!!! CRIMINAL PRACTICE SQE1 Flashcards
HOW LONG CAN YOU BE DETAINED FOR AT THE POLICE STATION- SUMMARY ONLY OFFENCE
- 24 HOURS MAX, AFTER WHICH THE D MUST BE RELEASED (UNCONDITIONALLY OR ON POLICE BAIL) OR CHARGED
HOW LONG CAN YOU BE DETAINED FOR AT THE POLICE STATION - INDICTABLE OFFENCE (INCLUDING EITHER WAY)
- 24 HOURS UNLESS A SUPERINTENDENT OR ABOVE AUTHORISES DETENTION FOR FURTHER 12 HOURS WHERE THE OFFICER HAS REASONABLE GROUNDS FOR BELIEVING THAT:
- THE DETENTION IS NECESSARY TO SECURE OR PRESERVE EVIDENCE, OR
- TO OBTAIN SUCH EVIDENCE BY QUESTIONING THE SUSPECT, AND
- THE INVESTIGATION IS BEING CONDUCTED DILIGENTLY AND EXPEDITIOUSLY
DETENTION BEYOND 36 HOURS
- SECTION 43 PACE PERMITS DETENTION WITHOUT CHARGE BEYOND 36 HOURS
- POLICE MUST APPLY TO MAGISTRATES COURT FOR A WARRANT OF FURTHER DETENTION WHERE:
– THE DETENTION IS NECESSARY TO SECURE OR PRESERVE EVIDENCE OR TO OBTAIN SUCH EVIDENCE BY QUESTIONING THE SUSPECT, AND
– THE OFFENCE IS AN INDICTABLE OFFENCE, AND
– THE INVESTIGATION IS BEING CONDUCTED DILIGENTLY AND EXPEDITIOUSLY - A WARRANT MAY AUTHORISE DETENTION FOR A FURTHER 36 HOURS (24 + 12 + 36 = 72 HOURS)
- POLICE MAY APPLY FOR A FURTHER WARRANT OF DETENTION FOR 24 HOURS- AT THE END OF 96 HOURS, THE SUSPECT MUST EITHER BE RELEASED ON POLICE BAIL OR UNCONDITIONALLY, OR CHARGED
SUMMARY OF RIGHTS WHILE IN CUSTODY
- RIGHT TO LEGAL ADVICE IN PRIVATE
- RIGHT TO HAVE SOMEONE INFORMED OF YOUR ARREST
- CONTINUAL REVIEW OF DETENTION
- RIGHT TO AN APPROPRIATE ADULT IF YOU ARE VULNERABLE
- RIGHT TO MEDICAL ADVICE
- RIGHT TO BASIC HUMAN RIGHTS (FOOD/SLEEP/REFRESHMENTS)
THE ROLE OF THE CUSTODY OFFICER
- CUSTODY OFFICER (MUST BE A POLICE OFFICER OF THE RANK OF AT LEAST SERGEANT), PLAYS AN ESSENTIAL ROLE IN ENSURING THE DETAINEE’S LEGAL RIGHTS AT THE POLICE STATION ARE COMPLIED WITH
- INDEPENDENT AND IMPARTIAL OF THE POLICE INVESTIGATION AND SHOULD NOT QUESTION THE SUSPECT ABOUT THEIR INVOLVEMENT IN THE ALLEGED OFFENCE
WHEN CAN SUSPECTS ACCESS TO LEGAL ADVICE BE DELAYED?
- SUSPECT HAS BEEN ARRESTED FOR AN INDICTABLE OFFENCE (INC EITHER WAY) AND
– AN OFFICER OF AT LEAST SUPERINTENDENT AUTHORISES DELAY AS THEY HAVE REASONABLE GROUNDS FOR BELIEVING THAT IF THE SUSPECT WERE ALLOWED ACCESS TO LEGAL ADVICE IT WOULD:
– LEAD TO INTERFENCE WITH OR HARM EVIDENCE
– LEAD TO ALERTING OTHER PEOPLE INVOLVED WITH OFFENCE
– HINDER RECOVERY OF PROPERTY
WHICH ARTICLE OF PACE IS CONSIDERED WHERE THE PROSECUTION AT TRIAL SEEKS TO RELY ON UNLAWFULLY OBTAINED EVIDENCE
ARTICLE 6
WHAT IS A CONFESSION?
- WIDELY DEFINED AND COVERS ANY INCRIMINATING ADMISSIONS MADE BY AN ACCUSED
DOES A BREACH OF PACE LEAD TO A CONFESSION BEING EXCLUDED?
NOT NECESSARILY
OPPRESSION AND UNRELIABILITY DEFINITIONS
- OPPRESSION- NARROWLY DEFINED AND WILL INVARIABLY INVOLVE SOME DELIBERATE MISCONDUCT BY THE POLICE
- UNRELIABILITY- MUCH WIDER APPLICATION- DOES NOT REQUIRE BAD FAITH BY THE POLICE AND THE D’S MENTAL STATE WILL BE A RELEVANT CONSIDERATION
CHALLENGING A CONFESSION ON THE GROUND OF UNFAIRNESS
Section 78 of PACE 1984 might be cited to challenge the admissibility of a confession (or an admission obtained as a result of unfair conduct by the police), including:
- failing to secure access to a solicitor;
-failing to properly record an interview; - failing to provide safeguards in relation to a vulnerable suspect;
- deceiving a suspect into making a confession or offering inducements;
- acting in deliberate breach of Code C.
WHAT HAPPENS TO A CONFESSION IN CROWN COURT- BOTH EXCLUDED OR ADMISSIBLE
EXCLUDED- JURY NEVER KNOW
ADMISSIBLE- ACCUSED IS ENTITLED TO REPEAT THEIR ALLEGATIONS ABOUT HOW THE CONFESSION WAS OBTAINED IN ORDER TO PERSUADE THE JURY THAT THE CONFESSION CARRIES LITTLE EVIDENTIAL WEIGHT
WHAT IS A VOIR DIRE AND WHEN WOULD IT BE CONDUCTED?
- A voir dire need only be held where it is represented that the confession was obtained by ‘oppression’ or is ‘unreliable’ or its admission in evidence would be ‘unfair’. This will normally involve a mixed question of law and fact.
- If an accused denies making a confession (ie maintains their signature has been forged or denies words attributed to them), this becomes a disputed fact between the prosecution and the defence and will be decided by the jury/magistrates.
Evidential burden of bringing forward self-defence
- prosecution first proves the offence to criminal standard (beyond reasonable doubt)
- defense then bears the evidential burden and must produce some evidence to satisfy the judge (basically just has to raise it in police interview or examination-in-chief)
- prosecution then have the legal burden to prove beyond reasonable doubt that they weren’t
Evidential burden of bringing forward insanity
- defence of insanity imposes a reverse burden
- this means there is a legal burden on D and the standard of proof is the balance of probability
Burden and standard of proof for
- loss of control
- diminished responsibility
- evidential burden (mention it) for loss of control- pros then need to disprove beyond reasonable doubt
-legal (prove it) burden for diminished responsibility- reverse burden- Defence prove on the balance of probabilities
when can a statement be withheld from disclosure by the CPS until after the beginning day of the first hearing?
- when it is not material to plea, allocation, or sentence
test for recklessness
- aware of a risk
- does it anyway
Principal offender and secondary party definition
Principal offender is the person that commits the offence
secondary party is someone that has knowledge of the circumstances that constitute the offence (eg giving someone a flick knife to go and kill someone)
can only be either of these if you have the actus reus for that crime
factual vs legal cause
- factual causation- ‘but for’ test
- legal causation- natural and probable result of defendants actions
test for oblique intention
- you may find intention if death or serious injury was a virtually certain consequence of their conduct and they realised it was a virtually certain consequence
can you commit fraud by false representation if you intend to pay at the time of ordering?
yes- there is an implied representation when ordering a meal that you are going to pay for the food
- this representation continues throughout the time a person is in the restaurant, and it doesnt matter that they initially intend to pay
who decides whether there was a duty to disclose information in a case of fraud by failure to disclose information?
- the judge will decide if a legal duty is capable of existing
- in making that decision the judge needs to consider legal concepts only
- it is assessed objectively (reasonable person test)
specific vs basic intent
specific means you have to intend to do it to be guilty
basic means you can be reckless
voluntary intoxication as a defence for specific or basic intent crimes
specific- can rely on voluntary intoxication to demonstrate they lacked the mens rea- but this is subject to the caveat that drunken intent is still intent
basic- can’t rely on voluntary intoxication as a defence- if anything it is an aggravating factor
what should be taken into account when the jury assess if a person of normal tolerance and self-restraint might have reacted in the same or similar way?
- sex
- age
- circumstances (e.g. history of domestic abuse)
gross negligence manslaughter- how do you decide if someone is guilty of it?
reasonable bystander test- whether a serious and obvious risk of death was reasonably foreseeable
