Crim Litigation missing bits Flashcards
When can a solicitor be removed from interview by the police?
Only if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded e.g. answering questions on a suspect’s behalf or providing written replies for the suspect to quote
What are the 7 bad character gateways? Which require leave of the court to admit? Which gateways does the fairness test apply to?
101(1):
(a) Agreement (all parties agree to admit evidence) - leave of court not required
(b) Blurts it out (adduced by D himself) - leave of court not required
(c) Context (important explanatory evidence which has a substantial value in understanding case as a whole and without it would be impossible or difficult to understand other evidence of case) - leave of court required
(d) Done it before (show propensity to commit offences of same kind (same description or category), or propensity to be untruthful). Judge job to ascertain whether evidence capable of establishing propensity + jury job to ascertain whether actually shows a propensity)- leave of court required
(e) E did it - evidence adduced by co-defendant or witness who was invited by co-defendant to give evidence. - leave of court is required
(f) false impression - undermine impression given by D themselves or a witness. Leave of court is required.
(g) gets at a witness - makes attack on another person’s character living or dead, including evidence of dishonesty (only prosecution evidence allowed) - leave of court required
Fairness test (the court MUST NOT admit evidence if such an adverse effect on proceedings that court ought not to admit it (s78 can also apply but this test should go first as not discretionary) applies to: (d) and (g) only
What is the test for hearsay? What is not considered hearsay therefore?
- Identify relevant matter it is sought to prove
- Is there a statement of that matter in the communication?
-If no - not hearsay - If yes - was one of the purposes of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true?
-if yes - hearsay
-if no - not hearsay
Not hearsay: private diary, CCTV, questions (i.e. asking D for drugs), to show effect of words rather than truth of words (e.g. ‘if you don’t do what I say, I shall harm you’ - show threat was made rather than maker of threat would cause harm), legally significant words (offer of sexual services for money - show premises is brothel), falsehoods (asserting it was not true - e.g. false alibi)
What hearsay is admissible under CJA?
- Witness is unavailable (dead, unfit to be witness, outside UK + not reasonably practical to secure attendance, cannot be found after taking reasonable practicable steps, fear - consider special measures to help this issue)
- It is a business doc (received by person in course of trade, business, profession or other occupation) e.g. statements written down by police officer
-If prepared for contemplated criminal proceedings must either satisfy one of conditions in (1) above or person who supplied cannot reasonably be expected to have any recollection of matters dealt with in statement.
-Can exclude evidence if its reliability is doubtful - Interests of justice to admit it - e.g. value, reliability, circumstances - should be approached with caution and not used to circumvent other exceptions
What are the common law exceptions to hearsay?
-Public information e.g. public registers, maps
-evidence of reputation e.g. to prove character
-res gestae
-confessions
-statements of furtherance of common enterprise e.g. from one of the parties to the other
-body of expertise e.g. expert evidence
Are previous inconsistent and consistent statements admissible? Multiple hearsay?
Admissible - previous inconsistent statement that witness admits to having made, or previous inconsistent statement which witness proved to have made.
Admissible - previous consistent statements (e.g. to rebut suggestion of recent fabrication)
Multiple hearsay NOT admissible unless -business doc or
-previous consistent or inconsistent statement, or
-all parties agree, or
-value is so high that its in interest of justice
What are the 6 ways a youth can be sentenced including restrictions/requirements? (apart from no. 4 -covered in another card)
- absolute or conditional discharge
- Youth rehab order: unpaid work and residence requirement only possible for those aged 16 or 17. Intensive supervision or surveillance and fostering requirement - only be imposed if imprisonable offence. Only on those under 15 if persistent offender.
- Referral order: programme of behaviour. Mandatory if not previously been convicted of offence and youth pleads guilty to imprisonable offence (unless court intends to pass custodial sentence, hospital order, discharge). Min term 3 months, max term 12 months.
- DTO
- Long term detention - guilty of grave crime and neither DTO or community is suitable
- Other - Minimum 12 yrs for murder, extended detention/for life for dangerous offenders, young offenders institution those aged 18-21
When is a DTO imposed?
Who can it not be imposed on?
Minimum and maximum length?
If so serious neither fine or community sentence can be justified.
No DTO can be imposed on those aged 10 or 11
Only those 12-14 if persistent offender
Min length - 4 months, max - 24
What youth sentences can youth court NOT pass, MC court NOT pass, CC court NOT pass?
Youth: other detention sentences e.g. for murder
MC: Reparation order, youth rehab order, and DTO. And other detention sentences e.g. for murder
CC: referral order, parental bind over
If a youth turns 18 before first hearing, what happens?
Youth court doesn’t have jurisdiction
What cases are sent straight to CC with youths?
Homicide, firearms with min 3 yr sentence, served with a notice in a serious fraud or child case, specified offence and dangerous offender (significant risk of harm to public from committing further offences + offence warrants sentence of at least 4 yrs)
What is the test for s78? s76? What does each one relate to?
s78: admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it (general evidence, including confessions)
s76: oppression (torture, inhuman or degrading treatment, and use or threat of violence)
or anything said or done which was likely in circumstances to render unreliable any confession. (just confessions)
What will not be taken into account when considering whether to exclude a confession under s76?
Something where it was the D’s conduct that created the unreliable circumstances (e.g. drug withdrawal) - doesn’t mean that it wouldn’t be excluded but just not on this basis
What repeated offences carry higher min sentences? If plead guilty?
7 years for 3rd Class A drug trafficking offence (final sentence at least 80% if plead guilty)
3 years for 3rd domestic burglary (final sentence at least 80% on guilty plea)
5 years for certain firearms offences
6 months for second offence of possessing a weapon
6 months for threatening with a weapon
When must the court obtain a pre-sentence report? What must the court obtain if it is considering sentence under the Mental Health Act?
Before passing a custodial or community sentence, unless it considers it unnecessary to do so
Evidence from 2 medical practitioners that D is suffering from mental disorder
When is spouse/civil partner compellable?
Offence charged against partner is:
Assault/injury/threat of injury on that spouse or civil partner
Assault/injury/threat of injury to child under 16
Sexual offence against someone under 16
Attempts, conspiring, aiding, abetting above
When may a court take evidence from a witness without an oath?
Children + those of ‘unsound mind’
Relevant test: whether they have sufficient appreciate of solemnity of occasion and particular responsibility to tell the truth which is involved in taking an oath
What is a hostile witness?
A witness who was supposed to give evidence for the prosecution but then refuses to or gives an account with is inconsistent with their original statement - can apply to judge to create them as hostile and therefore cross-examine them
What is included on the Preparation for Effective Trial form?
*the defendant’s and legal representative’s contact details;
*names, numbers, types of witness and which party requires their attendance at court;
*the estimated length of trial;
*identification of trial issues;
*advance warning whether any applications are to be made (e.g. special measures, bad character and hearsay);
*whether any prosecution statements can be read;
*whether any special arrangements need to be made (e.g. interpreter, wheelchair access, hearing loop system) for anyone attending the trial, and
*that the defendant advocate has advised D of credit for early guilty plea and that trial will go ahead in D’s absence if D fails to attend on the trial date.
Where D is charged with an offence to be tried in CC, what summary only offences can be tried in CC which are connected to indictable offence?
What if they are not on this list?
- Common assault
- Assaulting a prison or secure training centre officer
- Taking a motor vehicle or other conveyance without authority
- Driving a motor vehicle while disqualified
- Criminal damage
Then once trial for indictable offence is over, D will be asked to enter plea in relation to summary-only offence:
IF pleads guilty - CC deals with offence in any way open to MC
IF not guilty = CC no further power to deal with offence
When can the defence make an opening speech?
When can the prosecution make a closing speech?
Has to be in CC, and only if one or more defence witnesses (other than D in person) will be called to give factual (as opposed to character) evidence
Prosecution can make a closing speech where D is legally represented or at least 1 defence (other than D) has been called to give factual evidence, or where court otherwise permits
What is the order of trial in CC?
- Legal arguments
- Jury selection and swearing in
- Judge’s preliminary instructions to jury
- Prosecution opening speech
- Defence identify matters in issue
- Prosecution evidence
- Conclusion of prosecution case
- Submission of no case to answer
- Right to give evidence & adverse inferences
- Defence opening speech
- Defence evidence
- Legal discussions
- Prosecution closing speech and then defence closing speech
- Judge summing up
- Jury retire
- Verdict
What is the only route for prosecution appeal from MC?
Appeal by way of case stated to HC
On a re-hearing at CC, what sentence can CC pass?
Can D appeal if he pled guilty via this route?
Who is the appeal heard by?
If D does not turn up?
Costs orders?
Any sentence which MC could have passed, including one which is more severe
No - appeal against sentence is only option unless D can prove appeal was equivocal
1 judge and 2 lay magistrates (or 1 lay magistrate if delay otherwise)
Will be abandoned unless they are represented (will go ahead in their absence)
if successful - may get defence costs order
if unsuccessful - may have to pay prosecution costs
Abandoned - costs awarded against appellant is abandoned within 24 hrs
