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SQE2 - Legal Knowledge > Criminal > Flashcards

Criminal Flashcards

1
Q

Identification procedures are not simply to identify the suspect; they can also be held to test or bolster the witness’ identification

A
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2
Q

There is no merit in carrying out an identification procedure IF a suspect is known to the witness

A
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3
Q

Robbery is an indictable only offence and can be tried only in the Crown Court

A
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4
Q

Hearsay can be admissible if a witness is not available. A witness is considered unavailable if they are dead or if they are outside of the UK and it is not reasonably practicable to secure their attendance

A
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5
Q

Res gestae is a category of admissible hearsay, and it refers to a situation where a witness was so emotionally overpowered by the events at the time of making the statement that concoction can be disregarded (think of the content of a panicky 999 call, for example)

A
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6
Q

Access to legal advice can be delayed for 36 hours if it is authorised by an officer of the rank of superintendent or above in writing

A
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7
Q

The Court of Appeal can quash any sentence imposed by the Crown Court and impose any sentence it deems appropriate. However, the Court of Appeal cannot exceed the sentence imposed by the Crown Court on an appeal against sentence by the defendant

A
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8
Q

When evidence is sought to be adduced under the bad character evidence gateways of ‘an important matter in issue between the prosecution and defence’ or ‘the defendant attacked another’s character’, the court must not admit the evidence if: (1) the defence make an application to exclude it, and (2) it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court must not admit it

A
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9
Q

If a conflict arises between co-defendants being represented by the same solicitor, the solicitor must cease to ac for both defendants as instructions will have been taken from both defendants and so continuing to act would lead to breach of client confidentiality

A
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10
Q

Intoxication is an aggravating factor that MAY be taken into account at sentencing

A
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11
Q

s.1 Theft Act 1968

A

Theft: dishonestly appropriating property belonging to another with the intention to permanently deprive another

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12
Q

s. 8 Theft Act 1968

A

Robbery: if a person steals, and immediately before or at the time of doing so, and in order to do so, they use force on any person or puts or seeks to put any person in fear of being then and there subjected to force

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13
Q

s.9 Theft Act 1968

A

Burglary: a person is guilty if they

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14
Q

The court has a discretionary power to exclude evidence offered by the prosecution if, considering all the circumstances, admission would have an adverse effect on the fairness of proceedings

A court will not exercise its discretion to exclude evidence unless the breaches are significant and substantial and have rendered the evidence unreliable

A
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15
Q

What are the seven grounds for admitting bad character evidence?

A
  1. All parties agree
  2. Adduced by defendant
  3. Needed to properly understand other evidence in case
  4. Relevant to important matter in issues e.g. propensity to commit offence or propensity to be untruthful (unlikely made out from single conviction)
  5. Substantially probative to important matter in issue between co-defendants e.g. when blaming each other
  6. Needed to correct false impression given by defendant
  7. Defendant attacked another witness’s character
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16
Q

When must the prosecution provide notice of intention to adduce bad character evidence? Magistrates? Crown Court?

A

Magistrates: 20 days after not guilty plea

Crown court: 10 days after not guilty plea

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17
Q

Good character evidence

A

Demonstrates a lack of or lack of disposition towards, misconduct, commission of offences or other reprehensible behaviour

Evidenced by lack of criminal record or other noteworthy commendable behaviour e.g. extensive volunteering or other public service work

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18
Q

Good character direction

A

A person of good character is less likely to commit this offence and is more likely to be credible when asserting their innocence

If a defendant has no criminal records they are automatically entitled to have the judge give a good character direction

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19
Q

Which witnesses are competent and compellable for the prosecution?

A

Defendant:

Spouse:

Co-defendant:

  1. Defendant
    - Neither competent nor compellable for prosecution
    - Competent but not compellable for defence
  2. Defendant’s spouse/civil partner
    - Competent but not compellable for prosecution UNLESS the offence involves assault, injury, or threat of injury to them or a child under 16; a sexual offence on a child under 16; or attempting, conspiring, aiding, or abetting those offences
    - Competent and compellable for defence UNLESS jointly charged
  3. Co-defendants
    - Neither competent nor compellable for prosecution
    - Competent but not compellable for defence
    UNLESS a co-defendant pleads guilty or the case is dropped, the co-defendant becomes an ordinary witness. Ordinary witnesses are competent and compellable for both parties. This means either side can force him to give evidence
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20
Q

When must an identification procedure be held?

A
  1. A witness has identified or purported to identify a suspect
  2. A witness expresses an ability to identify a suspect
  3. Reasonable chance of an eyewitness identifying a suspect
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21
Q

What are a suspects rights during an identification procedure?

A
  1. Righ to have the procedure explained
  2. Free legal advice
  3. Have a solicitor or friend present
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22
Q

A suspect is not required to cooperate with an identification procedure but failure to co-operate can be raised at trial

A
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23
Q

If a suspect changes their appearance before an ID procedure this may be raised at trial

A
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24
Q

What are the different types of ID procedure?

A
  1. Video identification: moving images of suspect and at least 8 others who must be similar appearance and distinguishing features concealed
  2. ID parade: suspect and at least 8 others who resemble the suspect appear in a line
  3. Group identification: witness sees suspect in an informal group with or without suspect’s consent
  4. Confrontation: one on one identification
    - Suspect must not be restrained
    - Witness is asked “is the person you saw on the earlier occasion?”
    - Suspect’s solicitor or friend may be present unless would cause undue delay

For all but the group ID, the witness must be warned that the suspect might not be present

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25
Q

For all but the group ID, the witness must be warned that the suspect might not be present

A
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26
Q

What are the possible objections to identification procedures?

A
  1. Failure to take into account reasonable objections to the appearance of others in the identification procedure
  2. Failure to keep the witness away from the suspect before or during the identification process
  3. Failure to keep witnesses apart before or during the identification process
  4. Failure to warn witnesses that the suspect might not be shown at all

If there is a breach of the rules regarding identification procedures, the court may exclude the evidence from trial if its admission will have an adverse effect on fairness

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27
Q

Interviewing officers must ensure they don’t use oppression e.g. use or threat of violence or offer inducements to confess e.g. promise of a caution

A
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28
Q

What is plea before venue?

A

The procedure that takes place when a defendant appears and is charged with an either way offence

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29
Q

What is the plea before venue procedure?

A
  1. Charge is read
  2. Clerk explains what happens if pleading guilty or if pleading not guilty
  3. Clerk asks how they would plead
  4. Defendant indicates guilty - proceed to sentence
  5. Defendant indicates not guilty - proceeds to allocation
    - Court accepts jurisdiction if sufficient sentencing powers
    - If declines jurisdiction sent to Crown for trial
    - If magistrates accepts jurisdiction, defendant may elect either Magistrates or Crown
    - Defendant can ask court to given an indication on sentence but not obliged to give BUT if indication given and defendant changes plea to guilty, court is bound to follow indication
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30
Q

Theft less than £200 the court cannot decline jurisdiction BUT defendant can elect crown court trial

A
31
Q

What are the Turnball guidelines and when must they be followed?

A

Guidelines setting out factors for determining the reliability of identification evidence:

A mount of time
D istance
V isibility - light/dark
O bstruction
K nown to witness
A ny reason to remember suspect
T ime between incident and ID procedure
E rrors wit witnesses first description of suspect

If a case wholly or substantially relies on identification evidence which the defendant disputes the Turnball guidelines must be followed

32
Q

What is a Turnball warning?

A

There is a special need for caution before convicting the defendant in reliance on identification evidence, as a mistaken witness can be convincing and several witnesses can be mistaken

The jury should consider the circumstances of identification and the weaknesses of the witnesses identification based on the Turnball guidelines

33
Q

In what circumstances can the trier of fact (judge or jury) draw an adverse inference from defendant’s silence?

A
  • Defendant puts forward new facts at trial that were not mentioned when defendant was charged
  • Failure to give evidence at trial
  • Failure to account for objection, substance or mark at time of arrest
  • Failure to account for presence at scene
34
Q

Any statement which is at least partly adverse to the person who made it is a confession

A
35
Q

Are confessions admissible? If so when?

A

Yes if they are relevant to a relevant matter in issue

Something is relevant if it goes to proving or disproving a fact in issue between prosecution and defence

36
Q

Can the admissibility of a confession be challenged? If so how?

A

Yes either on the basis of mistake or basis of untruth

Mistake: the listener misheard

Untruth: obtained by oppression or things said or done likely to render confession unreliable - prosecution must show beyond reasonable doubt that neither oppression or things said or done render confession unreliable

37
Q

What is the process for deciding the admissibility of a confession in the magistrates vs crown?

A

In the magistrates the admissibility of a confession is decided by the bench, if they decide it is inadmissible they must put it from their mind

In the Crown the admissibility of a confession is decided by the judge in absence of the jury in a voir dire hearing

38
Q

A confession which is unreliable owing to oppression or things said or done MUST be excluded

A
39
Q

What is the legal test for excluding evidence offered by the prosecution?

A

Admission of the evidence would have an adverse effect on the fairness of proceedings

Exclusion for unfairness will often be used if police officers have breached their duties under PACE

Usually the court won’t exercise discretion unless breaches are significant and substantial rendering evidence unreliable

40
Q

If sentencing guidelines exist for an offence are the court obliged to follow them?

A

Yes UNLESS it is is against the interests of justice to do so

41
Q

What aggravating factors are the court REQUIRED to take in to account?

A
  1. Relevant previous convictions
  2. Offence committed on bail
  3. Offence motivated by racial or religious hostility
  4. Offence motivated by victims sexual orientation, transgender identity or disability
42
Q

What aggravating factors does the court have the DISCRETION to take into account?

A
  1. Offence premeditated
  2. Offence committed in a group
  3. Offence targeted a vulnerable person
  4. Offence committed under influence of drugs or alcohol
  5. Offence involved abuse of position of trust
  6. Offence committed against victim who was providing service to the public
  7. Weapon was used
43
Q

What mitigating factors does the court have DISCRETION to take into account?

A
  1. Committed on impulse
  2. Highly provoked or acted out of fear
  3. Disability or mental illness
  4. Minor role
  5. Very young or very old
  6. Attempted to make repatriation with victim
  7. Remorse for offending
  8. Efforts to address offending
  9. Progress since offence committed
  10. Good character
  11. Work
  12. Home situation
  13. If property was of low value in a property offence
44
Q

If defendant maintains innocence but pleads guilty to avoid stress and inconvenience of trial, solicitor may not put forward anything in mitigation that suggests defendant did not commit offence

A
45
Q

Solicitor cannot represent two or more defendants with conflicting interests e.g. defendants who blame each other or if acting for two defendants and a conflict later arises solicitors will have to withdraw from case entirely

A
46
Q

Totality principle

A

Sentence imposed must not be disproportionate to overall seriousness of offending behaviour

Court more likely to impose consecutive sentences rather than concurrent when defendant found guilty of multiple offences that did not arise from the same conduct

47
Q

What is the benefit of pleading guilty before trial?

A

First opportunity: 1/3 reduction in sentence

Any other time: reduction in sentence

48
Q

When should a custodial sentence be imposed?

A

Not unless the offence is so serious that neither a fine or community order can be justified

49
Q

If the custody threshold is passed the court may impose a suspended sentence up to a maximum of 2 years plus additional requirement may be imposed

A
50
Q

What is a suspended sentence?

A

Sentence served in the community but if any conditions are broken or commit any other offence then will be liable to serve sentence in custody

51
Q

What is a community order and what can it consist of?

A

Sentence served in the community which can include:

  1. Paid work
  2. Rehabilitation
  3. Treatment programme
  4. Curfew
  5. Residence
  6. Restricted to certain area

Breach of community order can result in immediate custody

52
Q

Magistrates and Crown can impose fine either as sole sentence or in combination with other sentence

A
53
Q

Newton hearing

A

Defendant pleads guilty but disputes the facts and offers to plead on different facts

Prosecution rejects plea and so hearing takes place to settle dispute

Form of trial but no jury

If settled in prosecution favour defendant loses credit for early guilty plea

54
Q

What must the prosecution prove in each case?

A

EACH element of an offence beyond reasonable doubt

BUT the defence has the burden of proving some defences and some excuses on the balance of probabilities

55
Q

What is the doctrine of transferred malice?

A

Defendant has the intention to commit an offence against one victim but inadvertently commits an offence against a different victim, the intent is transferred to the new victim

56
Q

What is meant by a strict liability offence?

A

It does not require any mental state, just the offence

57
Q

Assault

A
  • Intentionally OR recklessly (mens rea)
  • Causing another person to apprehend (a belief rather than a fear)
  • Immediate unlawful violence

Words alone are enough for assault BUT words can be used to negate assault

58
Q

Battery

A
  • Intentionally OR recklessly (mens rea)
  • Applying unlawful force
  • On another person

Unlawful = without consent - most common defence = consent

Merest touch is enough

Can be committed indirectly e.g punch someone holding baby who then drops the baby - defendant liable for battery on the baby and individual holding the baby OR getting vicious dog to attack a passerby

Can be committed by omission (doesn’t require a positive act)

59
Q

Burglary

A
  • Enter (partial entry e.g. head in window is sufficient)
  • Building or part of a building
  • As trespassor
  • Knowing or being reckless about being a trespasser
60
Q

Who bears the burden of proof for diminished responsibility and what is it?

A

Defence on the balance of probabilities

61
Q

Who bears the burden of proof for loss of control and what is it?

A

Prosecution beyond reasonable doubt that the defendant did not lose control BUT the defendant must first raise loss of control and make out all elements are satisfied

62
Q

Voluntary manslaughter: loss of control

A
  1. Defendant is unable to restrain themselves
    +
  2. Caused by qualifying trigger
    - Fear of serious violence (to defendant)
    OR
    - Things said or done which constitute circumstances of extremely grave character giving defendant a justifiable sense of being seriously wronged
    - Hypothetical person of the defendant’s age and sex might have reacted the same way
63
Q

Principle offender

A

Commits actus reus and has relevant mens rea at the same time

64
Q

Vulnerable suspects are entitled to access to an appropriate adult who should be present during interview if not then evidence obtained in interview may be excluded

A
65
Q

Mode of trial for domestic burglary

A

Triable either way except in the following scenarios where it is indicatable only:
1. The burglary includes commission of (or intent to commit) an indictable only offence or
2. Victim was subject to violence or threat of
3. 3 charges for domestic burglary

66
Q

Possible negotiation element in CMA: liaise with CPS to ask the to re-consider whether to pursue case

A
67
Q

If complainant doesn’t turn up to give evidence then res gestate will need to be considered by prosecution

A
68
Q

If client admits they are guilty and want to plead guilty how do you advise?

A
  1. That the client take advantage of the credit for early guilty plea
  2. That all I can do is put the prosecution to proof but can’t put forward a positive defence as unable to lie and inferences will likely be drawn from the failure to put forward a defence
  3. Can go and seek alternative representation as my hands are now tied in terms of what I can do
69
Q

Even if not asked to consider liability always cover it briefly in criminal cases as always of relevance

A
70
Q

The defendant alone must make a decision on their plea

A
71
Q

Res Gestae

A

When a person is so emotionally overpowered that the possibility of concocting can be disregarded

72
Q

Always inform client of next hearing date and their need to attend and if necessary ensure compliance with bail conditions

A
73
Q

What are appropriate next steps if trial is coming up?

A

Come in for meeting with trial advocate

SQE2 - Legal Knowledge (7 decks)

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