Criminal Practice

Question 1

What are the steps in the criminal justice process for a guilty plea?

Answer 1

1. Arrest and/or written charge and requisition
2. Plea guilty
3. Sentence
4. Appeal

Question 2

What are the steps in the criminal justice process for a not-guilty plea?

Answer 2

1. Arrest and/or written charge and requisition
2. Plea not guilty
3. Trial
4. Sentence or acquittal
5. Appeal

Question 3

What is a written charge and requisition?

Criminal Justice Process

Answer 3

• an arrest alternative
• mags compels attendance to court

Question 4

What court is a person brought before after arrest?

Answer 4

MAGS

Question 5

What governs police during an investigation?

Answer 5

PACE

Question 6

What can a defendant who plead guilty appeal against?

Answer 6

Sentence

Question 7

What can a defendant who plead not guilty appeal against?

Answer 7

Conviction and/or sentence

Question 8

What is required before you can start an appeal?

E.G., permission

Answer 8

Leave

Grounds of appeal

Question 9

When do you need leave and grounds of appeal?

Answer 9

To go from:
crown - court of appeal
Court of appeal to supreme court

Question 10

The Supreme Court may only hear a case when…

Answer 10

it raises a point of general public importance

Question 11

What is a litigant in person?

Answer 11

Somebody without legal representation

Question 12

What is the hierarchy of courts in the criminal system?

Answer 12

Supreme
Appeal
High
Crown
Mags
Youth

Question 13

Do sentence classifications apply to youths?

e.g., indictable

Question 14

What category of offence are the common-law offences?

e.g., either-way, indictable

Answer 14

They are always indictable

Question 15

What category of offences are statutory offences?

e.g., either-way, indictable

Answer 15

Can be any

Question 16

Where can you find the category of offence for statutory offences?

e.g., either-way, indictable

Answer 16

1. practitioner text
2. listed in statute

Question 17

Can summary only offences be tried in crown court?

Answer 17

No

Question 18

Can summary only offences be sentenced in crown court?

Answer 18

no

Question 19

Where will the first hearing for an indictable offence be?

Answer 19

Mags

Question 20

Where will a plea be entered for an indictable offence?

Answer 20

Crown court

Question 21

Can mags hear a plea for an indictable offence?

Answer 21

No

Question 22

Where is the first hearing for an either-way offence?

Answer 22

Mags

Question 23

Is the first hearing for a criminal trial always in mags?

Answer 23

Ya

Question 24

What is the purpose of the first hearing in mags for an either-way offence?

Answer 24

To determine the venue

Question 25

What does a trial on indictment mean?

Answer 25

Trial by jury in crown court

Question 26

If the statute provides only for a penalty on conviction on indictment or is a common-law offence what type of offence is it?

Answer 26

Indictable

Question 27

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?

Answer 27

Summary

Question 28

If the statute provides one penalty for summary conviction and a different one for conviction on indictment, what type of offence is it?

Answer 28

Either way

Question 29

Where can mags send cases for trial?

Answer 29

Crown

Question 30

Where can mags send cases for appeal?

Answer 30

Crown

High court kings bench

Question 31

Where can youth court appeals go?

Answer 31

Crown

High court kings bench

Question 32

When can a youth court appeal go to high court queens bench?

Answer 32

Appeals by way of case state and judicial review

Question 33

Where can Crown court cases go for appeal?

Answer 33

Court of Appeal

High Court Kings Bench

Question 34

Where do court of appeal cases appeal to?

Answer 34

Supreme court

Question 35

What is tribunal of fact?

Answer 35

The person or persons who make a decision as to disputed facts

Question 36

What is tribunal of law?

Answer 36

The person or persons who make a decision as to disputed points of law

Question 37

What 3 types of ‘judge’ can you have in mags?

Answer 37

1. District judge
2. Deputy district judge
3. Two or three lay magistrates and a legal advisor

Question 38

Where does a district judge sit?

Answer 38

Mags

Question 39

In what other capacities do deputy district judges work?

Answer 39

They are usually barristers and solicitors sitting part-time as a district judge

Question 40

Does a legal advisor supporting lay magistrates have to be legally qualified?

Answer 40

Yes

Question 41

How do you address a district judge?

Answer 41

Judge

Question 42

How do you address a deputy district judge?

Answer 42

Judge

Question 43

How do you address a lay magistrate?

Answer 43

Sir/madam

Question 44

What is the max sentence mags can give for summary offences?

Answer 44

6mo

Question 45

What is the max sentence mags can give for either-way offences?

Answer 45

12 mo

Question 46

What is the max fine mags can give?

Answer 46

Unlimited

Question 47

What are the 3 types of judges in the Crown court?

Answer 47

Circuit judge

High court judge

Recorder

Question 48

What is a recorder?

Answer 48

A barrister, solicitor, or judge from a lower or equal court authorised to sit part-time in the Crown Court

Question 49

How do you address a recorder?

Answer 49

Your Honour

Question 50

How do you address the vast majority of circuit judges?

Answer 50

Your honour

Question 51

How do you address a high court judge?

Answer 51

My lord/my lady

Question 52

How do you address a judge sitting in the Central Criminal Court

Answer 52

My lord/my lady

Question 53

How do you address a circuit judge who has been designated as a senior circuit judge and honorary recorder of a place?

Answer 53

My lord/my lady

Question 54

Do jurys play a roll at sentence?

Answer 54

No

Question 55

Who is the tribunal of fact in Crown?

Answer 55

The Jury

Question 56

Who is the tribunal of law in Crown?

Answer 56

Judge

Question 57

When can the Crown court take a plea/sentence of a summary only offence?

Answer 57

When it is joined to an indictable or either-way offence

Question 58

What ‘judges’ are present for an appeal within the Crown court?

Answer 58

Crown court judge

Two lay magistrates

Question 59

In a Crown Court appeal, is the case reheard?

Answer 59

Yes

Question 60

What powers does a Crown Court have when doing an appeal?

Answer 60

The powers the lower court would have had

Question 61

Can a defendant get a more severe sentence on appeal to Crown Court?

Answer 61

Yes

Question 62

Is leave required to appeal to Court of Appeal?

Answer 62

Yes

Question 63

When is leave not required to appeal to the Court of Appeal?

Answer 63

In cases of contempt, where appeal lies as of right

Question 64

What types of judges sit in the Court of Appeal?

Answer 64

Appeal Court Judges

High Court Judges

Crown Court Judges authorised to sit on the Court of Appeal

Question 65

When can an authorised Crown Court judge not sit on the Court of Appeal for a particular case?

Answer 65

Where the trial was conducted in Crown Court by a High Court Judge

Question 66

How do you address judges in the Court of Appeal?

Answer 66

My lord/lady

Question 67

Is there a jury in the Court of Appeal

Answer 67

No

Question 68

Does the Court of Appeal hear trials?

Answer 68

No

Question 69

Does the Court of Appeal hear new evidence?

Answer 69

Yes

Question 70

What sentencing powers does the Court of Appeal have?

Answer 70

Cannot pass sentence, can alter sentence

Question 71

Can the Court of Appeal give a more severe sentence than the one being appealed against from Crown?

Answer 71

No

Question 72

What does it mean to appeal a terminatory ruling?

Answer 72

Where there was a ruling to bring proceedings to an end… the matter is now no longer at an end

Question 73

What is the one circumstance where the court of appeal can increase sentence?

Answer 73

By application from the Attorney General

Question 74

Is leave required to appeal to the supreme court?

Answer 74

Yes

Question 75

When will leave to the Supreme Court be granted?

Answer 75

For a point of law of general public importance

Question 76

How do you address supreme court justices?

Answer 76

My lord/lady

Question 77

What kinds of judges sit on the supreme court?

Answer 77

Supreme court justices

Question 78

Which judges can sit in a summary trial?

Answer 78

Lay justices, District Judges or Deputy District Judges

Question 79

How many Crown courts are there?

Answer 79

Technically only “1”

Question 80

What is rule 1 in CrimPR?

Answer 80

The overriding objective

Question 81

What is the overriding objective in criminal law?

Answer 81

That criminal cases be dealt with justly

Question 82

What types of things go into dealing with a criminal case justly?

Answer 82

• 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

Question 83

What are the 3 duties of participants of the case?

Answer 83

1. Prepare and conduct case alongside the overriding objective
2. Comply with rules, practice directions and court directions
3. Inform court and all parties of any significant failure to obey

Question 84

What are examples of directions?

Answer 84

Timescales, disclosure orders, expert evidence, reporting restrictions

Question 85

What is the standard direction regarding bad character and introducing hearsay?

Answer 85

Must serve notice not more than 20 days after not-guilty plea was entered

As soon as is reasonably practicable

Question 86

When must the defence serve a defence statement?

Answer 86

Within 10 days of the prosecution complying with initial disclosure

Question 87

When must objection to a witness statement being made at trial be made?

Answer 87

Within 5 business days of service of the statement

Question 88

When must the defendant indicate if the oppose the introduction of bad character/hearsay evidence?

Answer 88

Not more than 10 business days after the service of notice to introduce it

Question 89

When must the defence make an application to introduce bad character of a prosecution witness?

Answer 89

Not more than 10 business days after prosecution disclosure

Question 90

When must points of law be identified in skeleton arguments?

Answer 90

At least 10 business days before trial

Question 91

What must both parties do 10 days before trial?

Answer 91

Serve a certificate of readiness

Question 92

Can a case progress in the defendants absence?

Answer 92

Yes

Question 93

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?

Answer 93

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

Question 94

What should you do in criminal law if there is a conflict or significant risk of conflict?

Answer 94

Not act for any of them

Question 95

Are the conflict of interest exceptions available in criminal law?

Answer 95

No

Question 96

What should you do when appointed as sole litigator for all co-defendants in a legal aid case to avoid a conflict of interest?

Answer 96

Don’t interview the clients together

Interview only the first client before you have any substantive contact with the second

Question 97

Is there likely to be a conflict of interest where one client blames the other?

Answer 97

Yes

Question 98

What are some common future risks conflicts

Answer 98

• 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

Question 99

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?

Answer 99

No, you have to ask client 1 for consent and if they don’t give it you have to cease acting for client 2

Question 100

Do the professional conduct rules around barriers to information apply in criminal cases?

Answer 100

No

Question 101

Can your criminal firm act for clients whose interests conflict (because information barriers won’t apply)

Answer 101

No

Question 102

Who does a criminal solicitor owe its main duty to?

Answer 102

The court

Question 103

What is the offence of perverting the course of justice?

Answer 103

e.g., manufactering false evidence, witness interference

Question 104

Where there is a conflict between a duty and a principle, what will take precendence?

Answer 104

The public interest and administration of justice but you can never breach confidentiality

Question 105

What category of offence is assault?

Answer 105

Summary

Question 106

What category of offence is battery?

Answer 106

Summary

Question 107

What category of offence is simple criminal damage under 5k?

Answer 107

Summary

Question 108

Is attempted assault an offence?

Answer 108

No

Question 109

Is attempted battery an offence?

Answer 109

No

Question 110

Is attempted simple criminal damage under 5k an offence?

Answer 110

Yes

Question 111

What category is attempted simple criminal damage under 5k?

Answer 111

Summary

Question 112

What category of offence is theft?

Answer 112

Either way

Question 113

What category of offence is burglary?

Answer 113

Either way

Question 114

What category of offence is fraud?

Answer 114

Either way

Question 115

What category of offence is assault occasioning actual bodily harm?

Answer 115

Either way

Question 116

What category of offence is wounding or inflicting grievous bodily harm?

Answer 116

Either way

Question 117

What category of offence is simple criminal damage over 5k?

Answer 117

Either way

Question 118

What category of offence is simple arson?

Answer 118

Either way

Question 119

What category of offence is robbery?

Answer 119

Indictable

Question 120

What category of offence is wounding or causing grievous bodily harm with intent?

Answer 120

Indictable

Question 121

What category of offence is aggravated burglary?

Answer 121

Indictable

Question 122

What category of offence is aggravated arson?

Answer 122

Indictable

Question 123

What category of offence is aggravated criminal damage?

Answer 123

Indictable

Question 124

What category of offence is murder where voluntary manslaughter is a possible outcome?

Answer 124

Indictable

Question 125

What category of offence is involuntary manslaughter?

Answer 125

Indictable

Question 126

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?

Answer 126

Aggregate the value of multiple offences

Question 127

Where is the value derived from in simple criminal damage?

Answer 127

Cost of replacement if destroyed

Cost of repair

Whichever is less

Question 128

What is the max sentence for criminal damage below 5k?

Answer 128

3mo prison

Level 4 fine

Can’t be committed to Crown court

Question 129

What is the max sentence for criminal damage above 5k in mags?

Answer 129

12mo

Level 5 fine

Can be committed to Crown for sentence

Question 130

What is the max sentence for criminal damage above 5k in Crown?

Answer 130

10 years prison

Question 131

What happens in a criminal damage case where the amount of money is uncertain?

Answer 131

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

Question 132

What category of offence is rape?

Answer 132

Indictable

Question 133

What category of offence is sexual assault?

Answer 133

Either way

Question 134

What category of offence is possession of Class A or B drugs?

Answer 134

Either way

Question 135

What category of offence is possession with intent to supply Class A or B drugs?

Answer 135

Either way

Question 136

Why is criminal damage an ‘important exception’

Answer 136

Because its the only offence that falls into multiple offence categories

Question 137

Does the court have to hear representations on the value of criminal damage?

Answer 137

No, it may

Question 138

What must a police officer have to make an arrest?

Answer 138

Reasonable grounds to suspect an offence was committed and D committed it

Question 139

What must the CPS and custody officer consider before making a charge?

Answer 139

Whether there is sufficient evidence to charge

(e.g., to provide a realistic prospect of Billys conviction)

Question 140

What does a submission of no case to answer mean?

Answer 140

The prosecution has failed to provide an arguable case

Question 140

At what point in the criminal justice process, does the accused start being referred to as the defendant?

Answer 140

On the charge

Question 141

What is the divisional court also known as?

Answer 141

High court kings bench division/

Question 142

Is the court obliged to provide an indication of sentence?

Answer 142

No

Question 143

When is an indication of sentence usually asked for?

Answer 143

When deciding whether to try the case summarily

Question 144

What information can the court give when giving an indication of sentence?

Answer 144

Whether there would be a custodial or non-custodial sentence if the defendant were to consent to be tried summarily and pleaded guilty

Question 145

After the court gives an indication of sentence, what question will they then ask the defendant?

Answer 145

If they would like to change their earlier not guilty plea

Question 146

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?

Answer 146

Yes

Question 147

Is indication of sentence binding on later courts?

Answer 147

No

Question 148

Does the defendant have a choice of court if MAGS considers it unsuitable to be tried summarily?

Answer 148

No

Question 149

What is the case progression for a not guilty summary only offence?

Answer 149

Proceedings commence

Mags hearing, consider bail issues and funding

Plea

Trial

Convict/acquit

Sentence

Question 150

What is the case progression for a guilty summary only offence?

Answer 150

Proceedings commence

Mags hearing, consider bail issues and funding

Plea

Sentence

Question 151

What is the case progression for a guilty either-way offence?

Answer 151

Proceedings commence

Mags hearing, consider bail issues and funding

Plea before venue

Plea

Sentence by MAGS or commit to Crown

Question 152

What is the case progression for a not-guilty either-way offence allocated as summary?

Answer 152

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

Question 153

What is the case progression for a not-guilty either-way offence allocated as Crown?

Answer 153

Proceedings commence

Mags hearing, consider bail issues and funding

Plea before venue

Plea

Allocation (summary or Crown)

Follows progression of indictable only offences

Question 154

What is the case progression for a not-guilty indictable only offence?

Answer 154

Proceedings commence

Mags hearing, consider bail issues and funding

Sent to Crown

PTPH

Plea

Trial by jury

Acquit/Convict

Sentence

Question 155

What is the case progression for a guilty indictable only offence?

Answer 155

Proceedings commence

Mags hearing, consider bail issues and funding

Sent to Crown

PTPH

Plea

Sentence by judge

Question 156

What is the hierarchy of police ranks

Answer 156

Chief superintendent
Superintendent
Chief inspector
Inspector
Sergeant
Constable

Question 157

What is a PC?

Answer 157

Police constable

Question 158

What is a DC?

Answer 158

Detective constable

Question 159

What is a PS?

Answer 159

Police sergeant

Question 160

What is a DS?

Answer 160

Detective sergeant

Question 161

What is the police codes of practice attached to?

Answer 161

PACE

Question 162

What do police codes do?

Answer 162

A guide to best practice

Question 163

Do breaches of police codes render evidence inadmissible?

Answer 163

No, but they can be the basis for an application to exclude evidence

Question 164

Do breaches of police code make officers liable to criminal or civil proceedings?

Answer 164

No

Question 165

Is reasonable grounds in PACE determined objectively or subjectively?

Answer 165

Nearly always both

Question 166

To make an arrest, what 2 things dos the officer have to demonstrate?

Answer 166

Legal authority to exercise the power

That they exercised the power lawfully

Question 167

What is the definition of an arrest?

Answer 167

There isn’t really an official one

Question 168

What are the characteristics of arrest, since there is no official definition?

Answer 168

Restriction of liberty

Facilitate investigation of the offence

Question 169

When is an arrest definitely unlawful?

Answer 169

When there is no possibility of the arrested person being charged with an offence

Question 170

Will restriction of movement constitute an arrest?

Answer 170

No

Question 171

Is a warrant for arrest required?

Answer 171

No

Question 172

What 2 things should you consider when looking at the lawfulness of an arrest without a warrant?

Answer 172

Ground for arrest

Reason for arrest

Question 173

Can an officer arrest somebody who is about to commit an offence?

Answer 173

Yes

Question 174

Can an officer arrest somebody who has reasonable grounds to believe somebody is about to commit an offence?

Answer 174

Yes

Question 175

What are examples of suitable reasons for arrest?

Answer 175

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

Question 176

Can a civilian make an arrest to prevent breach of the peace?

Answer 176

Yes, only for an indictable offence and they still need to show reasonable grounds

Question 177

What is the two part test for reasonable suspicion for an arrest?

Answer 177

1. officer carrying out the offence must actually suspect
2. a reasonable person in possession of the same facts would also suspect it

Question 178

What degree of reasonableness must an arrest be in terms of judicial review etc?

Answer 178

Wednesbury

Question 179

Would an officer who arrests on the basis of a mistaken understanding of the law have reasonable suspicion still?

Answer 179

No, reasonable suspicion relates to facts

Question 180

On what basis can MAGS issue an arrest warrant?

Answer 180

A substantiated oath

Question 181

What characteristics must the offence possess in order for MAGS to issue an arrest warrant?

Answer 181

1. Be indictable or imprisonable
2. Persons address must be insufficiently established

Question 182

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?

Answer 182

Yes

Question 183

What does being backed for bail mean?

Answer 183

The person should be arrested, given a date to appear in court then released on bail

Question 184

What must a person be informed of at the time of arrest?

Answer 184

The fact that they are under arrest

The ground for arrest

Question 185

Does grounds for arrest need to be given even if obvious?

Answer 185

Yes

Question 186

Does a failure to inform grounds of arrest make it unlawful?

Answer 186

No

Question 187

Can the information that is meant to be provided on arrest be provided right afterwards?

Answer 187

Yes, as soon as is reasonably practicable

Question 188

Can the information that is meant to be provided on arrest be provided by a non-arresting officer?

Answer 188

Yes

Question 189

Can an unlawful arrest by way of procedural irregularities be rendered lawful by a correction of the faulty procedure?

Answer 189

Yes

Question 190

Is ‘you’re nicked’ sufficient to inform somebody they are under arrest?

Answer 190

Yes

Question 191

Does a specific offence need to be cited when explaining grounds for arrest?

Answer 191

No

Question 192

When should an arrested person be cautioned?

Answer 192

As soon as practicable

Question 193

What are the words of caution?

Answer 193

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.

Question 194

Does failing to administer the caution render the arrest unlawful?

Answer 194

No

Question 195

What effect could failing to administer the caution have?

Answer 195

Any evidence which arises from that could be inadmissible for the prosecution

Question 196

What must be recorded in the pocket notebook on arrest?

Answer 196

Reasons

Giving of caution

Anything said by the arrested person

Question 197

Where is information about somebody being detained at a police station kept?

Answer 197

The custody record

Question 198

When can an officer use reasonable force?

Answer 198

When it is necessary to exercise one of their powers in PACE

Question 199

What factors will be considered when determining whether force was reasonable?

Answer 199

Nature and degree of force

Gravity of the offence

Harm that would flow from use of force

Possibility of effecting the arrest without force

Question 200

Does use of excessive force render an arrest unlawful?

Answer 200

No

Question 201

What approach should you adopt when trying to consider police powers?

Answer 201

P: Power
A: Authority
C: Criteria
E: Exercised correctly?

Question 202

When should an arrested person be taken to the police station?

Answer 202

As soon as practicable

Question 203

When does an arrested person not have to be taken straight to the police station?

Answer 203

When they are needed for other investigations which need to be carried out immediately

searches

checking alibi

Question 204

What police station does a person need to be taken to?

Answer 204

Any one is fine, but if being held longer than 6hrs needs to be a designated police station

Question 205

What is street bail?

Answer 205

Being arrested, and told to present to a police station voluntarily at a later date

Question 206

What things will happen to a person when they arrive at the police station?

Answer 206

Custody officer authorises continued detention

Detainee informed of rights

Non-intimate samples

Intimate samples by healthcare professional

Speak to solicitor

Interview

Question 207

What can happen to a detainee after police interview?

Answer 207

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

Question 208

Who is responsible for the welfare of suspects in detention at the police station?

Answer 208

The custody officer

Question 209

What rank does a custody officer have to be?

Answer 209

Sergeant

Question 210

Can the custody officer participant in investigating the offence?

Answer 210

No

Question 211

Can anyone other than the custody officer authorise detention at the police station?

Answer 211

No

Question 212

Which officer determines whether there is enough evidence to charge the detainee?

Answer 212

The custody officer

Question 213

If there isn’t enough evidence to charge, on what grounds can you still detain?

Answer 213

Secure or preserve evidence

Obtain evidence by questioning

Question 214

What additional types of welfare duties does the custody officer have?

Answer 214

Risk assessment for detainees

Making accommodation’s for the disabled

Arranging interpreters

Dealing with the detainees property

Contacting healthcare professionals

Question 215

What basic information must be recorded in the custody record?

regarding arrest

Answer 215

That the person was informed of their arrest

The circumstances of arrest

Why arrest was necessary

Any comments made by the arrested person

Question 216

Can a solicitor consult the custody record?

Answer 216

Yes, and they should

Question 217

What rank must a custody review officer be?

Answer 217

Inspector

Question 218

Can the detention review officer be the same person as the custody officer?

Answer 218

No

Question 219

When must police detention be reviewed?

Answer 219

In first instance, not more than 6 hours

Then every 9 hours thereafter

Question 220

What opportunities must the detained person be given upon review of their detention?

Answer 220

1. Reminded of their right to free legal advice
2. Be given the right to make representations

Question 221

What is the max time a suspect can be kept in custody without being charged known as?

Answer 221

The relevant time

Question 221

What is the max time a suspect can be kept in custody without being charged?

Answer 221

24hrs

Question 222

At what point does the relevant time for detention start?

Answer 222

From the moment the suspect arrives at the police station

Question 223

Is the relevant time different from the time detention is authorised?

Answer 223

Yes

Question 224

Is there a power to extend detention beyond 24 hours?

Answer 224

Yes

Question 225

How long can detention be extended?

Answer 225

Additional 12hrs for a total of 36 hours

Question 226

When can/must authorisation to extend detention be given?

Answer 226

Before 24hr expiry but after the second review

Question 227

What opportunities should the suspect be given if their detention is extended?

Answer 227

Grounds must be explained

Make representations with a solicitor

Question 228

What rank officer does it have to be to extend detention?

Answer 228

Superintendent

Question 229

What category of offence does it have to be for a person to have their police detention extended?

Answer 229

Indictable only

Question 230

What must the superintended believe in order to justify extending police detention?

Answer 230

Reasonable grounds for believing that detention is necessary to secure or preserve evidence or obtain evidence by questioning

Question 231

What do the police have to do if they want to extend beyond 36 hours?

Answer 231

Apply to mags for a warrant

Question 232

How long can mags extend police detention for?

Answer 232

36 hours on first application, and subsequent

MAX 96 hours total

Question 233

What criteria apply for MAGS when considering whether to extend police detention?

Answer 233

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

Question 234

What rights does a detained person have?

Answer 234

Consult privately with a solicitor and to free independent legal advice

To have somebody informed of their arrest

To consult the codes of practice

Question 235

Who informs detainees of their rights at the police station?

Answer 235

The custody officer

Question 236

When must a detainee be reminded of their rights to free legal advice?

Answer 236

Commencement or recommencement of an interview

Being asked to provide an intimate sample

Intimate drug search

Before an identification parade or video identification procedure

Question 237

What should happen if legal advice is declined?

Answer 237

Should be noted on the custody record

Question 238

When does legal advice need to be provided after it is sought?

Answer 238

ASAP

Question 239

Should police wait for the solicitor before beginning the interview?

Answer 239

Yes

Question 240

Can police dissuade the suspect from obtaining legal advice?

Answer 240

No

Question 241

What should police do if a suspect asks for a lawyer mid interview?

Answer 241

Stop the interview

Question 242

How long can police delay access to legal advice?

Answer 242

MAX 36 hours

Question 243

What category of offence does it have to be to have the right to legal advice delayed?

Answer 243

Indictable only

Question 244

What rank does an officer have to have to delay the right to legal advice?

Answer 244

Superintendent

Question 245

What does the superintendent have to believe before they can delay the right to legal advice?

Answer 245

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

Question 246

How many times can the right to have somebody informed of arrest be exercised?

Answer 246

Every time the suspect is taken to a new police station

Question 247

When does the right to an appropriate adult arise?

Answer 247

Person appears under 18

Mentally disordered or vulnerable

Anyone whom an officer has been told in good faith is disordered or vulnerable

Question 248

Who can be an appropriate adult?

Answer 248

Basically anybody who isn’t a police offer or police employee

Question 249

Who cannot be the appropriate adult?

Answer 249

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

Question 250

What is the role of the appropriate adult

Answer 250

Ensure understanding

Support/advise/assist

Make sure police act properly

Help communication

Ensure detained person understands their rights

Question 251

Can an appropriate adult request a solicitor on behalf of the person they’re helping?

Answer 251

Yes

Question 252

Does the detainee have to talk to a solicitor who was contacted by an appropriate adult?

Answer 252

No

Question 253

When can a vulnerable detainee be interviewed or asked to provide a written statement without the presence of an appropriate adult?

Answer 253

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

Question 254

In what 3 circumstances can a suspect be interviewed without an interpreter?

Answer 254

Interference and harm to evidence

Interference/harm to other people

Serious loss or damage to property

Question 255

Does bedding have to be supplied to detainees?

Answer 255

Yes

Question 256

What rank is required to authorise interview without interpreter?

Answer 256

Superintendant

Question 257

Do you have to caution people before interview?

Answer 257

Yes

Question 258

What rank is the investigating officer?

Answer 258

Any rank

Question 259

Where do police interviews have to take place?

Answer 259

At the police station, unless an exception applies

Question 260

What are the common exceptions as to when police officers can vary the rules/apply exceptions?

Answer 260

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

Question 261

Is there a right to disclosure before an interview?

Answer 261

No

Question 262

What things have to be disclosed before interview?

Answer 262

A significant statement

The custody record

Question 263

What information must a solicitor be given before an interview?

Answer 263

Sufficient information to enable them to understand the nature of any such offence and why the client is suspected

Question 264

What is a significant statement?

Answer 264

Anything that appears capable of being used as evidence

e.g., direct admission of guilt

Question 265

Must police interviews be recorded?

Answer 265

Generally yes

Question 266

What category of offence do police interviews need to be audio recorded?

Answer 266

Indictable

Question 267

When can an interview be recorded in writing?

Answer 267

Minor offences

Person has not been arrested

Takes place other than at the police station

Question 268

When will a person not be fit for interview?

Answer 268

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

Question 269

What rank officer can authorise interview for somebody who isn’t fit for interview?

Answer 269

Superintendent

Question 270

What should a solicitor do before a police station interview?

Answer 270

Get the pre-interview disclosure

Privately meet with the client

Question 271

Does a client have the option to suspend interview to further consult with their solicitor?

Answer 271

Yes

Question 272

Is repetitive questioning inappropriate in a police interview?

Answer 272

Yes

Question 273

Is misrepresenting information inappropriate in a police interview?

Answer 273

yes

Question 274

Are hypothetical questions inappropriate in a police interview?

Answer 274

yes

Question 275

Is disruptive listening inappropriate in a police interview?

Answer 275

Yes

Question 276

In what 2 circumstances can confessions be excluded

Answer 276

Oppression or unreliability

Adverse effect on the fairness of proceedings that the court ought not to admit it

Question 277

What is meant by oppression, in the context of excluding a confession?

Answer 277

Torture, inhumane or degrading treatment

Question 278

What does oppression or unreliability have to have done for a court to grant exclusion of confession?

Answer 278

Caused the confession

Question 279

4 example of when a caution is not necessary

Answer 279

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

Question 280

How is a police interview defined?

Answer 280

Questioning a person about their suspected involvement in an offence

Question 281

What is the solicitors role at the police station?

Answer 281

Protect and advance the rights of their clients

Question 282

Does a solicitor at the police station need to actively defend their client?

Answer 282

Yes

Question 283

Should a solicitor at the police station confront officers for breaches?

Answer 283

No, sit back and take notes

Question 284

What should a solicitor do if an interviewing officer refuses a reasonable request?

Answer 284

Speak to the custody officer and have them put it on the record

Question 285

Should a drunk or high person be treated as vulnerable?

Answer 285

No

Question 286

How can a solicitor help protect a vulnerable client at the police station?

Answer 286

Ensure there is an appropriate adult

Ensure that the custody officer requested a medical assessment

Take time

Question 287

What should a lawyer do when advising a client before police interview?

Answer 287

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

Question 288

What are the 3 options in police interview?

Answer 288

Answer questions

Don’t answer questions

Provide a written statement and go no comment

Question 289

Can a written statement help avoid later adverse inferences

Answer 289

Yes, but it is difficult to cover everything

Question 290

Can you give a mixed interview? (E.G., part written, part answering questions)

Answer 290

No, because then the transcript will be read in court

Question 291

Is it a good reason to advise not to answer questions if the police have disclosed little to nothing about the case?

Answer 291

Yes, if that means the solicitor cannot usefully advise their client

Question 292

What factors should you consider when deciding whether your client should answer questions at the police interview?

Answer 292

• Amount of disclosure
• Admissibility and strength of evidence
• Client account/instructions
• State of your client
• Significant statements
• Adverse inferences

Question 293

What are the argent factors?

Answer 293

Factors where adverse inferences can’t be drawn when the solicitor advised silence because of the suspects condition e.g., ill health

Question 294

In what 3 circumstances are adverse inferences drawn from remaining silent?

Answer 294

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

Question 295

Can a defendant be convicted solely based on an adverse inference?

Answer 295

No

Question 296

With regards to adverse inferences, how is ‘reasonable as to the circumstances existing at the time’ interpreted?

Answer 296

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

Question 297

What is an adverse inference essentially an accusation of?

Answer 297

Making up an excuse

Knowing their defence wouldn’t have stood up to police questioning

That they had no reasonable explanation at the time

Question 298

Regarding adverse inferences from failing to account for an object, substance or mark, when does the right to draw the inference arise?

Answer 298

As soon as their is failure to advise, they don’t have to later rely on it

Question 299

What special warning must be given before there can be adverse inferences for failing to account for marks, objects and substances?

Answer 299

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

Question 300

Can an adverse inference be drawn if the suspect has not been allowed access to legal advice?

Answer 300

No

Question 301

Are adverse inferences drawn if there is never any trial?

Answer 301

No

Question 302

What 2 things can an eye-witness do to help identify?

Answer 302

Be taken to a neighbourhood or place to see if they can identify the person

Be shown photographs

Question 303

Do you have to do a suspect identification procedure if the suspect was previously known to the eye witness?

Answer 303

No

Question 304

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?

Answer 304

Yes

Question 305

What are the 3 suspect identification procedures that may be used?

Answer 305

Video

Identification parade (LINE UP)

Group identification (in an informal group of people)

Question 306

What rank officer can arrange the identification procedure?

Answer 306

Minimum inspector

Question 307

Can the officer who is arranging the identification procedure be involved with the investigation in other capacities?

Answer 307

No

Question 308

What is the preferred method of having a witness identify a suspect?

Answer 308

Video

Question 309

Can the suspect refuse to participate in a video identification procedure?

Answer 309

Yes

Question 310

Can covert procedures be used to have a witness identify a suspect?

Answer 310

Yes

Question 311

Is a suspect entitled to receive a copy of the suspect description provided by an eye witness?

Answer 311

Yes

Question 312

What do you have to inform a suspect of prior to their identification procedure?

Answer 312

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

Question 313

What is a viper?

Answer 313

Video identification parade electronic recording

Question 314

Does a suspect have an opportunity to view the videos that will be included in the viper to identify them?

Answer 314

Yes

Question 315

What do police have to tell the eye witness immediately before the VIPER is shown?

Answer 315

That the person may or may not be included in the viper

Question 316

Can the recording of the VIPER procedure be shown to the suspect?

Answer 316

Yes, on request, at the discretion of the officer

Question 317

Does the suspect have a right to a photo of the ID parade they were in?

Answer 317

Yes on request

Question 318

How many people in an identification parade?

Answer 318

At least 8

Question 319

Can the suspect select their own position in an ID line?

Answer 319

Yes

Question 320

Can the witness in an ID parade ask the parade members to speak or move?

Answer 320

Yes

Question 321

What is confrontation by eye witness?

Answer 321

When only one person is shown to the witness and asked if this was the guy

Question 322

What is a voir dire?

Answer 322

A trial within a trial

Question 323

What will a judge consider when thinking about whether to exclude eye witness evidence?

Answer 323

Whether there has been significant prejudice to the accused

Question 324

If there hasn’t been a formal identification procedure, is it likely that identification evidence could be excluded?

Answer 324

Yes

Question 325

When rights do defendants have when ID evidence is admitted despite a breach?

Answer 325

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

Question 326

Which defendants are passported for legal aid?

Answer 326

Under 18

Those on specified welfare benefits

Question 327

How is a defendants weighted gross annual income calculated for MAGS means assessment?

Answer 327

Includes partners income (unless they are the complainant)

Weighting is applied for the number of people living in the household

Question 328

What is the lower threshold to be eligible for public funding in MAGS?

Answer 328

12,475

Question 329

What is the upper threshold to be ineligible for public funding in MAGS?

Answer 329

22,325

Question 330

Which defendants will need to undergo a full means test for legal aid funding in MAGS?

Answer 330

Those whose weighted gross annual income is between 12,475 and 22,325

Question 331

What does the full means test in mags do?

Answer 331

Establishes the applicants annual household disposable income

Question 332

What recourse does a legal aid applicant have in mags?

Answer 332

An eligibility review

Question 333

What is the threshold for being ineligible for public funding in MAGS after a full means test?

Answer 333

Disposable income of 3,398 or less

Question 334

Does capital form a part of the means test in MAGS?

Answer 334

No

Question 335

What is the means test for Crown court?

Answer 335

Combined income and capital allowance of 30k, then they have to contribute

Question 336

At what point in trial will a Crown court defendant pay their fees if paying out of personal capital?

Answer 336

At the end of the case

Question 337

At what point in trial will a Crown court defendant pay their fees if paying out of income?

Answer 337

Throughout the duration of the trial

Question 338

What metric does the Crown court means test look at?

Answer 338

Annual household disposable income

Question 339

What metric does the MAGS court means test look at?

Answer 339

Weighted gross annual income

Question 340

When will a crown court defendant be ineligible for public funding?

Answer 340

If they have more than 37,500

Question 341

When will a crown court defendant be eligible for public funding without any contribution?

Answer 341

Less than 3,398

Question 342

When will When will a crown court defendant have to make a financial contribution for their defence?

Answer 342

3,399 - 37,499

Question 343

What contribution will the defendant have to make in Crown court?

Answer 343

90% of disposable income for a max of 6mo paid in instalments and subject to a maximum based on the type of offence

Question 344

Will defence contributions be refunded with interest if acquitted?

Answer 344

Yes

Question 345

When will a defendant pass the merits test automatically?

Answer 345

When charged with an indictable-only offence

When an either-way offence is later sent to Crown court

Question 346

What are the 10 propositions to pass the interests of justice test?

Answer 346

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

Question 347

When will the loss of liberty interests of justice test be passed?

Answer 347

If the defendant is ACTUALLY LIKELY to get a custodial sentence, not just an imprisonable offence

Question 348

When will the suspended sentence/non-custodial sentence interests of justice test be passed?

Answer 348

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

Question 349

When will the serious damage to reputation interests of justice test be passed?

Answer 349

When it is SERIOUS.

Taken in context to that particular person e.g., easier if they are an upstanding citizen

Question 350

When will the cannot understand proceedings or present my own case interests of justice test be passed?

Answer 350

Language

Why interpreter is not sufficient

Legal phrases/technical areas of law

Youth

Learning issues/mental health

Question 351

When will the cross examination of prosecution interests of justice test be passed?

Answer 351

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?

Question 352

When will the interests of another person interests of justice test be passed?

Answer 352

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

Question 353

What are common ‘other reasons’ that the interests of justice test gets passed

Answer 353

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

Question 354

Can the defendant appeal if they fail the means test?

Answer 354

No, but they can submit another application if their circumstances change

Question 355

Can the defendant appeal if they fail the merits test?

Answer 355

Yes

Question 356

If the defendant fails the funding tests, to what extent can the duty solicitor represent them?

Answer 356

In the police station

at the first court hearing

Question 357

What is the DPP

Answer 357

Director of public prosecutions

Question 358

Can the DPP take over any private prosecutions?

Answer 358

Yes

Question 359

Who makes charging decisions for indictable offences?

Answer 359

A crown prosecutor

Question 360

Do police have discretion on whether or not to charge for certain offences?

Answer 360

Yes

Question 361

What offences do police have discretion as to whether to charge or not?

Answer 361

All are summary offences

Various road traffic

Offences contrary to public order

Criminal damage where value does not exceed 5k

Low value shoplifting

Question 362

Which officer can decide whether or not to charge for an offence?

Answer 362

The custody officer

Question 363

Where do crown prosecutors derive their powers from?

Answer 363

The DPP

Question 364

What are the 3 ways of commencing criminal proceedings?

Answer 364

Arrest and charge

Written charge and requisition

Laying an information

Question 365

What is police-bail?

Answer 365

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

Question 366

When is police bail usually used?

Answer 366

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

Question 367

Can police-bail include conditions?

Answer 367

Yes

Question 368

What does it mean to be released under investigation (RUI)?

Answer 368

Released not on police bail but acknowledged that the police are still looking into the matter

Question 369

Does a person have to be arrested for a written charge and requisition to commence proceedings?

Answer 369

No

Question 370

Who can commence proceedings using the written charge and requisition method?

Answer 370

A public prosecutor

Question 371

Which prosecutors can commence proceedings using a written charge and requisition?

Answer 371

Available to ‘relevant prosecutors’

Those who prosecute on behalf of the state

Question 372

How are proceedings commenced via ‘laying an information’

Answer 372

Prosecutor gives info alleging an offence to MAGS

Court then issues a summons or a warrant

Question 373

Can private prosecutions be commenced via an arrest warrant?

Answer 373

No

Question 374

What method of commencing proceedings do private prosecutors use?

Answer 374

Laying an information

Question 375

What is contained in the written charge/information statement?

Answer 375

Statement of the offence

Reference to the statutory provision

Sufficient particulars of the conduct complained of to know what is alleged

Question 376

What information is included in a criminal court summons or requisition?

Answer 376

Notice setting out when/where required in court

Specify each offence in respect of which it has been issued

Question 377

What is the ‘statute of limitation’ in UK criminal law?

Answer 377

When summary only, mags should not try and information or hear a complaint unless within 6mo of the date of the alleged offence

Question 378

Is there a statute of limitations for an indictable offence?

Answer 378

No

Question 379

Who generally provides advice on charge?

Answer 379

The CPS

Question 380

When is a case adjourned?

Answer 380

Court cannot conclude the case in one hearing

Question 381

What does remand mean?

Answer 381

Obligated to come back to the case to continue it

Can be custodial or non-custodial

Question 382

Who applies to have a defendant remanded in custody?

Answer 382

The prosecution

Question 383

Are there any presumptions surrounding bail?

Answer 383

There is a presumption in favour of granting bail

Question 384

What does the prosecution have to present to refute bail for a defendant?

Answer 384

Objections to bail

Question 385

Can a prosecutor come up with any reasons it wants to object to bail?

Answer 385

No, they are finite and defined by law

Question 386

What is the right to bail?

Answer 386

The presumption that a defendant should have bail

Question 387

Does the right to bail still apply after conviction is adjourned?

Answer 387

Yes, if before sentencing

Question 388

When does right to bail become absolute?

Answer 388

If the case has not progressed according to time limits

Question 389

Are there any offences for which the presumption of bail is removed?

Answer 389

Statute seems to remove it for offences like murder

Question 390

In what 2 cases does the right to bail not apply?

Answer 390

1. Those appealing their conviction or sentence
2. Defendants being committed for sentence from MAGS to Crown

Question 391

What are the ‘big 3’ grounds to rebut the presumption to bail for indictable offences?

Answer 391

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

Question 392

What does substantial grounds for believing mean in the context of being denied bail

Answer 392

That the ‘bad’ behaviour is more likely than not

Question 393

Can witnesses be called when determining whether somebody is denied bail?

Answer 393

Yes

Question 394

Is hearsay evidence permitted in the context of denying bail?

Answer 394

Yes

Question 395

Should bail be granted if the defendant has no real prospects of the defendant receiving a custodial sentence?

Answer 395

yES

Question 396

What is the general rule regarding rebutting the presumption of bail for summary offences?

Answer 396

Bail is given unless someone has failed to surrender to bail in the past (e.g., broke their bail conditions)

Question 397

What is the secondary ‘trio of grounds’ to justify denying bail?

Answer 397

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

Question 398

What are the 2 specialist grounds for denying bail?

Answer 398

Serious cases with high penalties

Cases of a particular nature that affect the assessment of the risk posed by a defendant on bail

Question 399

What process should you follow when trying to determine whether bail will be granted?

Answer 399

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

Question 400

Who can grant bail for murder?

Answer 400

Only crown court

Question 401

When will bail not be granted for murder unless there are exceptional circumstances to justify it?

Answer 401

D has a pre-con for murder, attempted murder, rape or a serious sexual offence

Question 402

When can a murder defendant be granted bail?

Answer 402

There is no significant risk of them doing an offence that causes physical or mental injury

Question 403

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?

Answer 403

No

Question 404

For an offence carrying life imprisonment, what is the special consideration regarding whether D will be granted bail?

Answer 404

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

Question 405

What are the special conditions for granting bail for an abuse of drugs charge?

Answer 405

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

Question 406

What are the special bail conditions for an offence against a partner or family?

Answer 406

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

Question 407

When would bail be restricted for an offence against partner or family when the offence is not imprisonable?

Answer 407

If D is arrested due to a breach of bail

Question 408

How does rights to bail change if D has previously absconded on bail?

Answer 408

Bail need not be granted again unless prior to conviction and there is no realistic prospects of a custodial sentence

Question 409

How to rights to bail change if the defended committed an indictable offence while on bail?

Answer 409

Court need not grant bail

Question 410

How to rights to bail change if D committed an summary imprisonable offence while on bail?

Answer 410

Court need not grant bail if there are substantial grounds for believing that D will commit further offences

Question 411

What is the function of bail factors?

Answer 411

They help support whether or not the grounds have been made out

Question 412

Are factors mandatory considerations for the main three grounds?

Answer 412

Yes

Question 413

What are the bail factors?

Answer 413

1. Nature and seriousness of the offence and likely disposal
2. The character of the defendant, D’s antecedents, associations and community ties
3. D’s previous bail record
4. The strength of the evidence

Question 414

What must the court consider before attaching a condition to bail?

Answer 414

Whether the condition is relevant, proportionate and enforceable

Question 415

What are common bail conditions?

Answer 415

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

Question 416

When can bail conditions be varied without a hearing?

Answer 416

If the parties agree on the variation

Question 417

To which court should an application be made to vary bail conditions?

Answer 417

The court which granted the bail

Question 418

Who can make applications to vary bail conditions?

Answer 418

Defence or prosecution

Question 419

What happens if you breach a bail condition?

Answer 419

Bail is likely to be withdrawn

Question 420

Can somebody be arrested because officers think somebody is about to breach their bail?

Answer 420

Yes

Question 420

Is it a criminal offence to breach a bail condition

Answer 420

Not most of them

Question 421

Which bail breach is a criminal offence?

Answer 421

Failing, without reasonable cause, to surrender to custody

Question 422

What is the sentence for failure to surrender?

Answer 422

3 months imprisonment and/or unlimited fine or 12 months and/or unlimited fine on indictment

Question 423

Must the court give reasons to refuse bail or impose conditions?

Answer 423

Yes

Question 424

Why do people say there are ‘2 attempts at bail’

Answer 424

Because you can try in MAGS at both your first and second hearing with literally the same case and just a different judge

Question 425

After the 2 bail applications, what does the defendant need to get before they can appeal?

Answer 425

A certificate of full argument from MAGS

Question 426

When are bail appeals heard?

Answer 426

1 business day after appeal notice is served

Question 427

When can D apply again for bail after having been declined on appeal?

Answer 427

If there is a change in circumstances

Question 428

Who hears bail appeals from MAGS?

Answer 428

Crown

Question 429

How much time is there between the first bail application and second?

Answer 429

1 week

Question 430

Can D still apply a second time for bail at MAGS, if they used their appeal to Crown after the first attempt?

Answer 430

No

Question 431

What should the defendant do if they need bail urgently, and can’t wait for the second hearing in MAGS?

Answer 431

Appeal to Crown ASAP, they will hear it the following day

Question 432

What 2 conditions must be satisfied for the prosecution to oppose bail?

Answer 432

Must have originally opposed bail

Offence must be punishable by imprisonment

Question 433

What is the procedure for the prosecution to appeal against granting bail?

Answer 433

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

Question 434

When prosecution appeals bail grant, when will the appeal be heard?

Answer 434

Within 48hrs, excluding weekends of giving their written notice

Question 435

Who hears the prosecutions appeal against bail?

Answer 435

Crown court

Question 436

Is the procedure for appealing bail that was granted the same for MAGS and Crown?

Answer 436

Yes, except appeal will be heard in the high court

Question 437

How many days can you be remanded in custody for trials in mags?

Answer 437

56 days

Question 438

How many days can you be remanded in custody for trials in Crown Court for indictable or either way offences?

Answer 438

182 days less any says spent in custody prior to the case being sent to Crown

Question 439

Can the court extend the amount of time spent remanded in custody?

Answer 439

Yes

Question 440

What does the prosecution have to show to have remand in custody extended?

Answer 440

That it acted with:

All due diligence and expedition

There is a good and sufficient cause to have the defendant further remanded into custody

Question 441

When must a trial commence for individuals remanded in custody?

Answer 441

Before the expiration of the custody time limit

Question 442

When do MAGS trials technically start?

Answer 442

When the court begins hearing evidence from the prosecution

Question 443

When does a Crown court trial technically start?

Answer 443

When the jury is sworn

Question 444

For MAGS trials, do remand in custody have to continually be extended?

Answer 444

Yes

Question 445

For Crown trials, does remand in custody have to be continually extended?

Answer 445

No

Question 446

How long can you be remanded in custody for a MAGS trial before your first extension?

Answer 446

8 clear days

Question 447

What happens after the first 8 clear delays remanded in custody for a MAGS trial?

Answer 447

You are given your second opportunity to apply for bail in a hearing

Question 448

How often after the first extension does the D need to have their remand in custody extended for a MAGS trial?

Answer 448

Every 28 days or fewer

Question 449

What is an onward remand?

Answer 449

When remand has to be renewed every 28 days for somebody awaiting a MAGS trial

Question 450

Can an onward remand trial be conducted without the defendant?

Answer 450

Yes, with their consent

Question 451

What is the bare minimum which must happen for an onward remand to be granted?

Answer 451

Magistrates have to remember to say on a given day: I remand Bob for a further 28 days in their absence

Question 452

When must a defendant on bail, guilty plea anticipated, likely to be sentenced in MAGS have their first hearing within?

Answer 452

14 days

Question 453

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?

Answer 453

28 days of being charged

Question 454

When must a D detained in police custody following charge be brought before a court?

Answer 454

The next available court

Question 455

Must a defendant be present at the first hearing?

Answer 455

Yes

Question 456

Why is it often not possible to proceed with a first hearing without the defendant?

Answer 456

Hearing likely deals with allocation of an eitherway offence or sending an indictable offence to the crown court

Question 457

If the D has been summoned to court and didn’t commit and offence for non-appearance, can the hearing go ahead without them?

Answer 457

Yes if the prosecution served statements and the defendant has been warned of the hearing

Question 458

Can a penalty be imposed if the defendant was absent?

Answer 458

Also yes

Question 459

What is the last day the prosecution can serve the initial details?

Answer 459

No later than the beginning of the day of the first hearing

Question 460

Does the prosecution have to give D the initial details of their case?

Answer 460

Yes, if requested

Question 461

When should the prosecution aim to give the initial details of their case by?

Answer 461

As soon as practicable

Question 462

What happens if the prosecution doesn’t serve initial details in time?

Answer 462

Court adjourns first hearing and awards costs to the defence for the prosecutions failure to serve

Question 463

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?

Answer 463

Usually not

Question 464

What is included in the initial details of the prosecutions case (not in police custody immediately before hearing)

Answer 464

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

Question 465

What does the initial details of the prosecution include D was in police custody immediately before the first hearing?

Answer 465

Only

Summary of the circumstance of the offence

Defendants criminal record

Question 466

What purpose does the prosecutions initial details serve?

Answer 466

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

Question 467

What do first hearings deal with for summary and either way offences

Answer 467

Plea

Bail

Representation and legal aid

Sometimes sentence

Question 468

What do first hearings deal with for indictable only offences?

Answer 468

Only

bail

legal aid

indicate their plea on the Crown Court

Question 469

What is the exception for a summary only offence to be sent to Crown?

Answer 469

When in connection with an indictable offence

Question 470

Which summary-only offences MUST be sent to Crown if in connection with an indictable offence?

Answer 470

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

Question 471

What summary matters must be sent to Crown in connection with an indictable offence for plea only?

Answer 471

Any matter not listed in s 40 that is punishable by disqualification from driving or imprisonment

Question 472

Which summary-only offences will appear on indictment in crown court?

Answer 472

Only those listed in s 40

Question 473

When will the court proceed to sentence on first hearing?

Answer 473

Summary only guilty plea

Question 474

What happens at first hearing for a summary only guilty plea?

Answer 474

Plea

Sentence

Sentence can be adjourned for further information

Question 475

What happens at first hearing for a summary only not guilty plea?

Answer 475

Case management

• Preparation for Effective Trial Form

Question 476

What is included on the PET form?

Answer 476

• 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

Question 477

What are common subjects of pre-trial hearings?

Answer 477

Admissibility of evidence

Fitness to plead

Question 478

When is a pre-trial ruling binding until?

Answer 478

Conviction or acquittal

Prosecution decision not to proceed

Dismissal of the case

Question 479

What can a party do if they disagree with a pre-trial ruling?

Answer 479

Apply to have it varied or discharged if there has been a material change of circumstances

Question 480

Can the court discharge or vary a pre-trial ruling?

Answer 480

Yes, if it is in the interests of justice to do so and the parties have been given an opportunity to be heard

Question 481

When can you plead guilty by post?

Answer 481

The matter was commenced by summons or requisition

Prosecution served a summary of evidence

Prosecution has served information relevant to sentence

Question 482

What happens at the first hearing for an either-way offence?

Answer 482

Warnings: can be sentenced by the court, committed to Crown for sentencing

Charge is read out

Asked to indicate plea

Question 483

What plea options are there at a plea before venue?

Answer 483

Guilty

Not guilty

No indication

Question 484

How is a no-indication plea treated?

Answer 484

Not guilty

Question 485

How would an equivocating guilty plea be treated?

Answer 485

Not guilty

Question 486

How would this plea be treated: ‘Guilty but I would have given the item back’

Answer 486

Not guilty

Question 487

What must MAGS be careful of if adjourning for sentence?

Answer 487

Creating an expectation that the defendant will be sentenced in MAGS

Question 488

What is a PSR?

Answer 488

Pre-sentence report used in mags when adjourning before sentencing

Question 489

When should MAGs order a PSR if committing for sentencing?

Answer 489

there is a realistic alternative to a custodial sentence

the defendant may be a dangerous offender

there is some other appropriate reason

Question 490

What does the allocation guideline say about how either-way offences should be tried?

Answer 490

They should be tried summarily

Question 491

What does the allocation guideline say about when either-way offences should NOT be tried summarily?

Answer 491

Outcome would clearly be a sentence in excess of the courts powers

unusual procedural or factual complexity

Question 492

Can MAGS retain jurisdiction even if the sentence might exceed powers?

Answer 492

Yes and it should if it can

Question 493

What 3 things does the prosecution do at the allocation hearing?

Answer 493

Opens with facts

Outlines the defendants offending history

Makes submissions as to where the trial should be held consistent with the allocation guidelines

Question 494

What 2 things does the defence do at the allocation hearing?

Answer 494

Make submissions as to venue

Disagree or agree with the prosecutions opinion about the venue

Question 495

What does ‘election’ refer to?

Answer 495

When D chooses MAGs or Crown

Question 496

Can you still be committed to crown for sentence after a summary trial?

Answer 496

Yes

Question 497

Why is advice usually to elect a crown court trial?

Answer 497

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

Question 498

Which 3 key offences don’t neatly fit into a category (e.g., summary only)

Answer 498

Low value shoplifting

Criminal damage

Complex fraud

Where children may be called as witnesses

Question 499

What category of offence are fraud and cases regarding children given notice under s51b or s51c treated as?

Answer 499

They follow the indictable procedure and are sent straight to crown

Question 500

At least 2 criteria from a larger list must be satisfied for a case of complex fraud, what is the list of criteria?

Answer 500

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

Question 501

How many magistrates are needed for an early administrative hearing?

Answer 501

1

Question 502

Can a single magistrate make a bail or custody decision?

Answer 502

Yes

Question 503

What is the approach when multiple defendants are jointly charged with a summary only offence and some plead not-guilty but others plead guilty?

Answer 503

Those who plead guilty have their sentence adjourned until after trial

Question 504

For an either-way offence with multiple defendants, can one defendant elect crown and the rest stay in MAGS?

Answer 504

No, if one elects crown they must all go to crown

Question 505

Which court will it go to if one defendant is charged with summary only and the other defendant an either way offence?

Answer 505

The either-way is decided first, the summary only follows the either-way

Question 506

What happens when the defendant is charged with a summary only and an indictable only or either-way offence to be tried at Crown?

Answer 506

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

Question 507

What is used material in a criminal case?

Answer 507

That which the prosecution will rely upon at trial

Question 508

What is unused material in a criminal case?

Answer 508

Material that is not being relied upon by the prosecution at trial

Question 509

Why is unused material important to a criminal defence?

Answer 509

Because it usually includes information that is contrary to the prosecutions case

Question 510

Does the prosecution have to give over information that is disadvantageous to its case?

Answer 510

Yes

Question 511

Is there a duty to retain material found in a criminal investigation?

Answer 511

Yes

Question 512

What are the 4 stages of criminal disclosure?

Answer 512

1. Investigation
2. Initial duty of disclosure on the prosecution
3. Defence disclosure
4. Continuing duty on the prosecution to keep disclosure under review

Question 513

What 3 officers does each criminal case have?

Answer 513

Officer in charge of the investigation

An investigator

A disclosure officer

Question 514

Does the investigator have to pursue all lines of enquiry, including those for and against their suspect?

Answer 514

Yes

Question 515

What is the general role of a criminal disclosure officer?

Answer 515

Inspect, view, listen or search all relevant material

Provide a personal declaration that they looked at everything

Question 516

What should the disclosure officer do if they aren’t sure as to whether some materials are disclosable?

Answer 516

Seek the assistance of the prosecutor

Question 517

How long must material be retained and recorded for?

Answer 517

1. Until a decision is made as to whether or not to institute proceedings
2. Until the suspect is acquitted, convicted or prosecutor does not want to continue with the case
3. Until the defendant is released from custody
4. Until 6mo from the date of conviction (non-custodial)
5. Until the appeal is concluded

Question 518

What happens if information comes to light after proceedings have conclude that could risk the safety of the conclusion?

Answer 518

The prosecutor must consider disclosure of the material

Question 519

What is an MG6C?

Answer 519

A schedule of material given to the prosecutor by the disclosure officer

Question 520

What does a prosecutor need to do if they don’t have anything to disclose to the defence?

Answer 520

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

Question 521

What is ‘prosecution material’

Answer 521

1. material in the prosecutors possession and came into his possession in connection with the case for the prosecution against the accused
2. which he has inspected in connection with the case for the prosecution against the accused

Question 522

What factors might be relevant to consider when deciding whether material should be disclosed?

Answer 522

1. Needed for cross?
2. 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
3. Capacity to suggest an explanation of the accuseds actions
4. Capacity to have scientific or medical bearing on the case

Question 523

Is the law prescriptive of the result or method of criminal disclosure?

Answer 523

Result, prosecution can decide their case by case strategy

Question 524

What is the time limits for initial disclosure?

Answer 524

No later than the beginning of the day of the first hearing

Question 525

When does the duty of disclosure technically arise in MAGS?

Answer 525

When the defendant pleads not guilty and the case is adjourned for summary trial

Question 526

When does the duty of disclosure technically arise in Crown?

Answer 526

When a defendant has been sent for trial or a Voluntary Bill of Indictment has been preferred against the defendant

Question 527

What is the common-law duty of disclosure?

Answer 527

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

Question 528

Under the common law duty of disclosure, does the prosecution have to disclose even if the statutory duty has not yet arisen?

Answer 528

Yes

Question 529

Is there a specific prescribed number of days or time limits for prosecution disclosure?

Answer 529

No – as soon as practicable after the duty has arisen

Question 530

Does the court often set deadlines for disclosure?

Answer 530

Yes

Question 531

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?

Answer 531

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

Question 532

How much disclosure is required to be made before the PTPH hearing?

Answer 532

Sufficient to enable the court to case manage without the need for a further hearing

Question 533

Is the duty of disclosure continuing?

Answer 533

Yes

Question 534

Is the disclosure test objective or subjective?

Answer 534

Objective – if it helps the defence it counts

Question 535

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?

Answer 535

The officer in charge of the investigation

Question 536

Does the defence have a duty to serve material that is helpful to the prosecution?

Answer 536

No

Question 537

What does a defence statement do?

Answer 537

Give reasonable clarity to what the defence statement is

Question 538

What 5 things must a defence statement include?

Answer 538

1. Nature of defence and particular defences
2. Matters of fact on which he takes issue
3. Why he takes issue
4. Facts intending to rely on for defence
5. Indicating points of law and authority on which he intends to rely on for that purpose

Question 539

What must a defence statement disclosing an alibi give particulars of?

Answer 539

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

Question 540

Is a defence statement compulsory in mags?

Answer 540

No

Question 541

Is a defence statement compulsory in crown?

Answer 541

Yes

Question 542

What is the deadline to serve a criminal defence statement?

in crown

Answer 542

Within 28 days of when the prosecution provides its initial disclosure

Question 543

When can the deadline to serve a criminal defence be extended?

Answer 543

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

Question 544

If a defence statement is being used in MAGS, what is the deadline to serve it?

Answer 544

Within 10 business days of the prosecution complying with initial disclosure

Question 545

If not making a defence statement in mags, can the defence still make an application for initial disclosure?

Answer 545

No

Question 546

What does the defendant have to disclose to the court and prosecutor regarding witnesses?

Answer 546

If they intend to call them at trial

Names, DOB, identifying information

Question 547

Which witnesses go in the defence statement, and which ones in the Notice of Intention to Call Defence Witnesses?

Answer 547

Defence statement – alibi witnesses

Notice of intention – all others

Question 548

What is the deadline to provide the Notice of Intention to Call Defence Witnesses in mags and crown?

Answer 548

10 DAYS IN MAGS (standard direction)

Within 28 days of initial disclosure in Crown

Question 549

What happens if the defence fails to serve valid disclosure?

Answer 549

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

Question 550

Can the court give additional sanctions beyond adverse inferences, prosecution comment and resubmission for messing up defence disclosure?

Answer 550

No

Question 551

Are there any consequences if you don’t submit a disclosure in MAGS?

Answer 551

No, e.g., no adverse inferences because it isn’t mandatory

Question 552

What tactical advantage could there be to not serving a defence statement?

Answer 552

You can avoid drawing the attention of the prosecution in light of certain issues

Question 553

Is the defendants proof of evidence contained within the defence statement?

Answer 553

No

Question 554

What application can the defence make if they think something should have been disclosed but wasn’t?

Answer 554

An application for specific disclosure

Question 555

What things need to have happened before an application for specific disclosure can be made?

Answer 555

Defence must have served a defence statement

Prosecutor must have provided further information or noted that no further info was required

Question 556

What must the application for specific disclosure argue?

Answer 556

That the prosecution has the material

That the material should have been disclosed

Question 557

What should happen before an application for specific disclosure?

Answer 557

Collaborative discussion

Question 558

What 4 potential consequences can arise if the prosecution doesn’t do disclosure properly?

Answer 558

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

Question 559

Do third parties have a duty of disclosure?

Answer 559

No

Question 560

Does the prosecution have a duty to try and obtain relevant materials held by 3rd parties?

Answer 560

Yes

Question 561

Is speculative enquiries towards third parties around disclosure required?

Answer 561

No

Question 562

What options does the prosecution have if the third party refuses to disclose?

Answer 562

They can seek a summons

Question 563

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?

Answer 563

They should apply to the judge for non-disclosure in the public interest

Question 564

What is non-disclosure in the public interest also known as?

Answer 564

Public interest immunity

Question 565

Does sensitive material have to be recorded at the investigation stage?

Answer 565

Yes

Question 566

Where is sensitive material recorded during the investigation stage?

Answer 566

The sensitive material schedule

Question 567

What must also be stated in the sensitive material schedule?

Answer 567

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

Question 568

When can pre-trial matters be considered?

Answer 568

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

Question 569

Should pre-trial matters try and be resolved before the day of trial?

Answer 569

Yes

Question 570

What do first hearings in mags commonly give directions for?

Answer 570

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

Question 571

If MAGS determines something in a pre-trial hearing, does it bind itself?

Answer 571

Yes

Question 572

When can MAGS change a pre-trial ruling?

Answer 572

When there is a material change in circumstances or something was not brought to the attention of the court when they made the ruling

Question 573

What is the inherent problem with judges ruling on admissibility of evidence?

Answer 573

They have already heard it and could be biased

Question 574

Which court sets the date for the PTPH?

Answer 574

MAGS when it is sending the case to crown

Question 575

What is the deadline for when the PTPH is held?

Answer 575

Within 28 days of being sent from MAGS

Question 576

What is a sending sheet?

Answer 576

A notice specifying the offences when sending to Crown

Question 577

Is there a prescribed form for the sending sheet?

Answer 577

No

Question 578

What is the deadline to serve evidence when the defendant is in custody?

Answer 578

50 DAYS

Question 579

What is the deadline to serve evidence when the defendant is on bail?

Answer 579

70 days

Question 580

What is the deadline to send a draft indictment?

Answer 580

20 business days after serving prosecution evidence

Question 581

Where is evidence uploaded to?

Answer 581

Crown Court Digital Case System

Question 582

What are the 2 parts within the PTPH form?

Answer 582

Plea

Sentence or trial preparation stage

Question 583

What is an arraignment?

Answer 583

When a defendant pleads guilty or not guilty to each charge

Question 584

What happens if there is a mix of guilty and not-guilty pleas at the PTPH?

Answer 584

Prosecution has to consider how it wishes to proceed:

1. Court moves to sentence
2. Moves to the trial preparation stage

Question 585

What happens if the defendant is deemed unfit to plead?

Answer 585

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

Question 586

What punishments can a defendant who is found unfit to plead get?

Answer 586

Absolute discharge

Supervision order

Hospital order

Question 587

What are the four ‘staged dates’ determined at the PTPH

Answer 587

Trial date

Prosecution evidence

Expert evidence

Witness requirements

Question 588

What are 5 common ‘further directions’ applications dealt with a the pre-trial stage?

Answer 588

Applications to exclude evidence or introduce otherwise inadmissible evidence

Special measures (witness assistance)

Vulnerable defendants

Witness summons and warrants

Applications to change plea

Question 589

What types of special measures are available to witnesses?

Answer 589

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

Question 590

What 6 categories of witness are eligible for special measures?

Answer 590

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

Question 591

What are the additional types of special measures for witnesses?

Answer 591

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

Question 592

What is the role of the witness intermediary?

Answer 592

Assist communication

Question 593

Who does a witness intermediary owe duties to?

Answer 593

The court

Question 594

Does MAGS, Crown or both have the power to issue a witness summons?

Answer 594

Both

Question 595

What happens if a witness disobeys a summons?

Answer 595

Can be arrested, contempt of court

Question 596

What is the process to change a plea from not guilty to guilty?

Answer 596

At any time before verdict, ask for the indictment to be put again

Question 597

What is the deadline for trying to change your plea from guilty to not guilty?

Answer 597

Any time before getting sentenced

Question 598

What is the process for changing your plea from guilty to not guilty?

Answer 598

Apply to the court to vacate your plea

Question 599

What are the 2 most common scenarios where the court will allow a change of plea from guilty to not guilty?

Answer 599

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

Question 600

What does council usually have to do if a plea is changed from guilty to not guilty?

Answer 600

Resign, cause if that it happening it means they probably majorly errored

Question 601

Is legal privilege often waived when changing a plea from guilty to not guilty?

Answer 601

Yes

Question 602

Why is legal privilege often waived when changing a plea from guilty to not guilty?

Answer 602

Because usually you have to prove that council did something wrong

Question 603

In what 3 ways can you ‘prove a fact’ in evidence other than live witness evidence?

Answer 603

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

Question 604

If a witness statement is agreed as true do they still have to attend court?

Answer 604

No

Question 605

What is the process for agreeing a fact between parties?

Answer 605

The facts are written out and the lawyers sign

Question 606

Do parties have to prove facts that are widely and generally known?

Answer 606

No

Question 607

What is judicial notice?

Answer 607

For facts that aren’t widely known, but are easily known and verifiable the judge takes a judicial notice on enquiry

Question 608

What should a juror do if they have personal knowledge of facts which are not widely known and are relevant to the case?

Answer 608

Let the court know

Question 609

What is the most common form of evidence?

Answer 609

Oral witness evidence

Question 610

What is real evidence?

Answer 610

Items, things, documents

Question 611

What is direct evidence?

Answer 611

Something the witness has direct experience of

I saw them at the train station at midnight

Question 612

What is circumstantial evidence?

Answer 612

Evidence from which facts are inferred

e.g., they had a train ticket in their pocket for a train departing at midnight

Question 613

What is ‘view’ evidence?

Answer 613

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

Question 614

What is the first and most fundamental principle of evidence?

Answer 614

For evidence to be admissible, it must be relevant

Question 615

How is evidential relevance established?

Answer 615

Whether evidence is logically probative – does it prove or disprove a fact in issue

Question 616

What does evidence being logically probative mean?

Answer 616

It proves or disproves a fact in issue

Question 617

Would evidence of a previous incidence of dishonesty be admissible (relevant enough) for a case where the mens rea involves proof of some dishonesty?

Answer 617

No, because it wouldn’t prove dishonesty in that specific case

Question 618

Besides relevance, what dictates whether evidence will be admissible or not?

Answer 618

The exclusionary rules

Question 619

Who decides on the weight of evidence?

Answer 619

The jury

Question 620

When can a judge intervene as to the admissibility of evidence?

Answer 620

If it is so tenuous, that no one could reasonably put any weight on it

Question 621

Who has the burden of proving an offence?

Answer 621

The prosecution

Question 622

What is the standard to which the prosecution must prove?

Answer 622

Beyond reasonable doubt aka so that you are sure of guilt

Question 623

When does the defence have to prove things?

Answer 623

E.G., for insanity, self-defence… all specific defences

Question 624

What is the evidential burden?

Answer 624

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

Question 625

What does ‘passing the judge’ mean?

Answer 625

When the judge has to decide whether the evidential burden has been met or not

Question 626

Realistically, when is the only time when the legal and evidential burden become detached?

Answer 626

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

Question 627

What happens if the prosecution fails to put forward any evidence to prove one of the elements of an offence?

Answer 627

The case will be dismissed

Question 628

Does the defence have to prove alibi?

Answer 628

No, the prosecution has to disprove the alibi

Question 629

Does the defence have to prove the defence of duress?

Answer 629

No, the prosecution has to disprove it

Question 630

What are the 6 principal ways of excluding evidence or brining a prosecution case to an end?

Answer 630

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

Question 631

When is an application for dismissal made?

Answer 631

When sent to crown from mags

when defendant was served with evidence relating to the offence

Before the defendant is arraigned

Question 632

Can the defence make an oral application for dismissal?

Answer 632

Yes, if they provide written notice

Question 633

What is the test for dismissing a charge?

Answer 633

If the judge thinks that the evidence would not be sufficient for a proper conviction

Question 634

What is the test for a submission of no case to answer?

Answer 634

1. There is no evidence the crime has been committed by the D

OR

2. Where the prosecution evidence, taken at its highest, is such that a properly directed jury could not convict on it

Question 635

Where is an application of no case to answer made?

Answer 635

Either crown or mags

Question 636

Can you apply for no case to answer on only some charges?

Answer 636

Yes

Question 637

How should the judge decide whether no jury could properly convict when considering no case to answer?

Answer 637

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

Question 638

When is the submission of no case to answer made?

Answer 638

When the prosecution has finished making its case

Question 639

What is a ‘half time submission’ and why is it known as that?

Answer 639

A submission of no case to answer

Because it happens at ‘half time’ after the prosecution has finished making its case

Question 640

Does a submission of no case to answer happen with or without the jury there?

Answer 640

Without

Question 641

What is the Galbraith test?

Answer 641

The criteria for deciding whether there is no case to answer

Question 642

Does a court have to give reasons for rejecting a submission of no case to answer?

Answer 642

No

Question 643

What are the 2 categories of case when the court has the power to stay proceedings for abuse of process?

Answer 643

1. Accused can no longer receive a fair trial
2. Unfair to try the accused, it would put the integrity of the criminal justice system in jeapordy

Question 644

Is abuse of process a last resort?

Answer 644

Yes, if it can be put right another way it should

Question 645

What are 4 examples of likely successful abuse of process applications?

Answer 645

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

Question 646

When could delay amount to abuse of process?

Answer 646

If the prosecution did it deliberately or it appears that they did

Question 647

What grounds for abuse of process exist in MAGS?

Answer 647

Only that the defendant is unable to have a fair trial

Question 648

Can the common law discretion to exclude evidence apply to the defence, prosecution or both?

Answer 648

Only the prosecution

Question 649

What is the common law discretion to exclude evidence?

Answer 649

If the prejudicial effect outweighs its probative value

Question 650

Can co-defendant A apply to exclude defence evidence that co-defendant B wants to submit?

Answer 650

No

Question 651

What is a Section 78 PACE application?

Answer 651

Application to exclude unfair evidence having regard to all circumstances including how it was obtained

Question 652

Can s 78 exclude a defendants evidence?

Answer 652

No

Question 653

In what circumstances is s78 most likely to apply to exclude evidence successfully?

Answer 653

Where evidence was obtained from

Breaches of Police Codes of Practice

ECHR breaches

Question 654

Is an ECHR or Police Codes breach enough for a s78 application to be approved?

Answer 654

Probably not, it has to be unfair…

If the breach was in bad faith then it probably is unfair

Question 655

When will the court of appeal interfere with a judges decision under s78?

Answer 655

Only if it was perverse, and no reasonable judge could have come to that conclusion

Question 656

What are the 3 opportunities to make a s78 application?

Answer 656

Before trial

Commencement of Trial

Just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded

Question 657

When will a judge usually want a hearing for a s78 application?

Answer 657

If the approval of the application would very seriously jeopardise the prosecutions case

Question 658

What is a voir dire?

Answer 658

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

Question 659

What is the definition of a confession?

Answer 659

Any statement wholly or partly adverse whether made to a person in authority or not

Question 660

What are the 2 limbs to exclude a confession?

Answer 660

Oppression

Unreliability

Question 661

What is oppression in the context of excluding a confession?

Answer 661

Torture, inhumane or degrading treatment and use of threat or violence

Question 662

What is the dictionary definition of oppression?

Answer 662

Burdensome, harsh, unjust, cruel exercise of authority

Question 663

Do the attributes of the accused change whether or not they were oppressed?

Answer 663

Yes, some things might be oppressive to somebody but not to others

Question 664

What is the process by which oppression is dealt with?

Answer 664

Defence raises it

Prosecution must then prove beyond reasonable doubt that the confession was not obtained by oppression

Question 665

If oppression is proved NOT to have happened, can the defence still try and discredit the evidence by asserting oppressive practices etc?

Answer 665

Yes

Question 666

What is the 3 step approach for when a defendant alleges their confession is unreliable?

Answer 666

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

Question 667

Give some examples of things said or done that can render a confession unreliable

Answer 667

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

Question 668

What is the approach when considering whether an act rendered a confession unreliable?

Answer 668

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

Question 669

What is the definition of unreliable, for the purposes of excluding a confession?

Answer 669

Cannot be relied upon as being the truth

Question 670

What are three scenarios of unreliable confession circumstances?

Answer 670

Deprivation of sleep

Failure to caution

Denial of access to legal advice

Question 671

What happens to evidence discovered as a result of an excluded confession?

Answer 671

Facts discovered are still admissible

They just can’t say the reason that the evidence was discovered in court

Question 672

What happens to excluded confessions that the prosecution wants to use because it proves other things (e.g., hand writing proof but not content)

Answer 672

It will likely be usable

Question 673

When/where is a dispute as to the admissibility of evidence first raised?

Answer 673

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

Question 674

In MAGS what is the deadline to submit a defence skeleton argument in support (e.g., to exclude evidence)

Answer 674

10 days before trial

Question 675

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)

Answer 675

5 days after the defence skeleton is submitted

Question 676

What 2 questions should you ask when trying to tackle potential hearsay?

Answer 676

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?

Question 677

Why is hearsay evidence generally excluded?

Answer 677

It is said to be unfair, because it cannot be tested by cross examination in court

Question 678

When hearsay is critical to the case, what are the 3 principal factors that determine whether there can be a fair trial?

Answer 678

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

Question 679

What is hearsay?

Answer 679

A statement not made in oral evidence

Question 680

Can parties agree to admit hearsay?

Answer 680

Yes

Question 681

What is the 3-part test to determining whether something is hear-say?

Answer 681

1. Identify the fact (matter) that is sought to prove
2. Ask whether there is a statement of that matter in the communication
3. 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

Question 682

Is a private diary hearsay?

Answer 682

No, because there wasn’t intention people should believe anything

Question 683

Is CCTV hearsay?

Answer 683

No because it is not a person there was no human input

Question 684

Can a question be hearsay?

Answer 684

No, it doesn’t count as a statement

Question 685

Is showing the effect of words hearsay? E.G., explaining that a solicitor gave advice for a no-comment interview?

Answer 685

No

Question 686

Are legally significant words hearsay? e.g., an offer to provide sexual services for money?

Answer 686

No

Question 687

Can falsehoods be hearsay (e.g., somebody saying a statement then saying none of it was true)

Answer 687

No, there is no intention of truth

Question 688

How is hearsay different from original evidence?

Answer 688

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

Question 689

What are 3 statutory exceptions which allow hearsay to be admitted?

Answer 689

Witness is unavailable

It is a business document

iT IS IN THE INTERESTS OF JUSTICE

Question 690

What 3 conditions must be satisfied to admit hearsay when the witness is unavailable?

Answer 690

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

Question 691

What are the 5 conditions in subsection 2 regarding when hearsay will be admitted because the witness is unavailable?

Answer 691

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

Question 692

Can you have anonymous hearsay?

Answer 692

No

Question 693

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?

Answer 693

No

Question 694

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?

Answer 694

The criminal standard

Question 695

For admitting hearsay under an exception because the witness was unavailable due to fear, what is the approach if there has been witness intimidation?

Answer 695

It will probably be admissible, and the intimidatory defendant cannot complain that they did not have a fair trial

Question 696

What types of documents does the business documents exception to no hearsay evidence apply to?

Answer 696

Medical evidence

Statements written down by police

Question 697

What conditions must be satisfied to admit hearsay under the business document exception?

Answer 697

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)

Question 698

In what circumstances will documents prepared in anticipation of criminal proceedings be admissible?

Answer 698

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