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CRIM > sentencing and appeals > Flashcards

sentencing and appeals Flashcards

1
Q

sentencing principles - exam structure

A

(first, it considers its powers, and refers to relevant sentencing guidelines + hears reps from both sides)

  1. assess the seriousness of the offence (look at the range of that offence though - if ABH and broken jaw thats VERY serious for ABH, even though u can think of more serious harm but that would be GBH)
  2. identify the category with ref to culpability and harm
  3. aggravating factors
  4. mitigating factors
  5. guilty plea entered?
  6. threshold met?
  7. decide on sentence - any ancillary orders like compensation?
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2
Q

aggravating factors - sentencing

A
  1. STATUTORY
    - offending whilst already on bail
    - previous convictions
    - racial or religious aggravation
    - hostility to a person’s disability or sexual orientation
  2. overreaching principles: seriousness (always aggravate offence)
  3. factors in specific guidelines for the offence
  4. circumstances of offence that might aggravate the seriousness of the offence
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3
Q

mitigating factors - sentencing

A
  1. circumstances of offence/factors in offence specific guidelines
    - e.g. injuries minor
    - sums of money involved were small
    - opportunistic
  2. D’s personal circumstances
  3. genuine remorse (only if guilty plea entered)
  4. addictions to drug/alcohol RARELY a mitigating factor but will consider this when considering TYPE of sentence (e.g. will D respond to treatment)
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4
Q

reduction of guilty plea

A

max = 1/3rd reduction of sentence

  • the earlier the plea, the greater the discount
  • specific guidelines on this (beyond scope of the course)
  • if enter on first occasion in court before trial = full 1/3 discount
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5
Q

appeals from MC go to CC - how?

A

How?

  • lodge NOTICE OF APPEAL within 21 days
  • to CLERK OF MC
  • no requirement to give detailed grounds for appeal at this stage
  • common practice to set out grounds and nature of appeal
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6
Q

appeals from MC to CC - appeal

A
  • Judge + at least 2 justices will hear appeal at CC
  • Appeal is treated as ‘de novo’ (first hearing)
  • New evidence can be called
  • Court may: confirm, reverse, vary any element BUT powers of sentencing limited to those of MC
  • CC may impose any sentence available for MC so a more severe penalty can result
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7
Q

appeals from MC to DC - how?

A
  • grounds: ERROR of LAW or decision was IN EXCESS OF JURISDICTION
  • same issue cannot be appealed to CC after application is made to state case in DC
  • application must be made within 21 days to the clerk of MC
  • must state point of law in issue
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8
Q

appeals from MC to DC - appeal

A
  • Appeal hearing is before THREE JUDGES
  • Legal argument ONLY (on questions set down for court to answer)
  • No issues of fact are decided + no evidence is called
  • Court has wide powers to confirm, reverse, or vary the original decision, or order a re-trial
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9
Q

appeal from CC to criminal division of CA - how can d appeal?

A

against:

  • conviction
  • sentence
  • both conviction and sentence
  • point of law
  • any matter relating to trial
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10
Q

appeal from CC to CA - appeal against conviction

A

grounds (only one):

  • conviction is ‘unsafe’ (s.2(1)(a) CAA)
  • key issue: whether art.6 ECHR has been breached

non-exhaustive list - when may it be unsafe? if trial judge:

  • Misdirected the jury
  • Failed to give relevant direction
  • Demonstrated an obvious bias that would have affected decision making process of jury
  • Made an error in law
  • Admitted/excluded evidence when no reasonable judge would have exercised his discretion in such a way
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11
Q

appeal from CC to CA - appeal against sentence

A

grounds (only one):

- sentence was MANIFESTLY EXCESSIVE and therefore NOT COMMENSURATE with the level of seriousness of the offence

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12
Q

appeal from CC to CA - procedure

A
  • lodge application within 28 days of conviction or sentence, submitted to the court that imposed sentence or court D was convicted
  • relevant CC will forward notice to CA
  • CA puts matter before single judge to decide whether to grant appeal or not (unless matter already certified fit for appeal by trial judge)
  • if single judge refuses to grant leave for appeal, D can renew app to full court
  • if leave granted, hearing takes place before full CA

court can:

  • quash conviction
  • find d guilty of alternate offence
  • allow part of appeal
  • direct re-trial
  • impose any sentence available at CC
  • cannot impose more serious penalty than CC
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13
Q

appeal from CA to SC

A

How?

  • consent of either court
  • CA has certified there is a point of law of general public importance
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14
Q

criminal cases review commission (independent body)

A 
- Set up to review suspected miscarriages of justice in England, Wales and NI 
Last resort (prior to applying to ECHR) once all normal appeal routes have been exhausted
  • Once commission has investigated case – it is referred back to court which heard original appeal
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15
Q

ECHR

A

If all domestic remedies have been exhausted – D can attempt to appeal to ECHR (claiming breach of relevant article of ECHR)

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16
Q
  • appealing a conviction

advising a client

A

cannot if D pleaded guilty

17
Q
  • appealing a sentence

advising a client

A

appeal from MC to CC

chance of success?

  • work out what sentence should have been
  • different?
  • lots of mitigating factors court didn’t consider?
18
Q

public funding - box 8 (proceedings may involve cross examination of witness)

A

o Think about legal issues to be identified

o Who would need to be challenged about these?

o What knowledge would person conducting XE require to do this?

o If police officers acted dodgy – then need to XE the police officers (about search, interview, witness)

19
Q

public funding - box 5 (does he need help of solicitor?)

A

yes if need to:
- Challenge lawfulness of police actions (e.g. search, interview without solicitor)

  • Challenge confessions made
  • Challenge things said or done (e.g. if police lied and said there is a witness)
  • Law of the offence
20
Q

Fines (CC + MC)

A
  1. court determines level of fine
  2. factors in any reductions (e.g. early guilty plea)
  3. inquires into financial circumstances

can be combined with any other sentence including custody (except discharge)

fail to pay:
too high? apply to court to have fine reduced or

wilful refusal to pay? other penalties may be imposed (incl. imprisonment)

21
Q

victim surcharge

A

If court imposes any sentence re: one or more offences, it must order D to pay ‘victim surcharge’ (amount varies according to sentence imposed) – originally this was only attached to payment of fine but now extended to all forms of sentence

22
Q

compensation order

A

court has a duty to consider an award of compensation
- if involves PI, court must give reasons if order for compensation is not made

  • sum of money court orders offender to pay victim to compensate victim for personal injury, loss, or damage
  • can be made alongside any other sentence
23
Q

absolute discharge

A

no penalty other than recording criminal conviction against offender

  • sufficient sentence if circumstances of the case and those of the offender is such that recording is sufficient penalty in itself
24
Q

conditional discharge

A
  • offender cannot re-offend within a period of time as specified by the court (max. 3 years)
  • if re-offend, sentenced afresh for first offence and new offence
  • commission of new offence during conditional period is an aggravating factor for sentencing new offence
25
Q

community order

A

s.177 CJA - if 18 or over, court can make community order for one or more combinations of orders and requirements

MUST BE ‘SERIOUS ENOUGH’ to warrant such a sentence (s.148)

(if threshold not reached, consider alternatives - conditional/absolute discharge)

CONSENT NOT REQUIRED unless it involves drug or alcohol rehab or psychiatric treatment

26
Q

breach of community order

A

offender may be subject to breach proceedings

This can result in:
- Additional penalty being imposed

  • Terms of the order being extended
  • Offender re-sentenced for offence

first step: offender given initial written warning
if fails: offender returned to court
if breach proved: court can re-sentence for original offence (max 6m imprisonment)

27
Q

custodial sentence

A

must be ‘SO SERIOUS’ that no other sentence can be justified

check sentencing council guidance to court

  • s.152(3) - can be imposed if offender not willing to comply with community penalty requirement which requires consent or fails to comply with pre-sentence drug testing order
28
Q

pre sentence reports (s.156, s.158 CJA 2003)

A

after either plea of guilty or finding of guilt, court might adjourn hearing to obtain further information about the offender

  • PSR
  • Medical reports
  • psychiatric reports

PURPOSE: assist court to detremine most suitable method of dealing with offender

29
Q

why PSR?

A

to determine if

  • offence is so serious (custodial sentence)
  • offence is serious enough (community sentence)
  • opinion on suitability of offender for particular requirements to be imposed in a community sentence
30
Q

procedure of PSR

A
  1. Offender interviewed by a probation officer
  2. Probation officer writes short report for the court
  3. Report will note (among other things):
  4. The defendant’s risk of re-offending,
    - His willingness to rehabilitate and
    - Any victim empathy
    - The report will ultimately make a recommendation with regard to sentence
  5. If the recommendation is for:
    A community based penalty: the report will recommend the most appropriate conditions that could be attached to the order and that could be effectively supervised.

if offence so serious and/or

31
Q

role of prosecution

A
  1. open case
  2. outline facts and
    circumstances of offence
  3. state aggravating factors
  4. bring up relevant cases and sentencing guidelines
  5. won’t directly ask court to impose a particular sentence of a specific duration
  6. might ask for compensation for victim
  7. might ask for forfeiture of items used to commit offence or destruction of illicit substances
32
Q

defence

A
  1. address court after prosecution
  2. deal with commission of offence
  3. highlight mitigating features
  4. address record of convictions
  5. invite court to impose a particular type of sentence and indicate appropiate length
  6. invite court to follow recommendation of PSR
  7. make court aware of relevant sentencing guidelines and case law
  8. state when plea of guilty was entered by D
  9. draw court attention to time D spent in custody on remand
  10. no rules of evidence

CRIM (7 decks)

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