random Flashcards
Appeal for a sentence
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
what court does criminal damage go to for trial?
can it be committed to the crown for sentencing
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
Can a spouse be compelled by the prosecution?
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)
Youths pleading in court
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
can mags convict on a lesser offence
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
what is effective good character
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
types of community requirements
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
one indictable only offence and another new offence that is either way
which court?
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.
Admissibility for res gestae
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’
is plea taken in mags for indictable only
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
Ordering a re-trial after quashing
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
changing plea
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
bad character
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
lie on the file
17 Criminal Justice Act 1967 - enter in a not guilty then prosecution offers no evidence
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
criminal fines and compensation
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
defence statement in the mags
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
indictment when only one offender is clearly done the crime and the other assisted
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
conditional discharge
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
youth jointly tried with adult
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
evidential and legal burden in a defence
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
statute for exclusion of confession
statute for exclusion of evidence
not the same
s. 76 confession
s. 78 evidence
automatic right to appeal
from mags on summary can automatically appeal to crown court within 21 days of sentence
discretion to refuse a case in mags
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
witness summons
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
prosecution initial disclosure
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
voir dire
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
dangerous offender
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
time limit on summary only offences
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
remanding when there is an adjournment
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
detention and training orders
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
when to sever the indictment
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
prosecution closing speech when D is a LIP
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
leave to appeal from crown court -refusal of grounds
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.
