Advocacy - Criminal Law Flashcards
What is the general rule and exceptions to the right to bail?
General rule = defendant has an unconditional right to bail until convicted
Exceptions = substantial grounds for believing the defendant will:
a) Fail to surrend to custody
b) Commit a further offence whilst on bail
c) Interfere with a witness
What factors are taken into account when considering whether bail should be granted?
- Nature and seriousness of the offence
- The defendant’s character, antecedents, associations and community ties
- The defendant’s history in respect of previous grants of bail
- The strength of evidence against the defendant
- Any other relevant factors
For each exception to the right to bail, what bail conditions can be imposed?
- Failing to surrender to custody:
a) Sureties
b) Security
c) Reporting to a police station
d) Residence
e) Surrender passport - Committing further offences whilst on bail
a) Reporting to a police station
b) Residence
c) Curfew
d) Non-communication with prosecution witnesses
e) Restrictions on entering specified areas - Interfering with a witness
a) Non-communication with prosecution witnesses
b) Restrictions on entering specified areas
What are the aggravating factors?
- Previous convictions
- D’s record in respect to previous grants of bail
- Racial or religious aggravation
- Disability or sexual orientation hostility
- Offences against someone who provides a public service
- Commission of an offence in front of a child
- Using a minor to mind a weapon
- Terrorist connections
What are the mitigating factors?
- D experienced a greater degree of provocation
- D acted on impulse
- D acted in genuine fear
- D has attempted to make reparations to victim
- D played a minor role in offence
- Particularly old/young
- Mental/physical disability
What must be shown to exclude evidence of a confession under s 76 PACE 1984?
- Oppression
a) Torture, inhuman or degrading treatment
b) Case law: hostile and aggressive questioning are examples of oppression
c) Causal link between oppressive behaviour and making the confession - Circumstances which renders the confession unreliable
a) Something said/done which caused D to make the confession (eg: inducement)
b) Breaches of PACE (eg: being denied access to legal advice)
What must be shown to exclude evidence of a confession under s 78 PACE 1984
That it would have such an adverse effect on the fairness of proceedings that it ought not to be admitted
The breach must have been significant and substantial
Court will take into account:
1. How serious the breach was
2. Whether it was deliberate
3. Whether the presence of a solicitor would have remedied/prevented the breach
Is the probative value of the accused person’s statement overridden by its prejudicial effect
What are the requirements for a video identification procedure?
Witness is shown moving images of several people including the suspect
1 suspect = 8 other people
2 suspects = 12 other people
Must resemble the height, age and general appearance of the suspect and be carrying out the same sequence of movements
If the suspect has any unusual features (eg: tattoos or facial scar) these need to be concealed on D or replicated on the other people
What are the requirements of an identification parade?
Held at a police station
At least 8 other people stand in a line alongside the suspect
Suspect can choose their position in the line, but cannot alter the position of other people
Witness must look at everyone in the parade twice before making a decision
If the suspect has any unusual features (eg: tattoos or facial scar) these need to be concealed on D or replicated on the other people
What are the requirements of a group identification procedure?
Witness sees the suspect in an informal group of people
- Can happen with the consent of D or covertly
Suspect must be able to join these people and be capable of being seen by the witness at the same time as other people
What are the requirements of confrontation?
Witness is brought face-to-face with suspect in the police station
Last resort, normally because D has refused to take part in other identification procedures
Before confrontation, witness must be told that the person they are about to confront may not be the person they saw
Usually happens with the suspect’s solicitor present
Who is responsible for the ID procedure?
An identification officer who is:
a) Not below the rank of an inspector
b) Is not involved with the investigation
Responsible for choosing the ID procedure and ensuring it is carried out properly
What is the general rule and exceptions for hearsay evidence?
General rule = hearsay evidence is inadmissible
Exceptions:
- Parties agree
- Preserved at common law:
a) Res gestae
b) Evidence of a confession - It is in the interests of justice to admit it
- Witness is missing
- Business document
When is the ‘witness is missing’ ground available for introducing hearsay evidence?
- Oral evidence would in theory be admissible
- The witness can be identified to the court’s satisfaction
- Witness cannot attend because they are:
a) Dead
b) Physically/mentally unfit to testify
c) Outside UK and it is not reasonably practicable to secure their attendance
d) Cannot be found and reasonable steps have been taken to secure their attendance
e) Afraid to testify and leave of court has been granted
When can hearsay evidence be admitted under the ‘business document’ ground?
- Created or received in a course of business
- Where the person supplying it had personal knowledge of the matters dealt with; and
- Everyone receiving the document was in the course of business
