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Question 1

Appeal for a sentence

Answer 1

if the case was originally heard and sentenced in the mags court, when the D has appealed to the crown court - although they can increase a sentence, they CANNOT increase it beyond the sentencing powers of the mags court (12 months collectively)

if they have, the D needs to appeal to the divisional court by way of case stated

check if they had given any reduction for a guilty plea

Question 2

what court does criminal damage go to for trial?

can it be committed to the crown for sentencing

Answer 2

criminal damage is a summary only offence so it is only tried in the mags court UNLESS the damage is more than 5,000

if the amount of damage is 5,000 or below, the case CANNOT BE COMMITTED to the crown court for SENTENCING

Question 3

Can a spouse be compelled by the prosecution?

Answer 3

YES if they are being charged of a specified offence eg rape of a child (under 16)
assault of a child (under 16)
or conspiracy/aiding/abetting the rape or assault of a child (under 16)

Question 4

Youths pleading in court

Answer 4

Youths do not have the right to elect a crown court trial

a PBVH procedure only applies to a youth when the crime they are accused of carries at least 14 years in prison

when the case must be tried in the youth court the same procedure is adopted as for a summary trial in the magistrates’ court - a plea will be taken and remitted for the youth court

the mags/youth MAY send the offender to the crown court as if convicted, it ought to be possible to sentence him under the Powers of Criminal Courts (Sentencing) Act 2000 s.91 - not an obligation

Question 5

can mags convict on a lesser offence

Answer 5

no - this is a job for a jury in a crown court trial when they can convict on a lesser offence if certain elements are not satisfied

The exception to this is THEFT

when someone is charged with aggravated vehicle taking, he may instead be convicted of the lesser offence of vehicle taking contrary

Question 6

what is effective good character

Answer 6

when a conviction is minor, old and irrelevant to the current charge.

If they are of effective good character she is entitled to the good character direction in full, although it should be MODIFIED to ensure that the jury is not misled

Question 7

types of community requirements

Answer 7

exclusion requirement - prohibited from entering a targeted business or area for 2 years

residence requirement

curfew requirement - usually between 2 and 16 hours

drug rehabilitation requirement

unpaid work requirement

Question 8

one indictable only offence and another new offence that is either way

which court?

Answer 8

NOT AUTOMATIC OR MUST

Once a defendant has already been sent to the Crown Court for a matter, if they appear subsequently for another related either-way matter, they may be sent forthwith to the CC under s51(4), but this is a discretionary power, not a mandatory duty. Therefore there should be a PBV and allocation hearing.

Question 9

Admissibility for res gestae

Answer 9

It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness. Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection. The statement must be closely associated with the relevant event.

not simply ‘i saw him kicking X’

Question 10

is plea taken in mags for indictable only

Answer 10

no plea before venue and allocation takes place on an indictable only offence

its automatically sent to the crown court to be tried WITHOUT plea being taken

Question 11

Ordering a re-trial after quashing

Answer 11

s. 7 Criminal appeals act 1968

May order a retrial when it’s in the interests of justice to do so

when considering their decision, they look at publicity and time served but these are not the circumstances

Question 12

changing plea

Answer 12

The judge has a discretion to allow the accused to withdraw a plea of guilty at any stage before sentence is passed

• IT IS NOT AN OBLIGATION

Question 13

bad character

Answer 13

something is only ‘important explanatory evidence’ when the jury would find it “impossible or difficult properly to understand other evidence in the case”

‘substantial probative value’ = substantial probative value to matter in issue that is being brought up in trial between the D and C

s.101 = is only for the defendant’s bad character - not relevant when talking about a witness/victim’s bad character

Question 14

lie on the file

17 Criminal Justice Act 1967 - enter in a not guilty then prosecution offers no evidence

Answer 14

not to be proceeded with without the leave of this Court or the Court of Appeal

proceedings are not formally concluded and so when an agreement has been made with prosecution to not pursue - better to enter not guilty and the judge can rule getting rid of that offence for good

Question 15

criminal fines and compensation

Answer 15

The court will determine the level of the fine
by reference to the seriousness of the offence and whether the D pleaded guilty or not guilty

if both a fine and compensation is ordered, priority is given to the compensation

Question 16

defence statement in the mags

Answer 16

DS is not a requirement in the mags court but if the D was to serve one, they must serve it within 14 days of the date on which the Prosecution comply or purport to comply with their initial duty of disclosure

Question 17

indictment when only one offender is clearly done the crime and the other assisted

Answer 17

if one acts as a lookout whilst the other commits the offence, the indictment should read as a JOINT COUNT of the crime

there is no need to distinguish who the principle offender is on the indictment so do not put -
Separate counts
only one to be indicted
both for conspiracy of the crime

Question 18

conditional discharge

Answer 18

A conditional discharge can be breached by the conviction of the offender of a further offence committed during the period of the discharge.

the date that is relevant is the date that the offence was committed

Question 19

youth jointly tried with adult

Answer 19

general rule is that they must go to youth court

one exception is that they are jointly tried with an adult in which case, if the adult has elected a summary - the youth MUST be tried in the mags court with their co-accused

Question 20

evidential and legal burden in a defence

Answer 20

The Defence have the evidential burden to raise the issue of self-defence.

The Prosecution then have the legal burden of disproving self-defence beyond reasonable doubt

Question 21

statute for exclusion of confession

statute for exclusion of evidence

Answer 21

not the same

s. 76 confession
s. 78 evidence

Question 22

automatic right to appeal

Answer 22

from mags on summary can automatically appeal to crown court within 21 days of sentence

Question 23

discretion to refuse a case in mags

Answer 23

the magistrates have the discretion to refuse to try the case if the delay of bringing a case to trial amounts to an abuse of process - does not have to be deliberate

Question 24

witness summons

Answer 24

if a witness has expressed that they will not be attending trial, you can immediately apply for an arrest warrant to bring the witness to the court on the day of the trial

Question 25

prosecution initial disclosure

Answer 25

Under section 3 of the CPIA 1996 the Prosecutor must disclose material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case of the accused - not that strengthens the case of the prosecution, just undermines

DOES NOT REQUIRE MATERIAL THAT IS ADVERSE TO THE ACUSED - eg previous convictions

DEFENCE STATEMENT IS SERVED 28 DAYS AFTER INTIAL DISCLOSURE

Question 26

voir dire

Answer 26

the voir dire is the procedure whereby the defence may object to the admissibility of the evidence

if defence wish to challenge the admissibility a vior dire is held, but it is not if they simply do not agree the evidence

Question 27

dangerous offender

Answer 27

Judge must be of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the D of further specified offences

D doesnt have to have had previous convictions for dangerous offender provision to apply - also not specific to the victim being in danger

Question 28

time limit on summary only offences

Answer 28

proceedings must be commenced within 6 months of the time when the offence was allegedly committed. This is done by the laying of an information (serving) on the magistrates’ court within 6 months of the date of the alleged offence as per s.127(1) MCA 1980

Question 29

remanding when there is an adjournment

Answer 29

if the D was already on bail - The court MUST either remand the D in custody or on bail and MUST set the time and place for the resumption of the trial

Question 30

detention and training orders

Answer 30

between 4-12 months but if the questions says your assumption is the 4 months or close to this, if the D pleads guilty there will be a reduction

Question 31

when to sever the indictment

Answer 31

court have discretion to sever an indictment between two people on the basis that the defendants are facing separate counts on the indictment as well as one joint one

these counts may count as being ‘factually dissimilar’ =seperate trials

Question 32

prosecution closing speech when D is a LIP

Answer 32

even if the D has given evidence themselves, if they have not called any witnesses and are unrepresented - PROSECUTION MAY NOT MAKE A CLOSING SPEECH

Question 33

leave to appeal from crown court -refusal of grounds

Answer 33

you can only argue grounds that have been rejected by the single judge ONLY IF you are successful in renewing the application for leave before the Court

this leave is not made just to the single judge but before the court at substantive hearing after informing the Respondent(s) and the Registrar’s Office.