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SQE 1 > Criminal Litigation > Flashcards

Criminal Litigation Flashcards

1
Q

What three rights must the custody officer ensure the person being arrested is aware of?

A

Right to consult privately with a solicitor and free independent legal advice is available
Right to have someone informed of their arrest
right to consult the COdes of Practice

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2
Q

At what point must the person detained be told of their right to free legal advice?

A
  • Before commencement of an interview
  • being asked to provide an intimmate sample
  • before an intimate drug search
  • before an identification parade or video ID procedure
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3
Q

Where should it be noted if the legal advice is declined?

A

In the custody record

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4
Q

How soon should legal advice be provided after it is requested?

A

As soon as it is practicable

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5
Q

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

A

Up to a maximum of 36 hours

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6
Q

What are the criteria for delaying the right to legal advice?

A
  • Must be delayed by a person with authority of at least superintendent and granted in writing
  • Person must be in detention for an indctable offence
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7
Q

What are the grounds for which the police can delay right to legal advice?

A
  • interference with/harm to evidnce connected with the offence or others
  • alerting other people suspected of commtting the offence
  • hindering the recovery or property in consequence of the offence
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8
Q

What rank of police has the power to delay the right to have someone informed of the arrest?

A

Granted in writing by police officer at least rank inspector

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9
Q

What are the grounds for which police can delay the right to have someone informed of the arrest?

A

-interference with/harm to evidence connected with the offence
- interference with/harm to others
- alerting of other people suspected of committing an intidctable offence
-hinder the recovery of property obtained in consequence of the commission of such an offence

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10
Q

How long can the police delay the right to have someone informed of their arrest?

A

Up to 36 hours

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11
Q

When does the right to an appropriate adult apply?

A
  • When the person is mentally disordered or mentally vulnerable
  • anyone under the age of 18
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12
Q

Who can act as an appropriate adult?

A
  • parent
  • guardian
  • social worker
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13
Q

Who cannot act as an appropriate adult?

A

Any person
- suspected of involvement in the offence
- victim or witness to the offence
- involved in the investigation
- person who has received admission from the person detained before acting as an appropriate adult
-low IQ
- estranged parent

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14
Q

What is the role of an appropriate adult?

A
  • ensure detained person understands what is happening and why
  • support, advise and assist the detained person
  • observe whether the police are acting properly and fairly
  • assist with communication between detainee and police
  • ensure the detained person understands their rights
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15
Q

Does the detained person have to see a solicitor if the AA request one?

A

No, the detained person does not have to see the solicitor if they don’t want to

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16
Q

When can the police proceed without an appropriate adult?

A
  • interference with harm or evidence connected with an offence
  • interference or physical harm to other people
  • serious loss of or damage to property
  • alerting other suspects
  • hindering the recovery of property
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17
Q

What must the police interviews be carried out under?

A

Under caution

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18
Q

Is there a general right to disclosure?

A

No

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19
Q

How much information do the police need to give the solicitor before the interview

A

Solicitor must be given 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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20
Q

When should a person not be interviewed?

A

If they are unable to to understand what is happening because of the effects of drink, drugs or any illness
If they are unable to appreciate the significance of the questions asked or answeredun

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21
Q

What rank of officer can authorise an interview even when the rules say they shouldn’t be?

A

Superintendent

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22
Q

When should the solicitor intervene in an interview?

A
  • information or evidence is referred to or produced that was not disclosed
  • clarification on any matter
  • there is inappropriate questioing
  • inappropriate behaviour
  • further advice to the client is needed
  • break is requried
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23
Q

What is the role of the custody officer?

A
  • responsible for the handling and welfare of suspects in detention at police station
  • must be unrelated to the provess of the investigation of the offence
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24
Q

What should the rank of a custody officer be?

A

at least sergeant

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25
Q

What rank must the review officer be?

A

at least inspector and not connected to the investigation

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26
Q

How long and from what point should the first review be made?

A

6 hours after suspects detention was first authorised by the custody officer

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27
Q

How long intervals should the detainees detention be reviewed after the first review?

A

9 hours

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28
Q

What is the maximum period a suspect can be kept in custody (and from what time)?

A

24 hours from the relevant time (time of arrival at police station)

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29
Q

Who has the power to extend the the detention time limit to 36 hours?

A

officer of at least rank of superintendent

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30
Q

When can an officer request an extension to the 24 hour detention?

A

Must be before the the expiry of the initial 24 hours and after the second review has occurred

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31
Q

What should the police do if they want to further extend beyond the 36 hours?

A

Apply to the Magistrates court. They can award an extension of up to 36 hours on the first hearing and a further 36 hours on the second hearing

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32
Q

What is the solicitors role for their client?

A

Active Defence

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33
Q

What are the three options a solicitor can give their clients about the police interview?

A
  • Answer questions
  • Don’t answer questions
  • Provide a written statement and say ‘no comment’
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34
Q

What consequences are there for a client to remain silent in interview?

A

Adverse inferences

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35
Q

What inference can be drawn under s34?

A

when the defendant later relied on a fact in their defence that was not offered at the time of questioing
- the court must draw a proper inference

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36
Q

Under what conditions must an adverse inference be drawn?

A

It must have been reaosnable to have mentioned it at the time, bearing in mind all the circumstances existing at the time

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37
Q

What inference can be drawn un s36?

A

when the suspect fails to account for an object, substance or mark found on them at the time of the arrest

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38
Q

What inference can be drawn under s37?

A

when the suspect fails to account for their prescence on arrest at a particular place

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39
Q

What is different about s36/37 to s34

A

s36/37 do not need to bfail to mention something later relied upon

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40
Q

Can an adverse inference be made when the suspect has not been allowed access to legal advice?

A

No

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41
Q

What is the time limit for bringing a charge against a person for summary only and indictable offences?

A

Summary only: within 6 months of the alleged offence
Indictable: no time limit

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42
Q

Name some summary-only offences

A

Assault, Battery, SCD of £5000 or less

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43
Q

Name some either-way offences

A

Theft
Burglary
Fraud
S47
S20
SCD exceeding £5000
Simple Arson

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44
Q

Name some Indictable only offences

A

Robbery
s18
Aggravated Burglary
Aggravated arson
Aggravated criminal damage
Murder
Involuntary manslaughter

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45
Q

What is the value below for shoplifting which makes it summary only?

A

Below £200

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46
Q

Does a description of clothing/ vehicle, suspect having a connection to a particular place or description of suspect count as visual identification evidence?

A

No

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47
Q

When does an identification procedure not need to be held?

A

If it is not practicable or would serve no useful purpose (eg the suspect is already known to the eye witness)

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48
Q

If suspect identity is known to the police and they are available, which identification procedures can be used?

A

Video identification
Identification parade
Group Identification

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49
Q

Who can carry out the identification process?

A

Officer not below rank of inspector who is not involved in the investigation

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50
Q

When must an ID procedure be held?

A

When an eyewitness
- has identified a suspect
- is available who expresses an ability to identify the suspect
- has a reasonable chance of being able to idetify the suspect

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51
Q

What is the funding situation for the client at the police station?

A

Every individual is able to have access to a solicitor at the police station. This is limited to telephone advice only for non-imprisonable offences

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52
Q

How can a defendant obtain a representation order?

A

They must pass both the means test and merits test.
Both must be passed in order to secure public funding

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53
Q

Explain the means tests in Magistrates

A

Means Test (Magistrates): analyses the weighted gross annual income
- If below the lower theshold of £12,475 then they are eligible
- If above the upper threshold of £22,325 then they are inelgible for public funding
- If inbetween thresholds then they are required to undertake a full means test

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54
Q

Explain the means test in the Crown Court

A

Applicant is assessed on their income and capital
Ineligible for public funinding if above the threshold of £37,500

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55
Q

What is the Merits Test?

A

defendant must demonstrate that it is in the interests of justice for them to be legally represented

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56
Q

When does the defendant automatically satisfy the Merits Test?

A

Charged with an indictable only offence
Charged with an either-way offence and is later sent to the Crown Court

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57
Q

When does the defendant automatically satisfy the Merits Test?

A

Charged with an indictable only offence
Charged with an either-way offence and is later sent to the Crown Court

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58
Q

How many times can the duty solicitor represent the defendant?

A

Only on one occasion

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59
Q

Where the defendant is on bail, when must the first hearing be held within if the prosecutor anticipates a guilty plea or likely to be sentenced in Magistrates Court?

A

Within 14 days of being charged

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60
Q

Where the defendant is on bail and it is anticipated that the defendant will plead not guilty and the case will go to Crown Court, when should the first hearing be held?

A

Within 28 days of being charged

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61
Q

Must the defendant be present at the first hearing?

A

Yes

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62
Q

When must the prosecution serve the initial details of the case?

A

As soon as is practicable and no later than the beginning of the day of the first hearing

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63
Q

What are some common bail conditions?

A

Residence at a given address
Curfew
reporting to a local police station at given times
surety
Security
restriction on where a defendantmay go during bail
restriction on who the defendant may have contact with
TaggingSurrender of passport

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64
Q

Who can vary bail conditions?

A

Prosecution or Defence can varymake an application to vary the bail conditionswith advance notice given to the other party.
They must apply to the court who granted bail

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65
Q

What is the only bail breach which is a criminal offence?

A

Failing to surrender to custody

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66
Q

What is the general rule about how many attempts a defendant can have at getting bail at the Magistrates?

A

The defendant can have two attempts at getting bail in the Magistrates, and one attempt ion appeal to the Crown COurt

67
Q

What is the timeline after the first hearing at the Magistrates Court for bail application?

A

If the defendant is unsuccessful at the first hearing, they can reapply a week later for bail. If both are unsuccessful then the defendant must obtain a certificate of full argument which must be produced to the Crown Court if they appeal to the Crown Court. The appeal is heard one business day after the appeal notice.
The defendant can only appeal again if there has been a change in circumstances

68
Q

What can a defendant do in urgent cases for appealing bail?

A

The defendant can skip the second application at the Magistrates and go straight to the Crown Court. THough this means they lose their chance to apply a second time with the MAgistrates

69
Q

What is the custody time limit for trial in the Magistrates?

A

56 days

70
Q

What is the custody time limit for trials in the Crown Court?

A

182 days

71
Q

What is the right to bail?

A

Court presumes that a defendant is entitled to bail and it is only if an objection is properly made out that bail can be refused

72
Q

When does the right to bail NOT apply?

A

To those appealing their conviction or sentence
To deendants being committed for sentence from the Magistrates Court to the Crown COurt
*bail can be granted, it is just that the presupmtion does not apply

73
Q

Grounds for objection to bail for indictable offences?

A

Substantial grounds for beleiving:
Fail to attend a subsequent hearing
Commit further offences on bail
Interfere with witnesses or otherwise obstruct the course of justice

74
Q

If it is an either-way offence and the individual pleads guilty, what are the options the Magistrates has for sentencing?

A

magistrates does not have the power to impose more than 6 motnhs imprisonment for summary only offences
Does not have the power to impose more than 12 months imprisonment for either-wyay offences

75
Q

If the defendant enters a not guilty plea, then the Court moves to an allocation hearing, when should a case go to the Crown Court?

A

WHen the courts sentencing powers would be insufficient (sentence clearly in excess)
For reasons of unusual , legal, procedurla or factual complexity

76
Q

What special cases under Section 50A Crime and Disorder Act 1998 provides that they should be sent immediately to Crown Court?

A

Where children may be called as witnesses
Complex Fraud

77
Q

When can an application for dismissal be made?

A

Only after he defendant is sent by the Magistrates Court for trial to the Crown COurt
Only after the defendanthas been served with the evidence relating to the offence and
Only before thee defendant is arraigned

78
Q

What is the test for dismissing the charge in an application for dismissal?

A

If it appears to the judge that the evidence against the deendant would not be sufficient for him to be properly convicted

79
Q

When can the defence present submission of no case to answer?

A

During a trial and after the prosecution has presented all of its evidence
It can be made in the Magistrates Court and Crown Court

80
Q

Who can make a s78 application?

A

Only applies to evidence on which the prosecution proposes to rely, so it cannot be used by prosecution or co-defendant

81
Q

What is the key test for the court to determine admissibility 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

82
Q

When can a s78 application be made?

A

before the trial,, at the commencement of the trial, just prior to the prosecution seeking to admit the evidence which the wish to be excluded

83
Q

How does a s78 application be heard?

A

Voir Dire hearing (absence of jury)

84
Q

What is a confession?

A

Any statement wholly or partly adverse to the person who made it whether made to a person in authority or not and whether made in words or or otherwise

85
Q

When is a confession inadmissible under s78?

A

Oppression and Unreliability (anything said or done which was likely in the circumstances existing at the time to render the confession unreliable)

86
Q

Who has the burden to prove the confession is admissible?

A

Prosecution has the burden to prove beyond reasonable doubt that the confession was NOT obtained by oppression

87
Q

What are the case management directions the Magistrates will give at the first hearing?

A

Directions for service of documents between the parties. Resolve there and then any matters of law
Set a trial date

88
Q

What are the two stages of the Plea and Trial Preparation Hearing (PTPH)?

A

First: Plea
Second: Sentence or trial preparation stage

89
Q

If the defendant pleads not guilty, then the court will go on to the trial preparation stage, what matters are dealt with at this point?

A

Trial Date
Prosecution evidence
Expert Evidence
Witness Requirements
Special measures
Bad Character
Witness SUmmons
Agreed Facts and Issues
Disputed Facts and Issues
Defence statement
Disclosure
Defendants interview
hearsay
Admissibility

90
Q

Who has the burden of proof for the defence of duress?

A

Prosecution must disprove it beyond a reasonable doubt

91
Q

What are the standards of proof for the prosecution and defence?

A

Prosecution: beyond reasonable doubt
Defence: balance of probabilities

92
Q

When should a judge give a Turnbull direction?

A

WHen the case against the accused depends wholly or substantially on the correctness of the visual identification

93
Q

What must the judge consider when deciding whether to withdraw the case from the jury?

A

A: amount of time
D: distance
V: visibility
O:Obstructions
K:known or seen before
A: any reasons to remember
T: time lapsed
E: error or material discrepancy

94
Q

Who sits in the Crown Court and how should they be addressed?

A

Circuit Judges: referred to as Your Honour
Recorders: referred to as Your Honour
High Court Judges: referred to as My Lord or My Lady

95
Q

When is a defence statement mandatory?

A

In the Crown Court
It is only optional in the Magistrates

96
Q

When should an application be made to exclude a confession?

A

Crown Court: at a pre-trial hearing
- can be made before or during the trial
Magistrates COurt: application under s76 must be dealt with as a preliminary issue

97
Q

What are the gateways for admissibility of defendant bad character evidence?

A

A:Agreement
B: bLurts it out
C: Context
D: Done it before (propensity)
E: ‘E did it
F: False impression
G: Gets at the witness

98
Q

What is the definition of bad character?

A

COmmission of an offence or other reprehensible behaviour

99
Q

What sources are there for bad character evidence?

A

Previous COnvictions
Cautions
Acquittals
Agreed facts that amount to reprehensible behaviour

100
Q

When can the court exclude bad character evidence?

A

If the amount of time elapsed since the offence of the same type had been committed.
If the court believes the bad character evidence has been contaminated
Court must reasons in open court for any ruling it makes on the issue of bad character

101
Q

What is the procedure for admitting bad character evidence for the prosecution? (in both courts)

A

Magistrates Court: not more than 20 business days after the defendant pleads not guilty
Crown Court: not more than 10 business days after the defendant pleads not guilty

102
Q

When should the defence respond to an application of bad character evidence?

A

Not more than 10 business days after service of the notice

103
Q

What is used material?

A

This is material the proseuction will rely upon at trial to prove its case against the deendant

104
Q

What is unused material?

A

Material that is not being relied on by the prosecution

105
Q

What are the four stages of disclosure?

A
  • INvestigation stage (duty to record and retain material during the investigation)
    -Initial duty of disclosure on the proseuction
  • Defence disclosure
  • continuing duty on the prosecution to keep the disclosure under review
106
Q

When must unused material be disclosed in the Magistrates and Crown Court?

A

Magistrates: when a defendant pleads not guilty and the case is adjourned for summary trial
Crown COurt: where a defendant is sent for trial where a VOluntary Bill of INdictment has been preferred against a defendant

107
Q

When a case is sent to the Crown Court for trial, when will the PTPH be held?

A

28 days after sending

108
Q

How long does the continuing duty of disclosure by the prosecution last for?

A

lasts until conviction, acquitted or prosecution decides not to proceed with the case

109
Q

When must a defence statement be served in the Crown and Magistrates Court?

A

Crown Court: compulsory only in the Crown Court and must be served on the prosecution and the court within 28 days of the date when the prosecution complies with its duty of initial disclosure
Magistrates: not compulsory but if they do want to submit a defence statement then it must do so within 10 business days of the prosecution complying with initial disclosure

110
Q

What are the consequences for failing to disclose in the Crown and Magistrates Court?

A

Defendant will not be able to make an application for specific disclosure

111
Q

Who is eligible for special measures?

A
  • all witnesses aged under 18 at time of trial
    -witnesses who have a mental disorder
    -witnesses who are in fear or distress
    -adult complainants of sexual offences
    -
112
Q

What kind of question can advocates ask in cross examination?

A

Leading questions

113
Q

Who is and is not competent as a witness?

A

No defendant or co-defendant is competent for the proseuction
A child cannot be competent is they do not understand the questions and can not give comprehensible answers (age not a factor)
Spouse/civil partner is competent for defence or prosecution

114
Q

Who is not compellable?

A

Spouse and civil partners can be compelled but only for the prosecution if the offence their partner is charge with is
- assault to the spouse
assault to child under 16
sexual offence against someone under 16
attempts of any of the above

115
Q

What is the general rule on hearsay?

A

Hearsay evidence is inadmissible

116
Q

What is the definition of hearsay?

A
  • Statement made out of court and
  • The person that made it intended another person to believe it and
    o If you are explaining something, then it is not hearsay
  • It is adduced as evidence of the matter stated
117
Q

What are examples of things which are not hearsay?

A

Private Diary
CCTV
Questions

118
Q

What are the exception to the hearsay rule?

A

Any of the statutory exceptions apply
Any of the common law exceptions apply
All the parties agree
Court uses its statutory discretion to admit hearsay in the interests of justice

119
Q

When may hearsay be admissible?

A

If the witness is unavailable
If it is in a business document
In the interests of justice

120
Q

When is a witness considered to be unavailable for the purposes of hearsay?

A

Death
UNfitness of a person to give evidence in court
Witness cannot be found or is outside the UK and cannot practicably secure ateendance in court
Fear

121
Q

What are the common law exceptions to hearsay evidence?

A

Public INformation
Evidence of reputation
Res Gestae
COnfessions
Statement in furtherance of common entreprise ]Body of Expertise

122
Q

When must the prosecution and defence serve notice for admitting hearsay evidence?

A

Proseuction: 20 business days after not guilty plea in Magistrates
10 business days after not guilty plea in Crown
Defence: as soon as is practicable

123
Q

When does the defence have the evidential burden and then what happens to the legal burden?

A

When they are putting forward an affirmative defence such as self-defence, intoxication or loss of control.
The prosecution then still have the legal burden to disprove the accused defence

124
Q

When is the only time the defence has the legal burden of proof?

A

Defence of diminished responsibility

125
Q

What is sentencing based on?

A

Culpability and seriousness of harm caused

126
Q

When is a custodial sentence imposed?

A

Where the offence is so serious that a fine or community order can not be justified

127
Q

What are statutory aggravating factors affecting the seriousness of the offence?

A

Previous Convictions
Offence committed whilst on bail
Offence racially or religiously motivated
Commission of offence while under the influence of drugs or alcohol
Planning of the offence

128
Q

What are some mitigating factors for sentencing?

A

Greater degree of provocation than normally expected
Mental illness or disability
Youth or Age
Good Character

129
Q

When can a community order be given?

A

When the offence is considered to be serious enough to warrant it

130
Q

How long can a sentence be suspended for?

A

Between six months to two years

131
Q

When is a Newton Hearing needed?

A

When a defendant pleads guilty but there is a material fact in dispute

132
Q

WHo has the burden of proof at a Newton Hearing?

A

Prosecution must prove beyond reasonable doubt

133
Q

When can a defendant appeal to the Crown Court from the Magistrates?

A

when they are convicted but pleaded not guilty, they can appeal sentence or conviction
When they plead guilty, they can only appeal the sentence
Prosecution cannot appeal

134
Q

What is the procedure for appealing from Magistrates to Crown Court?

A

Written notice within 15 business days of sentence
The prosecution then has 15 business days after service of the notice to respond
The defendant can apply for bail (no presumption of bail at this point)

135
Q

What can the Crown Court do to the original decision?

A

Crown Court can confirm, vary, reverse any of the previous decision

136
Q

When can a defendant appeal by by way of case stated?

A

Wrong in law or in excess of their jurisdiction which can include
- admissible evidence was excluded
- inadmissible evidence was included

137
Q

What is the procedure for appealing by way of case stated?

A

Within 21 days of acquittal, conviction or sentence, must apply in writing to the Administrative Court
The parties then have 10 business days to respond
Evidence is not called to this hearing

138
Q

What are the possible outcomes for an appeal by way of case stated?

A

Reverse, amend or affirm the Magistrates Decision

139
Q

When can a defendant appeal from the Crown Court?

A

Where a defendant pleaded not guilty to an offence on indictment, they can appeal conviction and sentence to the Court of Appeal
Defendant who pleaded guilty can also appeal conviction and sentence to the Court of Appeal

140
Q

When will the Court of Appeal only allow an appeal against conviction?

A

If the conviction is ‘unsafe’
- this is a subjective test

141
Q

When will the Court of Appeal allow an appeal against sentence?

A

If the sentenced imposed was wrong in law or wrong in principle and manifestly excessive

142
Q

What power does the Court of Appeal have in regard to appeals of conviction or sentence?

A

Quash the conviction
Allow part of the appeal
Quash any sentence

143
Q

When is leave required in an appeal?

A

When you are appealing from the Crown Court to Court of Appeal, leave is always requried

144
Q

Who can appeal by way of case stated?

A

Both prosecution and defence

145
Q

What is the role of the Sentencing Children and Young People?

A

welfare of child
prevent re-offending
rehabilitation

146
Q

What is a referral order?

A

Can be passed by Youth Court or Adult Magistrates Court
Requires offenders to attend a youth offender panel

147
Q

When is a referral order mandatory?

A

When the offender is sentenced for an imprisonable offence
First time offender
Custody is not appropriate
Pleads Guilty

148
Q

When can a youth rehabilitation order be imposed?

A

Court must be satisfied that the offence is serious enough to warrant it though this does not have to be imprisonable

149
Q

What are the minimum and maximum lengths of time for a detention and training order?

A

4 months and 24 months

150
Q

What point should the court consider the defendants age in determining sentencing? (time of crime or time in court)

A

The age of the defendant when they committed the offence

151
Q

When must a youth be sent to the Crown Court?

A

When they have been charged with murder or manslaughter

152
Q

What is the procedure for when a youth is charged with a grave crime, pleading guilty or not guilty?

A

There is a plea before venue hearing at the youth court
If plead guilty, they will be deemed convicted at the youth court and they can either sentence them or send them to the Crown Court for sentence
If plead not guilty, an allocation hearing will be held.

153
Q

What is a grave crime in relation to youths?

A

Robbery
s18 wounding or GBH with intention to cause GBH
aggravated criminal damage/arson

154
Q

if a youth is jointly charged with an adult, where is the first hearing for the youth?

A

The first hearing is at the Magistrates Court with the adult

155
Q

What happens to the youth if the adult they are jointly charged with is sent to the Crown Court?

A

The youth will be sent to the Crown Court if it is in the interest of justice (allocation hearing is needed for this)

156
Q

What considerations should the youth court have in the interests of justice test?

A

Separate trials cause injustice to witnesses
Age gap between youth and adult
Lack of maturity
Relative culpability of young person

157
Q

What happens if it is or is not in the interests of justice for the youth to be sent to the Crown Court with the adult?

A

If it is in the interests of justice, a PTPH will be held with the adult
If it is not, then youth will have trial in youth court

158
Q

When should consecutive or concurrent sentences be given?

A

If there are two offences not arising out of the same set of facts, then consecutive sentences may be appropriate

159
Q

When are all prisoners allowed to be released throughout their sentences?

A

halfway through

160
Q

When can a detention and training order be imposed?

A

Can be imposed even though its a first time offence, cannot be suspended

161
Q

When can a referral order not be given?

A

If the youth is convicted after trial

162
Q

How long can a youth be under a youth rehabilitation order?

A

3 years

163
Q

When can a youth elect to have a case heard in the Crown Court?

A

When they turn 18 before their first appearance at court

SQE 1 (12 decks)

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