sqe2 Flashcards
phrases for different levels of culpability and harm
should be saying ‘lesser culpability’ (instead of eg ‘culpability C’)
harm should be ‘category 2’ etc
do cps advocate for a sentence?
the CPS does not advocate for a specific sentence, but its solicitors are available to assist the judge on the sentencing guidelines if requested to do so.
how to layout sentencing guidelines culpability / harm in internal letter/memo thing
(see CMA unit 3 engage)
Culpability
Lesser culpability: no weapon used and assault was impulsive/ spontaneous and short lived.
Harm
The injuries caused Kelly were severe (EXPLAIN FACTS AND GUIDELINES)
Comparing these against the guidelines this would be Category 3: namely, all other cases of really serious harm.
(IN BOLD)
Starting point: 26 weeks custody
Range: Medium level community order – 1 year’s custody
see cma unit 3 engage task really helpful esp feedback
when could u have anonymity in criminal case
special reasons check
generally what can media report on criminal case
offender’s name, address, the offences, and the sentence that was imposed
R v Hanson - re propensity - explain when relevant and what it says?
(imp when have to concede that current offence is same category as previous offences)
CPS / propensity commit offences of KIND charged.
Does propensity make it more likely that D committed offence?
- unlikely if years ago
- unlikely if no dispute on facts
- unlikely if facts really different
Is it just to rely on previous convictions, given overriding principle that proceedings must be fair?
Fewer offences, less likely propensity.
Examples of when will be more prejudicial than probative
CPS got poor evidence/turned life around/eg one of convictions 14/more serious offences, eg prev conviction GBH and this is for ABH - will blind the jury
how to briefly explain step 1 sentencing guidelines
(ie explaining seriousness / culpability / harm)
(nb would do this even to supervisor in CMA)
The first step for the court is to determine the offence category, based on the seriousness of the offence(s). They will establish the severity by looking at culpability and harm. Culpability means the blameworthiness of the defendant, whilst harm looks at the impact on the victim and community at large. The sentencing guidelines contain a list of criteria to help determine whether the culpability if high (A), medium (B) or low (C). There is also a list of factors to determine whether the harm caused was high (1), medium (2) or low (3). This is used to provide a starting point sentence and a range of possible sentences for each combination.
Then, even if totality principle applies, deal with stage 1 for each individually.
how to apply totality principle when sentencing
do the starting point and range for each offence
then aggravating and mitigating.
guilty plea?
assisting police
etc
and then totality principle
explaining totality principle for SQE2
overall sentence should reflect the seriousness of the overall offending behaviour, considering aggravating and mitigating factors, and be just and proportionate
explaining plea in mitigation
we will put forward arguments to persuade the court to impose the most lenient sentence possible by minimising any aggravating factors and highlighting mitigating factor. we will try to persuade the court [not to impose a custodial sentence but to suspend it or impose a community order].
the starting point for the plea in mitigation will be to identify the likely sentence. we can then explain circumstances, namely xyz. minimise [aggravating factor] by saying.
Can bullet point personal mitigation etc.
Could remind court of purposes of sentencing.
(e.g. no history of offending - unlikely prevent. due to personal circumstances - no need protect.
(remember up to u how structure!)
5 purposes of sentencing
- reform and rehabilitation
- punishment
- reduction in crime
- reparation by offender to victim
- protection of public
suspended sentence general note which helps it makes sense fyi
If that happens, we may be able to persuade the court that a suspended custodial sentence would be appropriate. For XYZ, this would mean that he would not actually be in custody, provided that he did not break the conditions imposed by the court during a particular period (‘the operational period’). This would clearly be a better outcome for Dylan. The court will impose a suspended sentence if it considers that there are particular circumstances which justify this: here we would point to the fact that Dylan is the sole carer for his elderly and infirm parents and that both of his brothers live far away.
Compensation orders - when more likely to make
if employed, more likely to make
Certain offences eg significant injuries suffered
Written statement at police interview - what should it include?
No fixed structure
Usually:
- start name of client
- end client signing/dating
About contents, so:
- look out for client’s likely defence
- answer specific Qs likely to ask
- avoid adv infs
e.g. address client significant statement before arrest
(might receive client’s instructions, police witness statement or disclosure statement)
What to include in Police Station attendance pro forma re personal details?
Check if you get the form as if so don’t need to know that need to know this stuff.
If don’t, look back through ‘CrimLit - attendance pro forma’ and remember what is covered in each part
Personal details of offender
Info from investigating officer
Consultation with client
Outcome
Telephone log
Case narrative
see crim practice forms under 3: __ on legal drafting and try to draft after setting out scenario.
hearsay interests of justice factors and section
(nb could include it as reason to admit or reason against admitting - eg in hearsay notice)
s 114 (2) (a) - (i)
(a) probative value in relation to matter in issue or valuable in understanding other evidence in the case
(b) what other evi has or can be given on the matter or evi
(c) importance of the matter or evidence in context of case as a whole
(d) circumstances in which statement was made
(e.g. 2 days after incident - what happened in those 2 days)
(e.g. have u had a glass of wine? how thick are walls? how far away is your TV from wall?)
(e) how reliable maker of statement appears to be
(e.g. were they friends?)
(f) how reliable making of the statement appears to be
(e.g. taken by a police officer, hopefully reliable)
(g) whether oral evi of the matter can be given and if not, why not
(h) difficulty in challenging the statement
(i) extent to which that difficulty would likely prejudice the party facing it
how to end a written statement (handing in at police interview)
I did not commit this [robbery].
Signed ___
(name)
Date
defence statement third or first person?
what about legal aid app?
what about application to exclude bad char evi?
basis of appeal?
defence statement third
legal aid first
bad char third
basis of appeal either or
what to inc in def statement if D doesn’t know details of alibi (inc what details need)
form gives u all this anyway so no stress
need name, address, DoB
if don’t anything might help find
be careful in bad char applications for which grounds CPS are actually relying on
so they might say the gateway we are relying on is propensity untruthful and kind
but look at the specific box where they say want to adduce because untruthful
quote where offence like theft and CPS arguing it shows untruthfulness
The defendant acted dishonestly but he was not untruthful.
quote untruthfulness where pled guilty but cps still arguing untruthful
Secondly, the defendant pleaded guilty to the offence of []. The defendant was convicted on his own admission and not because the court disbelieved him.
what type of evi should Turnbull warning be given from judge to jury?
what should it inc?
DISPUTED (!!!!) identification evi
- there is a need for caution to avoid the risk of injustice;
- a witness who is **honest and convinced in his own mind **may be wrong;
- a witness who is convincing may be wrong.
and direct to examine circumstances - judge should specify them
inc **how long **after event was any ID procedure
If judge has admitted disputed confession evidence, what should/should not they tell jury?
- should NOT say already ruled admissible
- should remind jury of evidence given by D as to why made confession
- direct that if conclude confession way or may have been obtained unreliable or oppression - should give it no weight and diresgard it
how to set out grounds of appeal criminal
(see crime appeal one note)
Which court appealing to
Keep as R v ____ , put Applicant next to name
Intro
- tried where. outcome? (just that unanimously convicted etc if challenging conviction) (diff if sentence)
SUMMARY OF FACTS
- eg identified __ . interviewed? false confession?
SUMMARY OF GROUNDS
(1., 2. etc)
GROUND 1
etc.
(end of each one link back to unsafe/man excessive etc)
No conclusion
powers CC sentencing on appeal from mags
what can they do w sentence
same sentencing powers of mags
RVC Rach v cool reverse vary confirm
grounds for appeal mags to CC
excessive
What happens in prep for criminal trial?
- Court fixes date and issues directions
(e.g. making a written admission of agreed facts, serving a defence statement) - Directions may include a date for a pre-trial conference (eg if disputing confession) - or may decide to deal with as preliminary issue on trial date
What to say when there are a few aggravating but lots more mitigating factors?
these factors at least counter the one aggravating feature of this case and therefore should not increase the starting point sentence or sentencing range mentioned above.
basis of plea - should u offender mitigation / disputed confession evidence etc?
No
Just facts as D perceives and facts which D disagrees with V on
Why hearsay should be admitted in notice to adduce (CPS) despite interests of justice being potentially relevant (so how CPS may address and overcome IoJ)?
“do not believe it to be in the IoJ to force come court by way of a witness summons since did not actually see the assault. D will be able to defend himself by having the aggrieved party cross-examined and can make representations as to what the defendant said happened.”
If fear for hearsay, what must you show?
CAUSATIVE LINK between fear and not wanting to give evidence
(e.g. I am not going to attend BECAUSE of fear)
Re other evidence of CPS in interests of justice test (hearsay) - what is the other thing you could add about other evidence if u have complainant’s WS?
You can cross-examine them
What is circumstantial evidence?
Not direct evidence
So not that imp / limited probative value
how to prevent admissibility bad char evi when adducing hearsay if criticising credibility of a witness under interests of justice?
“no information at the moment about her credibility…”
then proceed to say what u were going to
section where MUST (instead of discretionary s 78 PACE) exclude bad character evidence?
s 101(3) CJA 2003
(d) imp matter in issue CPS and D
(g) attacked character another
Explain
character/antecedents
associations
community ties
of D for bail
Character and antecedents
in this context means previous convictions
- same type of offence?
- not addressed reason for re-offending?
- offences on bail?
Associations
gang?
knows witnesses?
eg domestic assault
Community ties
unemployed? residence? relatives? lived short period of time?
