Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Criminal Practice > 6. Sentencing and appeals procedure > Flashcards

6. Sentencing and appeals procedure Flashcards

1
Q

What does s 63 Sentencing Act 2020 require that a court must consider?

A
  1. Offender’s culpability in committing the offence, and
  2. Any harm which the offence caused, was intended to cause, or might foreseeably have caused
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What are the 4 levels of culpability?

A
  1. Intention to cause harm
  2. Recklessness as to whether harm is caused
  3. Knowledge of specific risks entailed by actions, even though no intention to cause resulting harm
  4. Guilty of negligence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is an aggravating statutory factor?

A

Four situations when sentencing court is obliged to treat an offence as being more serious than it would otherwise have done

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the 4 statutory aggravating factors?

A
  1. Previous convictions
  2. Offences committed whilst on bail
  3. Racial or religious aggravation
  4. Hostility based on sexual orientation or disability
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What are some other aggravating factors?

A
  • Offences planned / premediated
  • Offenders operating in groups or gangs
  • Deliberate targeting of vulnerable groups
  • Offences committed whilst drunk / on drugs
  • Use of a weapon
  • Deliberate and gratuitous violence or damage to property beyond that needed to carry out offence
  • Involving abuse of position of trust
  • Committed against those working in the public sector or providing a service to the public
  • Property offences = High value (incl sentimental) of property
  • Failure to respond to previous sentences
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are some mitigating factors?

A
  • D acted on impulse
  • D experienced greater degree of provocation than normally expected
  • D suffering from mental illness / physical disability
  • D particularly young or old
  • D only played minor role in the offending
  • D motivated by genuine fear
  • D who have made attempts to make reparation to their victim
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What reduction in plea is available for defendants that indicate a guilty plea at the first stage of proceedings?

A

A 1/3rd reduction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What reduction in plea is available for defendants that indicate a guilty plea at the subsequent stages of proceedings?

A

Maximum of 1/4 to a maximum of one-tenth on first day of trial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is the totality principle?

A

In sentencing, court will take into account both the offence they’re being sentenced for and any associated offences

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is a TIC?

A

Defendants who are being sentenced for a particular offence may ask the court to take other offences into consideration (TIC) when considering sentence – likely to be in defendant’s interests that all matters outstanding should be dealt with at the same time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What are the steps for sentencing?

A

Step 1 - determine category
Step 2 - starting point and category range
Step 3 - consider any factors which indicate a reduction in sentence, e.g. assisting the
prosecution
Step 4 - consider any reduction in sentence for guilty plea
Step 5 - imposition of extended sentence
Step 6 - totality principle
Step 7 - compensation and other ancillary orders
Step 8 - court gives reasons for sentence, includes explaining to the offender the effect of the sentence passed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the 3 culpability categories in step 1?

A
  1. Reflects both greater harm and enhanced culpability
  2. Reflects either greater harm or enhanced culpability
  3. Involved lesser harm and lower level of culpability
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

When will a court consider imposing either concurrent / consecutive sentences?

A

Where they are sentencing an offender to a custodial sentence for 2 or more offences

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is a pre-sentence report?

A

A report prepared by the Probation Service available if an adult defendant is pleading guilty to all offences and agree to co-operate in the preparation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is a plea in mitigation?

A

Speech by defendant advocate, also sometime including calling of character witnesses on behalf of the defendant or introducing character letters to speak of defendant’s generally good character

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is the general structure for a plea in mitigation by defence solicitor?

A
  1. Likely sentence - starting point
  2. The offence - address the circumstances, minimising impact of any aggravating factors (identify what may be viewed as aggravating factors and attempt to disassociate the defendant’s case from those factors); and stressing importance of mitigating factors
  3. The offender - emphasise personal mitigation, e.g. age, health, co-operation with police / early guilty plea, voluntary compensation, remorse, character, family circumstances, low risk of re-offending
  4. Suggested sentence - what sentence the defence solicitor thinks it would be most appropriate for court to impose; also alternative, e.g. suggest community order but if custodial sentence imposed then suggest suspended
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is the threshold test and when is it applicable?

A

In considering whether to pass a custodial sentence

Offence must be so serious that neither a fine alone nor a community sentence can be justified

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What are the three types of custodial sentence which the court must impose if the defendant is classified as a dangerous offence?

A
  1. Automatic life imprisonment
  2. Discretionary life imprisonment
  3. Extended sentence of imprisonment
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

When is early release usually given and what does this mean?

A

Usually halfway through sentence, and then offender is on licence in community to end of sentence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Can an “offender of particular concern” be released early?

A

Following half their sentence they can apply for parole, and may then be released at any time from this halfway point up until end of their sentence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What length custodial sentences can be suspended?

A

At least 14 days but not more than 2 years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

How long can a custodial sentence be suspended for?

A

At least 6 months and not more than 2 years

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

When will the court consider imposing a suspended sentence?

A

If it initially decides that the custody threshold has been met, but then considers that particular circumstances exists which justify the suspension of the sentence

24
Q

What is the period of suspension known of in a suspended sentence?

A

The operational period

25
Q

When may courts decide to suspend a sentence?

A

If it considers that particular circumstances exist which justify the suspension of the sentence, e.g. single parent

26
Q

What may the relevant court do if a suspended sentence is breached?

A
  1. Order custodial sentence to take effect unaltered
  2. Order custodial sentence to take effect for a shorter period of time
  3. Amend original order by imposing more onerous community requirements on the defendant
  4. Amend the original order by extending the operational period, or by extending the supervision period
27
Q

If a suspended sentence imposed by the magistrates was breached, which court can deal with it?

A

Magistrates or Crown Court

28
Q

If a suspended sentence imposed by the Crown Court was breached, which court can deal with it?

A

Crown Court

29
Q

When can a court impose a community order?

A

When it is of the opinion that the offence is serious enough to warrant it

30
Q

What happens if a defendant breaches a community sentence?

A

Initially will receive a warning from Probation Officer supervising the compliance with the order

31
Q

What happens if a defendant breaches a community sentence again within the following 12 months, without reasonable excuse?

A

Required to appear before court who must

  1. Amend order to make it more onerous OR
  2. Revoke order and re-sentence to different community order OR
  3. If wilfully and persistently broken order, revoke and impose custodial sentence
32
Q

If a defendant commits further offences during a generic community order, what can the magistrate do?

A
  1. Allow original order to continue
  2. Revoke order
  3. Revoke order and re-sentence, considering compliance with original order
33
Q

What must the court do if he defendant pleads guilty but disputes the factual version of events put forward by CPS (and this would impact sentence)?

A

Either accept defendant’s events, OR

Call a Newton Hearing

34
Q

What happens in a Newton Hearing?

A

Both defendant and CPS give evidence to allow the court to determine the true factual circumstances

35
Q

What is a basis of plea?

A

A way the prosecution may try to avoid having a Newton Hearing - defence and prosecution will agree on a version of events

36
Q

If a defendant has pleaded guilty, on what basis may they appeal to the Crown Court from the magistrates?

A

Against sentence received - that the sentence was excessive

Leads to full rehearing of case rather than just reviewing sentence imposed

37
Q

If a defendant has pleaded not guilty, on what basis may they appeal to the Crown Court from the magistrates?

A

Against conviction or sentence received

Usually leads to full rehearing of case and the court taking an independent view of correct sentence

38
Q

What is the procedure for a defendant appealing against their conviction and / or sentence?

A

Filing a notice of appeal with magistrates’ court and CPS within 15 days of sentence

Crown Court judge does have discretionary power to extend time limit

39
Q

What powers do the Crown Court have upon appeal from the magistrates?

A

Can confirm, reverse or vary the decision

Can impose any sentence as long as it is within that which the magistrates’ court could impose (i.e. could be increased)

40
Q

When can the CPS or defendant appeal to the King’s Bench Division of the High Court?

A

Known as “appeal by way of case stated”

When the magistrate either:

  1. Was wrong in law
  2. Acted outside their jurisdiction
41
Q

What is the relevant time frame for appeal by way of case stated to the High Court?

A

Within 21 days of relevant decision

42
Q

When can the CPS or defendant apply for JR?

A
  1. Magistrates’ court has made an order that they had no power to make – acted ultra vires
  2. Magistrates’ court has breached rules of natural justice
43
Q

Where does a defendant convicted in the Crown Court appeal?

A

Criminal Division of Court of Appeal

44
Q

What is the only ground available for a defendant wishing to appeal against conviction in the Crown Court?

A

Conviction is unsafe

45
Q

What are some examples of common factors raised by defendants to argue that their conviction is unsafe?

A

o Failure by trial judge to direct jury correctly
o Wrongful admission or exclusion of evidence
o Failure to administer correct warning to jury
o Inappropriate interventions by judge
o Fresh evidence

46
Q

What is the procedure for a defendant appealing their conviction from Crown Court to Court of Appeal?

A

Serve appeal notice within 28 days of conviction to the Registrar of Criminal Appeals at the Court of Appeal

47
Q

How does the Court of Appeal assess whether to allow an appeal from the Crown Court?

A

Registrar will put case papers before single judge who will determine whether permission to appeal ought to be granted

48
Q

If the Court of Appeal determine that an appeal to them is completely without merit, what could be the outcome?

A

May lead to direction as to loss of time under s 29 CAA 1968 - any time spent by defendant in custody awaiting outcome of appeal will not count towards the total time defendant must serve for sentence (as would normally be the case)

49
Q

What are the powers of the Court of Appeal?

A

o Quash conviction and acquit defendant
o Quash conviction and order retrial
o Allow part of appeal and dismiss other parts
o Find defendant guilty of an alternative offence
o Dismiss appeal

50
Q

In what circumstances can a defendant appeal against their sentence?

A

If sentence is
o Wrong in law
o Wrong in principle
o Wrong approach adopted when sentencing
o In case of co-defendants, disparity in sentence each defendant received
o Manifestly excessive

51
Q

Following appeal to Court of Appeal regarding sentence, what powers do they have?

A

Can confirm / quash / replace sentence

CANNOT increase sentence

52
Q

Does the CPS have right of appeal for a defendant who is acquitted by the jury?

A

No

53
Q

When do the CPS have right of appeal?

A
  1. If judge has made ruling which effective terminates the trial, or
  2. If judge has made ruling which significantly weakens the prosecution case
54
Q

For which offences can CPS apply for a retrial?

A

 Murder and attempted murder
 Manslaughter
 Kidnapping
 Number of sexual offences
 Various offences in relation to Class A drugs
 Arson endangering life or property

55
Q

What is the two-fold test which the CPS must satisfy in order for the Court of Appeal to quash a conviction and order a retrial?

A
  1. Evidential test - “new and compelling” evidence
  2. Interests of justice test

Criminal Practice (7 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions