Preliminaries to Prosecution Flashcards
When are representation orders applied for?
At the first hearing in the magistrates court
What are the two tests to get a representation order (legal aid)
Means test- always be satisfied in receipt of certain benefit- if not have to calculate disposable income. In Magistrates court, either get it or you don’t, but in crown court it is possible to get a contribution order made towards costs
Merit test (interest of justice test)- Multiple factors eg likely to lose liberty, impacts on livelihood.
What is an interview at the police station?
Found in COP C, para 11.1A- An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence.
Must be carried out under caution and an accurate record made.
Only should happen at a police station, must be provided with legal advice if requested.
What is pre-interview disclosure?
This is where the solicitor can review the custody record to see what the defendant is suspected of, and any evidence against them. There is no obligation on the police to provide this, only have to provide information provided under COP C- sufficient information to enable them to understand the nature of such offence and why they are suspected of committing it.
What are the different options in the police interview?
1) Answer questions
2) No comment
3) provide a written statement and then no comment.
Argent case.
What happens if they remain silent/ no comment
Adverse inferences can be drawn- Criminal Justice and Public Order Act 1994
1) S 34- if a fact is later relied on at trial and it would have been reasonable to have mentioned it now
2) S. 36 If there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so that you are not ambushed in interview
3) S.37 If there is a failure to account for presence at the scene
Although, s38 contains the safeguard that no defendant may be convicted solely based on an adverse inference
What is a section 34 inference?
This allows for an inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning. Has to have been reasonable to have mentioned
An inference does not have to be drawn, but if it is, it has to be ‘proper’.
What is R v Argent?
This is court of appeal guidance- this case brought in ‘circumstances existing at the time’ which should be widely interpreted.
What are inferences under section 36 and 37?
s36- failing to account for an object, substance or mark. If being questions on this, the officer has to give them a ‘special warning’.
s37- When the suspect fails to account for their presence on arrest at a particular place.
For both, no question of reasonableness (unlike s34)- both arise from arrest.
What is the effect of an adverse inference?
Only drawn at trial- acts to undermine their defence.
What if any procedure is not followed by the police (i.e no solicitor, caution not given etc)
The defence can out an application in that any evidence obtained as a result may be excluded under the provision of s.76 (admissibility of confession evidence) and/or s.78 PACE 1984 (both for confessions and any other evidence
What are the summary only offences?
Common assault
Criminal damage where value is £5000 or less
What are the indictable only offences?
Robbery
Rape
Wounding/GBH with intend (s.18 OAPA 1861)
What are the Either-way offences
Theft
Burglary
Fraud
Sexual Assault
ABH (S.47 Oapa)
Wounding/GBH (s.20 OAPA)
Possession of Class A or B Drugs
Possession with intent to supply A or B drugs
Criminal Damage where the value exceeds £5,000
How are Summary only offences dealt with?
Can only be tried and sentences in the magistrates court
Plea- entered at the first hearing before magistrates court
Trial- only occur at magistrates
Sentence- Only take place at magistrates
