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FLK 2 > Criminal Practice > Flashcards

Criminal Practice Flashcards

1
Q

Who is the custody officer?

A

An officer, independent of the investigation holding the rank of at least sergeant who is responsible for the welfare of the detainee

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2
Q

What is the custody record?

A

A documented opened and kept by the custody officer, which is used record details of the detainee, their offence and time in custody.

Contains
- Detainee name and address
- details of their offence
- time of the arrest
- time they entered custody
- confirmation of rights
- any requests made by detainee
- and compliance with PACE Codes.

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3
Q

How is it decided whether a suspect should be obtained or released?

A

The custody officer should look as to whether there is sufficient evidence to charge.

If there is sufficient evident - Custody officer should charge them, and release them on bail OR remand them to police custody.

If there isn’t sufficient evidence - then the custody officer should release suspect on bail unless there is justifiable grounds to detain them further

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4
Q

What constitutes as justifiable grounds to detain an suspect longer when there isn’t sufficient evidence

A

The custody officer may detain a suspect in police custody if they reasonably believe that the suspect detention without charge is necessary to

A - preserve evidence
B - Obtain evidence

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5
Q

What rights do a suspect have when being detained at the police station? And when do the policies need to inform the suspect of these rights?

A

Rights to legal advice
- on arrival of the police station
- on arrest following voluntary attendance of the police station
- before commencement or recommencement of interviews

Right to have someone informed of arrest

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6
Q

When can the right of legal advice be delayed?

A

An officer of the rank of superintendent may delay suspect access to consult with a solicitor. The officer may do so if

A - the suspect has been charged an indictable offence AND
B - the officer has reasonable grounds to believe that exercising the right to legal advice will:
I. Lead to interference or harm with evidence connected with the evidence or interference or physical injury to other persons
II. Lead to alerting others connected to the offence

  • if it delayed due to particular solicitor - another solicitor should be given
  • can only be denied as long as the ground continues to exist
  • can only be denied for maximum for 36 hours from the relevant time
  • suspect should be informed about denial and the reason
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7
Q

When can the right to have someone informed be delayed?

A

An inspector or higher may delay the right up to 36 hours and can only be done if

A - suspect has been arrested of indictable offence
B - justiciable grounds - alerting someone could lead to
I - interference or harm to evidence or persons
II - alerting others involved
III - have benefited from criminal conduct
IV - would hinder the recovery of property

  • Suspect should be delayed of the right and why
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8
Q

What is the relevant time?

A

Arrested person arrives at the police station or 24 hours after arrest - whichever is earlier

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9
Q

Briefly walk through the detention periods?

A

Maximum times and extensions

24 hours - initial period (default - everything else is an extension)

36 hours (12 hour extension by superintendent or above)
- indictable offence
- detention is necessary to preserve or secure evidence
- investigation is being carried out diligently and expeditiously

96 hours - (36 hour extension and then 24 hours by Magistrates court)
- court is made up by two lay magistrates or district judge
- application is made by oath by a warranted constable supported by written information
- suspect is present at court and detained for indictable offence
- court is satirised by reasonable grounds
I. Secure or preserve evidence
II. Obtain evidence through questioning
III. Investigation is being conducted diligently and expeditiously.

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10
Q

What are detention reviews?

A

A detention review is where an officer of at least the rank of inspector determines whether a suspect continued detention is justified. The review clock starts when the detention is authorised.

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11
Q

Break down when the detention reviews should take place

A
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12
Q

When must an identification procedure be held?

A
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13
Q

When can an identification procedure be withheld?

A
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14
Q

Break down what “Known and available is”

A
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15
Q

What is the different types of identification methods?

A
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16
Q

What are your options when police are asking questions?

A
  • comment
  • no comment - right to silence
  • prepared statement - best when worried about how someone may perform at a interview

Anything that was not mentioned at interview or prepared statement but later relied on at court is open to adverse inferences.

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17
Q

Who needs a appropriate adult and who can be one?

A
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18
Q

Summarise remand time limits and custody time limits

A

Custody time limits
Pre-convictions
3 clear days on custody to a police constable
8 clear days in custody to prison
28 clear days in custody in prison where:
- tHe next stage of proceeding is fixed to occur within that time
- the d at the time of the remand is before the court and
- the defendant has previously been remanded in Custody by the court in proceedings
28 days clear day in custody to prison is the D is already serving a custodial offence.

Post-conviction
- three weeks in custody for enquiries or reports for sentencing
- 4 weeks on bail

custody time limits - the maximum amount of the time someone can be remanded in custody during criminal trial.
56 days for summary only offences
70 days for cases sent to the crown court or either way offences.
182 for indictable only offences

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19
Q

What are the exclusions to right to bail?

A

The right to bail does not apply to:

A. Those appealing the conviction or sentence or;
B. Defendants being committed for sentence from the magistrates court to the crown court

Bail can still be granted but the automatic right to bail does not apply

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20
Q

What are the exceptions to right of bail for indictable offences

A

There are substantial grounds for believing that if D is released on bail that the defendant would either:

A. Fail to attend a subsequent hearing
B. Commit further offences on bail
C. Interfere with witnesses or obstruct course of justice

Substantial grounds - that there is merit and substance to the fears.

Final filter - Bail should not be removed according to the ground if there is no real prospect of the defendant receiving a custodial sentence.

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21
Q

Name the summary only offences

A

Assault
Battery

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22
Q

Name the either way offences

A

ABH
GBH ( s20 - Without intent)
Theft*
Burglary*
Fraud
Simple criminal damage/arson*

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23
Q

Name the indictable offences

A

Murder
Manslaughter
GBH (s18 - with intent)
Robbery
Aggravated burglary
Aggravated criminal damage/arson

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24
Q

What is the laws position on low value shoplifting and low value criminal damage?

A

Low value shopping - under £200 cannot be sent to crown court - must be tried in magistrates
Low value criminal damage - under £5k cannot be sent to crown court - must be tried in magistrates but if arson is involved will follow the either way process of allocation.

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25
Q

What is the law position on burglary as an either way offence?

A

This either way offence becomes indictable if
1. Where the ulterior motive intended or committed in the building is indictable
2. Where a person in the building was subjected or threaten with violence
3. The D had committed a domestic burglary at 18+ and has 2 or more previous convictions for domestic burglary that occurred before November 1999.

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26
Q

What are the grounds for refusing bail on a summary offence

A

D has broken one of the conditions of bail during these proceeding or has breached a fail to surrender in the past.

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27
Q

What are the ground for refusing bail on non-imprisonable offences?

A
  • For D’s own safety
  • Not enough information to deal with bail now
  • D is already serving a custodial offence
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28
Q

Discuss the right to bail for murder and rape type of cases and offences with life imprisonment

A

Murder, attempted murder, rape or serious sexual offence - if there is a previous conviction of a similar nature than bail will be refused unless there is exceptional reasons not to.

If it murder and there is no previous convictions of a similar nature: bail will be refused if there is a significant risk of someone being harmed by D

If it is a offence carrying a life imprisonment - bail will be refused if there significant risk of other offences being committed or failure to attend.

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29
Q

Discuss right to bail for offences against family members or abuse of drugs

A
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30
Q

Discuss applications to vary bail conditions

A

Can be made by prosecutors or defence on advance notice by other party
Application should be made to court who granted bail
Can be done without a hearing if both parties agree on variation

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31
Q

What happens if there is a breach of a bail condition and what would happen if you fail to surrender?

A

Breach of any bail conditions - tightening of bail conditions or arrest.

Breach of fail to surrender - charged with failing to surrender - following penalties can be imposed depending on which court they fail to surrender to:

Magistrate court - 3 months imprisonment or a maximum fine of 5k
Crown court - punishable up to 12 months or unlimited fine

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32
Q

Discuss the procedure for Bail applications

A

1. Prosecution representations: the prosecution will summarise the case against the defendant including a summary of evidence and previous convictions. The prosecution may
-Declare they object bails and specify grounds
- impose confections and specify the purpose they serve

2. Defence representations: the defence will be allowed to rebut any grounds or mitigate any concerns. They will initially advocate for unconditional bail or otherwise conditions for bail.

3. Right to reply: for the prosecutions to correct any misstatements by the defence

4. Decision as to bail the court will announce its decision and reasons. If granted the court will inform the defendant where and when to surrender to custody. If refused, court will serve defendant certificate of full argument

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33
Q

When can the defence and prosecution appeal the decision on bail?

A

Defence can appeal as soon as it practicable
- heard within 48 hours by crown court judge at a full rehearing.

Prosecution right is limited:
- they must have initially refused bail
- offence must be punishable by imprisonment
- prosecution indicates at hearing they will be appeal and within 2 hours confirmed in writing.
- Appeal is heard within 48 excluding weekends.
- magistrates court granted bail - heard by crown court judge
- crown court granted bail - heard by an high court judge

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34
Q

Breakdown the allocation of trial process for either way offences

A
  1. Indicates plea at first appearance - if non guilty or no plea indicated move to step 2
  2. Allocation hearing - Magistrates makes their determination as to suitability based on:
    • adequacy of magistrates sentencing powers
    • Representations by the parties
    • allocation guidelines - should go to crown court - if complex or magistrate sentencing powers are insufficient
  3. Defendants choice - if the magistrate court accept summary jurisdiction, then defendant must decide whether they consent to summary trial or elect trial on indictment
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35
Q

Either way offences; right to elect - what should you get your defendant to consider when making this decision

A

They can consider the following and also request an indication of sentence to help them decide

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36
Q

Either way offences - what offences must be sent to crown court

A

Notices in serious or complex fraud cases
Notices in cases involving children
Related offences to an indictable offence
Related defendants, where one is sent to crown court

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37
Q

What should be in the Initial details of the prosecutions case and when should it be served

A
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38
Q

When shall the IDPC be served? What is the remedy if this not the case

A

As soon as practicable and in any case, not later then the beginning of the day of first hearing.

Remedy - trial adjourned and costs awarded to the defence.

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39
Q

What does the first hearing consist of?

A

Summary only and either way:
Plea + bail + representation and legal aid - all dealt with magistrates

Indictable:
First appearance will still be in MC who will deal with bail and legal aid then sent to crown court who will deal with plea and trial

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40
Q

When will a representation order be made

A

After applying electronically - and satisfying the two part test.

Interest of justice and means test

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41
Q

What does the interest of justice test consider?

A
  1. Likely i will loose my liberty
  2. I have a suspended sentence which if breached, court can deal with my original offence
  3. likely i will loose my livelihood
  4. likely i will suffer serious damage to my reputation
  5. involves substantial question of law
  6. i wont be able to understand the proceeding or present my own case
  7. Witness may need to be tracked on my behalf
  8. The proceedings may involve expert cross examinations of prosecution witness
  9. It is in the interests of another that i am represented
  10. Any other reason
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42
Q

Break down the means test?

A

Automatically passed if under 18 or on government benefits. Otherwise ..

43
Q

When will the court ask the defendant to make a contribution to their legal aid?

A

When tried at crown court and
- their disposal income is more than £3398
- when the D is convicted and they move than £30 k in assets and equity

44
Q

What is the overriding principle in criminal practice?

A

That criminal cases are dealt with justly. This consist of

  • acquiring the innocent
  • convicting the guilty
  • dealing with the prosecution and defence fairly
  • dealing with the cases efficiently and expeditiously
45
Q

What are the standard directions found in the magistrates court?

A
46
Q

When must the magistrates set the date for a plea and trial preparation hearing at the crown court?

A

Within 28 days of sending

47
Q

What happens after entering a plea at the PTPH?

A

GUILTY
- sentence on that day or adjourned to be sentenced later
- court will decide whether d should be remanded in custody

NOT-GUILTY
Case management hearing will start
- set trial date
- identify issues for the trial
- consider witness requirements
- provide timetable for the necessary pre trial preparation
- give appropriate directions
- make provision for any necessary pre trial hearings

48
Q

When will an additional case management hearings

A
  • necessary to give more directions for conduct for an effective trial
  • required to set rules regarding the conduct of questioning witnesses or the defendant
49
Q

What are the rules around prosecution disclosure?

A

Any information/evidence that they will rely upon and unused material:
- that has not been disclosed before
- undermines the prosecution test or positively impacts the defendants case.

50
Q

What is the time limits for initial disclosure? Is there a continuing duty?

A

Continuing duty - yes - to disclose what has yet already been disclose and will undermine the prosecution case or assist the defendant

Time limits
Magistrates - as soon as reasonable practicable after the defendant pleads not guilty
Crown court - as soon as reasonable practicable after the the case has been sent to trial
Continuing duty - as soon as reasonable practicable

51
Q

When can the prosecution withhold disclosure

A

When they apply to the court for public interest immunity

52
Q

Discuss the rules around defence disclosure?

A

Magistrates court
They may serve a defence statement - if they choose to do so - not more than 14 days after the prosecution completes initial disclosure

Crown court
They must serve a defence statement - not more than 28 days after the prosecution completes initial duty of disclosure.

53
Q

What is included in a defence statement

A
  • defendant’s defence
  • any issues with prosecution offence
  • any point of law or authority they will rely on
54
Q

Who carries the legal burden and what is the standard of proof

A

The prosecution always carries the legal burden - to prove the element of the offence beyond reasonable doubt.

BUT

The burden shifts to the defence when raising specific defences on the standard of balance of probabilities

55
Q

What is evidential burden and who carries it?

A

Evidence that needs to be raised to satisfy the judge that the matter should be argued before the jury.

Whoever has the legal burden to prove the fact, carries the evidential burden too.

56
Q

How can you exclude a confession

A

Defence may argue to exclude confession due to it being obtained:
A. By oppression
B. unreliably: breaches of PACE, taking advantage of D’s vulnerability or emotional state
C. introducing the evidence would have an adverse effect on proceedings (discretionary)

A voire dire will be held to determine whether the confession should be excluded. If it was made by oppression or unreliability then the court MUST exclude confession.

57
Q

What is bad character evidence?

A
  • behaviours of misconduct that is not

A. Has to do with alleged facts of the offence the D is being charged with
B. Is evidence of misconduct related to the investigation or prosecution of the offence.

58
Q

When can bad character evidence be submitted?

A

Under the 7 gateways:

  1. All parties agree to the evidence being submitted
  2. The evidence is adduced by the D themselves or whilst answering to cross examinations or intended to elicit it
  3. The evidence is important explanatory evidence
  4. The evidence is relevant to an important issue between D and P - Propensity - the likelihood to do something
  5. The evidence has important probative value between D and co-defendant
  6. The evidence is required to correct a false impression made by D
  7. The D has made an attack on another persons character.

Prosecution or co-defendant must serve notice

59
Q

When can the court exclude bad character evidence?

A

If the court sees that admitting such evidence with have an adverse effect on the fairness of proceedings - e,g if the proviso convictions that prove a propensity happened a long time ago, the court may likely exclude the evidence

60
Q

What is the procedure when Visual identification is being disputes

A

judge will determine quality to determine whether jury should have a turnball direction

Length of time the witness had the D under observation
Whether there was any obstruction to the observation of D
Conditions of the identification - i.e. lighting, distance, weather
Whether the D was known to the witness previously
The length of time that elapsed between observation and identification
Whether there are any discrepancies between the witness’s description and the defendants appearance
Whether there are any significant discrepancies provided by the defence

61
Q

What does a turnball warning consist of

A
  • why a warning is being made
  • direct the jury to the circumstances the witness identification was made
  • remind the jury of the weaknesses of the evidence
62
Q

What decision will the judge make after accessing quality of visual identification evidence

A
63
Q

When can inference be made regarding silence when question or charged?

A

When 6 of these conditions are met:

1,criminal proceedings have begun
2. The alleged failure occurred before or on charge
3. The alleged failure occurred when the D was questioned by police constable
4. The police constable questioning was to discover who and how the alleged offences was committed
5. The defendant relied on a fact in the defence that was not mentioned at the time of questioning
6. It was reasonable for the D to reveal that fact during questioning on or before charge

64
Q

When can inferences be drawn during failure to testify at trial?

A

When refusing to answer a question ‘without good cause’

65
Q

When can inferences be drawn for failure to account for a object, place or mark found?

A

When an special warning has been issued.

66
Q

What is hearsay in criminal practice

A

Hearsay is inadmissible evidence made by a person, not orally and is tendered to prove a matter stated (make someone believe it is true).

67
Q

When can hearsay be admitted as evidence?

A
  1. when the witness is unavailable (dead, unfit, outside UK and unreasonable to come, cannot be reasonable found, fear) or the evidence is a business document (if it would have been admissible as oral evidence and was created or received by a person in occupation or office, and was supplied by someone who has personal knowledge of the matters stated)
  2. Where all parties agree to admit
  3. It would be in the interests of justice
68
Q

What does s78 PACE do?

A

Give the court the general right to exclude evidence from the prosecution if it would have an adverse effect on the fairness of the proceedings.

This looks at the quality of the evidence and how it was obtained

69
Q

When is the defendant and their spouse compellable

A
70
Q

What is special measures regarding witnesses and who is eligible?

A

Special measures - are measure to assist witness to provide better quality evidence.

Eligibility test
1. Are they eligible on the grounds of vulnerability or intimidation
2. Would any of the special measures help to improve quality of evidence given by the witness.

If yes to both - eligible.

71
Q

Give examples of special measures for vulnerable and intimidated witnesses

A

Only live link is available for defendant

72
Q

When does presumption of special measures apply

A
73
Q

Explain the differences between examinations of chief, cross examination and re examination?

A

Examination of chief - party introducing witness eliciting evidence from them.

Cross-examining - opposing party questions the reliability and creditability of the witness

Re-examination - original party clarifying or reaffirming any matters that arose form cross examination

74
Q

What is submission to no answer and when can it be made?

A

Submission to answer is a submission made by the defence to the judge to stop the case because of the weakness of the prosecution evidence.

This is made after the prosecution has made its case.

75
Q

When will the court accept an submission of no answer

A
  1. If there is no evidence that the alleged crime was committed by the defendant
  2. Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury could not properly convict on it
76
Q

What the rules regarding leading and non leading questions?

A

Leading questions (one that suggests an answer) are not allowed in examination of chief unless facts are not in dispute

77
Q

What is the purpose of sentencing

A
  1. The punishment of offenders
  2. Deterrence of crime
  3. Reform and rehabilitation of offenders
  4. The protection of the public
  5. The making of reparations of those harm by the offence

These five don’t apply when offence carries a mandatory life sentence

78
Q

What are the guidelines for sentencing

A
  1. Identify the offence category
    A. Greater harm, and greater culpability
    B. Greater harm and lower culpability or vice versa
    C. Less harm and lower culpability
  2. Identify starting point (harm and culpability) and then category range (aggravating factors)
  3. Consider any mitigation factors
  4. Consider guilty plea - mitigation
  5. See if dangerousness applies
  6. Totality principle - concurrent and consecutive sentences
  7. Court must explain and give reasons for sentence and the effect
79
Q

Breakdown culpability and harm

A

Culpability - blameworthiness of the individual - look at the intention and planning e..g were they reckless or deliberate

Harm - look at the level of harm they cause or risked to

80
Q

Breakdown how mitigation of guilty plea works

A
81
Q

Totality principle: breakdown how concurrent and consecutive sentences applies

A
82
Q

What should the court consider when passing a custodial sentence?

A

Whether the custodial threshold has been met - there is sufficient severity of the offence and a non custodial offence cannot be justified.

83
Q

What should the court consider when determining the length of an custodial offence

A
  1. It should be the shortest term that is corresponding with the severity of the offence and does not exceed maximum
  2. Where the defendant was convicted on indictment, and there is no maximum or mandatory life sentence - the maximum is 2 years otherwise the court is not restricted.
  3. If its the magistrates - their sentencing powers
84
Q

What time periods can be imposed on a suspended sentence and what is the consequence of breach of suspended sentence?

A

Minimum 14 days
Maximum 2 years

Breach
- suspended sentence takes immediate effect on original term with no alterations
- suspended sentence takes immediate effect on substituted lesser term or
- fine of no more than £2.5k

85
Q

When is a Newton hearing heard and what does it consist of

A

When D enters a guilty plea and goes straight into sentencing but there is a factual dispute between prosecution and defence.

Newton hearing will
- have the judge listen to the evidence and come to the conclusion of what the issue is
- judge hear no evidence but submission from the parties - if so judge must favour defendant on their facts and sentence according when there is substantial issue on the facts

86
Q

When can you appeal from the magistrates to the crown court?

A
  • A convicted person may appeal on conviction or sentence
  • Must serve notice no more than 15 business days after magistrates pass sentence or defer to, otherwise leave is required
  • if appeal is contested, than have 15 business days to contest
87
Q

Appeal - What powers does the crown court have?

A

Affirm or reverse decision.

Vary sentence to the extent that the magistrates could of imposed it.

88
Q

What appeals can be made from magistrates to high court? And what is the procedure

A
  • Both parties can appeal on by the way case stated - magistrates were wrong in law or in excess of their jurisdiction

-have 21 days after magistrates made the decision, to serve notice to all parties
- any contestions to be done with 15 business days

89
Q

Appeals - what powers does high court have?

A

Affirm or reverse decision
Amend decision
Remit back to magistrates

90
Q

When can a crown court decision be appealed to court of appeal?

A
  • when they have leave to appeal and one of the following grounds

APPEALS AGAINST CONVICTIONS
- when there is an unsafe conviction - unfair proceedings - i.e. incorrect use of no case to answer, new evidence in the interest of justice, judge misdirected the jury, ect

APPEALS AGAINST SENTENCING
- wrong in law
- manifestly excessive or wrong in principle

91
Q

Appeal - procedure for crown court to court of appeal

A
92
Q

Appeals - what are the Court of Appeal powers?

A
93
Q

When can the prosecution appeal from the crown court to Court of Appeal

A
  1. When there was a terminated ruling - submission of no answer
    - If this is the case, then they must state their intentions to appeal when terminated ruling occurs
    - Court of appeal may affirm, reverse or vary any decision.
  2. Retrial of serious offences - appeals against acquittal and for retrial will only be allowed
    - If D has been acquitted of a qualifying offence
    - the written consent of the directors of public prosecutors have been obtained and
    - leave to appeal has been granted
94
Q

What is the general rules to youths and who does it apply to

A

Youths (under the age of 18) must be tried in youth courts

95
Q

Youths - exceptions to general rule - age of the offender at the time of trial - discuss

A
96
Q

Youths - exceptions to general rule - type of offence - discuss

A

Sent to the crown court for

  1. Homocide offences
  2. Firearm offences carrying minimum of 3 years sentence
  3. Fraud cases or cases involving children
  4. They are a dangerous offence
    A. Charged with a specified offence (violent, sexual, or terrorist offence)
    B. They are a dangerous offender (significant risk of harm to the public)
    C. Custodial term of 4 years would be imposed
    5, Grave crime - custodial sentence of 14 years or more for 21+ offender - (Robbery, S18 GBH, aggravated criminal damage, arson and aggravated arson)

Note - sometimes the court would need to have a trial to know if any of these apply - if so then youths court should retain jurisdiction but sentencing remains open at adult courts

97
Q

Youths - exceptions to general rule - charged with adult - discuss

A
98
Q

Youths - exceptions to general rule - interests of justice test considerations?

A

Whether separate trials will cause injustice to the witnesses or to the case as a whole?
The age of the youth - the younger more likely to be retained in youth court
The age gap between adult and youth - the bigger the gap, the larger desirability for youth court
The lack of maturity of the youth
The culpability of the youth in comparison to the adult - if minor > youths court
The lack of previous convictions of the youth

99
Q

What are the differences when sentencing a youth

A

Prosecution will provide an overview of the offence and previous convictions
Defence will make a plea of mitigation
Parent or guardian will be invited to make a statement to the court.
The chair in the bench may engage in conversation with the youth on what they did and the effect on victims
Court must obtain a pre-sentencing report prepared by the youth offending team

100
Q

Youth courts: what must the court have regard to when sentencing

A

Prevent offending of young people and the welfare of youths

101
Q

What are the key elements to consider wen sentencing a youth

A
  • the age of the youth
  • seriousness of the offence
  • the likelihood of further offences being committed
  • the harm at risk if further offences are committed
102
Q

What is the scaled approach

A

Model of interventions adopted by Youth offending team.
1. Standard
2. Enhanced
3. Invasive

  • reflect the likelihood of the child reoffending and risk of them causing serious harm.

This will help court to determine what order to make and to what extent

103
Q

What are the 3 types of sentences that can be given to youth and when can the be given

A

Referral order - to attend meetings with a youth offender panel and comply with a programme to prevent reoffending last 3 to 12 months
Must be made
- no previous convictions
- pleads guilty to imprisonable offence
- court not proposing to make a custodial offence, or absolute or conditional discharge
- offence does not have a fixed sentence

Detention and training order - custodial sentence where a fine or non custodial sentence cannot be justified

Youth custodial sentence - community sentence - serious enough to warrant an order

FLK 2 (7 decks)

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