PFA 1 - Criminal Advocacy Flashcards
What structure should you adopt for a topic relating to bail applications?
- Remind the court of the defendant’s right to bail.
Bail can only be refused if one of the exceptions to the right to bail apply, AND there is a real prospect of a custodial sentence. - Consider whether any of the exceptions to the right to bail apply.
These are usually whether there are substantial grounds to fear the:
- defendant would fail to surrender,
- commit further offences on bail, or
- interfere with witnesses, or
- otherwise obstruct justice. - Review the factors in deciding whether substantial grounds exist
For example:
- Nature and seriousness of the offence,
- Defendant’s character,
- Defendant’s record of complying with conditions on bail,
- The strength of the evidence, etc. - Consider whether any conditions can be put forward to address these issues, e.g., residence, reporting, exclusion, non-contact tag, curfew, etc., and
- Conclude on why bail should/should not be granted
What structure should you adopt if you need to argue that the court should accept jurisdiction?
- In deciding whether to accept jurisdiction, the court must consider the adequacy of its sentencing principles.
The Magistrates’ Court’s sentencing powers are restricted to 6 months’ imprisonment for a single offence, or 12 months’ imprisonment for 2 or more either way offences.
- Go through the relevant sentencing guidelines + consider the starting point for the sentence and the range that applies.
- Submit that the court’s sentencing powers are adequate and it should therefore accept jurisdiction.
What happens if a suspect is denied bail by the custody officer?
The suspect will be produced at the Magistrates’ Court at the next available hearing.
What is the presumption re bail?
Except in homicide cases, there is a presumption that a defendant should be released on bail after appearing in Magistrates’ Court
When can the court remand a defendant into custody in non-homicide cases?
Only if the court finds:
1. An exception to the right to bail applies, and
2. There is a real prospect of a custodial sentence being imposed if convicted
What is the substantial grounds exception to the right to bail?
There are substantial grounds to believe the defendant would do any of the following:
a. Fail to surrender,
b. Commit further offences whilst on bail
c. Interfere with witnesses or otherwise obstruct justice
d. Commit an offence on bail that would cause (or cause fear of) physical or mental injury to an associated person (such as a spouse or former partner)
What are the exceptions to bail other than the substantial grounds exception?
- They are charged with an offence that can be tried in the Crown Court, and they were on bail at the time of the offence
- Custody is for their own protection
- There’s insufficient evidence on which to make a bail decision
- They failed to surrender or breached bail conditions in the same proceedings
What will the court consider when deciding whether to grant bail?
- Nature + seriousness of the offence, and the probable method of dealing with it
- Defendant’s character, previous convictions, associations, and community ties.
- Record of complying with bail obligations
- Strength of the evidence
- Risk that the defendant might engage in conduct that would, or would be likely to, cause physical or mental injury to another
Why does the defendant’s character, previous convictions, associations + community ties matter when deciding bail?
Previous convictions make bail less likely to be granted.
Strong community ties, links to reputable organisations, and having a good character record all make bail more likely to be granted.
Why are the rules of evidence relaxed at bail hearings?
Because full investigations haven’t yet taken place.
When can a court attach conditions to bail?
If they are relevant, proportionate, and enforceable
What are common conditions of bail?
Include:
1. requiring the defendant to reside at a specified address or to report to a local police station at specified intervals
- prohibiting the defendant from going on to a particular area or from contacting certain individuals
- requiring the defendant to comply with a curfew, to wear an electronic tag, or to provide a surety or security that will be forfeited if the defendant fails to surrender
Where are applications for bail on murder charges heard?
Only in the Crown Court
What is the presumption re bail for murder charges?
Bail may not be granted unless the defendant can convince the Court there is no significant risk that the defendant would commit an offence likely to cause physical or mental injury to another person.
When must a court consider bail?
At each hearing
How many bail applications can a defendant make?
Only 1 further bail application based on the same facts + submissions (2 in total).
A defendant may make additional requests for bail only if there is a change of circumstance –> e.g., if there is a new evidence that weakens the prosecution case, or a new bail address
What happens if a defendant breaches their bail conditions?
- Can be arrested without a warrant
- Their bail can be withdrawn
- Court can impose more stringent conditions
What happens if a defendant fails to surrender to bail?
They commit a separate offence + risk their bail being revoked
When must a Court follow the sentencing guidelines?
If sentence guidelines exist for the offence, the Court is obliged to follow them unless it is against the interest of justice to do so.
What aggravating factors must the sentencing court take into account?
- Relevant previous convictions
- That the offence was committed whilst the defendant was out on bail
- That the offence was motivated by racial or religious hostility
- That the offence was motivated by the victim’s sexual orientation, transgender identity, or disability
What aggravating factors does the court have discretion to take into account?
- Offence was premeditated
- Offence was committed in a group
- Offence targeted a vulnerable victim
- Offence was committed under the influence of drugs/alcohol
- Offence involved abuse of position of trust
- Offence was committed against a victim who was providing a service to the public
- A weapon was used in committing the offence
What mitigating factors does the court have discretion to take into account?
- Offence was committed on impulse
- Defendant was highly provoked or acted out of fear
- Defendant has a disability or mental illness
- Defendant played a minor role in the crime
- Defendant attempted to make reparation with the victim
- Defendant is very young or very old
What is the totality principle?
Court must take it into account when sentencing.
Sentence imposed must not be disproportionate to the overall seriousness of the offending behaviour
Under the totality principle, when is a court more likely to impose consecutive sentencing?
More likely to impose consecutive sentencing rather than concurrent sentences when a defendant is found guilty of multiple offences that didn’t arise out of the same conduct
What is a defendant who pleads guilty early entitled to?
If they plead guilty at the first opportunity - entitled to a 1/3 reduction in sentence
If they plead guilty at any other time before trial, they can be given less of a sentence reduction
What other factors may the court take into account when sentencing?
The defendants:
- age,
- health,
- good character,
- home and work situation,
- progress since the offence was committed,
- remorse for offending, and
- efforts to address the offending
What may be considered if sentencing a property offence?
The fact that the property involved was of low value can be a mitigating factor regarding the sentence to be imposed
When should a custodial sentence be imposed?
Not unless it is so serious that neither a fine nor a community order can be justified.
When does the court have the option to impose a suspended sentence?
If the custody threshold has been passed
What is a suspended sentence?
Means that the offender isn’t placed in custody but will be liable to serve the sentence in custody if they break any conditions of the suspension or if they commit any further offences whilst subject to the suspended sentence.
What is the maximum period of suspension?
2 years
What is a community order?
Carried out in the community rather than in custody
What can a community order consist of?
- unpaid work
- requiring the offender to participate in a rehabilitation or treatment programme
- curfew
- restricting the offender from a particular area
- requiring the offender to reside in a certain location
What happens if an offender breaches a. community order?
They may be sentenced immediately to custody
Who can impose a fine?
Both the Crown and Magistrates’ Court - either as sole sentence or in combination with other sentences
When will a Newton hearing be held?
If the defendant pleads guilty to the offence but disputes the facts set out by the prosecution + offers to plead guilty on different fats, but the prosecution rejects the plea
What is a Newton Hearing?
Held to settle disputed facts.
Takes the form of a trial in which witnesses can be called to give evidence.
If the hearing is settled in the prosecution’s favour, the defendant will lose any credit for the guilty plea
