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CLP > Untitled spreadsheet - Sheet1-5 > Flashcards

Untitled spreadsheet - Sheet1-5 Flashcards

1
Q

PACE: role of solicitor in the police station

A

To protect and advance the legal rights of their client

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2
Q

Is a person under the influence of drink or drugs a vulnerable client?

A

no

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3
Q

Who is a vulnerable client?

A

Person who, because of mental health condition or disorder, may have difficulty understanding or communicating effectively about the full implications for them, does not appear to understand the significance of what they are told, of questions asked or replies, or appears particularly prone to confusion/unreliable info/acting on suggestions without consciously wishing to do so/readily agreeing to suggestions without protest or question

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4
Q

What is the role of the appropriate adult?

A

Ensure detained person understands what is happening and why, support advise & assist detained person, observe whether police acting properly, assist with communication between detained person and police, ensure detained person understands their rights

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5
Q

Who can act as an appropriate adult?

A

Parent, guardian, relative, someone experienced in dealing with such persons

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6
Q

Circumstances where vulnerable person can be interviewed without appropriate adult?

A

Superintendent or above satisfied interview would not significantly harm persons physical or mental state & delay would lead to interference w evidence, interference w other persons, serious loss or damage to property, alerting other suspects, hindering recovery of property

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7
Q

3 options in police interview for client

A

Answer questions, ‘no comment’, provide written statement & ‘no comment’

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8
Q

Should you advise client to give mixed interview and why?

A

No - transcript will be read in court whereas ‘no comment’ throughout will not be read

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9
Q

How much info should be disclosed before interview and consequences of failure to do so?

A

Sufficient info that solicitor can understand the nature of any offence & why client is suspected of committing it. If insufficient info then may be good reason to advise client to remain silent. Courts are reluctant to draw inferences where disclosure was insufficent.

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10
Q

Consequences of waiting until trial to put forward a defence

A

Adverse inferences, losing credibility

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11
Q

Can court draw inferences from silence where suspects condition gives lawyer a cause for concern?

A

No

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12
Q

What if defendant later relies on a fact in defence that was not offered at the time of questioning?

A

The court can draw an inference from this.

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13
Q

Can an inference be drawn if a suspect is not cautioned?

A

No

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14
Q

Circumstances affecting whether it was reasonable at the time to mention a fact (if later rely on it)

A

disclosure that has been made by the police, what info the prosecution can demonstrate suspect knowing, condition & circumstances of the suspect, any legal advice that the suspect received

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15
Q

Can an inference be drawn if suspect fails to account for object, substance or mark found on them at time of arrest?

A

Yes

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16
Q

What section CJPOA is general inference for failing to mention fact relied on in defence?

A

s34

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17
Q

What section CJPOA is inference for failing to account for a mark, object etc?

A

s36

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18
Q

Can an inference be drawn if suspect fails to account for their presence on arrest at a particular place?

A

Yes

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19
Q

What section CJPOA is inference for failure to account for presence at place of arrest?

A

s37

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20
Q

Requirements for ‘special warning’ before inference can be drawn regarding object, substance or mark or presence at particular place

A

What offence is being investigated, what fact they are being asked to account for, this fact may be due to them taking part in commission of offence, court may draw proper inference if fail or refuse to account for this fact, and a record is being made of an interview and may be given in evidence at trial

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21
Q

Can a defendant be convicted solely based on an adverse inference?

A

No

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22
Q

Is an adverse inference relevant if there is no trial?

A

No

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23
Q

What can happen to eye-witness if suspect’s identity is not known to the police?

A

Eye-witness may be taken to particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion, can be shown photographs

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24
Q

When must an identification procedure be held?

A

When offence has been witnessed and eye-witness: has identified or purported to identify a witness, or is available who expresses ability to identify suspect, or has a reasonable chance of being able to identify the suspect. Where the suspect disputes being the person the eye-witness claims to have seen

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25
Q

When does identification procedure not have to be held?

A

If it is not practicable or would serve no useful purpose in proving or disproving suspect was involved

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26
Q

Identification procedures that may be used if suspect’s identity is known to police & they are available?

A

Video identification, identification parade, group identification (informal group of people)

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27
Q

What minimum rank for identification officer?

A

Inspector

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28
Q

Situations where not necessary to first invite suspect to participate in video identification procedure?

A

Video identification procedure is not practicable or identification parade is more suitable

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29
Q

When can covert identification procedures be used?

A

As a last resort and only if all other procedures have been considered and refused

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30
Q

Formalities for identification procedure?

A

Record shall be made of description of suspect as first given by eye-witness, copy of record given to suspect or solicitor before identification procedures carried out, notice given to suspect, suspect invited to participate in video identification procedure

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31
Q

What must be explained in notice to suspect before video identification procedure?

A

Purpose of the procedure, entitlement to free legal advice, procedures for holding it, inc right to have solicitor or friend present, that they do not have to consent or co-operate in the procedure, that if they do not consent/cooperate in procedure their refusal may be given in evidence in any subsequent trial and police may proceed covertly

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32
Q

How does video identification procedure work?

A

Suspect is filmed, then select lookalikes from VIPER system and suspect placed amongst at least 8 other individuals. Suspect, solicitor or friend must be given reasonable opportunity to see complete set of images before shown to eye-witnesses, can state reasons for reasonable objection to clips

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33
Q

When can suspect’s solicitor be present at video identification procedure?

A

On request and with prior agreement of identification officer

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34
Q

When can suspect’s solicitor be present at identification parade?

A

Suspect must be given reasonable opportunity to have solicitor or friend present

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35
Q

How many people must participate in identification parade?

A

At least 8

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36
Q

Suitable location for group identification procedure?

A

Where other people are passing or waiting around informally, in groups such that suspect can joint them

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37
Q

Normal procedure for confrontation by eye-witness?

A

Eye-witness must be told that person they saw on specified earlier occasion may or may not be the person they are to confront and if not then should say so. Confrontation normally happens in police station.

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38
Q

Remedy for breach of Code D?

A

For defendant to apply to exclude evidence obtained in breach of code D. Judge then decides whether there has been significant prejudice to the accused.

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39
Q

Who makes charging decisions for indictable-only offences?

A

Crown Prosecutor

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40
Q

If decision to charge is one for the police, who makes the decisions?

A

Custody officer

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41
Q

How to serve written charge & requisition?

A

Must be served on person charged and on magistrates’ court at which person is to attend.

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42
Q

Process of laying an information?

A

Prosecutor serves an information alleging offence on magistrates’ court, court issues a summons or arrest warrant requiring accused to attend

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43
Q

What must written charge or information contain?

A

Statement of offence which describes it in ordinary language, reference to statutory provision that creates the offence, sufficient particulars of conduct complained of for accused to know what is alleged

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44
Q

What must summons or requisition include?

A

Notice setting out when & where accused is required to attend court, specify each offence in respect of which it has been issued

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45
Q

Timing within which charge must be brought for summary only offence?

A

Information must be laid or complaint made within 6 months of date of alleged offence

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46
Q

When can person arrested be taken to a place other than police station following arrest?

A

When it is necessary to carry out such investigations as it is reasonable to carry out immediately, e.g. being searched, being taken to premises being searched, being taken to a place to check alibi

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47
Q

Which police stations can person arrested be taken to?

A

Any police station unless the detention will be over 6 hours, then it must be the designated police station

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48
Q

What minimum rank is necessary to be a Custody Officer?

A

Sergeant

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49
Q

Who can authorise detention of a suspect?

A

Custody Officer. If not available then any other officer but must not normally be involved in investigation of the offence for which the person is in detention

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50
Q

What does custody officer do if there are grounds to detain the suspect?

A

Authorise detention, open a custody record, inform detainee of reason for their arrest, inform detainee of reason for their detention, advise detainee of their rights

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51
Q

When does custody record have to be opened?

A

As soon as practicable for each detainee

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52
Q

What information has to be recorded in custody record?

A

Requirement to inform person of reason for arrest, circumstances of arrest, why arrest was necessary, any comments made by arrested person

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53
Q

When can solicitor consult the custody record?

A

As soon as practicable after arriving and any time during client’s detention

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54
Q

Who can be a Review officer?

A

Rank of at least inspector who is not connected with the investigation and not custody officer

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55
Q

When does review of detention have to happen?

A

Not more than 6 hours after detention is first authorised and periodically every 9 hours after

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56
Q

What is general detention time limit?

A

24 hours after the ‘relevant time’

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57
Q

When is the ‘relevant time’?

A

Moment suspect arrives at police station - indicated on custody record

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58
Q

Who can authorise extension of a further 12 hours detention after usual 24?

A

Officer of at least rank of superintendent

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59
Q

Criteria for extension of detention for a further 12 hours?

A

the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning; the offence is an indictable offence; the investigation must be conducted diligently and expeditiously

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60
Q

When does extension of detention for further 12 hours have to happen?

A

Before expiry of initial 24 hours but after the second review has occurred

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61
Q

How to detain someone beyond 36 hours?

A

Must apply to Magistrates court for warrant of further detention

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62
Q

3 continuing rights that can be exercised at any point during custody?

A

Right to consult privately with a solicitor, right to have someone informed of their arrest, right to consult the COP

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63
Q

When does suspect have to be informed of their right to free legal advice?

A

Before commencement or recommencement of interview, before being asked to provide an intimate sample, before having an intimate drug search, before an identification parade or video identification procedure

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64
Q

Who can give authority to delay the right to legal advice?

A

Officer of at least superintendent

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65
Q

Grounds for delaying the right to legal advice?

A

o Superintendent has reasonable grounds to believe exercise of right will lead to any or all of following: Interference with/harm to evidence connected with indictable offence; Interference with/harm to others; Alerting other people suspected of committing indictable offence but not yet arrested for it; Hinder recovery of property obtained in consequence of commission of such an offence

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66
Q

How long can right to free legal advice be delayed for?

A

Maximum 36 hours

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67
Q

When can the right to have someone informed of your arrest be exercised?

A

Every time the suspect is taken to a different police station

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68
Q

Who can delay the suspect’s right to have someone informed of arrest?

A

Officer of at least inspector

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69
Q

Grounds for delaying right to have someone informed of arrest?

A

Inspector has reasonable grounds to believe exercise will lead to following: interference with/harm to evidence connected with indictable offence; Interference with/harm to others; Alerting other people suspected of committing indictable offence but not yet arrested for it; Hinder recovery of property obtained in consequence of commission of such an offence

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70
Q

How long can suspect’s right to have someone informed of their arrest be delayed for?

A

Maximum 36 hours

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71
Q

Who can act as an appropriate adult for a young detainee?

A

Parent or guardian

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72
Q

Who can act as an appropriate adult for a young person looked after under the Children Act 1989

A

Representative of care authority or voluntary organisation, social worker, if not: any person aged 18 or over who is not police officer/employee

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73
Q

Who can act as appropriate adult for a mentally vulnerable detainee?

A

Parent, guardian, relative, someone with experience dealing with such persons, must be over 18 and not police employee

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74
Q

Who cannot act as an appropriate adult?

A

Solicitor/legal representative, someone suspected of involvement in the offence, victim or witness of offence, someone involved in the investigation, someone who has received admissions from the detainee before, someone of low IQ or unable to appreciate gravity of situation, estranged parent who arrested juvenile specifically objects to

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75
Q

When can you proceed without an appropriate adult?

A

Where delay would be likely to lead to: o Interference with/harm to evidence connected with indictable offence: Interference with/harm to others; Alerting other people suspected of committing indictable offence but not yet arrested for it; Hinder recovery of property obtained in consequence of commission of such an offence

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76
Q

Who can authorise interview without an interpreter?

A

Officer of rank of superintendent or above

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77
Q

Which section of PACE governs interviews?

A

COP C paras 11 & 12

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78
Q

When should person be cautioned?

A

Before they are asked any questions about suspected involvement in the offence, and again at recommencement of interview after a break

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79
Q

Where should interview happen?

A

At police station or other authorised place of detention except in certain circumstances

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80
Q

How much disclosure should solicitor be given?

A

Sufficient information to enable them to understand the nature of any such offence and why the client is suspected of committing it

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81
Q

What has to be disclosed?

A

Custody record and a significant statement

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82
Q

How must interviews under caution for an indictable offence be recorded?

A

Audio recorded

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83
Q

When should detainee not be interviewed?

A

If they are unable to appreciate the significance of the questions & answers, or if they are unable to understand what is happening because of drink, drugs, illness, ailment, condition

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84
Q

Who can authorise interview when detainee should not normally be interviewed?

A

Superintendent

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85
Q

Are confessions admissible?

A

As a starting point yes

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86
Q

When are confessions not admissible?

A

When it has been obtained as a result of oppression, or when it would have an adverse effect on the fairness of the proceedings

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87
Q

What are Argent factors?

A

Formal conditions that must be satisfied before adverse inference can be drawn: 1. must be proceedings against person for an offence, 2. alleged failure to mention fact at trial must have occurred before charge or on charge, 3. alleged failure must have occurred during questioning under caution, 4. questioning must have been directed to trying to discover whether or by whom allaged offence was committed, 5. alleged failure of accused must have been to mention any fact relied on in defence in those proceedings; 6. alleged failure must have been to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention

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88
Q

Can suspect refuse an ID procedure?

A

Yes but police will do covert procedure (do it anyway) and also suspect will get adverse inference if case goes to trial

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89
Q

When must first hearing happen if D is on bail & prosecutor anticipates guilty plea which is likely to be sentenced in Mags?

A

Within 14 days of being charged

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90
Q

When must first hearing happen if D is on bail & likely to plead not guilty or case is likely to go to Crown Court?

A

Within 28 days of being charged

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91
Q

When must first hearing happen if D was detained in police custody following charge?

A

Must be brought before the next available court

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92
Q

What happens if D was bailed by fails to attend court for first hearing?

A

Court can issue a warrant for D’s arrest

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93
Q

What happens if D fails to appear at court if summonsed to court?

A

No offence committed - case can proceed in absence of D

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94
Q

When must prosecution serve initial details on the court officer?

A

As soon as practicable and in any event no later than beginning of day of first hearing

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95
Q

When must prosecution give initial details to D if D requests them?

A

As soon as practicable and in any event no later than beginning of day of first hearing

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96
Q

What must be included in initial details of prosecution?

A

Summary of circumstances of offence; any account given by D in interview; any written statements & exhibits that are available and material to plea and or mode of trial or sentence; victim impact statements; D’s criminal record

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97
Q

What must be included in initial details of prosecution if D was in police custody immediately before first hearing?

A

Summary of circumstances of offence; D’s criminal record

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98
Q

When can a summary only offence go to the Crown Court?

A

When D charged with an indictable offence and there is a summary only offence which is connected

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99
Q

What happens if D indicates guilty plea at plea before venue?

A

Court treats it as formal plea of guilty & proceeds to sentence

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100
Q

When should Mags order a pre-sentence report?

A

There is a realistic alternative to custodial sentence; D may be dangerous offender; there is some other appropriate reason

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101
Q

What happens if D indicates not guilty plea at plea before venue?

A

Court moves on to consider where trial will be held = allocation

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102
Q

What does prosecution do at allocation hearing?

A

Opens with facts; outlines D’s offending history; makes submissions as to where trial should be held consistent with allocation guidelines

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103
Q

What does defence do at allocation hearing?

A

Can make submissions as to venue if disagree with Prosecution

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104
Q

What happens if D asks for an indication of sentence if they were to plead guilty?

A

Court has discretion as to whether they will give an indication, can decline, must be confined to telling D whether sentence would be custodial or non-custodial

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105
Q

Who applies to have the D remanded into custody?

A

Prosecution

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106
Q

Who applies for bail and when?

A

Defence applies for bail once a prosecution objection to bail has been raised

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107
Q

Who does right to bail not apply to?

A

Those appealing conviction or sentence; or D’s being committed for sentence from Mags to Crown Court

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108
Q

What are 3 primary grounds for objecting to bail for indictable offences?

A

Substantial grounds for believing that D would either:

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109
Q

When should bail not be removed under one of big three grounds for objection?

A

Where there are no real prospects of defendant receiving a custodial sentence

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110
Q

When do grounds for objection to bail become available for summary offences?

A

If D’s behaviour on bail suggests they might abscond/interfere with witnesses and has a history of breaching bail conditions

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111
Q

3 grounds for ‘need not be granted bail’?

A

A remand in custody would be for D’s own protection; court has insufficient information to deal with issue of bail; D is already serving a sentence in custody

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112
Q

What are 2 groups of specialist grounds for objecting to bail?

A

Serious cases with high penalties and cases of particular nature that affect assessment of risk posed by D on bail

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113
Q

What are 4 groups of offences for grounds for objecting to bail?

A

Serious cases where it is harder to get bail because of gravity of consequences; cases of particular character (drugs or domestic violence) where particular approach needs to be taken because of behavioural difficulties; cases where D infringes bail; remaining cases dealt with in relation to classification

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114
Q

What happens if D charged with murder and has a previous conviction for murder, attempted, rape or serious sexual offence?

A

D may not be granted bail unless there are exceptional circumstances to justify it

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115
Q

What happens if D charged with offence carrying life imprisonment and was either already on bail or fails to attend having been on bail?

A

D may not be granted bail unless there is no significant risk of further offences being committed or failure to attend

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116
Q

When can D not be granted bail if charged with an offence against partner/family?

A

If court believes there are substantial grounds to believe D would commit an offence on bail by engaging in conduct that would cause physical/mental injury to an associated person?

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117
Q

When can D not be granted bail if charged with abuse of drugs?

A

Court may not grant bail unless there is no significant risk of D committing an offence on bail

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118
Q

What happens if D absconds whilst on bail for indictable offence?

A

Bail need not be granted against unless it is prior to conviction and there are no realistic prospects of D receiving custodial sentence

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119
Q

Factors to consider when considering grounds for objection to bail?

A

The nature & seriousness of the offence and the likely sentence; Character of D, D’s antecedents, associations & community ties; D’s bail record in the past; the strength of the evidence

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120
Q

What is surety?

A

Offer of money made by someone with influence over D to secure D’s return to court (pay if D does not show up)

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121
Q

What is security?

A

D or someone on D’s behalf putting up money or other valuable to be forfeited if D does not attend court

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122
Q

Who can make an application to vary bail conditions?

A

Prosecution or defence

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123
Q

What is general rule for bail attempts?

A

Can have 2 attempts at getting bail (and 1 in Crown Court)

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124
Q

How many times can D apply for bail in Mags court?

A
  1. Apply at first hearing
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125
Q

When does Crown Court hear bail appeal in urgent cases?

A

No later than one business day after appropriate notice is served

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126
Q

How many times can D apply for bail in Crown Court?

A
  1. Apply at first hearing
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127
Q

Custody time limit for trials in Mags of summary or either-way offences?

A

56 days

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128
Q

Custody time limit for trials in Crown Court of indictable or either-way offences?

A

182 days less any days spent in custody prior to case being sent to Crown Court

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129
Q

When is the start of the trial in the Mags court (for time limit purposes)?

A

When the court begins hearing evidence from the prosecution

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130
Q

When is the start of the trial in the Crown Court (for time limit purposes)?

A

When the jury is worn

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131
Q

How long must remand be if D remanded into custody at first hearing & trial is in Mags?

A

First remand no more than 8 clear days

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132
Q

How often must D be brought back to court after second appearance?

A

Every 28 days or fewer (but this can be done in their absence)

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133
Q

What must prosecution show to apply to extend the custody time limit?

A

It has acted with all due diligence and expedition and there is good & sufficient cause to have D further remanded into custody

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134
Q

If D is having trial at Mags & unsuccessful applying for bail at first appearance, when can issue of bail be raised for a second time?

A

Automatically has 2nd application at 2nd appearance in 1 week

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135
Q

How quickly is a prosecution appeal against bail heard by the court?

A

Within 48 hours excluding weekends

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136
Q

Whose instructions can solicitor act on?

A

Only instructions from the client or someone properly authorised to give instructions on their behalf

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137
Q

What is overriding objective of criminal procedure rules?

A

The overriding objective of this new code is that criminal cases be dealt with justly

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138
Q

Who can seek a direction from the court?

A

Any party

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139
Q

What are possible sanctions for non-compliance with court directions?

A

Fix, postpone, bring forward, extend, cancel or adjourn a hearing

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140
Q

What classification is assault?

A

Summary only

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141
Q

What classification is battery?

A

Summary only

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142
Q

What classification is simple criminal damage worth 5k or less?

A

Summary only

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143
Q

What classification is attempt to commit simple criminal damage of 5k or less?

A

Summary only

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144
Q

What classification is theft?

A

Either way

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145
Q

What classification is burglary?

A

Either way

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146
Q

What classification is fraud?

A

Either way

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147
Q

What classification is AOABH?

A

Either way

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148
Q

What classification is wounding or inflicting GBH (s20)?

A

Either way

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149
Q

What classification is simple criminal damage over 5k?

A

Either way

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150
Q

What classification is simple arson?

A

Either way

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151
Q

What classification is robbery?

A

Indictable only

152
Q

What classification is wounding or causing GBH with intent (s18)?

A

Indictable only

153
Q

What classification is aggravated burglary?

A

Indictable only

154
Q

What classification is aggravated arson?

A

Indictable only

155
Q

What classification is aggravated criminal damage?

A

Indictable only

156
Q

What classification is murder/voluntary manslaughter?

A

Indictable only

157
Q

What classification is involuntary manslaughter?

A

Indictable only

158
Q

When are pre-trial matters resolved?

A

Most cases at first hearing, or pre-trial hearing (PTPH) for complex/Crown court cases

159
Q

2 parts of PTPH?

A

Plea stage and Trial Preparation or Sentencing stage

160
Q

When must defence make application to dismiss charges?

A

After D is sent for trial to the Crown Court from the Mags. Only after D has been served with the evidence relating to the offence and only before D is arraigned

161
Q

What is an arraignment?

A

When defendant enters plea for each count on the indictment

162
Q

What happens at PTPH if D is unfit to plead?

A

No plea is taken, but trial preparation stage does need to happen.

163
Q

What happens at trial preparation stage of PTPH?

A

Trial date; Prosecution confirm if served all evidence; directions for expert evidence; defence informs prosecution of which witnesses need to give evidence

164
Q

4 Ways evidence can be established?

A

Witness giving live evidence; agreeing a witness statement as true by the consent of the parties; agreeing any fact between the parties; judge or jury take ‘judicial notice’ of the fact

165
Q

How to consider if evidence is admissible?

A
  1. Relevant to a fact in issue; 2. Is it subject to an exclusionary rule?; 3. Does it have sufficient weight?
166
Q

What is the general rule for bad character evidence?

A

Generally inadmissible unless inclusionary rule applies

167
Q

Requirement for breach of s78 PACE for court to exclude evidence?

A

Breach (wrongly obtained) must have been ‘significant and substantial’

168
Q

What is common law rule for exclusion of evidence?

A

Does the evidence do more harm than good in assisting tribunal of fact to reach a decision on the issues?

169
Q

When should judge dismiss the charge? (+ what case does it come from?)

A

R v Galbraith: if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted

170
Q

When is submission of no case to answer made? & how is it made?

A

At the end of the prosecution case, made in absence of the jury

171
Q

What does defence apply for in an abuse of process application?

A

Applies to stay proceedings

172
Q

What is s78 application?

A

Application to exclude evidence which prosecution proposes to rely on because it is unfair

173
Q

Key test for court in deciding whether to exclude prosecution evidence under s78?

A

Whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

174
Q

When can s78 application be made?

A

Before the trial; at the commencement of trial; just prior to prosecution seeking to admit the evidence

175
Q

What is voir dire?

A

Mini-trial within trial relating to matters in dispute. In Crown Court happens without the jury.

176
Q

Two main ways to challenge a confession under s76?

A

s76(2)(a): exclusion for ‘oppression’; s76(2)(b): anything said or done which was likely in the circumstances to render confession unreliable

177
Q

What is included in definition of ‘oppression’ for s76 application?

A

Torture, inhuman or degrading treatment, use of threat of violence

178
Q

When must evidence be excluded for oppression under s76?

A

If prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression

179
Q

What is definition of confession?

A

Any statement wholly or partly adverse to the suspect

180
Q

What is correct approach to exclude evidence for unreliability under s76?

A

Identify thing said or done which requires judge to take into account everything said & done by the police; was it likely to render confession unreliable - objective test?; has prosecution proved beyond reasonable doubt that confession was not obtained in consequence of thing said or done - question of fact

181
Q

Can you seek to exclude confession under s76 and s78?

A

Yes (s78 as alternative)

182
Q

What level of disclosure is required from the prosecution?

A

Full and proper disclosure

183
Q

4 stages of disclosure?

A
  1. Investigation stage (duty to record & retain material during investigation); 2. initial duty of disclosure on the prosecution; 3. defence disclosure; 4. continuing duty on prosecution to keep disclosure under review
184
Q

How long does duty to retain material last?

A

At least until decision taken whether to institute proceedings. If proceedings commenced then duty lasts until D is convicted or acquitted

185
Q

How long must relevant material be retained if D is convicted?

A

At least until D is released from custody; or if not custodial sentence then until after 6 months from date of conviction

186
Q

What must disclosure officer do to unused material?

A

Ensure it is clearly listed & brought to the attention of the prosecutor

187
Q

When must prosecution serve disclosure of unused material?

A

If it is capable of assisting defence or harming prosecution case

188
Q

What is defence disclosure?

A

s5 CPIA imposes duty on D in Crown Court to serve defence statement on the court & prosecution

189
Q

What is time limit for disclosure of defence statement in Crown Court?

A

Must be served on prosecution & Crown Court within 28 days of prosecution complying with its duty of initial disclosure (schedule of unused). Can be extended but only if application to extend is made within the time limit & would be unreasonable to make them give statement within 28 days

190
Q

What is time limit for disclosure of defence statement in Mags Court?

A

Not compulsory but if choose to serve one then must be within 10 business days/14 days of prosecution complying with initial duty of disclosure

191
Q

When must Notice of Intention to call Defence Witnesses be given?

A

Within 10 business days (Mags) and 28 days (Crown) of prosecution complying with initial disclosure

192
Q

What are consequences of defence disclosure failure?

A

Jury may draw such adverse inferences as appear proper. Prosecution may comment on failure. No inferences can be drawn in Mags court unless D decides to serve defence statement & then fails to do so in time, but D will not be able to make application for specific disclosure.

193
Q

What are the consequences of prosecution disclosure failure?

A

D could bring application to stay indictment on ground that continuing would be abuse of process; could result in conviction being quashed on appeal; likely to result in delay & wasted costs; potentially result in exclusion of evidence due to unfairness

194
Q

What is public interest immunity?

A

Prosecution must make this application if it does not wish to disclose some material because to do so would give rise to real risk of serious prejudice to important public interest

195
Q

What is overriding objective in criminal cases?

A

That criminal cases be dealt with justly

196
Q

When must evidence be served on the defence if D is in custody?

A

50 days of date on which sent to Crown court

197
Q

When must evidence be served on the defence if D is not in custody?

A

70 days of date on which sent to Crown court

198
Q

What is the evidential burden?

A

The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury

199
Q

Where does burden of proof lie for defence of duress?

A

Prosecution must disprove it beyond reasonable doubt

200
Q

Where does burden of proof lie for alibi?

A

Prosecution must disprove it so jury are sure

201
Q

When should a Turnbull direction be given?

A

When the case against the accused depends ‘wholly or substantially’ on the correctness of the visual identification

202
Q

3 elements to Turnbull warning?

A

Instruct jury as to reason for needing a warning; direct jury to examine circumstances in which identification came to be made; remind jury of any specific weaknesses in identification evidence

203
Q

Questions judge must answer for visual identification evidence?

A

What is the quality of the identification evidence? Is there other evidence to support the correctness of the identification?

204
Q

Mnemonic for required checks for Turnbull guidelines?

A

ADVOKATE

205
Q

What is standard time limit for defence skeleton argument?

A

At least 10 business days before trial

206
Q

What is standard time limit for prosecution response to defence skeleton argument?

A

5 business days after skeleton

207
Q

What is test for no case to answer?

A

Prosecution evidence is insufficient for any reasonable court properly to convict

208
Q

Does defendant have to give evidence?

A

No but failure to do so can lead to adverse inferences being drawn

209
Q

When is jury majority verdict permitted?

A

If they have deliberated for at least 2 hours 10 mins

210
Q

What conduct is specifically excluded by s98 bad character?

A

Misconduct which has to do with the alleged facts of the offence with which the defendant is charged or is committed in connection with the investigation or prosecution of that offence

211
Q

Where to find gateways for admissibility of bad character evidence?

A

s101 CJA

212
Q

What are 7 gateways mnemonic for admissibility of bad character evidence?

A

ABCDEFG: Agreement; Blurts it out; Context; Done it before ; ‘E did it; False impression; Gets at the witness

213
Q

7 gateways for bad character evidence?

A

a) All parties agree

214
Q

What is gateway for ‘done it before’?

A

d: relevant to an important issue between prosecution & defence: propensity to commit such offences

215
Q

Is leave of the court required to put forward bad character evidence adducted by the defendant?

A

No

216
Q

Is leave of the court required to put forward bad character evidence that is important explanatory evidence?

A

Yes

217
Q

When is evidence of co-defendant’s propensity to be untruthful admissible?

A

Where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence

218
Q

Is leave of the court required to put forward bad character evidence that is important matter in issue between defendant and co-defendant?

A

Yes

219
Q

Is leave of the court required to put forward bad character evidence that is correcting a false impression given by the defendant?

A

Yes

220
Q

Is leave of the court required to put forward bad character evidence that is an attack on another person’s character?

A

Yes + fairness test applies

221
Q

How should jury be directed re bad character evidence?

A

Not to place too much reliance on bad character evidence; cannot be used to bolster a weak case or prejudice jury against defendant.

222
Q

What is fairness test for admissibility of bad character evidence?

A

Should not be admitted if it appears to the court that it would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

223
Q

Which gateways of bad character evidence uses fairness test?

A

d & g

224
Q

What is the effect of s110 CJA on bad character evidence?

A

Requires court to give reasons in open court for any ruling it makes on the issue of bad character

225
Q

What is the effect of s107 CJA on bad character evidence?

A

Gives court discretion to stop case after prosecution has finished where bad character evidence is contaminated such that conviction would be unsafe

226
Q

What is procedure for adducing bad character evidence?

A

For non-defendant bad character must make an application under rule 21.3 or for defendant bad character must give notice under rule 21.4

227
Q

What is time limit for prosecution to give notice for defendant bad character evidence in Mags court?

A

Not more than 20 business days after defendant pleads not guilty

228
Q

What is time limit for prosecution to give notice for defendant bad character evidence in the Crown Court?

A

Not more than 10 business days after defendant pleads not guilty

229
Q

What is time limit for notice for co-defendant evidence of bad character to be given?

A

As soon as reasonably practicable, in any event not more than 10 business days after prosecutor discloses the material on which the notice is based

230
Q

When must response for defendant bad character evidence notice be given?

A

Not more than 10 business days after service of the notice

231
Q

Which categories of witnesses are eligible for special measures?

A

All witnesses under 18; witnesses with mental disorder or physical disorder where court considers will diminish quality of evidence; witnesses in fear or distress & court satisfied; all adult complainants of sexual offences; all adult complainants in certain offences under Modern Slavery Act; all witnesses in case involving a ‘relevant offence’ which are serious offences involving homicide, firearms, knives

232
Q

Additional types of special measures that can be introduced?

A

Witness anonymity orders, automatic anonymity of complainants in sex cases, prohibition of cross examination by defendants in person of complainants in sex cases & child witnesses in certain cases, restricting reporting of witnesses’ identity

233
Q

What is the test for party seeking to issue a witness summons?

A

The witness is likely to be able to give evidence that is likely to be amterial evidence; and it is in the interests of justice to issue a summons

234
Q

When can defendant change their plea from not guilty to guilty?

A

Any time before the jury return their verdict

235
Q

When can defendant change their plea from guilty to not guilty?

A

Any time before they are sentenced (but this is more difficult)

236
Q

What is definition of hearsay?

A

A statement made out of court that is repeated in court w/o person who made it being there

237
Q

What is rule against hearsay?

A

A statement made out of court may not be presented in evidence as proof of its contents (hearsay generally inadmissible)

238
Q

What is test for potential hearsay?

A

Does the evidence fall within definition of ‘hearsay evidence’? If yes then prima facie inadmissible. Does it fall within one of the exceptions to the general rule?

239
Q

What is RvTwist test for hearsay?

A
  1. Identify what relevant matter is sought to prove.
240
Q

Is CCTV hearsay?

A

No

241
Q

Are questions hearsay?

A

No

242
Q

What are exceptions to the rule against hearsay in CJA 2003?

A

Hearsay may be admissible if the witness is unavailable; it is a business document; or it is in the interests of justice to admit it

243
Q

What are conditions where exception to rule against hearsay applies because of an unavailable witness?

A

Witness is dead; unfitness to be a witness; outside the UK & attendance is not reasonably practicable; Cannot be found after reasonably practicable steps; Fear (widely construed)

244
Q

What must be satisfied for fear exception to hearsay to be allowed?

A

Causative link between fear and failure to give evidence must be established

245
Q

What are common law exceptions to the rule against hearsay?

A

Public information; evidence of reputation; Res gestae; Confessions; Statements in furtherance of common enterprise; Body of expertise

246
Q

What is included in admissible public information?

A

Published works dealing with matters of a public nature; public documents such as registers; records such as court records and public treaties

247
Q

What is rule of Res Gestae?

A

Statement is admissible if: statement made by a person so emotionally overpowers by an event that the possibility of concoction or distortion can be disregarded; statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; statement relates to physical sensation or mental state

248
Q

What are statutory exceptions to rule against hearsay re previous statements?

A

Previous inconsistent statements that witness admits/is proved to have made is admissible as evidence.

249
Q

What is rule re multiple hearsay?

A

Hearsay statement is not admissible to prove that an earlier hearsay statement was made, unless either of statements is admissible under ss117, 119 or 120, all parties agree, or court is satisfied that it is in the interests of justice

250
Q

What are judges powers re unconvincing hearsay?

A

Judge is able to stop a case where it depends wholly or partly on hearsay evidence which is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction would be unsafe

251
Q

What are court’s powers re superfluous hearsay?

A

Court can exclude hearsay evidence where admission would result in an undue waste of time

252
Q

How must jury be directed re hearsay evidence?

A

Reminded that statement not given on oath & not tested on cross-examination, Point out risks of relying on hearsay.

253
Q

When is notice required re hearsay evidence?

A

Where party intends to introduce hearsay evidence under s114 (interests of justice), s116 (witness unavailable), s117 (document prepared in contemplation of criminal proceedings), or s121 (multiple hearsay)

254
Q

What must notice re hearsay include?

A

Identify hearsay evidence, set out facts relied on that make evidence admissible, explain how they will be proved if disputed, explain why evidence is admissible. Evidence must be attached to the notice if not already served.

255
Q

When must notice for hearsay be served in Mags Court?

A

Prosecution must serve notice not more than 20 business days after not guilty plea

256
Q

When must notice for hearsay be served in Crown Court?

A

Prosecution must serve notice not more than 10 business days after not guilty plea

257
Q

What is procedure for opposing introduction of hearsay evidence?

A

No more than 1- business days after: service of notice to introduce hearsay, service of evidence objected to, D pleads not guilty

258
Q

What must be included in application to oppose hearsay evidence?

A

Which facts are disputed, why evidence is not admissible, any other objection

259
Q

What is the test for whether a child is a competent witness?

A

Whether they can understand questions and given comprehensible answers

260
Q

Ordinary witnesses competent & compellable for pros & defence?

A

Yes to both

261
Q

4 types of witnesses?

A

Ordinary, co-defendants, defendant, spouse

262
Q

Co-defendants competent for prosecution?

A

No

263
Q

Co-defendants competent for another co-d or themselves?

A

Yes

264
Q

Co-defendants compellable for prosecution?

A

No

265
Q

Co-defendants compellable for defence?

A

No

266
Q

When can spouses be compelled to give evidence for prosecution against their partner?

A

If offence charged is assault/injury/threat to spouse; assault/injury/threat to child under 16; sexual offence against someone under 16l attempts/conspiring/aiding/abetting any of the above

267
Q

What is privilege against self-incrimination?

A

General common law principle that witness (other than D) has right to refuse to answer questions or disclose docs if to do so would make them liable to incriminate themselves

268
Q

When will legal communications with third parties be privileged?

A

In the case of litigation but not general advice

269
Q

Can you take third party instructions to represent someone who has been arrested?

A

Yes but should go and check with suspect

270
Q

Three ways an out of court written statement can be used?

A

Statement may be read out if contents are agreed; witness can ask to refresh their memory from their statement; in cross examination of previous inconsistent statement

271
Q

What can the party calling the witness do if treated as hostile?

A

Free to cross examine hostile witness & put previous statement to them as the truth of the matter. Any inconsistent statement presented to a witness can be used to prove the truth of its contents

272
Q

Main exceptions where court will hear evidence of an earlier consistent complaint/statement?

A

Res gestae, suspect’s response to police allegation, complaints, recent fabrication

273
Q

Can leading questions be asked in cross-examination?

A

Yes

274
Q

When can a police witness statement become admissible?

A

If witness in box giving live evidence departs materially from the statement - original statement can be produced

275
Q

What is rule on finality on collateral matters?

A

If witness is asked about something collateral during cross examination, their answer is seen as final

276
Q

What are circumstances where unused material has to be disclosed?

A

If would undermine prosecution case or help defence case then has to be disclosed

277
Q

What purposes will the court have regard to when sentencing?

A

The punishment of offenders, the reduction of crime, the reform & rehabilitation of offenders, the protection of the public, the making of reparation by offenders to persons affected by their offences

278
Q

When can Mags court commit to Crown Court for sentencing?

A

For either way offences

279
Q

When is a Newton hearing held?

A

Where a defendant pleads guilty on a basis that will make a material difference to sentence

280
Q

What happens at a Newton hearing?

A

Magistrates/DJ in Mags, No jury in Crown court. Normal trial process. Court decides whether prosecution proved facts beyond reasonable doubt, if yes then sentences on prosecution version of the facts. If not then sentenced on defence version of facts.

281
Q

How long can a court defer sentence for?

A

Up to 6 months

282
Q

What is the statutory threshold for making a custodial sentence?

A

The offence or others associated with it were so serious that neither a fine alone nor a community sentence can be justified for the offence

283
Q

What is the statutory threshold for making a community order?

A

The offence or others associated with it were serious enough to warrant the making of such an order

284
Q

When must a court obtain a pre-sentence report?

A

Before passing a custodial or community sentence unless it considers it unnecessary to do so

285
Q

What must court do if contemplating sentence pursuant to Mental Health Act?

A

Receive evidence from 2 medical practitioners that defendant is suffering from a mental disorder

286
Q

What is the approach to sentencing (order)?

A

Determine seriousness, consider aggravating factors, consider mitigating factors, consider assistance given to the prosecution, consider appropriate reduction for guilty plea, consider totality, appropriate ancillary orders considered

287
Q

What is Max reduction in sentence if guilty plea at first stage of proceedings?

A

1/3

288
Q

What is max reduction in sentence if guilty plea after first stage in proceedings?

A

1/4

289
Q

What is max reduction in sentence if guilty plea on the day of trial?

A

1/10

290
Q

What are the groups of non-custodial orders?

A

Absolute and conditional discharge, fines, compensation orders, disqualification, forfeiture, restitution/restoration, orders for offenders aged under 18

291
Q

What are the groups of custodial sentences?

A

Discretionary custodial sentences, minimum sentences for particular offences, life sentences, dangerous offenders, suspended sentence, detention for adults aged under 21, detention for offenders aged under 18

292
Q

What is max length for conditional discharge?

A

3 years

293
Q

What is a conditional discharge?

A

Won’t be punished but if you commit offence within time then can be re-sentenced for original one

294
Q

What is an absolute discharge?

A

No action taken, free to go (still conviction on record)

295
Q

What are requirements for making a community order?

A

Offender must be over 18 and offence must be punishable with imprisonment

296
Q

What is the maximum length of a community order?

A

3 years

297
Q

What is period for unpaid work community order?

A

12 months

298
Q

What is maximum term of a curfew community order?

A

12 months

299
Q

What is maximum period for exclusion requirement community order?

A

2 years

300
Q

What is maximum period of foreign travel prohibition community order?

A

12 months

301
Q

What is maximum period of alcohol abstinence and monitoring community order?

A

Maximum 120 days

302
Q

What are max sentencing powers of imprisonment of Mags Court?

A

6 months for summary only, 12 months for either way offence

303
Q

What is min & max operational period of suspended sentence?

A

6 months and 2 years

304
Q

What is maximum term of an EDS?

A

5 years specific violent offence, 8 years specified sexual/terrorism offence; cannot exceed max term permitted for the offence

305
Q

When is prosecution entitled to make a closing speech in the Mags?

A

When the defendant is represented

306
Q

What are 3 means of appealing a decision in Mags court?

A
  1. Appeal to Crown Court by way of re-hearing
307
Q

When should appeal by case stated to High Court?

A

When Mags made an error of law

308
Q

When must notice of appeal be lodged when appealing to the Crown Court?

A

Within 15 business days of sentence

309
Q

Who must notice of appeal be served on when appealing from Mags to Crown?

A

Served on Mags court and on prosecution

310
Q

What to do if notice of appeal from Mags to Crown is served outside of 15 business day limit?

A

Must be accompanied by application for extension of time and reasons for delay

311
Q

Is there a right to bail pending an appeal?

A

No

312
Q

How to abandon an appeal from Mags to Crown court?

A

Give notice in writing to Mags Court, Crown court and prosecution

313
Q

Can Crown Court increase sentence in an appeal from the Mags?

A

No

314
Q

Who can appeal by way of case stated?

A

Prosecution and defence

315
Q

What is deadline for appeal by way of case stated?

A

21 days from the date of the decision sought to be appealed

316
Q

What is time limit for appealing for JR?

A

Promptly & within 3 months after the grounds arose

317
Q

Who can grant bail to an applicant for JR?

A

Only the High Court

318
Q

What is ‘slip rule’ in the Crown court?

A

Judge can vary or rescind a sentence (or order) they made within 56 days

319
Q

Who must give leave for an appeal to the Court of Appeal?

A

one judge

320
Q

Who must Notice of Appeal form be served on?

A

Registrar of Criminal Division of Court of Appeal

321
Q

When must Notice of Appeal form be served?

A

Within 28 days of conviction or sentence (depending which type of appeal)

322
Q

When must appellant serve form for renewal of appeal?

A

Within 10 business days of receipt of notification of the single judge’s decision

323
Q

When must appellant serve skeleton of appeal?

A

21 days prior to the hearing

324
Q

When must respondent serve skeleton of appeal?

A

14 days before the hearing

325
Q

What is test for whether court can grant appeal on conviction?

A

Only if court thinks the conviction is unsafe

326
Q

What is test for whether court can grant appeal on sentence?

A

If court thinks defendant should have been sentenced differently

327
Q

What question does CCRC ask itself when deciding whether to refer case to CoA?

A

If there is a real possibility the CoA will quash the original conviction or sentence

328
Q

What are 3 requirements for prosecution appeal against terminatory ruling?

A

The ruling must be made before summing up; an acquittal agreement must be given by the prosecution; the ruling must not be appealable to the CoA by any other means

329
Q

Who can appeal against rulings made at Preparatory hearings?

A

Prosecution and defence

330
Q

What is time limit for making application to CoA for leave to appeal to SC?

A

Within 28 days after court gives reason for its decision & no more than 14 days after court’s reasons in AG ref case

331
Q

Which court does the PTPH happen in?

A

Crown Court

332
Q

What are the 2 specific aims of the youth justice system?

A

To prevent children & young people from offending

333
Q

What is a juvenile?

A

Someone under age of 18

334
Q

What is a ‘child’?

A

Under age of 14

335
Q

What is a ‘young person’?

A

Between 14 and 17 inclusive

336
Q

What is a persistent young offender?

A

Likely to be PYO if convicted of imprisonable offences at least 3 times in past 12 months

337
Q

When must parent/guardian attend with the youth at all stages of proceedings?

A

When under 16 - unless court satisfied it would be unreasonable

338
Q

What must police officers do if detainee appears to be under 18?

A

Must treat as a juvenile in absence of clear evidence that they are older

339
Q

When should appropriate adult be present in police station?

A

When juvenile is being read their rights, strip searched/intimate search, being interviewed, attending ID procedure, being charged

340
Q

Who can authorise that juvenile be asked/sign something in absence of appropriate adult?

A

Superintendent or above

341
Q

Who must consent to juvenile participating in ID procedure?

A

Juvenile themself if 14 or older, and parent/guardian

342
Q

What are police’s 5 options after interview when dealing with child/young person?

A
  1. no further action
343
Q

When can a youth detained for court not be placed in local authority accommodation?

A

It is impracticable for custody officer to do so, or no secure accommodation is available & other local authority accommodation would not adequately protect the public from serious harm

344
Q

What are statutory criteria for a youth caution to be used?

A
  1. Police satisfied that there is sufficient evidence to charge the youth with an offence
345
Q

When does court have a duty to make a parental bind over/impose a parenting order?

A

If it would be desirable in the interest of preventing commission of further offences

346
Q

What date is relevant for the relevant age for the purpose of sentencing?

A

Age at the date of conviction

347
Q

When can the youth court commit a youth to the Crown Court for sentence?

A
  1. Youth convicted of a ‘grave crime’ offence & court considers Crown Court should have power to impose sentence of detention
348
Q

What is threshold for imposing a youth rehabilitation order (community order)?

A

Offence must be ‘serious enough’

349
Q

What is maximum length for youth rehabilitation order?

A

36 months

350
Q

What are minimum & max terms for youth referral orders?

A

Minimum 3 months, maximum 12 months

351
Q

When is a youth referral order compulsory?

A

Guilty plea + Imprisonable and first time offence

352
Q

What age is required for youth unpaid work requirement?

A

16 or 17

353
Q

What age is required for youth residence requirement?

A

16 or 17

354
Q

What are requirements for youth intensive supervision & surveillance requirement?

A

Offence is imprisonable and custody threshold passed. If under 15 then must be PYO.

355
Q

What are requirements for fosering requirement?

A

Offence is imprisonable and custody threshold passed. If under 15 then must be PYO.

356
Q

What does referral order require youth to do?

A

Attend each of meetings of youth offender panel established by a youth offending team & comply with programme of behaviour agreed between youth & panel

357
Q

When is a referral order mandatory?

A

Youth offender has not previously been convicted of an offence; the young offender pleads guilty to an imprisonable offence and any other offence being dealt with by the court at the same time

358
Q

When is a referral order discretionary?

A

On second or later conviction and/or offender pleads guilty to offence or connected offence being dealt with by the court

359
Q

When can referral order not be given?

A

Sentence is fixed by law

360
Q

What is effect of breach of referral order?

A

Youth referred back to youth court, can revoke referral & deal with youth in any manner they could have originally, or can give a fine

361
Q

What is minimum age for DTO on youth offender?

A

12

362
Q

When can DTO be imposed on 12-14 year old?

A

Only if persistent offender

363
Q

What is minimum length of DTO?

A

4 months

364
Q

What is maximum length of DTO?

A

24 months

365
Q

What is rough guide for length of sentence for youths?

A

Hald to two thirds of adult sentence if over 15 or less if younger

366
Q

What is Detention at His Majesty’s Pleasure?

A

Mandatory sentence for any child or young person found guilty of committing a murder, Minimum term 12 years

367
Q

What can Crown Court sentence for youth dangerous offenders?

A

Can be sentenced to extended detention or detention for life

368
Q

Where does first hearing take place if youth & adult are jointly charged?

A

In the adults magistrates court

369
Q

What is effect if youth & adult jointly charged and adult is sent to the Crown Court?

A

Magistrates will have to consider whether it is in the interests of justice for the child & adult to be tried jointly

370
Q

Can a youth sent to Crown Court jointly with an adult be remitted back to Mags if adult pleads guilty?

A

No

371
Q

When must youth be remitted from Crown Court to youth court for sentence?

A

If youth found guilty, unless the court thinks it would be undesirable or where offence is homicide

372
Q

Does a youth have a right of election when charged with an either way offence?

A

No

373
Q

When does a plea before venue occur in the youth court?

A

Youth charged with offence capable of being a ‘grave crime’, or

374
Q

What is a grave crime?

A

Offence that in the case of adult carries 14 years or more imprisonment, and certain Sexual Offences

375
Q

What is test for appealing against sentence?

A

Court thinks should have been sentenced differently because:

376
Q

Can the right to have someone informed of your arrest be delayed in the case of a child?

A

No never

CLP (1 decks)

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