may include supervision, unpaid work, curfew, or anger management programs.
Breach can result in stricter conditions or a custodial sentence.
Detention and Training Orders
Custodial sentence available for your courts:
Ages 10-11: Not available for youths
Ages 12-14: Available only for persistent offenders (sentenced three times for offences punishable with imprisonment)
Ages 15 - 17: imposed on offender as long as court is of the opinion case is serious only custodial sentence is justified.
Impose sentence of 4,6,8,10,12,18, or 24 months
Split sentence: first half in custody, second half under supervision by the Youth Offending Team.
Breaches of supervision may lead to additional custody time
