Revision Flashcards
What are the gateways to admitting bad character evidence under s101 CJA?
(a) Agreement
(b) Adduced by D
(c) Important Explanatory Evidence
(d) Relevant to an important matter in dispute between the prosecution and defence
(e) Substantial probative value to a matter in dispute between defendant and co-defendant
(f) False Impression
(g) Attack on character
What is meant by important Explanatory Evidence?
Without the evidence it is difficult or impossible to understand other evidence
What is meant by matters in issue between the prosecution and defence?
Can mean propensity to commit offences of the kind he is charged or propensity to be untruthful.
Evidence given by whom is admissible under s101(e)
Evidence adduced by a co-defendant or
Evidence which a witness is to be invited to give in cross examination by the co-defendant
D29.13,D29.18, D29.24, the first two sub-paragraphs of D29.25, D29.27, the first sub-paragraph of D29.38 and paragraph D29.40 D29.42 and D29.44,
D16.73, the first sub-paragraph of D16.75, D16.76-16.77 and D16.78-16.79
s D30.1 and D30.3
If an accused is convicted in absence what will magistrates have regard to when considering re-opening?
Whether failure to attend as D’s fault anf whether witnesses would be inconvenienced if a retrial were ordered. If absence was involuntary, the conviction should be quashed.
When can a mags vary or rescind a sentence?
If in the interests of justice to do so
s142 Magistrates Court act allows mags to re-open a case when?
Limited circumstances,
Mistake or slip rule
s142 can be used to increase sentence in exceptional circumstances
Technically no time limit
How long does the Crown Court have to vary or rescind a sentence?
s385 SA 2020 CC has 56 days
When is the bad character of a Non-Defendant admissible?
Only with the leave of the Court in any event, unless parties agree
When can a Court substitute a verdict?
If the jury have convicted of another verdict (eg murder and DR)
Who can give evidence at appeal proceedings?
Judge can compel anyone, even if they weren’t compellable at first instance
When will fresh evidence NOT be admitted at an appeal?
If purpose is to advance a basis for conviction not argued before the jury
Criminal Appeal Act s23
Court ca n produce any exhibit or witness
What should be sent to the accused if they are not present at an adjournment?
Adjournment notice. Should have adequate notice of adjournment date
If the prosecutor appears in the mags but the accused does not, what should happen?
The court must proceed in the absence of the accused unless it appears to the court to be contrary to the interests of justice to do so. If summonsed by written charge and requisition , must prove that had adequate notice of the hearing
What constitutes good reason for absence at trial in summary trial?
Needs to be their own fault, not just their own choice
What should magistrates do with inadmissible evidence?
Consider admissibility before the evidence is adduced. May know nature but not precise content.
After magistrates have retired, what evidence can be adduced?
NONE save for very very special circumstances
If accused is unrepresented and absent and the judge decides to proceed, what should they do?
Put defence theory to witnesses where possible. Remind the jury that a failure to appear is not an admission of guilt.
In CC, when can the Court dispense with the accused?
- Misbehaviour
- Voluntary absence
- Accused is too ill
- Accused is dead
Does the seriousness of an offence matter when considering whether he should be tried in his absence?
No
When should an accused be handcuffed in the dock?
Only where there is a real risk of violence or escape and there is no alternative to visible restraint
May a trial go ahead if an accused is too sick to attend?
Nope unless he consents
If the prosecution want to serve evidence that they didnt originally serve, how long do the defence have to object?
5 business days or 7 days in spesh circumstances
If D wants to object to a s9 statement but a mistake means he doesnt, what happens?
Judge can compel witness to come
What is hearsay evidence?
A statement made out of oral proceedings which is relied upon for its truth
When is hearsay admissible?
Any statute allows it
Any rule of law under s118 allows it
All parties agree
It is in the interests of justice for it to be admitted
What are the statutory exceptions under s116 CJA to admitting hearsay?
s116:
RP is identified and:
- dead
- outside UK
- Lost
- Through fear, does not want to give evidence
If relevant condition is met, Court can decide if the statement should be admitted.
What evidence does s116 apply to?
First hand hearsay from identifiable witness. S116 CANNOT APPLY TO ANONYMOUS WITNESS
What are the statutory exceptions under s117 CJA to admitting hearsay?
Business Documents:
Statement was made during trade by someone with particular knowledge of the matter dealt with and the conveyor of that information had knowledge. If the statement was prepared for purposes of criminal proceedings, must also have a 116 criteria.
What are the s118 exceptions to hearsay?
Res Gestae
Public documents
Expert Evidence
What are the ‘interests of justice’ exceptions to hearsay?
Only for exceptional circumstances, only where no other provisions apply
s126 CJA
Court’s specific power to exclude hearsay evidence
s125 CJA
Courts power to stop a case where the evidence is not convincing
s124 CJA
Power to opposing party to put into evidence anything which would have been admissible if RP was here
What is an adult?
Anyone over 18
When will an under 18 make their first appearance in adult mags?
Only in exceptional cases: Only where case is adjoined to that of an adult
When MAY an under 18 be sent to CC?
- If the offence carries 14 years custody for an adult
- Dangerous Offender offence
- Alongside an adult accused
When MUST an under 18 be sent to CC?
If charged with homicide or other certain offences
If, in the magistrates court, two accused jointly tried and adult pleads guilty but U18 pleads not guilty, what happens?
Mags may try U18 but more likely will be remitted
What is a Youth Rehabilitation Order?
Community order for max three years
When is a detention and training order available?
U18s over the age of 12- if U15 must be persistent offender (more than 2 previous offences)
What is the minimum and maxiumum term of a detention and training order?
4-24 months
How does a judge determine whether there is a case to answer?
Galbraith:
If no evidence, easy.
If some evidence, judge should consider:
If the prosecution evidence, taken at its highest is such that a jury properly directed could not convict
R v Galbraith
Test for no case to answer
What is a Lucas Direction?
When considering the lies of the accused, judge should remind jury that people sometimes lie for innocent reasons
What is a confession?
A statement wholly or partly adverse to the maker.
What is an exclusion requirement?
Not permitted to enter a certain area
What is the legal burden?
Burden to prove a fact
What is the evidential burden?
Burden to produce evidence
When can a majority decision be given in jury trials?
After 2 hour 10 mins of deliberation
What must a jury consider before relying on a lie as evidence of guilt?
Consider if there is an innocent reason for it
Can someone be convicted solely on an adverse inference from silence?
No
When can guilt be inferred from silence?
ONLY when D attempts to put forward a previously undisclosed fact. If judge is in doubt as to whether P is putting forward a positive case or merely testing the case, J should ask.
Can you draw an adverse inference when the accused is acting on legal advoice?
Genuine reliance on legal advice not enough to disallow an inference. Could the unmentioned fact be reasonably expected to be mentioned?
F1.37 and F1.43 F2.7, F2.8-2.10 and F2.36,
F3.6-3.10, F3.18, F3.37, F3.40, F3.41 and F3.44, F3.47-3.48, F3.53
Is the fact a prosecution is brought privately relevant?
Nope
What is circumstantial evidence?
Evidence of relevant facts- does not necessarily hold less evidence than direct
When does D have to prove something beyond reasonable doubt?
NEVER
If self defence is raised, where is the legal and evidential burden?
Legal- pros
Evidential- D
How can accused discharge the evidential burden?
Adducing evidence which ‘might leave the jury in reasonable doubt’ that accused committed the offence
What must prosecution costs be?
just and reasonable. Can make surcharge for compensation but can be reduced to nil if means require
Ex Parte Dove
Costs should never exceeed D’s means, and should not exceed that which prosecutor has reasonably incurred
Costs are to compensate, not to punish
Where D has limited means, does fine or compensation take precedent?
Compensation
What is th difference between a deprivation order and a forfeiture order?
Deprivation means to take away, forfeiture means to change ownership
What is a confiscation order?
Order requiring D to pay for the benefit of the crime
How long does the court have to make a confiscation order/hearing?
2 years from conviction
What is a voluntary bill of indictment?
An order from a high court judge that the accused should stand trial at CC. Can be used where a CC charge is dismissed but pros still wish to pursue trial
D11.72-11.75
D11.76-11.79 and D11.86-11.88
D11.99-11.100, D11.103-11.104,and the first sub-paragraph of D11.105
When can a draft indictment be served?
- The accused has been sent for trial
- Voluntary bill of indictment
- A CC judge has consented to preferment of a bill following declaration bu the court in approving a deferred prosecution agreement
- CoA has ordered a retrial
Who has ultimate responsibility for the indictment?
Prosecution counsel
When should a draft indictment be sent?
20 business days of the date on which copoes of documents are served or HC judge consents. (CC can extend)
D14.3-14.7, D14.26, D14.28 (except for the first sub-paragraph), and paragraph D14.49
D15.39, D15.44 and D15.47-15.49
D17.7-17.9, D17.12, D17.17-17.19
D18.10, D18.13-18.14, D18.16, D18.18-18.21, D18.23-18.30, D18.33, D18.36-18.39 and D18.42-18.43
D19.2, D19.18, D19.35-19.36, D19.38-19.39, D19.41-19.42, D19.58, D19.69 and D19.9
D21.17 and D21.18
D22.80-22.81
D22.52-22.54. D22.70-22.72 (first sentence only
E13.5 E13.7-13.8 E13.9-13.13, E13.16, E13.19-13.21 and E13.26 (first sub-paragraph)
s E17.1-17.2, E18.2 (section 313(1),(2) and (2A) of the Sentencing Act 2020 only), E18.4, E18.6, E18.7 (section 314(1), (2), (2A), (3)(a)-(b) of the Sentencing Act 2020 only), and E18.11
E14.1 (first seven lines, up to “… cannot be suspended.”), E14.3 (first two sub-paragraphs only), E14.5-14.8, E14.11-14.12 and E14.14
What orders can the Court make when the accused, not fit to plead, is found guilty of the act?
- hospital order
- supervision order
- absolute discharge
Where a person is convicted of an imprisonable offence but there is no guidance as to the maximum term, how long can they be imprisoned?
2 years
CTL for CC
182 days
CTL for voluntary bill of indictment
112 days
