Criminal Practice Flashcards
What are the steps in the criminal justice process for a guilty plea?
- Arrest and/or written charge and requisition
- Plea guilty
- Sentence
- Appeal
What are the steps in the criminal justice process for a not-guilty plea?
- Arrest and/or written charge and requisition
- Plea not guilty
- Trial
- Sentence or acquittal
- Appeal
What is a written charge and requisition?
Criminal Justice Process
- an arrest alternative
- mags compels attendance to court
What court is a person brought before after arrest?
MAGS
What governs police during an investigation?
PACE
What can a defendant who plead guilty appeal against?
Sentence
What can a defendant who plead not guilty appeal against?
Conviction and/or sentence
What is required before you can start an appeal?
E.G., permission
Leave
Grounds of appeal
When do you need leave and grounds of appeal?
To go from:
crown - court of appeal
Court of appeal to supreme court
The Supreme Court may only hear a case when…
it raises a point of general public importance
What is a litigant in person?
Somebody without legal representation
What is the hierarchy of courts in the criminal system?
Supreme
Appeal
High
Crown
Mags
Youth
Do sentence classifications apply to youths?
e.g., indictable
What category of offence are the common-law offences?
e.g., either-way, indictable
They are always indictable
What category of offences are statutory offences?
e.g., either-way, indictable
Can be any
Where can you find the category of offence for statutory offences?
e.g., either-way, indictable
- practitioner text
- listed in statute
Can summary only offences be tried in crown court?
No
Can summary only offences be sentenced in crown court?
no
Where will the first hearing for an indictable offence be?
Mags
Where will a plea be entered for an indictable offence?
Crown court
Can mags hear a plea for an indictable offence?
No
Where is the first hearing for an either-way offence?
Mags
Is the first hearing for a criminal trial always in mags?
Ya
What is the purpose of the first hearing in mags for an either-way offence?
To determine the venue
What does a trial on indictment mean?
Trial by jury in crown court
If the statute provides only for a penalty on conviction on indictment or is a common-law offence what type of offence is it?
Indictable
If the statute provides a maximum penalty on summary conviction but does not provide for a penalty on conviction on indictment, what type of offence is it?
Summary
If the statute provides one penalty for summary conviction and a different one for conviction on indictment, what type of offence is it?
Either way
Where can mags send cases for trial?
Crown
Where can mags send cases for appeal?
Crown
High court kings bench
Where can youth court appeals go?
Crown
High court kings bench
When can a youth court appeal go to high court queens bench?
Appeals by way of case state and judicial review
Where can Crown court cases go for appeal?
Court of Appeal
High Court Kings Bench
Where do court of appeal cases appeal to?
Supreme court
What is tribunal of fact?
The person or persons who make a decision as to disputed facts
What is tribunal of law?
The person or persons who make a decision as to disputed points of law
What 3 types of ‘judge’ can you have in mags?
- District judge
- Deputy district judge
- Two or three lay magistrates and a legal advisor
Where does a district judge sit?
Mags
In what other capacities do deputy district judges work?
They are usually barristers and solicitors sitting part-time as a district judge
Does a legal advisor supporting lay magistrates have to be legally qualified?
Yes
How do you address a district judge?
Judge
How do you address a deputy district judge?
Judge
How do you address a lay magistrate?
Sir/madam
What is the max sentence mags can give for summary offences?
6mo
What is the max sentence mags can give for either-way offences?
12 mo
What is the max fine mags can give?
Unlimited
What are the 3 types of judges in the Crown court?
Circuit judge
High court judge
Recorder
What is a recorder?
A barrister, solicitor, or judge from a lower or equal court authorised to sit part-time in the Crown Court
How do you address a recorder?
Your Honour
How do you address the vast majority of circuit judges?
Your honour
How do you address a high court judge?
My lord/my lady
How do you address a judge sitting in the Central Criminal Court
My lord/my lady
How do you address a circuit judge who has been designated as a senior circuit judge and honorary recorder of a place?
My lord/my lady
Do jurys play a roll at sentence?
No
Who is the tribunal of fact in Crown?
The Jury
Who is the tribunal of law in Crown?
Judge
When can the Crown court take a plea/sentence of a summary only offence?
When it is joined to an indictable or either-way offence
What ‘judges’ are present for an appeal within the Crown court?
Crown court judge
Two lay magistrates
In a Crown Court appeal, is the case reheard?
Yes
What powers does a Crown Court have when doing an appeal?
The powers the lower court would have had
Can a defendant get a more severe sentence on appeal to Crown Court?
Yes
Is leave required to appeal to Court of Appeal?
Yes
When is leave not required to appeal to the Court of Appeal?
In cases of contempt, where appeal lies as of right
What types of judges sit in the Court of Appeal?
Appeal Court Judges
High Court Judges
Crown Court Judges authorised to sit on the Court of Appeal
When can an authorised Crown Court judge not sit on the Court of Appeal for a particular case?
Where the trial was conducted in Crown Court by a High Court Judge
How do you address judges in the Court of Appeal?
My lord/lady
Is there a jury in the Court of Appeal
No
Does the Court of Appeal hear trials?
No
Does the Court of Appeal hear new evidence?
Yes
What sentencing powers does the Court of Appeal have?
Cannot pass sentence, can alter sentence
Can the Court of Appeal give a more severe sentence than the one being appealed against from Crown?
No
What does it mean to appeal a terminatory ruling?
Where there was a ruling to bring proceedings to an end… the matter is now no longer at an end
What is the one circumstance where the court of appeal can increase sentence?
By application from the Attorney General
Is leave required to appeal to the supreme court?
Yes
When will leave to the Supreme Court be granted?
For a point of law of general public importance
How do you address supreme court justices?
My lord/lady
What kinds of judges sit on the supreme court?
Supreme court justices
Which judges can sit in a summary trial?
Lay justices, District Judges or Deputy District Judges
How many Crown courts are there?
Technically only “1”
What is rule 1 in CrimPR?
The overriding objective
What is the overriding objective in criminal law?
That criminal cases be dealt with justly
What types of things go into dealing with a criminal case justly?
- Accurate convictions
- Being fair to both prosecution and defence
- Human rights, rights of the defendant
-Respecting the interests of all parties
- Being fast
- Ensuring good information is available
- Dealing with the case in ways that take into account
–gravity
–complexity
–severity
–needs of other cases
What are the 3 duties of participants of the case?
- Prepare and conduct case alongside the overriding objective
- Comply with rules, practice directions and court directions
- Inform court and all parties of any significant failure to obey
What are examples of directions?
Timescales, disclosure orders, expert evidence, reporting restrictions
What is the standard direction regarding bad character and introducing hearsay?
Must serve notice not more than 20 days after not-guilty plea was entered
As soon as is reasonably practicable
When must the defence serve a defence statement?
Within 10 days of the prosecution complying with initial disclosure
When must objection to a witness statement being made at trial be made?
Within 5 business days of service of the statement
When must the defendant indicate if the oppose the introduction of bad character/hearsay evidence?
Not more than 10 business days after the service of notice to introduce it
When must the defence make an application to introduce bad character of a prosecution witness?
Not more than 10 business days after prosecution disclosure
When must points of law be identified in skeleton arguments?
At least 10 business days before trial
What must both parties do 10 days before trial?
Serve a certificate of readiness
Can a case progress in the defendants absence?
Yes
What should you do, if a third party calls you in relation to getting you to represent their friend or family member who is at the police station?
Call the police station to tell you have been contacted
They will ask the suspect to confirm they want you
The Defence Solicitor Call Centre will be notified, and if your firm is contracted for publicly funded work they will instruct you
What should you do in criminal law if there is a conflict or significant risk of conflict?
Not act for any of them
Are the conflict of interest exceptions available in criminal law?
No
What should you do when appointed as sole litigator for all co-defendants in a legal aid case to avoid a conflict of interest?
Don’t interview the clients together
Interview only the first client before you have any substantive contact with the second
Is there likely to be a conflict of interest where one client blames the other?
Yes
What are some common future risks conflicts
- Will you be able to fully mitigate for each one if they are guilty
- Is there a big age difference
- Was one client pressured by another client
When acting for 2 clients, if you come into contact with confidential info about client 1 that is relevant to c2 will you have to disclose it to c2?
No, you have to ask client 1 for consent and if they don’t give it you have to cease acting for client 2
Do the professional conduct rules around barriers to information apply in criminal cases?
No
Can your criminal firm act for clients whose interests conflict (because information barriers won’t apply)
No
Who does a criminal solicitor owe its main duty to?
The court
What is the offence of perverting the course of justice?
e.g., manufactering false evidence, witness interference
Where there is a conflict between a duty and a principle, what will take precendence?
The public interest and administration of justice but you can never breach confidentiality
What category of offence is assault?
Summary
What category of offence is battery?
Summary
What category of offence is simple criminal damage under 5k?
Summary
Is attempted assault an offence?
No
Is attempted battery an offence?
No
Is attempted simple criminal damage under 5k an offence?
Yes
What category is attempted simple criminal damage under 5k?
Summary
What category of offence is theft?
Either way
What category of offence is burglary?
Either way
What category of offence is fraud?
Either way
What category of offence is assault occasioning actual bodily harm?
Either way
What category of offence is wounding or inflicting grievous bodily harm?
Either way
What category of offence is simple criminal damage over 5k?
Either way
What category of offence is simple arson?
Either way
What category of offence is robbery?
Indictable
What category of offence is wounding or causing grievous bodily harm with intent?
Indictable
What category of offence is aggravated burglary?
Indictable
What category of offence is aggravated arson?
Indictable
What category of offence is aggravated criminal damage?
Indictable
What category of offence is murder where voluntary manslaughter is a possible outcome?
Indictable
What category of offence is involuntary manslaughter?
Indictable
What approach will the courts take when trying to calculate value of multiple simple criminal damage offences to determine if it is summary or either way?
Aggregate the value of multiple offences
Where is the value derived from in simple criminal damage?
Cost of replacement if destroyed
Cost of repair
Whichever is less
What is the max sentence for criminal damage below 5k?
3mo prison
Level 4 fine
Can’t be committed to Crown court
What is the max sentence for criminal damage above 5k in mags?
12mo
Level 5 fine
Can be committed to Crown for sentence
What is the max sentence for criminal damage above 5k in Crown?
10 years prison
What happens in a criminal damage case where the amount of money is uncertain?
Defendant asks if they consent to summary trial
if they don’t, it will be treated as either way and higher sentencing powers will apply
What category of offence is rape?
Indictable
What category of offence is sexual assault?
Either way
What category of offence is possession of Class A or B drugs?
Either way
What category of offence is possession with intent to supply Class A or B drugs?
Either way
Why is criminal damage an ‘important exception’
Because its the only offence that falls into multiple offence categories
Does the court have to hear representations on the value of criminal damage?
No, it may
What must a police officer have to make an arrest?
Reasonable grounds to suspect an offence was committed and D committed it
What must the CPS and custody officer consider before making a charge?
Whether there is sufficient evidence to charge
(e.g., to provide a realistic prospect of Billys conviction)
What does a submission of no case to answer mean?
The prosecution has failed to provide an arguable case
At what point in the criminal justice process, does the accused start being referred to as the defendant?
On the charge
What is the divisional court also known as?
High court kings bench division/
Is the court obliged to provide an indication of sentence?
No
When is an indication of sentence usually asked for?
When deciding whether to try the case summarily
What information can the court give when giving an indication of sentence?
Whether there would be a custodial or non-custodial sentence if the defendant were to consent to be tried summarily and pleaded guilty
After the court gives an indication of sentence, what question will they then ask the defendant?
If they would like to change their earlier not guilty plea
If the court gives an indication of sentence, and then the defendant pleads guilty, does the court then give sentence in line with the indication they gave?
Yes
Is indication of sentence binding on later courts?
No
Does the defendant have a choice of court if MAGS considers it unsuitable to be tried summarily?
No
What is the case progression for a not guilty summary only offence?
Proceedings commence
Mags hearing, consider bail issues and funding
Plea
Trial
Convict/acquit
Sentence
What is the case progression for a guilty summary only offence?
Proceedings commence
Mags hearing, consider bail issues and funding
Plea
Sentence
What is the case progression for a guilty either-way offence?
Proceedings commence
Mags hearing, consider bail issues and funding
Plea before venue
Plea
Sentence by MAGS or commit to Crown
What is the case progression for a not-guilty either-way offence allocated as summary?
Proceedings commence
Mags hearing, consider bail issues and funding
Plea before venue
Plea
Allocation (summary or Crown)
Request sentence indication (option to change plea)
Trial
Conviction/acquit
Sentence
What is the case progression for a not-guilty either-way offence allocated as Crown?
Proceedings commence
Mags hearing, consider bail issues and funding
Plea before venue
Plea
Allocation (summary or Crown)
Follows progression of indictable only offences
What is the case progression for a not-guilty indictable only offence?
Proceedings commence
Mags hearing, consider bail issues and funding
Sent to Crown
PTPH
Plea
Trial by jury
Acquit/Convict
Sentence
What is the case progression for a guilty indictable only offence?
Proceedings commence
Mags hearing, consider bail issues and funding
Sent to Crown
PTPH
Plea
Sentence by judge
What is the hierarchy of police ranks
Chief superintendent
Superintendent
Chief inspector
Inspector
Sergeant
Constable
What is a PC?
Police constable
What is a DC?
Detective constable
What is a PS?
Police sergeant
What is a DS?
Detective sergeant
What is the police codes of practice attached to?
PACE
What do police codes do?
A guide to best practice
Do breaches of police codes render evidence inadmissible?
No, but they can be the basis for an application to exclude evidence
Do breaches of police code make officers liable to criminal or civil proceedings?
No
Is reasonable grounds in PACE determined objectively or subjectively?
Nearly always both
To make an arrest, what 2 things dos the officer have to demonstrate?
Legal authority to exercise the power
That they exercised the power lawfully
What is the definition of an arrest?
There isn’t really an official one
What are the characteristics of arrest, since there is no official definition?
Restriction of liberty
Facilitate investigation of the offence
When is an arrest definitely unlawful?
When there is no possibility of the arrested person being charged with an offence
Will restriction of movement constitute an arrest?
No
Is a warrant for arrest required?
No
What 2 things should you consider when looking at the lawfulness of an arrest without a warrant?
Ground for arrest
Reason for arrest
Can an officer arrest somebody who is about to commit an offence?
Yes
Can an officer arrest somebody who has reasonable grounds to believe somebody is about to commit an offence?
Yes
What are examples of suitable reasons for arrest?
To get identifying information
To prevent harm
To prevent unlawful obstruction of a highway
To protect the vulnerable
To allow prompt and effective investigation
To prevent disappearance of the person
Can a civilian make an arrest to prevent breach of the peace?
Yes, only for an indictable offence and they still need to show reasonable grounds
What is the two part test for reasonable suspicion for an arrest?
- officer carrying out the offence must actually suspect
- a reasonable person in possession of the same facts would also suspect it
What degree of reasonableness must an arrest be in terms of judicial review etc?
Wednesbury
Would an officer who arrests on the basis of a mistaken understanding of the law have reasonable suspicion still?
No, reasonable suspicion relates to facts
On what basis can MAGS issue an arrest warrant?
A substantiated oath
What characteristics must the offence possess in order for MAGS to issue an arrest warrant?
- Be indictable or imprisonable
- Persons address must be insufficiently established
Can MAGS issue a warrant to arrest someone who failed to appear to answer a summons or failed to surrender to custody having been bailed?
Yes
What does being backed for bail mean?
The person should be arrested, given a date to appear in court then released on bail
What must a person be informed of at the time of arrest?
The fact that they are under arrest
The ground for arrest
Does grounds for arrest need to be given even if obvious?
Yes
Does a failure to inform grounds of arrest make it unlawful?
No
Can the information that is meant to be provided on arrest be provided right afterwards?
Yes, as soon as is reasonably practicable
Can the information that is meant to be provided on arrest be provided by a non-arresting officer?
Yes
Can an unlawful arrest by way of procedural irregularities be rendered lawful by a correction of the faulty procedure?
Yes
Is ‘you’re nicked’ sufficient to inform somebody they are under arrest?
Yes
Does a specific offence need to be cited when explaining grounds for arrest?
No
When should an arrested person be cautioned?
As soon as practicable
What are the words of caution?
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
Does failing to administer the caution render the arrest unlawful?
No
What effect could failing to administer the caution have?
Any evidence which arises from that could be inadmissible for the prosecution
What must be recorded in the pocket notebook on arrest?
Reasons
Giving of caution
Anything said by the arrested person
Where is information about somebody being detained at a police station kept?
The custody record
When can an officer use reasonable force?
When it is necessary to exercise one of their powers in PACE
What factors will be considered when determining whether force was reasonable?
Nature and degree of force
Gravity of the offence
Harm that would flow from use of force
Possibility of effecting the arrest without force
Does use of excessive force render an arrest unlawful?
No
What approach should you adopt when trying to consider police powers?
P: Power
A: Authority
C: Criteria
E: Exercised correctly?
When should an arrested person be taken to the police station?
As soon as practicable
When does an arrested person not have to be taken straight to the police station?
When they are needed for other investigations which need to be carried out immediately
searches
checking alibi
What police station does a person need to be taken to?
Any one is fine, but if being held longer than 6hrs needs to be a designated police station
What is street bail?
Being arrested, and told to present to a police station voluntarily at a later date
What things will happen to a person when they arrive at the police station?
Custody officer authorises continued detention
Detainee informed of rights
Non-intimate samples
Intimate samples by healthcare professional
Speak to solicitor
Interview
What can happen to a detainee after police interview?
Released under investigation or police bail
Charged and released on police bail to appeal at mags
Charged and remanded in police custody to appear at mags the following day
Who is responsible for the welfare of suspects in detention at the police station?
The custody officer
What rank does a custody officer have to be?
Sergeant
Can the custody officer participant in investigating the offence?
No
Can anyone other than the custody officer authorise detention at the police station?
No
Which officer determines whether there is enough evidence to charge the detainee?
The custody officer
If there isn’t enough evidence to charge, on what grounds can you still detain?
Secure or preserve evidence
Obtain evidence by questioning
What additional types of welfare duties does the custody officer have?
Risk assessment for detainees
Making accommodation’s for the disabled
Arranging interpreters
Dealing with the detainees property
Contacting healthcare professionals
What basic information must be recorded in the custody record?
regarding arrest
That the person was informed of their arrest
The circumstances of arrest
Why arrest was necessary
Any comments made by the arrested person
Can a solicitor consult the custody record?
Yes, and they should
What rank must a custody review officer be?
Inspector
Can the detention review officer be the same person as the custody officer?
No
When must police detention be reviewed?
In first instance, not more than 6 hours
Then every 9 hours thereafter
What opportunities must the detained person be given upon review of their detention?
- Reminded of their right to free legal advice
- Be given the right to make representations
What is the max time a suspect can be kept in custody without being charged known as?
The relevant time
What is the max time a suspect can be kept in custody without being charged?
24hrs
At what point does the relevant time for detention start?
From the moment the suspect arrives at the police station
Is the relevant time different from the time detention is authorised?
Yes
Is there a power to extend detention beyond 24 hours?
Yes
How long can detention be extended?
Additional 12hrs for a total of 36 hours
When can/must authorisation to extend detention be given?
Before 24hr expiry but after the second review
What opportunities should the suspect be given if their detention is extended?
Grounds must be explained
Make representations with a solicitor
What rank officer does it have to be to extend detention?
Superintendent
What category of offence does it have to be for a person to have their police detention extended?
Indictable only
What must the superintended believe in order to justify extending police detention?
Reasonable grounds for believing that detention is necessary to secure or preserve evidence or obtain evidence by questioning
What do the police have to do if they want to extend beyond 36 hours?
Apply to mags for a warrant
How long can mags extend police detention for?
36 hours on first application, and subsequent
MAX 96 hours total
What criteria apply for MAGS when considering whether to extend police detention?
Reasonable grounds to believe further detention is necessary to secure or preserve evidence or obtain evidence by questioning
Offence is indictable only
Investigation is being conducted diligently and expeditiously
What rights does a detained person have?
Consult privately with a solicitor and to free independent legal advice
To have somebody informed of their arrest
To consult the codes of practice
Who informs detainees of their rights at the police station?
The custody officer
When must a detainee be reminded of their rights to free legal advice?
Commencement or recommencement of an interview
Being asked to provide an intimate sample
Intimate drug search
Before an identification parade or video identification procedure
What should happen if legal advice is declined?
Should be noted on the custody record
When does legal advice need to be provided after it is sought?
ASAP
Should police wait for the solicitor before beginning the interview?
Yes
Can police dissuade the suspect from obtaining legal advice?
No
What should police do if a suspect asks for a lawyer mid interview?
Stop the interview
How long can police delay access to legal advice?
MAX 36 hours
What category of offence does it have to be to have the right to legal advice delayed?
Indictable only
What rank does an officer have to have to delay the right to legal advice?
Superintendent
What does the superintendent have to believe before they can delay the right to legal advice?
Reasonable grounds to believe legal advice will lead to:
Interference with/harm to evidence or others
Alerting people not yet arrested
Hinder the recovery of property
How many times can the right to have somebody informed of arrest be exercised?
Every time the suspect is taken to a new police station
When does the right to an appropriate adult arise?
Person appears under 18
Mentally disordered or vulnerable
Anyone whom an officer has been told in good faith is disordered or vulnerable
Who can be an appropriate adult?
Basically anybody who isn’t a police offer or police employee
Who cannot be the appropriate adult?
Person suspected of involvement in the offence
Victim or witness of the offence
Anyone involved in the investigation
Persons who received admissions from the detained person
Persons of low IQ who can’t appreciate gravity
An estranged parent who the juvenile specifically objects to
What is the role of the appropriate adult
Ensure understanding
Support/advise/assist
Make sure police act properly
Help communication
Ensure detained person understands their rights
Can an appropriate adult request a solicitor on behalf of the person they’re helping?
Yes
Does the detainee have to talk to a solicitor who was contacted by an appropriate adult?
No
When can a vulnerable detainee be interviewed or asked to provide a written statement without the presence of an appropriate adult?
When delay would lead to:
- interference with or harm to evidence
- interference with or physical harm to other people
- serious loss or damage to property
-alerting other suspects not yet arrested - hindering the recovery of property obtained during the crime
In what 3 circumstances can a suspect be interviewed without an interpreter?
Interference and harm to evidence
Interference/harm to other people
Serious loss or damage to property
Does bedding have to be supplied to detainees?
Yes
What rank is required to authorise interview without interpreter?
Superintendant
Do you have to caution people before interview?
Yes
What rank is the investigating officer?
Any rank
Where do police interviews have to take place?
At the police station, unless an exception applies
What are the common exceptions as to when police officers can vary the rules/apply exceptions?
Interference or harm to evidence
Physical harm to persons
Serious loss or damage to property
Alerting other people
Hinder recovery of property obtained in consequence of commission of an offence
Is there a right to disclosure before an interview?
No
What things have to be disclosed before interview?
A significant statement
The custody record
What information must a solicitor be given before an interview?
Sufficient information to enable them to understand the nature of any such offence and why the client is suspected
What is a significant statement?
Anything that appears capable of being used as evidence
e.g., direct admission of guilt
Must police interviews be recorded?
Generally yes
What category of offence do police interviews need to be audio recorded?
Indictable
When can an interview be recorded in writing?
Minor offences
Person has not been arrested
Takes place other than at the police station
When will a person not be fit for interview?
They can’t appreciate the significance of questions/answers
They can’t understand wha tis happening because of the effects of drink, drugs, illness, ailment or condition
What rank officer can authorise interview for somebody who isn’t fit for interview?
Superintendent
What should a solicitor do before a police station interview?
Get the pre-interview disclosure
Privately meet with the client
Does a client have the option to suspend interview to further consult with their solicitor?
Yes
Is repetitive questioning inappropriate in a police interview?
Yes
Is misrepresenting information inappropriate in a police interview?
yes
Are hypothetical questions inappropriate in a police interview?
yes
Is disruptive listening inappropriate in a police interview?
Yes
In what 2 circumstances can confessions be excluded
Oppression or unreliability
Adverse effect on the fairness of proceedings that the court ought not to admit it
What is meant by oppression, in the context of excluding a confession?
Torture, inhumane or degrading treatment
What does oppression or unreliability have to have done for a court to grant exclusion of confession?
Caused the confession
4 example of when a caution is not necessary
Establish identity and ownership of a vehicle
Obtain information in accordance with a statutory requirement
In furtherance of a search
To seek verification of a written record of comments made by the person outside of an interview
How is a police interview defined?
Questioning a person about their suspected involvement in an offence
What is the solicitors role at the police station?
Protect and advance the rights of their clients
Does a solicitor at the police station need to actively defend their client?
Yes
Should a solicitor at the police station confront officers for breaches?
No, sit back and take notes
What should a solicitor do if an interviewing officer refuses a reasonable request?
Speak to the custody officer and have them put it on the record
Should a drunk or high person be treated as vulnerable?
No
How can a solicitor help protect a vulnerable client at the police station?
Ensure there is an appropriate adult
Ensure that the custody officer requested a medical assessment
Take time
What should a lawyer do when advising a client before police interview?
Be supportive
Assess fitness for interview
Provide advice on the legal position
Explain the options the client has in the interview and consider which option would be best
Explain and advise on consequences of those options
Provide advice on samples
What are the 3 options in police interview?
Answer questions
Don’t answer questions
Provide a written statement and go no comment
Can a written statement help avoid later adverse inferences
Yes, but it is difficult to cover everything
Can you give a mixed interview? (E.G., part written, part answering questions)
No, because then the transcript will be read in court
Is it a good reason to advise not to answer questions if the police have disclosed little to nothing about the case?
Yes, if that means the solicitor cannot usefully advise their client
What factors should you consider when deciding whether your client should answer questions at the police interview?
- Amount of disclosure
- Admissibility and strength of evidence
- Client account/instructions
- State of your client
- Significant statements
- Adverse inferences
What are the argent factors?
Factors where adverse inferences can’t be drawn when the solicitor advised silence because of the suspects condition e.g., ill health
In what 3 circumstances are adverse inferences drawn from remaining silent?
When a fact is later relied on at trial and it would have been reasonable to mention it now
There is a failure to account for a mark, object or substance
There is a failure to account for presence at the scene
Can a defendant be convicted solely based on an adverse inference?
No
With regards to adverse inferences, how is ‘reasonable as to the circumstances existing at the time’ interpreted?
What information was made available
What information the prosecution can demonstrate the suspect knew at the time of charge
The condition and circumstances of the suspect
Legal advice that the suspect received
What is an adverse inference essentially an accusation of?
Making up an excuse
Knowing their defence wouldn’t have stood up to police questioning
That they had no reasonable explanation at the time
Regarding adverse inferences from failing to account for an object, substance or mark, when does the right to draw the inference arise?
As soon as their is failure to advise, they don’t have to later rely on it
What special warning must be given before there can be adverse inferences for failing to account for marks, objects and substances?
What offence is being investigated
What fact they are being asked to account for
The fact may be due to them taking part in the commission of an offence
Court may draw a proper inference if they fail or refuse to account for this fact
A record is being made of the interview and it may be given in evidence if they are brought to trial
Can an adverse inference be drawn if the suspect has not been allowed access to legal advice?
No
Are adverse inferences drawn if there is never any trial?
No
What 2 things can an eye-witness do to help identify?
Be taken to a neighbourhood or place to see if they can identify the person
Be shown photographs
Do you have to do a suspect identification procedure if the suspect was previously known to the eye witness?
No
Do you have to do a suspect identification procedure if a suspect is previously known to an eye witness, but there is a dispute to whether it was them?
Yes
What are the 3 suspect identification procedures that may be used?
Video
Identification parade (LINE UP)
Group identification (in an informal group of people)
What rank officer can arrange the identification procedure?
Minimum inspector
Can the officer who is arranging the identification procedure be involved with the investigation in other capacities?
No
What is the preferred method of having a witness identify a suspect?
Video
Can the suspect refuse to participate in a video identification procedure?
Yes
Can covert procedures be used to have a witness identify a suspect?
Yes
Is a suspect entitled to receive a copy of the suspect description provided by an eye witness?
Yes
What do you have to inform a suspect of prior to their identification procedure?
Purpose of procedure
Entitlement to free legal advice
Procedure’s for holding the identification
Their right to have a solicitor or friend present
That they don’t have to consent or cooperate with the procedure
That if they don’t consent, their refusal can be included in evidence and police can proceed covertly
What is a viper?
Video identification parade electronic recording
Does a suspect have an opportunity to view the videos that will be included in the viper to identify them?
Yes
What do police have to tell the eye witness immediately before the VIPER is shown?
That the person may or may not be included in the viper
Can the recording of the VIPER procedure be shown to the suspect?
Yes, on request, at the discretion of the officer
Does the suspect have a right to a photo of the ID parade they were in?
Yes on request
How many people in an identification parade?
At least 8
Can the suspect select their own position in an ID line?
Yes
Can the witness in an ID parade ask the parade members to speak or move?
Yes
What is confrontation by eye witness?
When only one person is shown to the witness and asked if this was the guy
What is a voir dire?
A trial within a trial
What will a judge consider when thinking about whether to exclude eye witness evidence?
Whether there has been significant prejudice to the accused
If there hasn’t been a formal identification procedure, is it likely that identification evidence could be excluded?
Yes
When rights do defendants have when ID evidence is admitted despite a breach?
Can comment on breach during the closing speech
Trial judge ought to draw attention to the breach
Jury should assess whether the breaches cause them to have doubts
Which defendants are passported for legal aid?
Under 18
Those on specified welfare benefits
How is a defendants weighted gross annual income calculated for MAGS means assessment?
Includes partners income (unless they are the complainant)
Weighting is applied for the number of people living in the household
What is the lower threshold to be eligible for public funding in MAGS?
12,475
What is the upper threshold to be ineligible for public funding in MAGS?
22,325
Which defendants will need to undergo a full means test for legal aid funding in MAGS?
Those whose weighted gross annual income is between 12,475 and 22,325
What does the full means test in mags do?
Establishes the applicants annual household disposable income
What recourse does a legal aid applicant have in mags?
An eligibility review
What is the threshold for being ineligible for public funding in MAGS after a full means test?
Disposable income of 3,398 or less
Does capital form a part of the means test in MAGS?
No
What is the means test for Crown court?
Combined income and capital allowance of 30k, then they have to contribute
At what point in trial will a Crown court defendant pay their fees if paying out of personal capital?
At the end of the case
At what point in trial will a Crown court defendant pay their fees if paying out of income?
Throughout the duration of the trial
What metric does the Crown court means test look at?
Annual household disposable income
What metric does the MAGS court means test look at?
Weighted gross annual income
When will a crown court defendant be ineligible for public funding?
If they have more than 37,500
When will a crown court defendant be eligible for public funding without any contribution?
Less than 3,398
When will When will a crown court defendant have to make a financial contribution for their defence?
3,399 - 37,499
What contribution will the defendant have to make in Crown court?
90% of disposable income for a max of 6mo paid in instalments and subject to a maximum based on the type of offence
Will defence contributions be refunded with interest if acquitted?
Yes
When will a defendant pass the merits test automatically?
When charged with an indictable-only offence
When an either-way offence is later sent to Crown court
What are the 10 propositions to pass the interests of justice test?
Loss of liberty
Suspended/non-custodial that could be upgraded to custodial
Lose livelihood
Suffer serious reputation damage
Substantial question of law
Can’t understand court proceedings or present own case
Witnesses need to be involved or traced for me
Proceedings involve expert cross
It is in the interests of justice
Any other reasons
When will the loss of liberty interests of justice test be passed?
If the defendant is ACTUALLY LIKELY to get a custodial sentence, not just an imprisonable offence
When will the suspended sentence/non-custodial sentence interests of justice test be passed?
When the defendant is not complying with the terms of a non-custodial sentence then for this new offence it is more likely they’ll lose their liberty
Or if it is a suspended sentence then there is effectively a guarantee that they will lose their liberty
When will the serious damage to reputation interests of justice test be passed?
When it is SERIOUS.
Taken in context to that particular person e.g., easier if they are an upstanding citizen
When will the cannot understand proceedings or present my own case interests of justice test be passed?
Language
Why interpreter is not sufficient
Legal phrases/technical areas of law
Youth
Learning issues/mental health
When will the cross examination of prosecution interests of justice test be passed?
Would an experience police officer require cross examination
Age
Are the complainants also witnesses
Are there issues that make it difficult for the defendant to examine the witness
Could the defendant successfully conduct a trial without a solicitor but with the assistance of the authorised court officer?
When will the interests of another person interests of justice test be passed?
E.G., is a rape victim to be cross examined by her own rapist?
young victim
family that will suffer if they go to prison does not count
What are common ‘other reasons’ that the interests of justice test gets passed
I am pleading not guilty and matter will proceed to trial
Matter is likely to be sent to crown court
There are child witnesses or vulnerable witnesses
Can the defendant appeal if they fail the means test?
No, but they can submit another application if their circumstances change
Can the defendant appeal if they fail the merits test?
Yes
If the defendant fails the funding tests, to what extent can the duty solicitor represent them?
In the police station
at the first court hearing
What is the DPP
Director of public prosecutions
Can the DPP take over any private prosecutions?
Yes
Who makes charging decisions for indictable offences?
A crown prosecutor
Do police have discretion on whether or not to charge for certain offences?
Yes
What offences do police have discretion as to whether to charge or not?
All are summary offences
Various road traffic
Offences contrary to public order
Criminal damage where value does not exceed 5k
Low value shoplifting
Which officer can decide whether or not to charge for an offence?
The custody officer
Where do crown prosecutors derive their powers from?
The DPP
What are the 3 ways of commencing criminal proceedings?
Arrest and charge
Written charge and requisition
Laying an information
What is police-bail?
When a suspect is ‘bailed’ because no charges are brought yet OR
Charges are brought but they don’t need to be kept in custody
When is police bail usually used?
Insufficient evidence to charge and further investigation is required
Where police think there is enough evidence to charge, but must be referred to CPS for the ultimate charging decision
Can police-bail include conditions?
Yes
What does it mean to be released under investigation (RUI)?
Released not on police bail but acknowledged that the police are still looking into the matter
Does a person have to be arrested for a written charge and requisition to commence proceedings?
No
Who can commence proceedings using the written charge and requisition method?
A public prosecutor
Which prosecutors can commence proceedings using a written charge and requisition?
Available to ‘relevant prosecutors’
Those who prosecute on behalf of the state
How are proceedings commenced via ‘laying an information’
Prosecutor gives info alleging an offence to MAGS
Court then issues a summons or a warrant
Can private prosecutions be commenced via an arrest warrant?
No
What method of commencing proceedings do private prosecutors use?
Laying an information
What is contained in the written charge/information statement?
Statement of the offence
Reference to the statutory provision
Sufficient particulars of the conduct complained of to know what is alleged
What information is included in a criminal court summons or requisition?
Notice setting out when/where required in court
Specify each offence in respect of which it has been issued
What is the ‘statute of limitation’ in UK criminal law?
When summary only, mags should not try and information or hear a complaint unless within 6mo of the date of the alleged offence
Is there a statute of limitations for an indictable offence?
No
Who generally provides advice on charge?
The CPS
When is a case adjourned?
Court cannot conclude the case in one hearing
What does remand mean?
Obligated to come back to the case to continue it
Can be custodial or non-custodial
Who applies to have a defendant remanded in custody?
The prosecution
Are there any presumptions surrounding bail?
There is a presumption in favour of granting bail
What does the prosecution have to present to refute bail for a defendant?
Objections to bail
Can a prosecutor come up with any reasons it wants to object to bail?
No, they are finite and defined by law
What is the right to bail?
The presumption that a defendant should have bail
Does the right to bail still apply after conviction is adjourned?
Yes, if before sentencing
When does right to bail become absolute?
If the case has not progressed according to time limits
Are there any offences for which the presumption of bail is removed?
Statute seems to remove it for offences like murder
In what 2 cases does the right to bail not apply?
- Those appealing their conviction or sentence
- Defendants being committed for sentence from MAGS to Crown
What are the ‘big 3’ grounds to rebut the presumption to bail for indictable offences?
There are substantial grounds for believing that the defendant would
Fail to attend a subsequent hearing
Commit further offences on bail
Interfere with witnesses or otherwise obstruct the course of justice
What does substantial grounds for believing mean in the context of being denied bail
That the ‘bad’ behaviour is more likely than not
Can witnesses be called when determining whether somebody is denied bail?
Yes
Is hearsay evidence permitted in the context of denying bail?
Yes
Should bail be granted if the defendant has no real prospects of the defendant receiving a custodial sentence?
yES
What is the general rule regarding rebutting the presumption of bail for summary offences?
Bail is given unless someone has failed to surrender to bail in the past (e.g., broke their bail conditions)
What is the secondary ‘trio of grounds’ to justify denying bail?
Remand in custody is for the defendants own protection
Court has insufficient information to deal with the issue of bail so temporarily remands in custody
Defendant is already serving a sentence in custody
What are the 2 specialist grounds for denying bail?
Serious cases with high penalties
Cases of a particular nature that affect the assessment of the risk posed by a defendant on bail
What process should you follow when trying to determine whether bail will be granted?
Check whether the defendant falls into one of the special categories
If a serious case: there is more stringent test for granting bail
If cases of particular character: there are additional grounds the prosecution can rely on in addition to general grounds
Who can grant bail for murder?
Only crown court
When will bail not be granted for murder unless there are exceptional circumstances to justify it?
D has a pre-con for murder, attempted murder, rape or a serious sexual offence
When can a murder defendant be granted bail?
There is no significant risk of them doing an offence that causes physical or mental injury
Can a D for attempted murder, rape or serious sexual assault be granted bail if they have previously been convicted of one of those same offences?
No
For an offence carrying life imprisonment, what is the special consideration regarding whether D will be granted bail?
If they were already on bail or failed to attend having been on bail… then D may not be granted bail unless there is no
What are the special conditions for granting bail for an abuse of drugs charge?
If D has Class A drugs in their body
+
The offence relates to Class A drugs
Court may not grant bail unless there is no significant risk of D committing an offence on bail
What are the special bail conditions for an offence against a partner or family?
Cannot be granted bail for an imprisonable offence if the court believes that there are substantial grounds to believe D would commit an offence on bail and would be likely to cause physical or mental injury to an associated person
When would bail be restricted for an offence against partner or family when the offence is not imprisonable?
If D is arrested due to a breach of bail
How does rights to bail change if D has previously absconded on bail?
Bail need not be granted again unless prior to conviction and there is no realistic prospects of a custodial sentence
How to rights to bail change if the defended committed an indictable offence while on bail?
Court need not grant bail
How to rights to bail change if D committed an summary imprisonable offence while on bail?
Court need not grant bail if there are substantial grounds for believing that D will commit further offences
What is the function of bail factors?
They help support whether or not the grounds have been made out
Are factors mandatory considerations for the main three grounds?
Yes
What are the bail factors?
- Nature and seriousness of the offence and likely disposal
- The character of the defendant, D’s antecedents, associations and community ties
- D’s previous bail record
- The strength of the evidence
What must the court consider before attaching a condition to bail?
Whether the condition is relevant, proportionate and enforceable
What are common bail conditions?
Residence at a given address
Curfew
Reporting to a local police station at given times
Surety
Security
Restriction on where defendant may go
Restriction on who the defendant can have contact with
Electronic monitoring
Bail hostel
Surrender of passport
When can bail conditions be varied without a hearing?
If the parties agree on the variation
To which court should an application be made to vary bail conditions?
The court which granted the bail
Who can make applications to vary bail conditions?
Defence or prosecution
What happens if you breach a bail condition?
Bail is likely to be withdrawn
Can somebody be arrested because officers think somebody is about to breach their bail?
Yes
Is it a criminal offence to breach a bail condition
Not most of them
Which bail breach is a criminal offence?
Failing, without reasonable cause, to surrender to custody
What is the sentence for failure to surrender?
3 months imprisonment and/or unlimited fine or 12 months and/or unlimited fine on indictment
Must the court give reasons to refuse bail or impose conditions?
Yes
Why do people say there are ‘2 attempts at bail’
Because you can try in MAGS at both your first and second hearing with literally the same case and just a different judge
After the 2 bail applications, what does the defendant need to get before they can appeal?
A certificate of full argument from MAGS
When are bail appeals heard?
1 business day after appeal notice is served
When can D apply again for bail after having been declined on appeal?
If there is a change in circumstances
Who hears bail appeals from MAGS?
Crown
How much time is there between the first bail application and second?
1 week
Can D still apply a second time for bail at MAGS, if they used their appeal to Crown after the first attempt?
No
What should the defendant do if they need bail urgently, and can’t wait for the second hearing in MAGS?
Appeal to Crown ASAP, they will hear it the following day
What 2 conditions must be satisfied for the prosecution to oppose bail?
Must have originally opposed bail
Offence must be punishable by imprisonment
What is the procedure for the prosecution to appeal against granting bail?
Indicate it orally at the hearing when the bail is granted
Confirm intention to appeal in writing and served on the court + defence within 2hr
When prosecution appeals bail grant, when will the appeal be heard?
Within 48hrs, excluding weekends of giving their written notice
Who hears the prosecutions appeal against bail?
Crown court
Is the procedure for appealing bail that was granted the same for MAGS and Crown?
Yes, except appeal will be heard in the high court
How many days can you be remanded in custody for trials in mags?
56 days
How many days can you be remanded in custody for trials in Crown Court for indictable or either way offences?
182 days less any says spent in custody prior to the case being sent to Crown
Can the court extend the amount of time spent remanded in custody?
Yes
What does the prosecution have to show to have remand in custody extended?
That it acted with:
All due diligence and expedition
There is a good and sufficient cause to have the defendant further remanded into custody
When must a trial commence for individuals remanded in custody?
Before the expiration of the custody time limit
When do MAGS trials technically start?
When the court begins hearing evidence from the prosecution
When does a Crown court trial technically start?
When the jury is sworn
For MAGS trials, do remand in custody have to continually be extended?
Yes
For Crown trials, does remand in custody have to be continually extended?
No
How long can you be remanded in custody for a MAGS trial before your first extension?
8 clear days
What happens after the first 8 clear delays remanded in custody for a MAGS trial?
You are given your second opportunity to apply for bail in a hearing
How often after the first extension does the D need to have their remand in custody extended for a MAGS trial?
Every 28 days or fewer
What is an onward remand?
When remand has to be renewed every 28 days for somebody awaiting a MAGS trial
Can an onward remand trial be conducted without the defendant?
Yes, with their consent
What is the bare minimum which must happen for an onward remand to be granted?
Magistrates have to remember to say on a given day: I remand Bob for a further 28 days in their absence
When must a defendant on bail, guilty plea anticipated, likely to be sentenced in MAGS have their first hearing within?
14 days
When must a defendant on bail, not-guilty plea anticipated, or the case is likely to go to Crown for trial or sentence have their first hearing within?
28 days of being charged
When must a D detained in police custody following charge be brought before a court?
The next available court
Must a defendant be present at the first hearing?
Yes
Why is it often not possible to proceed with a first hearing without the defendant?
Hearing likely deals with allocation of an eitherway offence or sending an indictable offence to the crown court
If the D has been summoned to court and didn’t commit and offence for non-appearance, can the hearing go ahead without them?
Yes if the prosecution served statements and the defendant has been warned of the hearing
Can a penalty be imposed if the defendant was absent?
Also yes
What is the last day the prosecution can serve the initial details?
No later than the beginning of the day of the first hearing
Does the prosecution have to give D the initial details of their case?
Yes, if requested
When should the prosecution aim to give the initial details of their case by?
As soon as practicable
What happens if the prosecution doesn’t serve initial details in time?
Court adjourns first hearing and awards costs to the defence for the prosecutions failure to serve
If the prosecution fails to serve the initial details of their case in time, is that a ground upon which the court can dismiss a charge or there be an abuse of process application?
Usually not
What is included in the initial details of the prosecutions case (not in police custody immediately before hearing)
Summary of the circumstances of the offence
Account given by D in interview
Any written statements and exhibits that are available and material to plea/mode of trial or sentence
Victim impact statements
Defendants criminal record
What does the initial details of the prosecution include D was in police custody immediately before the first hearing?
Only
Summary of the circumstance of the offence
Defendants criminal record
What purpose does the prosecutions initial details serve?
Must supply enough information to take an informed view on plea and a venue for trial
Should also identify the real issues and assist in giving directions
What do first hearings deal with for summary and either way offences
Plea
Bail
Representation and legal aid
Sometimes sentence
What do first hearings deal with for indictable only offences?
Only
bail
legal aid
indicate their plea on the Crown Court
What is the exception for a summary only offence to be sent to Crown?
When in connection with an indictable offence
Which summary-only offences MUST be sent to Crown if in connection with an indictable offence?
Common assault
Assaulting a prison or secure training centre officer
Taking a motor vehicle or other conveyance without authority
Driving a motor vehicle while disqualified
Criminal damage
What summary matters must be sent to Crown in connection with an indictable offence for plea only?
Any matter not listed in s 40 that is punishable by disqualification from driving or imprisonment
Which summary-only offences will appear on indictment in crown court?
Only those listed in s 40
When will the court proceed to sentence on first hearing?
Summary only guilty plea
What happens at first hearing for a summary only guilty plea?
Plea
Sentence
Sentence can be adjourned for further information
What happens at first hearing for a summary only not guilty plea?
Case management
- Preparation for Effective Trial Form
What is included on the PET form?
- Names and legal representatives
- Witness info
- Estimated length of trial
- Identification of trial issues
- Advance warning whether any applications are to be made (e.g., hearsay)
- Whether prosecution statements can be read
- Whether any special arrangements need to be made for anyone attending trial
- Defendant advocate has advised D of credit for early guilty plea and that trial will go ahead in D’s absence if D fails to attend on the trial date
What are common subjects of pre-trial hearings?
Admissibility of evidence
Fitness to plead
When is a pre-trial ruling binding until?
Conviction or acquittal
Prosecution decision not to proceed
Dismissal of the case
What can a party do if they disagree with a pre-trial ruling?
Apply to have it varied or discharged if there has been a material change of circumstances
Can the court discharge or vary a pre-trial ruling?
Yes, if it is in the interests of justice to do so and the parties have been given an opportunity to be heard
When can you plead guilty by post?
The matter was commenced by summons or requisition
Prosecution served a summary of evidence
Prosecution has served information relevant to sentence
What happens at the first hearing for an either-way offence?
Warnings: can be sentenced by the court, committed to Crown for sentencing
Charge is read out
Asked to indicate plea
What plea options are there at a plea before venue?
Guilty
Not guilty
No indication
How is a no-indication plea treated?
Not guilty
How would an equivocating guilty plea be treated?
Not guilty
How would this plea be treated: ‘Guilty but I would have given the item back’
Not guilty
What must MAGS be careful of if adjourning for sentence?
Creating an expectation that the defendant will be sentenced in MAGS
What is a PSR?
Pre-sentence report used in mags when adjourning before sentencing
When should MAGs order a PSR if committing for sentencing?
there is a realistic alternative to a custodial sentence
the defendant may be a dangerous offender
there is some other appropriate reason
What does the allocation guideline say about how either-way offences should be tried?
They should be tried summarily
What does the allocation guideline say about when either-way offences should NOT be tried summarily?
Outcome would clearly be a sentence in excess of the courts powers
unusual procedural or factual complexity
Can MAGS retain jurisdiction even if the sentence might exceed powers?
Yes and it should if it can
What 3 things does the prosecution do at the allocation hearing?
Opens with facts
Outlines the defendants offending history
Makes submissions as to where the trial should be held consistent with the allocation guidelines
What 2 things does the defence do at the allocation hearing?
Make submissions as to venue
Disagree or agree with the prosecutions opinion about the venue
What does ‘election’ refer to?
When D chooses MAGs or Crown
Can you still be committed to crown for sentence after a summary trial?
Yes
Why is advice usually to elect a crown court trial?
Acquittal rate is higher
Separate tribunals of law and fact can be advantages (voir dire procedures can have evidence excluded)
Not always the case that a Crown Court gives a harsher sentence than mags
Which 3 key offences don’t neatly fit into a category (e.g., summary only)
Low value shoplifting
Criminal damage
Complex fraud
Where children may be called as witnesses
What category of offence are fraud and cases regarding children given notice under s51b or s51c treated as?
They follow the indictable procedure and are sent straight to crown
At least 2 criteria from a larger list must be satisfied for a case of complex fraud, what is the list of criteria?
Amount is alleged over 500k
Significant international dimension
Requires specialist knowledge
There are numerous victims
Likely substantial and significant fraud on a public body
Is of widespread public concern or endangers the economic wellbeing of the UK
How many magistrates are needed for an early administrative hearing?
1
Can a single magistrate make a bail or custody decision?
Yes
What is the approach when multiple defendants are jointly charged with a summary only offence and some plead not-guilty but others plead guilty?
Those who plead guilty have their sentence adjourned until after trial
For an either-way offence with multiple defendants, can one defendant elect crown and the rest stay in MAGS?
No, if one elects crown they must all go to crown
Which court will it go to if one defendant is charged with summary only and the other defendant an either way offence?
The either-way is decided first, the summary only follows the either-way
What happens when the defendant is charged with a summary only and an indictable only or either-way offence to be tried at Crown?
If summary is dealt with at the same hearing it MUST be send to Crown
If summary is dealt with at a subsequent hearing it MAY be sent to Crown
What is used material in a criminal case?
That which the prosecution will rely upon at trial
What is unused material in a criminal case?
Material that is not being relied upon by the prosecution at trial
Why is unused material important to a criminal defence?
Because it usually includes information that is contrary to the prosecutions case
Does the prosecution have to give over information that is disadvantageous to its case?
Yes
Is there a duty to retain material found in a criminal investigation?
Yes
What are the 4 stages of criminal disclosure?
- Investigation
- Initial duty of disclosure on the prosecution
- Defence disclosure
- Continuing duty on the prosecution to keep disclosure under review
What 3 officers does each criminal case have?
Officer in charge of the investigation
An investigator
A disclosure officer
Does the investigator have to pursue all lines of enquiry, including those for and against their suspect?
Yes
What is the general role of a criminal disclosure officer?
Inspect, view, listen or search all relevant material
Provide a personal declaration that they looked at everything
What should the disclosure officer do if they aren’t sure as to whether some materials are disclosable?
Seek the assistance of the prosecutor
How long must material be retained and recorded for?
- Until a decision is made as to whether or not to institute proceedings
- Until the suspect is acquitted, convicted or prosecutor does not want to continue with the case
- Until the defendant is released from custody
- Until 6mo from the date of conviction (non-custodial)
- Until the appeal is concluded
What happens if information comes to light after proceedings have conclude that could risk the safety of the conclusion?
The prosecutor must consider disclosure of the material
What is an MG6C?
A schedule of material given to the prosecutor by the disclosure officer
What does a prosecutor need to do if they don’t have anything to disclose to the defence?
Give the accused a written statement that there is no material they are in possession of that is adverse to their own case in any way
What is ‘prosecution material’
- material in the prosecutors possession and came into his possession in connection with the case for the prosecution against the accused
- which he has inspected in connection with the case for the prosecution against the accused
What factors might be relevant to consider when deciding whether material should be disclosed?
- Needed for cross?
- Capacity to support submissions leading to
- exclusion of evidence
- stay of proceedings as a abuse of process, where material is required to allow a proper application to be made
- court or tribunal finding that any public authority had acted incompatibly with the accused rights under the ECHR - Capacity to suggest an explanation of the accuseds actions
- Capacity to have scientific or medical bearing on the case
Is the law prescriptive of the result or method of criminal disclosure?
Result, prosecution can decide their case by case strategy
What is the time limits for initial disclosure?
No later than the beginning of the day of the first hearing
When does the duty of disclosure technically arise in MAGS?
When the defendant pleads not guilty and the case is adjourned for summary trial
When does the duty of disclosure technically arise in Crown?
When a defendant has been sent for trial or a Voluntary Bill of Indictment has been preferred against the defendant
What is the common-law duty of disclosure?
Also the statutory duty of disclosure arises when defendant pleads not guilty or is sent to trial, a common law duty of disclosure arises when the prosecutor recognises something should be disclosed in the interests of justice and fairness
e.g., if they think they’ll need the info for a bail hearing
Under the common law duty of disclosure, does the prosecution have to disclose even if the statutory duty has not yet arisen?
Yes
Is there a specific prescribed number of days or time limits for prosecution disclosure?
No – as soon as practicable after the duty has arisen
Does the court often set deadlines for disclosure?
Yes
What orders are likely to be made for disclosure after a first hearing in mags where D pleads not guilty and the case is adjourned for a summary trial?
Court will give a date when prosecution has to serve their remaining evidence
Date will be given if the prosecution has yet to comply with its initial disclosure of unused material
How much disclosure is required to be made before the PTPH hearing?
Sufficient to enable the court to case manage without the need for a further hearing
Is the duty of disclosure continuing?
Yes
Is the disclosure test objective or subjective?
Objective – if it helps the defence it counts
Which officer is responsible for ensuring that proper procedures are in place for recording information and retaining records of information and other material during an investigation?
The officer in charge of the investigation
Does the defence have a duty to serve material that is helpful to the prosecution?
No
What does a defence statement do?
Give reasonable clarity to what the defence statement is
What 5 things must a defence statement include?
- Nature of defence and particular defences
- Matters of fact on which he takes issue
- Why he takes issue
- Facts intending to rely on for defence
- Indicating points of law and authority on which he intends to rely on for that purpose
What must a defence statement disclosing an alibi give particulars of?
Name, address, DOB of a witness that can support the alibi or as much info as possible
Information the accused has which would be of material assistance in identifying those potential alibis
Is a defence statement compulsory in mags?
No
Is a defence statement compulsory in crown?
Yes
What is the deadline to serve a criminal defence statement?
in crown
Within 28 days of when the prosecution provides its initial disclosure
When can the deadline to serve a criminal defence be extended?
If made within the OG time limit
If the court is satisfied that it would not be reasonable to require the defendant to give a statement within 28 days
If a defence statement is being used in MAGS, what is the deadline to serve it?
Within 10 business days of the prosecution complying with initial disclosure
If not making a defence statement in mags, can the defence still make an application for initial disclosure?
No
What does the defendant have to disclose to the court and prosecutor regarding witnesses?
If they intend to call them at trial
Names, DOB, identifying information
Which witnesses go in the defence statement, and which ones in the Notice of Intention to Call Defence Witnesses?
Defence statement – alibi witnesses
Notice of intention – all others
What is the deadline to provide the Notice of Intention to Call Defence Witnesses in mags and crown?
10 DAYS IN MAGS (standard direction)
Within 28 days of initial disclosure in Crown
What happens if the defence fails to serve valid disclosure?
Adverse inferences
Prosecution can comment on it without leave of the court unless it relates to a point of law
Prosecutions can challenge an inadequate statement and require a new one to be filed
Can the court give additional sanctions beyond adverse inferences, prosecution comment and resubmission for messing up defence disclosure?
No
Are there any consequences if you don’t submit a disclosure in MAGS?
No, e.g., no adverse inferences because it isn’t mandatory
What tactical advantage could there be to not serving a defence statement?
You can avoid drawing the attention of the prosecution in light of certain issues
Is the defendants proof of evidence contained within the defence statement?
No
What application can the defence make if they think something should have been disclosed but wasn’t?
An application for specific disclosure
What things need to have happened before an application for specific disclosure can be made?
Defence must have served a defence statement
Prosecutor must have provided further information or noted that no further info was required
What must the application for specific disclosure argue?
That the prosecution has the material
That the material should have been disclosed
What should happen before an application for specific disclosure?
Collaborative discussion
What 4 potential consequences can arise if the prosecution doesn’t do disclosure properly?
Stay the indictment on grounds that the case is an abuse of process of the court
Conviction quashed on appeal b/c unsafe
Delay, wasted costs, refusal to extend custody time limits
Exclusion of evidence due to unfairness
Do third parties have a duty of disclosure?
No
Does the prosecution have a duty to try and obtain relevant materials held by 3rd parties?
Yes
Is speculative enquiries towards third parties around disclosure required?
No
What options does the prosecution have if the third party refuses to disclose?
They can seek a summons
What should the prosecution apply for if they think information they have will give rise to a real risk of prejudice to important public interest regarding disclosure?
They should apply to the judge for non-disclosure in the public interest
What is non-disclosure in the public interest also known as?
Public interest immunity
Does sensitive material have to be recorded at the investigation stage?
Yes
Where is sensitive material recorded during the investigation stage?
The sensitive material schedule
What must also be stated in the sensitive material schedule?
Why the material is sensitive and to what degree
The consequences of disclosing the material to the defence
The relevance of the issues in the case
The implications for continuing the prosecution if the material is ordered to be disclosed
Whether it is possible to make a disclosure without compromising sensitivity
When can pre-trial matters be considered?
At a first hearing
At a hearing on a date after the first hearing and before the trial date
On the day of trial before it starts
Should pre-trial matters try and be resolved before the day of trial?
Yes
What do first hearings in mags commonly give directions for?
Service of documents between the parties
Either resolve there and then any matters of law or set out a time table as to when they will be resolved
Set a trial date
If MAGS determines something in a pre-trial hearing, does it bind itself?
Yes
When can MAGS change a pre-trial ruling?
When there is a material change in circumstances or something was not brought to the attention of the court when they made the ruling
What is the inherent problem with judges ruling on admissibility of evidence?
They have already heard it and could be biased
Which court sets the date for the PTPH?
MAGS when it is sending the case to crown
What is the deadline for when the PTPH is held?
Within 28 days of being sent from MAGS
What is a sending sheet?
A notice specifying the offences when sending to Crown
Is there a prescribed form for the sending sheet?
No
What is the deadline to serve evidence when the defendant is in custody?
50 DAYS
What is the deadline to serve evidence when the defendant is on bail?
70 days
What is the deadline to send a draft indictment?
20 business days after serving prosecution evidence
Where is evidence uploaded to?
Crown Court Digital Case System
What are the 2 parts within the PTPH form?
Plea
Sentence or trial preparation stage
What is an arraignment?
When a defendant pleads guilty or not guilty to each charge
What happens if there is a mix of guilty and not-guilty pleas at the PTPH?
Prosecution has to consider how it wishes to proceed:
- Court moves to sentence
- Moves to the trial preparation stage
What happens if the defendant is deemed unfit to plead?
The trial takes place without a plea and the jury decides whether the defendant committed the actus reus but the mens rea is not considered
What punishments can a defendant who is found unfit to plead get?
Absolute discharge
Supervision order
Hospital order
What are the four ‘staged dates’ determined at the PTPH
Trial date
Prosecution evidence
Expert evidence
Witness requirements
What are 5 common ‘further directions’ applications dealt with a the pre-trial stage?
Applications to exclude evidence or introduce otherwise inadmissible evidence
Special measures (witness assistance)
Vulnerable defendants
Witness summons and warrants
Applications to change plea
What types of special measures are available to witnesses?
Screens
Live TV link
Evidence given in private
Removing wigs and gowns
Video recording of evidence in chief
Pre-recording of cross and re-examination
Questioning through an intermediary
Aids to communication
What 6 categories of witness are eligible for special measures?
All witnesses under 18
Mental disordered
In fear or distress and quality of evidence will be reduced
Adult complainants of sexual offences
Adult complainants of certain offences under the modern slavery act
Witnesses to a ‘relevant offence’ e.g., homicide or knife crimes
What are the additional types of special measures for witnesses?
Witness anonymity orders
Automatic anonymity of complainants in sex cases
Prohibition of cross examination by defendants in person of complainants in sex cases and child witnesses for violent and sexual offences
Restricting reporting of witness identity
What is the role of the witness intermediary?
Assist communication
Who does a witness intermediary owe duties to?
The court
Does MAGS, Crown or both have the power to issue a witness summons?
Both
What happens if a witness disobeys a summons?
Can be arrested, contempt of court
What is the process to change a plea from not guilty to guilty?
At any time before verdict, ask for the indictment to be put again
What is the deadline for trying to change your plea from guilty to not guilty?
Any time before getting sentenced
What is the process for changing your plea from guilty to not guilty?
Apply to the court to vacate your plea
What are the 2 most common scenarios where the court will allow a change of plea from guilty to not guilty?
The defence can show that the prosecution has no evidence of an essential ingredient
Defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by their legal team
What does council usually have to do if a plea is changed from guilty to not guilty?
Resign, cause if that it happening it means they probably majorly errored
Is legal privilege often waived when changing a plea from guilty to not guilty?
Yes
Why is legal privilege often waived when changing a plea from guilty to not guilty?
Because usually you have to prove that council did something wrong
In what 3 ways can you ‘prove a fact’ in evidence other than live witness evidence?
Agreeing a witness statement is true by party consent
Agreeing any fact between the parties
A judge or jury to take judicial notice of the fact
If a witness statement is agreed as true do they still have to attend court?
No
What is the process for agreeing a fact between parties?
The facts are written out and the lawyers sign
Do parties have to prove facts that are widely and generally known?
No
What is judicial notice?
For facts that aren’t widely known, but are easily known and verifiable the judge takes a judicial notice on enquiry
What should a juror do if they have personal knowledge of facts which are not widely known and are relevant to the case?
Let the court know
What is the most common form of evidence?
Oral witness evidence
What is real evidence?
Items, things, documents
What is direct evidence?
Something the witness has direct experience of
I saw them at the train station at midnight
What is circumstantial evidence?
Evidence from which facts are inferred
e.g., they had a train ticket in their pocket for a train departing at midnight
What is ‘view’ evidence?
When the jury visits the scene of a crime or leaves court to view an object that can’t be brought into court… their observations become evidence
What is the first and most fundamental principle of evidence?
For evidence to be admissible, it must be relevant
How is evidential relevance established?
Whether evidence is logically probative – does it prove or disprove a fact in issue
What does evidence being logically probative mean?
It proves or disproves a fact in issue
Would evidence of a previous incidence of dishonesty be admissible (relevant enough) for a case where the mens rea involves proof of some dishonesty?
No, because it wouldn’t prove dishonesty in that specific case
Besides relevance, what dictates whether evidence will be admissible or not?
The exclusionary rules
Who decides on the weight of evidence?
The jury
When can a judge intervene as to the admissibility of evidence?
If it is so tenuous, that no one could reasonably put any weight on it
Who has the burden of proving an offence?
The prosecution
What is the standard to which the prosecution must prove?
Beyond reasonable doubt aka so that you are sure of guilt
When does the defence have to prove things?
E.G., for insanity, self-defence… all specific defences
What is the evidential burden?
Before evidence is put to the jury, the judge has to be satisfied that the jury heard some evidence on which it could find that the issue had been proved
What does ‘passing the judge’ mean?
When the judge has to decide whether the evidential burden has been met or not
Realistically, when is the only time when the legal and evidential burden become detached?
Self-defence
Defence has to raise SOME minimal evidence that they acted in self defence
Prosecution then has to disprove self-defence to establish that the force was unlawful
What happens if the prosecution fails to put forward any evidence to prove one of the elements of an offence?
The case will be dismissed
Does the defence have to prove alibi?
No, the prosecution has to disprove the alibi
Does the defence have to prove the defence of duress?
No, the prosecution has to disprove it
What are the 6 principal ways of excluding evidence or brining a prosecution case to an end?
Apply for dismissal
Submission of no case to answer
Apply to exclude evidence under PACE
Apply to exclude confessions under PACE
Apply to exclude evidence under the preserved common-law provisions
Abuse of process applications
When is an application for dismissal made?
When sent to crown from mags
when defendant was served with evidence relating to the offence
Before the defendant is arraigned
Can the defence make an oral application for dismissal?
Yes, if they provide written notice
What is the test for dismissing a charge?
If the judge thinks that the evidence would not be sufficient for a proper conviction
What is the test for a submission of no case to answer?
- There is no evidence the crime has been committed by the D
OR
- Where the prosecution evidence, taken at its highest, is such that a properly directed jury could not convict on it
Where is an application of no case to answer made?
Either crown or mags
Can you apply for no case to answer on only some charges?
Yes
How should the judge decide whether no jury could properly convict when considering no case to answer?
They should look at whether or not the strength or weakness of the evidence depends on matters which are generally within the province of the jury
When is the submission of no case to answer made?
When the prosecution has finished making its case
What is a ‘half time submission’ and why is it known as that?
A submission of no case to answer
Because it happens at ‘half time’ after the prosecution has finished making its case
Does a submission of no case to answer happen with or without the jury there?
Without
What is the Galbraith test?
The criteria for deciding whether there is no case to answer
Does a court have to give reasons for rejecting a submission of no case to answer?
No
What are the 2 categories of case when the court has the power to stay proceedings for abuse of process?
- Accused can no longer receive a fair trial
- Unfair to try the accused, it would put the integrity of the criminal justice system in jeapordy
Is abuse of process a last resort?
Yes, if it can be put right another way it should
What are 4 examples of likely successful abuse of process applications?
D was tricked or coerced into committing the offence
D was prosecuted despite the prosecution promising that they wouldn’t
Police undermined public confidence, e.g., destroyed evidence
Prosecution misused or manipulated the process of court to deprive the D from protection afforded at law
When could delay amount to abuse of process?
If the prosecution did it deliberately or it appears that they did
What grounds for abuse of process exist in MAGS?
Only that the defendant is unable to have a fair trial
Can the common law discretion to exclude evidence apply to the defence, prosecution or both?
Only the prosecution
What is the common law discretion to exclude evidence?
If the prejudicial effect outweighs its probative value
Can co-defendant A apply to exclude defence evidence that co-defendant B wants to submit?
No
What is a Section 78 PACE application?
Application to exclude unfair evidence having regard to all circumstances including how it was obtained
Can s 78 exclude a defendants evidence?
No
In what circumstances is s78 most likely to apply to exclude evidence successfully?
Where evidence was obtained from
Breaches of Police Codes of Practice
ECHR breaches
Is an ECHR or Police Codes breach enough for a s78 application to be approved?
Probably not, it has to be unfair…
If the breach was in bad faith then it probably is unfair
When will the court of appeal interfere with a judges decision under s78?
Only if it was perverse, and no reasonable judge could have come to that conclusion
What are the 3 opportunities to make a s78 application?
Before trial
Commencement of Trial
Just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded
When will a judge usually want a hearing for a s78 application?
If the approval of the application would very seriously jeopardise the prosecutions case
What is a voir dire?
Like a mini trial within the trial where the judge considers a dispute of facts before determining the outcome of an application
Both parties make representations, burden of proof is the same etc
What is the definition of a confession?
Any statement wholly or partly adverse whether made to a person in authority or not
What are the 2 limbs to exclude a confession?
Oppression
Unreliability
What is oppression in the context of excluding a confession?
Torture, inhumane or degrading treatment and use of threat or violence
What is the dictionary definition of oppression?
Burdensome, harsh, unjust, cruel exercise of authority
Do the attributes of the accused change whether or not they were oppressed?
Yes, some things might be oppressive to somebody but not to others
What is the process by which oppression is dealt with?
Defence raises it
Prosecution must then prove beyond reasonable doubt that the confession was not obtained by oppression
If oppression is proved NOT to have happened, can the defence still try and discredit the evidence by asserting oppressive practices etc?
Yes
What is the 3 step approach for when a defendant alleges their confession is unreliable?
Identify the thing said or done
Ask whether what was said or done was likely to render an unreliable confession (objective test)
Ask whether the prosecution proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said or done
Give some examples of things said or done that can render a confession unreliable
Promise to release somebody promptly from police custody if they tell all
Promise of bail on a full frank confession
Threat to arrest a suspects wife or partner if they don’t confess
Interviewing young/mentally vulnerable without an adult there
What is the approach when considering whether an act rendered a confession unreliable?
Not the actual circumstances, but a hypothetical question is asked: is there a likelihood that any confession would be unreliable in the circumstances prevailing at the time
What is the definition of unreliable, for the purposes of excluding a confession?
Cannot be relied upon as being the truth
What are three scenarios of unreliable confession circumstances?
Deprivation of sleep
Failure to caution
Denial of access to legal advice
What happens to evidence discovered as a result of an excluded confession?
Facts discovered are still admissible
They just can’t say the reason that the evidence was discovered in court
What happens to excluded confessions that the prosecution wants to use because it proves other things (e.g., hand writing proof but not content)
It will likely be usable
When/where is a dispute as to the admissibility of evidence first raised?
At the PTPH, trying to exclude evidence falls under the points of law provision
The court will then provide directions about submitting skeleton arguments re: excluding evidence
In MAGS what is the deadline to submit a defence skeleton argument in support (e.g., to exclude evidence)
10 days before trial
In MAGS what is the deadline for the prosecution to file a response to a defence skeleton argument in support (e.g., to exclude evidence)
5 days after the defence skeleton is submitted
What 2 questions should you ask when trying to tackle potential hearsay?
Does the evidence fall within the definition of hearsay? If yes – inadmissible
Does the evidence fall within one of the exceptions to the exclusionary rule?
Why is hearsay evidence generally excluded?
It is said to be unfair, because it cannot be tested by cross examination in court
When hearsay is critical to the case, what are the 3 principal factors that determine whether there can be a fair trial?
Where there is good reason to admit the evidence
Whether the evidence can be shown to be reliable
The extent to which counter balancing methods have been properly applied
What is hearsay?
A statement not made in oral evidence
Can parties agree to admit hearsay?
Yes
What is the 3-part test to determining whether something is hear-say?
- Identify the fact (matter) that is sought to prove
- Ask whether there is a statement of that matter in the communication
- If yes, ask whether it was one of the purposes of the maker of that communication that the recipient should believe that matter and act upon it as true
if yes it is hearsay
Is a private diary hearsay?
No, because there wasn’t intention people should believe anything
Is CCTV hearsay?
No because it is not a person there was no human input
Can a question be hearsay?
No, it doesn’t count as a statement
Is showing the effect of words hearsay? E.G., explaining that a solicitor gave advice for a no-comment interview?
No
Are legally significant words hearsay? e.g., an offer to provide sexual services for money?
No
Can falsehoods be hearsay (e.g., somebody saying a statement then saying none of it was true)
No, there is no intention of truth
How is hearsay different from original evidence?
Original evidence is just saying somebody said something, it isn’t asserting it as truth like a witness statement.. it is used to prove or disprove something
Hearsay is an assertion of truth as to a fact in issue
What are 3 statutory exceptions which allow hearsay to be admitted?
Witness is unavailable
It is a business document
iT IS IN THE INTERESTS OF JUSTICE
What 3 conditions must be satisfied to admit hearsay when the witness is unavailable?
Oral evidence, if it had been made, WOULD have been admissible as evidence
The person who made the statement is identified to the courts satisfaction
Any of the 5 conditions in subsection 2 are satisfied
What are the 5 conditions in subsection 2 regarding when hearsay will be admitted because the witness is unavailable?
Witness is dead
Person is unfit to be a witness
Person is outside UK and their attendance is not practicable (incl. by video link)
Person cannot be found even though steps have been taken
Through fear, person does not give evidence in the proceedings and the court gives leave for the statement to be included in the proceedings
Can you have anonymous hearsay?
No
When allowing an exception to hearsay because a person is unavailable due to fear, is it the defendant that has to have put them in fear?
No
To what standard does the court have to be satisfied that the witness won’t testify due to fear before a hearsay exception can apply?
The criminal standard
For admitting hearsay under an exception because the witness was unavailable due to fear, what is the approach if there has been witness intimidation?
It will probably be admissible, and the intimidatory defendant cannot complain that they did not have a fair trial
What types of documents does the business documents exception to no hearsay evidence apply to?
Medical evidence
Statements written down by police
What conditions must be satisfied to admit hearsay under the business document exception?
Oral evidence would have been admissible
The document was created or received by a person in the course of literally any professional businessy capacity
Person who supplied the information had or can be supposed to have had personal knowledge of the matters
All the people receiving the information were also in the course of trade
(SENDER AND RECEIVER CAN BE THE SAME PERSON)
In what circumstances will documents prepared in anticipation of criminal proceedings be admissible?
Documents were prepared for a person in fear, and the unavailability due to fear criteria is satisfied
Person who supplied the information in the statement could not reasonably be expected to have any recollection of the matters dealt with in the statement
