CP2 Flashcards
1
Q
Definition of a hearsay statement?
A
a statement, not made in oral evidence, that is relied on as evidence of a matter in it’
two stages:
1. out of court
2. purpose prove truth
STATEMENT is fact or opinion, inc by photos etc - believe it or act upon it
e.g. Adam tells court that George told him out of court that his bike was stolen
Purpose must be to cause another to believe or act on
2
Q
Define statement for purposes of hearsay evidence definition?
A
‘any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form’.
3
Q
What must purpose of a hearsay statement be?
A
appears to court to have been to cause another person to either believe it or person/machine to act on basis of it
e.g. diary entries hearsay as not intend another to read
e.g. S says to B that “T stole your watch”. So B punches T. That isn’t hearsay - because it is not used to show T stole the watch but fact it was said made him hit him. truthfulness is irrelevant so not hearsay.
4
Q
Examples of common hearsay evidence
(just for understanding)
A
- witness repeating at trial what told by another
- statement from witness being read out at trial instead of witness attending court
- police officer repeating at trial confession D made
5
Q
Two types of hearsay evidence?
A
First-hand hearsay
- repeating statement heard D make
Multiple hearsay
- relayed through more than one person before it is recorded
6
Q
Four categories for admitting hearsay
(not DUA stuff)
A
permitted by
- statutory provision
- preserved common law rules (inc res gestae)
- parties agree (easy one - always if agree)
- court satisfied interests of justice
7
Q
Will hearsay evidence be admissible if witness is unavailable to attend court?
A
Yes if:
- otherwise admissible (ie first-hand hearsay only);
- can identify maker of statement; and
- any of following conditions met:
DUA MF
a) they are dead
b) physically/mentally unfit to be witness
c) outside UK and not reas prac to attend
d) missing / can’t find despite reas pract steps taken
e) refuses cos fear
For purposes of (e) only:
- court must give leave
- court consider if interests of justice to admit
- interests of justice = consider contents/risk of unfairness (eg how difficult to challenge the statement if no witness) and fact special directions measure could have been made
8
Q
When will business documents/their contents be admissible (as hearsay evidence)?
A
(basically:
- maker had personal knowledge
- made and received course of business)
- Oral evi would be admissible;
- Created or received by a person in the course of their occupation or holder of a paid or unpaid office;
- person who supplied the information had personal knowledge of the matters; and
- if multiple hearsay, each person passing it on received in course of their occupation, or holder paid or unpaid office
e.g. could admit:
- hand-written receipt from shop owner that bought gun from
- boss (has knowledge and at work) tells clerk enter on ledger
9
Q
When will a hearsay statement prepared for use/in contemplation of criminal proceedings be admissible?
A
- W unavailable (DUAFF)
OR (!)
- W could not be expected to remember matters in statement
^ consider time passed and other circumstances
remember if business doc must satisfy all those - think includes that if hearsay all must have had personal knowledge??
e.g.
- shop owner lists items stolen, burglar arrested 2 years later, allowed to attend trial but unable to recall all items on the list - admissible as firts-hand business doc cos personal knowledge and course of business
- BUT as it was made for use in contemplated criminal proceedings (was for insurance policy), must satisfy one of these conditions. can satisfy time elapsed.
10
Q
Common law exceptions which allow hearsay evidence to be admitted?
A
- confession evidence
(confession made by D admissible, even if hearsay) - res gestae
(statement made at same time as event)
11
Q
Explain res gestae exception which permits hearsay evidence to be admitted?
A
If statement made contemporaneously at same time of action.
Can possibility of concoction/distortion can be disregarded, considering:
- How startling or dramatic event was;
- How spontaneous statement was;
- Whether triggering event still operative when statement was made;
- Any special features suggesting concoction or error
(e.g. motive fabricate)
(e.g. poor eyesight).
12
Q
When will hearsay be admissible in interests of justice?
(inc considerations)
A
Catch all / wide discretion/ HAVE REGARD TO ART 6 THROUGHOUT
(good for adv)
Admit under s 114(1)(d)
having regard to s114(2) factors:
(a) probative value re disputed matter in isssue OR valuable for understanding eother evi
(b) can/has other evi given on relevant matter or evi?
(c) importance of the matter or evi context case whole
(d) circumstances statement made?
(e) reliability maker appears
(f) reliability making appears
(g) can oral evi be given? why not?
(h) difficulty in challenging statement
(i) extent difficulty likely prejudice
Also consider other factors consider relevant.
No need to reach conclusion on each factor.
e.g. could use to admit lost note from a witness of a road traffic accident with reg plate of D
e.g. reluctance to testify rape in person as don’t want to relive - difficult appellant challenge, circumvent s 116 (eg dead/outside UK etc - even though can use if not fall within s 116 sometimes)
13
Q
When do procedural rules apply/not apply regarding admission of hearsay?
A
i.e. give notice of intention to rely to other parties and court
only applies if:
- IoJ 114(1)(d)
- W unavailable court (DUAMF) s 116
- multiple hearsay s 121; or
- prepared for use in criminal proceedings s 117 (c)
(NB these are part 20 rules)
don’t apply if:
- res gestae
- confession
- parties agree
- business docs
- court excluded requirement
^ if no notice required, there is stil an application form to use!
Think that’s it
14
Q
If procedural rules apply to hearsay evidence, what needs to happen?
(ie what are the procedural rules in relation to hearsay evi)
A
To adduce or oppose other’s ‘s app to introduce , must:
- serve NOTICE of intention of this on court and other parties in case
- use prescribed FORMS
- During STANDARD DIRECTIONS at mags/CC - court will impose time limits on both parties to give notice of intention to adduce
HOWEVER court can:
a) dispense requirement to give notice
b) allow notice to be given orally
c) shorten/extend time limits for notice
15
Q
Define confession evidence
A
‘any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise’ (PACE 1984, s 82(1)).
i.e. anything said by D which admits any element of offence or is in any way detrimental to case
16
Q
Will a confession by D prior to trial be admissible evi at trial if hearsay?
A
Yes
17
Q
What is a mixed statement in context of confessions and will it be admissible in whole?
A
Confession which contains something which is favourable to defendant
Yes
eg
‘I did have sex with her, but only because she consented.’ This is a mixed statement, because Connor makes a confession (admitting to having sexual intercourse with the complainant) but he also makes a statement favourable to his defence (saying that it was consensual). The entire statement will be admissible.
18
Q
Is evidence made by a co-defendant admissible in evidence against a co-defendant?
A
Yes any evidence that implicates the other defendant admissible evidence against that other defendant
Including confessions
And they can give evi for cps at trial of other D implicating them in offence
19
Q
how can a D who is alleged to have made a CONFESSION challenge its admissibility at trial?
A
- argue didn’t make it at all and person to whom made either mistaken or fabricated; or
- s76 - did make but shouldn’t admit cos:
(a) oppression; OR
(b) unreliable
(o comes before u in alphabet)
^ If D argues A or B, court must not admit unless CPS prove beyond reasonable doubt that not obtained in that way
(even if court thinks it’s true)
(and i checked this and this is true!)
- such adverse effect fairness of proceedings s78 PACE
20
Q
What would count as oppression for purposes of obtaining confession (and therefore it not admissible)?
A
V high threshold
Includes:
- Torture, inhuman or degrading treatment
- Use or threat of violence
- Exercise of authority or power in harsh/wrongful manner
e.g. D bullied and hectored into confession during interview
21
Q
When would confession be excluded due to unreliability (due to circumstances existing at time)?
A
(ie caused to confess for reasons other than committed offence)
Usually breach code C. main ones:
- denying refreshments and rest
- inducement to confess
e.g. lesser sentence/leave quicker/bail - misrepresenting strength CPS case
- questioning inappropriate way
eg badgering until give answer they want - questioning when unfit state
eg drink/drugs/ill -
threatening
eg can’t leave until confess
22
Q
Will defendant be able to argue confession unreliable and should exclude because denied legal advice?
A
only if causal link between breach and unreliability of confession
i.e. would they have not made confession if had legal advice?
approach as a but for test
unlikely if experienced criminal who knows rights
could say if solicitor was here interview would have stopped here but continued and confession made at X point
23
Q
Can a co-defendant rely on a confession made by another defendant?
A
Yes
Unless the other D challenges admissibility on grounds of unreliable/oppression and D can’t prove on balance of probabilities that was not obtained that way
24
Q
When may court exercise discretion under s78 (such adverse effect fairness proceedings)
to exclude confession where D accepts making?
A
If breaches (by police of PACE/Codes) are both
SIGNIFICANT and SUBSTANTIAL
Often exercise if denied legal advice then make confession
(nb this is different to oppression / unreliability)
25
When may court use 78 discretion (adverse fairness) to exclude a confession D denies making?
Can only challenge under s78 (adverse fairness) and not oppression/unreliability (s 76)
eg
confession allegedly made during interview outside police station, likely excluded if policy breached Code C by:
- Failing to make accurate record of D's comments
- Failing to give D opportunity to view record of comments and sign as accurate
- Failing to put admission or confession to D at start of subsequent polices station interview
(so could not confirm or deny on record)
26
What is the procedure for challenging admissibility of confession evidence at the CROWN court?
- voir dire trial judge (w/o jury)
if police station interview confession:
- **interviewing officer** and D will give evidence; and 👮♀️
- **audio recording** likely played 🔊
if **outside** **station**:
- officer/D give evi
CPS and defence then **submissions** to judge
If judge rules admissible, interviewing officer will give evi of confession to jury and** D will still be able to challenge**
27
What is the procedure for challenging admissibility of confession evidence at the MAGS?
Clue: depends how challenging
- D will usually seek ruling on admissibility when the interviewing officer gives evi
- if D wants to exclude on grounds of:
A) oppression or unreliability - **must hold voir dire**
B) oppression or reliability AND s 78 - deal with both at same voir dire
C) s 78 only - decide if admissible at:
- end of CPS case if D made **submission of no case to answer**; or
- end of trial when D's solicitor makes **closing speech**
28
If court excludes a defendant's confession, will facts discovered as a result of that confession be excluded?
No
But CPS will not be able to tell court that they discovered such facts as a result of a confession
29
Define bad character evidence?
Evi of, or a disposition towards, **misconduct** - other than regarding the offence which D charged of
Misconduct = commission of offence or other **reprehensible behaviour**
*NB if connected to the offence, doesn't count as bad character so will be admissible*
- e.g. Sean fabricated will then killed him, allegation of fabrication is connected so defo admissible
30
What are the 7 gateways for admissibility of D's bad character evidence?
s101(1) CJA 2003 (zoey 101)
(a) all parties **agree** 🤝
(b) **provided by D** himself or provided by D in answer to a **cross-examination** Q which **intended to elicit it** 🕴️
(c) is imp **explanatory** evidence 🙇♀️
(d) is relevant to an **important matter** **in issue** between D and CPS; 👑
(e) **substantial** probative value in relation to an **important matter** in issue between the** D and co-D**; 👯♀️
(f) is to **correct a false impression** given by the defendant; or ✅
(g) D made **attack** on another's character 🥊
31
Does
A) bad character evidence
B) adverse inferences
need to be substantiated by other evi to go before jury?
Yes - would need to other evi if just relying on one of those to prove guilt
32
When may a defendant want to adduce bad character evidence on own volition?
(gateway B)
Cos only got **minor** convictions and not want jury to think they aren't providing character evidence because got loads
Or if pleaded guilty previously but pleading not guilty today
**(if id done it I would say !)**
Or eg evi in car suggests committing offence - but actually proved committed a previous offence
(proof of previous burglary but not current offence)
33
Gateway c - bad character evi can be adduced bcos imp explanatory evi.
Can either party rely on this ground?
When can it be used?
**CPS only.**
If:
- without it, difficult to properly **understand** case; and
- value of evi is **substantial**
(not marginal/trivial)
If CPS satisfies above to adduce under gateway C, court can only exclude on 'such adverse effect fairness' ground (s78)
e.g. part of reason for D's offence was sexual - can adduce evi relating to this as necessary to show motive
**Not if evi understandable without** the bad character evi
34
What would usually be 'imp matter in issue between D and CPS', as to allow bad character evi to be adduced under gateway D?
Can either party use this gateway?
CPS only
If answers:
1. Q of whether D has propensity to commit offence of **KIND** charged - unless having such propensity makes no more likely that guilty; and
2. Q of whether D has propensity to be **untruthful** - unless not suggested that D's case is untruthful
**KU** not TU
Under K is **DFC**
35
Explain when CPS will be able to argue that bad character evi should be adduced because shows PROPENSITY to commit an OFFENCE of the **kind** charged?
(imp matter in issue)
Must establish that propensity makes more likely that D committed offence
DFC - don't fgn care - description, factual, category.
By providing evi of conviction of:
a) offences of same **description**
(same on charge sheet - eg both ABH)
b) offences of same **category**
S of S confirmed will be same:
1. sexual offences against children under 16
2. theft category: burglary, robbery, theft, aiding and abetting those
c) OR diff category/description but significant **factual similarities**
(eg commit crimes using knife)
Unless court satisfied that would be unjust to apply due to amount of** time passed** since conviction, or any other reason.
(see sep card on spent etc)
36
Explain guidelines court must follow when CPS seeking adduce propensity commit offences same **KIND**
gateway (g) **KIND** - d,f,c - onlt
not description
***R v Hanson***
Must answer YES to each:
1. offending history show **PROPENSITY** commit offences of **KIND** charged?
2. If so, does it make more **likely** committed **THIS** offence?
*e.g. committed last offence BECAUSE drug addict. no longer.*
3. If so, just to rely - considering overriding principle must be fair?
**Consider**:
* Fewer convictions, less likely propensity.
* If only 1 1️⃣ conviction, must be unusual behaviour or distinguishing feature
(e.g. against children, fire)
(e.g. rape - some dissimilarities and v prejudicial - didn't allow)
37
when would CPS will be able to argue that bad character evi should be adduced because shows propensity to be UNTRUTHFUL?
(gateway D)
only if suggested D's case/part of is untruthful
1. manner committed the PREVIOUS offence demonstrates propensity untruthfulness:
***actively sought to deceive or mislead by false representations***
- usually **fraud by *false rep* or perjury**
- not usually theft unless ACTUALLY sought to mislead or lied.
2. previously pleaded and testified not guilty
- but not believed and convicted
(offences of any description fall within this)
(only applies to that previous offence where pled not guilty)
38
When must court exclude bad character evidence which would otherwise be admissible and under which 2 gateways?
When is it most likely to do this?
WHICH SECTION !!!
(d) CPS matter in issue
(g) Anothers character
***s101(3)***
**MUST** (!!!) not admit if:
- D **applies** ; AND
- appears admit such **adverse effect fairness**
Considering:
(a) nature of convictions mean likely convict on that alone (instead of evi in case) or
**evi of prev convictions more prejudicial than probative**
(e.g. sexual offences)
(b) otherwise **weak** CPS case 💪
(c) previous convictions **spent** 🤑
39
When will offences be treated as spent?
Effect?
Can still admit if spent but court likely to prevent for (d) and (g) especially under 101(4).
- 1 yr after fine/community order
- 2 yrs up to 6 months imprisonment
- 4 yrs over 6 - 30 months
- 7 yrs after 30 m - 4 yrs
never spent after 4 yrs
40
How may D's solicitor seek to challenge admissibility of previous convictions under gateway D?
(KU)
As in what steps should they take? Advocacy imp.
What use to argue there not propensity??
Step 1:
Propensity = R v Hanson
a) not got propensity cos, e.g.:
- 1 conviction
- diff **facts**?
- **time** elapsed?
- propensity makes **no more likely**?
OR for untruthfulness
*is it suggested D's case is untruthful?*
2. If do show propensity, persuade exclude such adverse effect 101(4)
(more prejudicial than probative, weak CPS case, time spent)
41
Who can use gateway E to inc D's bad character evi and why would they want to?
Co-D only
NOT CPS
To show more likely to be D than themselves who committed
(as with gateway D - is about committing offences of same kind or untruthfulness)
42
Explain when a co-defendant will be able to admit bad character evidence under gateway E?
(substantive probative value imp matter between D and co-D)
Can this be excluded?
substantive = relevance ***more than marginal or trivial***
1. Propensity same **kind**
- e.g. each not guilty plea. ONE had prev violent offences.
- relevance is *who is guilty*
2. Propensity **untruthful**
- 'cut-throat' defence
(i.e. both blaming other)
- obvs helpful if can **show not credible**
- e.g. lied in past
S78 DOES NOT APPLY TO THIS!
if co-D establishes gateway E, must be admitted.
43
Explain who will be able to adduce evidence under gateway E and how?
When can courts exclude despite this gateway being satisfied?
Correct false impression given by D
CPS only
- if D gives false impression via **express or implied** assertion which would give court or jury false or misleading impression about them
- assertion must be:
(a) made by D in the **proceedings**
e.g. in witness box or a defence statement
(b) made by D during police **questionning**;
(c) made by one of D's **witnesses**;
(d) made by a **witness** in response to ***D's cross-examination***, which *intended elicit* that response;
(e) made by ***anyone outside of court*** and D seeks to use in court.
e.g. during interview D said I'm a good christian would never commit such an offence but actually already done it 3 times
Court can only exclude under discretionary s 78 PACE power (such unfairness !)
44
Explain who will be able to adduce prev convictions evi under gateway G.
HOW?
CPS only
- attack can be on anyone - not just witness or victim
- can have attacked at police station, trial or in defence statement
Must just be evi suggesting other person has:
- committed any offence; or
- behaved / likely to behave in **reprehensible way**
courts likely wide discretion
- e.g. called complainant a ***slag***
- e.g. alleged officers trying to set D up / where **conspiracy** against others which impacts character
45
when must court exclude evi under gateway g?
(adducing prev convictions ie bad char evi bcos attacked another's character)
D applies
and admission of evi such adverse effect that ought not to
(same as gateway D - consider nature and extent of offence, more prejudicial than probative, Cps case otherwise weak and time spent)
46
Under what gateways MUST court exclude bad character evi due to unfairness?
What about the other gateways - anything they can do other than s 78?
- Important matter in issue between D and CPS
(propensity - same kind/untruthful)
- Attacked anothers character
For all others, automatically admissible
Discretion 78 PACE
- use where ruling on admissibility and is appropriate to exclude
Under CJA, court also has power to **direct jury to acquit or order re-trial** when bad character evi is '**contaminated**'
(eg witnesses colluded to fabricate bad character evi)
47
When will court exercise its s 78 discretionary power to exclude D's bad character evidence?
such adverse effect fairness proceedings
signif and substantial breach PACE required.
In reality this will be:
- C: is important explanatory evidence
- F: evidence to correct a false impression given by defendant
48
When can a court stop a contaminated case and what would it do?
*all the C's - crown court. contaminated case.*
Crown Court only
Direct jury acquit D or order re-trial if D's bad character evidence is contaminated
Contaminated ifs witnesses colluded to fabricate bad character evidence
49
Procedural practicalities which must be follow if seeking to adduce bad character evidence?
(by CPS, Court and D)
CPS:
- Notice of intention to court and other parties
- Using prescribed form and attaching previous conditions convictions to adduce
Mags/Crown Court:
- in standard directions, set time limit to serve notice or apply to adduce
D:
- if opposes adducing, apply to court
- application sent to court and other parties by time limit in CrimPR
50
When can bad character evidence of anyone other than D be adduced?
***CPS or D can adduce. Can be about anyone. Witness/complainant or not.***
s 100(1)
1. Imp **explanatory** evi
*only hit him because he did xyz*
*misconduct*
2. **Substantive** **probative** value to matter which is:
(a) in issue; or
(b) is of substantial imp to case; or
*credibility/guilty*
3. all parties **agree**
EMA - explanatory, matter in issue, agree
see sep cards for explanation of each.
CMND F flower onenote for diagram if care
51
When will bad character evi of someone other than D be considered important explanatory evidence?
1. without it, court / jury find difficult to properly understand other evi; and
2. substantial in understanding whole case
(more than trivial)
**- leave of court required**
e.g. only hit him because she was threatening to hit X
52
When will LEAVE of court be required for adducing bad character evi of someone other than D?
Leave of court = permission of court
100(1)(a) - important explanatory evidence
100(1)(b) - substantial probative value matter in issue
(only not required if both parties agree to adducing)
53
When is D **likely** to argue should adduce bad character evidence of another bcos
substantial probative value in relation to a matter which—
(i) is a **matter in issue** in the proceedings, and
(ii) is of substantial **importance** in the **context of the case as a whole**, or
and what must they show for each
(100(1)(b))
CMG.
InCREDIBLE that u can use dishonesty.
1. **Credibility of witness**
a) **dishonest** / untruthful; or
b) not guilty plea
^ if relying on **dishonesty**, must be **imp** witness and relate to credibility
2. **Misconduct** re **current** offence
- court will consider factual similarities
- inc previous convictions
- eg fought cos nasty words about GF, history of that - was he drunk when did it prev instances etc.
3. **Guilty** of current offence
- eg night worker fabricated evi against D. worker actually stole them and previous 2 convictions
- try to adduce them **convictions**
- court considers **factual similarities** prev offence.
54
What must court consider if D trying to adduce bad character evi of another because substantive probative value to matter in issue?
good advocacy buzz words
Consider probative value based on:
1. **Nature and number** of events that incidents relates to
- factual similarities?
2. **When** those events/things alleged to have happened
3. more than merely marginal or trivial
55
When will D likely to succeed in adducing bad character evidence of another to show lack of CREDIBILITY?
- Ideally imp witness (should defo be imp if credibility) and
- Previous convictions involving dishonesty, regardless of whether involved untruthfulness
but consider nature/number/age
(lower threshold than for the other one); or
- Previously convicted following non-guilty plea
(reminder: this will be on gateway for substantive probative value relevant to matter in issue)
56
When will D likely to succeed in adducing bad character of another to suggest misconduct in relation to offence or guilt of that offence?
Court considers:
- similarities relevant misconduct and previous convictions
- extent evi shows they are guilty for current offence
e.g. Nathan convicted stealing. Jack has 2 convictions for theft from employer. Jack adduces to show more likely of two. May permit if facts similar.
- not relevant whether will be witness in case or not
(reminder: this will be on gateway for substantive probative value relevant to matter in issue)
57
When will bad character evi (ie prev convictions) be substantial?
more than minimal or trivial
58
burden of who and to what standard in showing admissibility of confessional evidence where challenged bcos oppression/unreliable?
CPS prove on reas doubt not on any way obtained by oppression or circumstances unreliable
(engage task 4 q5)
59
For what gateways MUST court exclude bad character evidence if application by D and such adverse affect on fairness ought not to admit?
s 101(3)
Gateway D and G
(matter in issue / attack another's character)
60
general note
for MCQs on bad character evi e.g. propensity to be untruthful etc / when there are two options
u can do both, but he said not great advoacy
and e.g. with oppression so hard to prove
I don't think this is correct for SQE2 tbh!!
61
Under the standard case management directions (criminal), how long are parties allowed to prepare a case for trial at the magistrates?
8 weeks
Or 14 weeks if expert evidence required
62
What is the purpose of the Magistrates' Court Trial Preparation Form?
Asks CPS/D to say things liek complex areas of law relied on / witnesses
Then mags records directions - inc timetable
63
What is contained in the Magistrates Court Trial Preparation Form?
Asks both parties to provide detailed info about how they will prepare for and conduct the trial
All directions and decisions made by the court
64
What can defence/CPS do if witness is reluctant to give oral evidence at magistrates court?
obtaining a witness summons from the magistrates court, which requires their attendance
65
When will the magistrates court issue a witness summons?
Satisfied witness can give material evidence
and is in interests of justice
66
What must defence serve on CPS re their witnesses/what information?
Original purpose of this?
Notice
Setting out witnesses' names, addresses and dates of birth
Allows CPS to search if they have any previous convictions
(s 6C)
67
Can CPS interview a defence witness? How?
Yes
Via police
Police must follow a code of practice
68
How long does defence have to serve notice on CPS regarding witnesses intend to call?
28 days from cps discloure
69
What COULD happen if defence fail to provide CPS with notice of witnesses intend to call?
court may draw adverse inferences which appear proper **if in crown court**
70
Are the defence required to serve witness statements (which intend call at trial) on CPS?
No
Unless EXPERT witness reports which intend to call at trial
71
When can a WRITTEN statement from a witness be admitted at trial, instead of them having to give oral evidence?
What are these statements known as?
How long to serve ?
'section 9 witness statement'
Witness 7 letters !
Either party
1. Signed and dated
2. Declaration:
"this statement (consisting of [1] page signed by me) is true to the best of my knowledge and belief and I make it knowing that if tendered in evidence I shall be liable to the prosecution if I have wilfully stated in it anything which know to be false or not believe true"
3. Copy served on other parties
4. No parties objected in 7 days
Should only use for evi not in dispute
(e.g. doctor who treated victim, defence relying on self-defence anyway)
Only matters admissible in oral evi
72
Documentary evidence at criminal trial - examples of it and what must it be accompanied by?
Witness statement from person who prepared it
e.g. photographs or plans of crime scene
(thats all textbook says)
73
What is 'unused material' including examples
Evidence CPS has in possession but won't use at trial
e.g.
- eyewitness description of suspect which differs from what D looks like
- info provided by D indicating innocent explanation
- something casting doubt on witness/confession reliability
- witness statements which support D
74
For what offences **MUST** magistrates court send send D to Crown Court for trial?
*important*
- indictable-only
- either-way or summary offence **related** to indictable-only
- summary only punishable by:
(a) imprisonment; or
(b) driving disqualifacation (mandatory or disccretionary)
e.g.
charged with robbery (indictable). used ABH (either-way) or common assault (summary-only) to commit that offence.
^ whether summary or either-way, still related, still send to CC.
75
if offence triable only on indictment, will it go to mags?
yep still goes to mags first
cos mags determine whether offence is triable on indictment only and whether are any related offences to send to CC
76
If mags decide offence must go to Crown Court, what will they do next?
- set **date for the PTPH** at Crown Court
- or set date for **preliminary hearing** at Crown Court if one is necessary
- **remand** D on bail or in custody
- give set of standard case management **directions** - **unless preliminary hearing** at CC is set
- notice to D specifying offences and which Crown Court, and copy of notice to CC
77
Charged **either-way** going to Crown Court, can **summary-only** also convicted of be tried CC too?
1. founded same fact or part of series of similar offences and:
- common assault;
- criminal damage
- taking a conveyance (vehicle) without consent; or
- driving whilst disqualified.
2. Or any summary-only punishable by **imprisonment** or driving **disqualification**
(even if not related)
78
D being tried either-way AND summary in CC
What sentencing powers CC have if:
A) convicted either-way and pleads guilty to summary-only
B) acquitted either-way offence and **pleads not guilty** to summary-only
A) can sentence but powers limited to that of mags
B) send back to mags
79
What is preliminary hearing?
When will a preliminary hearing be required for an offence triable only on indictment?
How long for it to take place?
usually mags issue standard directions when sending to CC
but sometimes require preliminary hearing in CC **to set directions.**
Must be indictable-only and:
1. there are **case management issues** which the CC needs to resolve;
2. the trial is likely to **exceed 4 weeks**;
3. **desirable** to set an **early** trial date;
4. the defendant is **under 18**; or
5. likely to be a **guilty** plea
80
Time limit must a preliminary hearing take place?
Within 10 BUSINESS days of the date on which mags send case to Crown Court
(business days are not weekends or bank hols)
81
Purpose of PTPH?
Allow D to enter **plea**
And if D pleading not guilty, enable judge to give further **directions**
82
How long after ___ should PTPH take place?
What is a PTPH?
Within 20 business days of case being sent to Crown Court (i.e. allocation hearing
(not weekends or bank holidays)
PTPH = sent to CC and preliminary hearing was not required (ie standard directions issued) (allows to enter plea/give further directions)
83
What is 'the arraignment'?
(including when it happens)
- at start of PTPH, D will be arraigned
meaning that the count(s) of indictment put to D, who will plead guilty or not
84
What will jury be told if D pleads guilty to some counts and not to others at the arraignment?
Won't be told about the counts to which a guilty plea has already been entered
(so not prejudiced)
(cos if pleaded guilty pre-trial at arraignment wouldn't be going before jury anyway)
85
When may CPS offer no evidence at arraignment? What would happen in this instance?
1. reached agreement with D that if they plead guilty to certain counts, CPS will not proceed with other counts
- Judge will order not guilty plea entered
2. New evidence become available which means no reasonable prospect of convicting
- Judge will order not guilty plea entered
- D will be formally discharged
86
As an alternative to offering no evidence at an arraignment, what may CPS request? When would they do this?
That a count against D is 'put on the court file'
i.e. no further proceedings **unless leave** of CC or CoA
Would do if:
- several counts, evi for each is strong
- D prepared to plead guilty to the more serious ones, agree to lesser counts being left on file
- here, a not guilty verdict would be entered
87
What happens if D pleads guilty at PTPH?
Judge either:
- sentence immediately; or
- adjourn sentence until receive reports eg medical; or
- adjourn if D disputes factual allegations made by CPS witnesses
If disputing witness allegations, will have a separate hearing (a Newton hearing) to determine factual basis on which sentenced
88
Can a judge give a defendant an advance indication of their likely sentence at a PTPH? If so, when?
Yes
must ASK what would get if they pleaded guilty **at that stage**
If D pleads guilty after this, judge bound to give the sentence indicated
i.e. goodyear
89
PTPH - what info must CPS and defence be prepared to supply to judge
(so can sort any further directions)
baso what do i need to do. any issues? what do u think the case will be like? enough to let me make idrections. common sense.
1. summary of issues in case
2. number of Ws
3. est trial length
4. whether police station interview needs editing
5. if defence statement served/agreed on
6. if CPS will serve any additional evi
7. disputes on disclosure of unused material ?
8. expert evi?
9. further directions re hearsay or bad character?
10. special measures for any witnesses?
11. evi admissibility issues?
12. availability trial dates
90
What is the warned list?
List of cases awaiting trial that have not been allocated fixed date yet
if on warned lsit, D's solicitor only informed shortly before trial date
91
is D entitled to change a not guilty plea to a guilty plea before jury return verdict?
why would they do this?
judge's discretion
may do if admitted guilt but plead not guilty in hope no case to answer
- or if judge made ruling on point of law/evidence which were relying on
92
What are CPS obligations regarding unused material?
D enters **NOT GUILTY** plea
applies same in mags and CC
must disclose any unused material which might be capable of **undermining CPS case or assisting defendant**
(so like standard disclosure in civil)
ongoing!
e.g. casting doubt on a confession
93
basic CPS disclosure requirement at **mags and CC**?
serve on D all evi on which wishes to rely on at trial to prove D's guilt
94
Time limits for CPS to disclose unused material?
In accordance with case management directions
95
If defence consider CPS disclosure insufficient, when will they request 'missing info'?
defence statement
96
what should D's solicitor do if want further CPS disclosure and already done defence statement?
when can they do this?
must have :
- reasonable cause to believe CPS material should but not been disclosed
- provided defence statement which set out
IN DETAIL what material consider CPS has in possession and not subsequently disclosed
**apply to court** for order that CPS disclose material
97
When CPS withhold disclosure of unused material (despite it satisfying test).
What must they do?
may want if 'sensitive materials'
only if **PUBLIC INTEREST IMMUNITY**
Must apply to court
- Don't need to give notice to defence
- Will be court's decision
Note: defence statement will often ask CPS if schedule of sensitive materials has been prepared and if applied to court
98
Who makes disclosure first - CPS or defence?
CPS
(defence only serve defence statement after received IDCP)
99
How **long** does defence have to serve a defence statement in magistrates and Crown?
Mags: 10 business days of CPS serving **unused materia**l
CC: 20 business days (of CPS unused ^)
Can apply for extension if complex case
*think of it as being same times for prelim and PTPH*
100
Who is defence statement served on? (criminal)
CPS and a copy on Court
101
If there are two or more co-accused, what order can court make in relation to defence statements?
Each D serve copy of their defence statement on the other defendants
102
Is it compulsory for defence to provide defence statement? Any implications if don't?
Yes in Crown Court - not magistrates.
Obligation enforced in CC via drawing adverse inferences if fail to.
103
When would it be good to serve defence statement on CPS in mags?
If they think CPS would be required to disclose additional **unused material** that may assist D's case due to info disclosed
(under their ongoing duty of disclosure)
but note it is v rare - u**sually benefits of not giving CPS a heads up on the case outweighs** getting unused evidence
104
What must be contained in a defence statement?
*imp*
1. nature of defence, inc any **specific defences** (eg self-defence)
2. **fact** they **dispute** with CPS and why
3. **facts** intend to **rely** on
4. any **law** (inc re evidence) which intend to rely on
5. name/address/DoB of any **alibis**
note: under **continuing obligation** to update statement if any details change.
105
Will defence statements need authority of defendant? (criminal)
Assumed to have authority of D unless contrary proved
So ensure D sees and approved copy before served
106
How is defence statement signed? (criminal)
Usually original by solicitor and copy by D
107
What may court draw adverse inferences regarding defence's disclosure?
(nb Crown Court only)
if there are faults in defence statement, can draw adverse inferences when determining guilt.
Faults include:
- not providing
- late service
- incomplete
- inconsistent with defence put forth at trial
- failing to update
108
if faults in defence statement, who may do what?
court can always
and **other party with leave** can
make comments on this and court/jury can draw adverse inferences
109
Usual order of **trial** at the mags?
*imp*
not plea before venue
1. opening CPS speech
2. CPS witness
- examination in chief by CPS
- cross-examined D's solicitor
- CPS may re-examine
3. Possible D submission no case to answer
4. D witnesses
(D themselves first)
- exam in chief D
- cross-examine CPS
- D may re-examine
5. CPS sometimes can make closing speech
**if D is represented or D introduced evidence other than own**
6. D's solicitor closing speech
7. Mags retire to consider
8. Mags deliver verdict
9. If guilty, sentence or adjourn to obtain reports.
(if adjourn, bail or custody)
10. If not guilty, formally discharged.
110
Is the opening speech part of CPS evidence?
What will it contain in mags?
Not evidence.
Tell mags:
- facts
- relevant law
- what CPS need to prove to convict
- CPS burden proof/entitled acquittal otherwise
- what CPS case consists of
- which witnesses intend call
- summarise witness evi
may highlight points law anticipate arising e.g. Turnbull
111
which witness will CPS usually call first?
victim
112
At what stage of a trial at mags will D's police interview be displayed, and in what format?
during prosecution evidence
read out transcript or summary
unless D disputes ^ (eg summary doesn't show full picture) - then will play audio recording
113
what stage of trial will 'voir dire' be in mags?
during CPS presentation of their case - when they are seeking to rely on that evidence
114
Alternative to 'voir dire' in magistrates where there is disputed evidence?
1. Hear as part of the trial itself
- then consider admissibility when the defendant's solicitor makes submission of **no case to answer**
- or when D makes closing submission
2. **pre-trial hearing**
- to avoid contamination as will usually be diff bench of mags
115
When should D put forward submission no case to answer? What will they need to show?
how will this submission be assessed?
(same for CC and mags)
End of CPS case.
1. failed put forward **EVIDENCE** to show **essential element** of offence; or
(e.g. that item belonged to another)
(the essential wtrose was a key element of my [fcccaaacia] and now i have sbmission no crust to answer !)
2. evidence **discredited** in cross-examination,
or so **manifestly unreliable**,
no reasonable tribunal could safely convict
^ even if only tenuously capable of proving a charge in law will be case to answer
(e.g. fingerprints on OTHER bombs)
(r v galbraith)
116
Is defendant obliged to give evidence on own behalf in mags?
No
But in practice usually necessary
Because
- draw adv inf *imp* that no explanation stand up cross-examination)
- dispute W evidence
- defence requires them to give evidence (self-defence or alibi)
- explain conduct (eg why confessed)
- enhanced ***credibility*** if gives **same account** as in police station interview
117
When should CPS exercise right to make a closing speech in mags? What would happen after?
- ***complex cases*** where would assist court
- defence will make their closing speech afterwards
(makes sense that usually in mags CPS do opening then defence do closing)
defence have choice in mags as to whether to make opening or closing speech - pretty much laways do closing speech
(closing speech not evi but summing up)
118
Do defence have to make an opening or closing speech in mags?
Explain why would want to?
When would D do opening speech?
No - has choice as to both
Would want to make closing - last word.
Opening speech - only entitled to if intend to **call witness(es)** in addition to D
brief point in textbook so don't overdeep it
just always do closing
119
Is there a set format for closing speech?
What should it look like?
No
But should:
- short
- remind CPS burden / entitled acquittal otherwise / not need prove innocence
- refer CPS opening speech
- point out areas CPS come up short
- evidential issues
120
Does there need to be unanimity in mags verdict? (bearing in mind usually sit in bench of 3)
No, majority.
121
Crown Court vs Mags main diff re points of law and fact?
Mags - decide points of law and fact
CC - jury decide facts, judge decide law/sentencing
122
Order of Crown Court procedure
** = diff to Mags
1. Jury sworn in ('empanelled')
(12 jurors)
2. CPS opening speech
*(not judge)*
3. CPS witnesses give evidence and agreed s 9 statements read by CPS
(think s 9 statement is where summon a witness)
4. Submission of no case to answer
5. Opening speech defence **
6. Defence witnesses give evidence
7. Closing speech by CPS **
8. Closing speech by defence
9. Judge summing up **
10. Jury retire to consider **
11. Verdict announced
12. Guilty - either sentence or adjourn for pre-sentence report
123
if Crown Court and no arraignment yet, what happens and at what stage?
Before jury sworn in (empanelled)
Court clerk then informs jury what counts pleaded not guilty too
- they don't mention any pleaded guilty to
124
CPS opening speech in CROWN court - what will speech usually contain?
1. Legal elements of the offence
2. Outline of evi CPS intend to call
3. Explanation of how burden and standard of proof work in criminal cases
125
When will there be a voir dire in Crown Court?
before / during trial?
**Disputed CPS evidence.**
Often BEFORE trial:
- Defence often notify CPS before
- if CPS have advance notice, won't mention opening speech
DURINGL
- if issue during CPS presentation of case
- jury retire and voir dire
126
What is Galbraith test?
- as long as evidence capable of proving charge in law, even tenuously, will be case to answer
- only where evi not capable in law of convicting
e.g. individual in region, possessing info about terrorism and fingerprints found on other bombs - was a case to answer
127
Crown Court - when will defence make sure re submission of making application no case to answer?
That done in absence of jury
128
What happens if successful submission of no case to answer in Crown Court?
Judge instructs jury to return a verdict of not guilty
129
If multiple defendants, who goes first in witness box?
Whoever name appears first on the indictment
130
When judge directs jury on the LAW (not evi), what will they cover?
(clue: there are 3)
1. Legal requirements of offence
2. Burden and standard of proof; and
(usually CPS beyond reasonable doubt)
3. Any other issues of law and evidence that have arisen during trial
(e.g. Turnbull - will need to say DCHC)
131
When judge directs jury on evidence, what will they cover?
1. Summary of the issues of fact that jury must decide
2. Summary of the evidence and arguments raised by both parties
3. Inferences that jury are entitled to draw
132
What happens in judge summing up ?
(three elements)
- directions on law
- sums up evidence
- tells jury to appoint foreman
133
Does juries verdict need to be unanimous?
Yes
But can accept 10:2 if unanimity not possible after 2 hours 10 minutes
*good way to remember - 2h10/10:2)*
- judge likely require longer if complex case
If jurors discharged, e.g. to 11, majority 10:1
134
What happens if jury can't reach unanimous verdict in reasonable time?
Judge discharges
CPS likely request retrial before new jury
135
What happens in terms of D's costs if jury find not guilty?
order that legal costs paid by the state
(if not legal aid funded)
136
If defendant convicted but not sentence, are they likely to be granted bail?
(what is the presumption)
There is presumption in favour of bail here
But judge likely refuse if serious offence
usually on grounds that:
A) will fail to surrender or
B) impractical to prepare report unless D is in custody
Textbook:
Although there is a presumption in favour of bail for a defendant who has been convicted but not yet sentenced, if the sentencing hearing has been adjourned so that pre-sentence reports may be prepared, a defendant who has been convicted of a serious offence
is very unlikely to be granted bail before sentence.
137
What should you address the Magistrates / CC judges as as?
mags - sir or madam (think also your worship sometimes more outdated tho!)
if district judge, always sir or madam
If in Crown Court, to all judges 'Your Honour'
138
Opposing advocate what do you call them
My friend
Or if barrister - my learned friend
(that's a bit annoying !)
139
Random formalities / court room etiquette in criminal law?
- bow to judge or mags
- stand up when judge or mags leave/enter
- no food or phones
- advocate stand when addressing court or examining witnessses in open court (most are)
.. unless:
a) representing U18
B) witness/D/other advocate via video link
C) making bail appeal in Crown Court
140
What are leading questions in criminal cases?
Qs which are suggestive of the answer
Opposite of open Qs which enables to place their account in own words - usually start with "who" "what" "where" "how" "when"
e.g.
"Did you see KTB steal baked beans from Sainsbury's Hyde Park at 2pm on 5th June?"
Instead:
"where were u at 2pm 5th June"... "what did u see when u were in Sainsbury's"etc
141
Is advocate allowed to use leading Qs in cross-examination / examination in chief / re-examination?
(did you..) (how..)
Not allowed in examination in chief or re-examination
Allowed in cross-examination
But wouldn't really want to use in cross-examination as may be enhancing CPS evidence/giving opportunity to expand
142
types of qs in examination.
what types of Qs for what types
Examination-in-chief/re-examination = open/non-leading only
i.e. how what when where who why
"where were u at 2pm?"
Cross-examination = closed/leading
"did u see ktb steal beans from sainsburys?"
143
What are the three main purposes of cross-examination?
1. put your case to the witness
(suggesting that their version of events incorrect)
2. challenge credibility of evidence they gave in examination-in-chief
3. obtain favourable evidence from them
144
why is it so important to put forward your case to a witness in cross-examination?
can't rely on if not put it forward for some offences
e.g. self-defence - burden of CPS to prove did not act in SD only arises if D raises it
It is always necessary for an advocate to put their client’s version of events to a witness in cross-examination. For example, in an assault case where the defendant is claiming they acted only in self-defence, the defendant’s solicitor must, when cross-examining the alleged victim of the assault, put to the victim that they (the victim) attacked the defendant first and that the defendant was acting only in self-defence. **If the defendant’s solicitor fails to put to the witness that the defendant was acting in self-defence, the defendant will then not be entitled to enter the witness box and say that they were acting in self-defence.**
145
Implication of failure of witness to attend court if been compelled by a court order or attending court but refusing to answer Qs?
Contempt of court
Can result in imprisonment
146
Who is competent to give evidence at criminal trial?
(inc general rule. any age limit?)
General rule:
- Everyone, whatever age, are competent
(sam thompson)
Exceptions - not competent if:
A) can't understand Qs; and
B) Give answers which could understand
(see sep queue cards on children and defective intellects)
**if competent, ur compellable**
147
Will children be competent to give sworn evidence at criminal trial?
Clue: age where can be sworn
- consider the individual child
- even v young children if could give intelligible response
- but there evidence only sworn if aged **14+**; AND
- **understand solemnity / responsibility**
- presumed to understand unless evi to contrary
148
Will people with defective intellect be competent and therefore compellable witnesses?
- unsworn evidence only
- exceptions must not apply
(i.e. understand Qs and understandable answers)
149
Who are there exceptions to general rule on compellability of competent witnesses for
CPS can't compel:
A) the accused themselves
B) Spouse of the accused
C) Co-accused
150
Is co-accused a competent and compellable witness for the CPS?
General rule - no.
But may be competent and compellable for Crown if:
1. AG files 'nolle prosequi'
(terminates accuseds' case)
2. Order made for **separate trials **
- co-accused from first trial may be called at second trial (but not vice versa)
3. Accused formally **acquitted**, e.g. if CPS offers no evidence
4. Accused may give evi **AFTER pleading** guilty
(best if sentenced before giving evi)
151
Can a spouse be a competent compellable witness for the CPS?
Not competent OR compellable if **jointly charged**
- unless they plead guilty - then competent and compellable
**Competent** but not compellabie - UNLESS:
1. charged with an offence involving involves a**ssault / injury / threat** of injury / aiding + abetting -
- to spouse themselves or someone **UNDER** **16**
2. sexual offence/attempted sexual offence against **under 16**, or aiding and abetting that
(but not spouse themselves)
152
Can an accused compel their spouse to be a witness?
Yes
No limits
153
Can a spouse of one accused be compelled as a witness for another **co-accused**?
only in same limited class if CPS tried to compel the spouse of the accused
(assault or threat under 16 or spouse/sexual or attempted under 16 or aiding/abetting)
154
where co-accused are spouses, can one compel the other to act as a witness for them?
No never compellable for the other
*Fairs. Would be harming own defence. If was ❤️ might be defeated in W box i guess ! By ❤️*
155
If spouses are divorced at date of trial, how are they treated for purposes of witness compellability?
As if never married so no limits on compellability
156
Which categories of witnesses can apply to court for special measures to help them give evidence in court?
1. under 18
2. victim of sexual offences
3. witnesses of knife and gun crimes
4. mental/physical disability or disability/impairment which would affect their evidence
5. fear or distress
157
What category of witnesses are automatically deemed eligible for special measures?
Victims of sexual offences
Unless tell court don't want it
(other cases - court decide if fall into category)
158
What types of special measures may be used for witnesses?
- screens
- judges/barristers (in CC) removing wigs and gowns (❤️)
- allowing to appear via video link, with witness supporter if apt
- emptying court room
- allowing examination-in-chief / cross / re - in private and video shown
- intermediary e.g. interpreter
- communication aid e.g. sign language
159
What must a trial judge do if special measures are employed?
- warn the jury that special measures have been used and should not prejudice D
160
Is defendant entitled to special measures?
No
But if D is a witness and compromised due to mental disorder/impaired intellect/social function - can give evi via video link
161
If client admits guilt to solicitor before criminal trial, what should solicitor do?
Could u represent if pelading not guilty?
Can still put prosecution to proof of its case if considers their case to be weak
(clients best interests)
There is a professional duty to require the prosecution to prove its case beyond reasonable doubt
But still overriding duty not to mislead court so cannot **say** anything which know to be untrue
e.g. if client pleading not guilty but admitted they were guilty:
Continue to **represent the man on a not guilty basis** and require the prosecution to prove its case but **do nothing to positively assert** the man’s innocence.
162
What should defence solicitor tell court if has to cease acting for client?
Not give reasons bcos client confidentiality
Say 'professional reasons'
163
What must defence solicitor do prior to trial?
What must they be cautious of doing?
Should u give them a copy of WS?
Must:
- prepare to give evidence
- tell them what is likely to happen at trial
Should:
- give copy of their WS
(nb D can't refer to when giving evi)
Shouldn't:
- 'coach'/rehearse client or any other witnesses
(same for CS)
164
What type of plea can D make to indictable-only offence in MAGS court?
***INDICTABLE = INDICATE***
Mags CANNOT accept a plea
D can INDICATE a not guilty plea i.e. intends to plead not guilty before CC
But cannot FORMALLY enter
So in a Q it would say "indicate a not guilty plea" rather than "plead not guilty"
NB - for summary-only offences, MUST enter guilty or not guilty
165
what witnesses should not be adduced and if such witnesses are adduced anyway, what are the risks? (criminal)
- those whose evi is not in dispute
(e.g. police officers who don't dispute evi of/doctors evi of assault if we are saying we acted in SD)
- if adduce them, must explain why necessary
- if they are not necessary, could have costs against us
166
If got an in person witness and a written witness statement, which goes first?
In person witness
(fair! don't make them wait when anxious!)
167
Is the court allowed to ask either side to rephrase questions? If so, how can they ask them to rephrase.
Yes.
To rephrase so a witness can understand.
Bcos should always ask witnesses clear and intelligible Qs.
168
what is s9 statement (criminal)?
HOW LONG TO OBJECT?
either party can give
WRITTEN statement admissible (instead of having to give oral) if
1. signed and dated
2. declaration of truthfulness.
3. served before hearing on other parties
4. evidence **not disputed **
(eg doctor re injuries when pleading SD anyway)
7 days to object
(and W's age if under 18)
matters must have been admissible if did attend court
169
5 purposes of sentencing and when the court must consider them?
Offender aged 18 and over; and
Sentence is not already fixed by law or subject to statutory minimum; and
Not classed as 'dangerous' offender
1. rehabilitation
2. protection of public
3. reduction of crime (inc deterrence)
4. making reparation to those impacted
5. punishment
170
Does court always have a duty to follow relevant sentencing guidelines?
Yes unless satisfied would be contrary to interests of justice to do so
171
What is overarching principle a sentencing court must consider when passing sentence?
What does this require Court to consider?
(section 63 sentencing guidelines)
SERIOUSNESS
1. Culpability
2. Any harm which was
- caused;
- intended; or
- foreseeable
172
Explain the concept of culpability and how the courts consider it in sentencing?
Are these in any particular order?
In descending order of seriousness, courts must consider when sentencing:
1. Intended to cause harm
- worse harm, more serious
2. Reckless as to causing harm
3. Did not intend harm but was aware of the risks
4. Negligence
173
When may a court treat the exact same offence more seriously in terms of sentencing?
Prevalence in particular area
Esp if risk to community at large
174
What are statutory aggravating factors?
1. Previous convictions
if similar / recent
2. Committed on bail
3. Racial/religious
4. Sexual orientation/disability
175
What 'other' aggravating factors that can ask court to consider?
(i.e. 'other' rather than statutory factors)
(nb not exhaustive and it is long so just consider them)
1. Committed as part of gang or group ☠️
2. Intended/premeditated 🧘♀️
3. Targeting vulnerable groups ☎️
4. Weapon 🔫
5. Deliberate and unjustified damage to **property** 🧽
6. Targeting public sector/providing public service 🚻
(NB not an IMMEDIATE custodial offence)
7. Under influence drugs/alcohol 💉
(only raise if relevant to mens rea for that offence)
8. Failure to respond to previous sentences
(maybe if community sentence) 🤡
9. Value of property to victim (inc sentimental) 💸
10. Involving abuse of trust 👩💼
(eg employer)
11. **Domestic** context 👨👩👦
176
What are mitigating factors for court to consider when sentencing?
1. Acted on **impulse**
(deodorant)
2. **Provocation**
(eg sally)
3. Particularly young or old
(eg young led astray)
4. Mental disability or mental illness
5. Acting out of **fear**
6. Remorse/reparations to V
7. Played **minor** role in offence
8. No related / previous previous **convictions** !!!!
(so previously good character)
9. Personal circumstances
eg hit wife but supports her financially - sad but she shouldn't have to suffer twice
177
What is the full discount which a defendant who pleads guilty can receive?
One-third discount
178
When will a defendant be eligible for full one-third discount on sentencing for pleading guilty?
Pleads guilty at first stage in proceedings.
Unless unreasonable to expect to indicate then (limited exception)
Indication in mags that "likely to plead guilty" in CC not enough - must be unequivocal
Usually:
- first hearing at mags;
- indication of guilty at mags for offence triable only on indictment, followed by guilty plea at CC
(remember can only indicate if indictable at mags)
(not PTPH)
179
What is NOT relevant in determining whether defendant will get a reduction for entering guilty plea?
strength of CPS case / whether D displays any remorse
180
When will defendant usually be entitled to one-quarter discount for guilty plea?
Pleaded guilty after first stage of proceedings
Typically where indicated at PTPH instead of when in mags
181
If guilty plea is entered first day trial meant to take place ('at door of court'), what reduction usually entitled to?
Maximum of one-tenth
**May be reduced to zero** where guilty plea entered in course of trial
182
What is the totality principle?
(criminal law - sentencing)
When sentencing, court will consider any 'associated offences'
Consider offences together instead of separately
Court can only sentence if totality of offending passes relevant threshold
Associated offences =
- being sentenced for at same time,
- offence D asked court to consider when sentencing or
- convicted of in same proceedings
183
Explain procedure for 'offences taken into consideration' (TIC) when court is sentencing?
Why would u want this?
(usually)
- police present D w list of offences may be charged for
- **D asks court to consider** some or all when sentencing
- Should be of similar nature or less serious than one convicted of
- in theory, should increase sentence for present offence but sometimes doesn't
Why would u want this?
- for D, **wipes slate clean** if deal with at same time
- and police/CPS don't have to bring fresh cases
184
What steps do sentencing guidelines require court to follow to arrive at a sentence?
(criminal)
1. Determine the offence category
2. Consider aggravating/mitigating factors and statutory thresholds for custody
3. Factors reducing sentence e.g. assisted CPS?
4. Guilty plea?
5. Extended sentence - e.g. if 'dangerous offender'?
6. Totality principle
(multiple offences under same sentencing)
7. Compensation and other ancillary orders
e.g. orders to pay compensation/confiscate etc
victim provocation likely reduce comp
8. Must give reasons for sentence
185
What are the offence CATEGORIES which court must determine when sentencing?
Category 1:
greater harm and enhanced culpability
Category 2:
greater harm OR enhanced culpability
Category 3:
lesser harm and lower level of culpability
(court then start with corresponding starting point)
186
When court gives reasons at end of sentencing, what must this include?
- effect of sentence passed
- **effect** of non-compliance with sentence
- state which sentencing guidelines used
- explain why imposed lesser sentence than guidelines recommend if appropriate
187
Public policy/Rory Stewart style thing that courts may consider when sentencing?
If prison population high
and sentencing for an offence with SHORT custodial sentence
CAN (not mandatory) suspend that sentence or impose a community order instead
188
Explain concurrent vs consecutive sentences and when they are relevant?
When convicted of 2 or more custodial (imprisonable) offences
Separate sentences but will be served concurrently or consecutively
Concurrent = sentences deemed to run/will be served at same time
================== (like that)
Consecutive = serve sentence one after another
--------I--------- (like that)
189
When will consecutive / concurrent sentences be likely imposed?
Consecutive
- usually if occur whilst in prison
- perhaps if v diff set of facts / circumstances
Concurrent
- likely if arise same facts / incident ^
- even if diff, if **totality principle** applied
190
What is a pre-sentence report?
Who requests/prepares it/is it compulsory?
(nb not conditions)
Probation service prepares.
(Pre-Sentence - Prob Service - both start with PS)
1. D's solicitor can REQUEST Probation Service to prep before first hearing
- Court's decide whether to use it
2. Sentencing court MUST obtain in certain situs
(sep queue card)
- unless it considers unnecessary in circumstances
Will not invalidate sentence if court does not consider report
191
When is a D's solicitor able to request a pre-sentence report?
- likely sentenced in **mags**
- will **plead guilty** to all charges on CPS facts
- D will** co-operate** with Probation Service to prep report
- serious enough for **community order** and pre-sentence report likely necessary
-
(makes sense that would request here as court technically must request if custodial)
AND
D must understand that:
1. no indication of actual sentence (all other sentencing options available to court)
2. court decides whether to consider
3. court may proceed to sentence without report if considers unnecessary
(i have checked all this)
192
When must a sentencing court obtain a pre-sentence report (probation service)? Is this obligatory?
Must obtain **before deciding** whether:
1. custody threshold passed and if has, how long sentence should be
2. whether threshold for community service passed and if so, conditions attached
***(ie before sentencing i guess ^!)***
Not required to obtain if considers **unnecessary** in circumstances of case to do so
e.g. custodial sentence inevitable due to seriousness of offence
e.g. already has a recent pre-sentence report for that defendant
IMP:
does not invalidate community or custodial sentence if impose w/o obtaining
193
What does plea in mitigation usually look like and what's the goal?
Goal is to get most lenient sentence possible
Usually just speech by D's advocate but can involve calling character witnesses/speaking of D's good character
194
Typical structure of a plea of mitigation?
1. Identifying likely 'starting point' sentence
2. The offence
- emphasise mitigating factors and minimise aggravating
3. Personal mitigation of that particular D
4. Propose suggested sentence
- lower than likely sentence / reflect mitigation
195
Relevant factors to a plea of mitigation regarding mitigating factors?
(nb this is long but relatively interesting - would be good to do a mindmap blurt when remembering!)
(ie personal mitigation rather than mitigatin factors)
1. Age
- young or old
2. Health
- depressed at time/mental health
- alcohol/drugs usually aggrevating, but could suggest sentence aimed at assisting addicts
3. Character
- stole cos drug addict - no longer drug addict
- no prev convictions 'one-off'
- e.g. husband broke up and left no money so stole
4. Family circumstances
- probation service report considers
- if really bad and evidence of trying to overcome
- home and job = good
5. Remorse
- trying to overcome what caused them to offend
6. Voluntary compensation
- esp if low means
7. Low risk re-offending
- Probation Service report will address the risk
8. Co-operation with police
- early guilt plea
- prompt confession
- naming others/revealing whereabouts
196
Do certain sentences have a mandatory sentence?
Yes
main one is life imprisonment for murder
197
Explain the 'custody threshold' and when it applies?
Does it mean have to impose custodial sentence?
The threshold is:
must not pass custodial sentence unless believes the offence was **so serious that fine/community sentence not enough**
^ can only impose if satisfied of that.
If only just passed, guilty plea or strong mitigation may prevent imposing.
198
when does custodial threshold test not apply?
offender FAILS to express willingness to participate in community sentence
199
If custody threshold passed and court is determining length of sentence, what does statute require the sentence to be?
(s 231(2) Sentencing Act)
**Shortest term considering the SERIOUSNESS **of offence (or combination of offences if totality principle applies)
200
What ages of offenders must serve sentence in young offenders institute instead of a prison?
19-21 years
(wow!)
(checked this in textbook and it is right that they are 19 not 18)
201
If defendant is classed as a dangerous offender, what must sentencing court impose?
Can a child be classed as dangerous?
Yes child/juvenile can be
If meet criteria for imposing one of the following CUSTODIAL sentences:
1. Automatic life imprisonment;
2. Discretionary life imprisonment; or
3. **Extended sentence**
(don't need to know any more than that!)
202
When will D be entitled to early release?
What happens for remaining time?
(explain 2 categories and procedure)
(most prisoners serve half in custody unless really bad)
1. adult D: custodial sentence for **2 YEARS** or less
- automatically released halfway
- licence in community for rest
- supervised for 12 months from leaving custody
2. adult D: DETERMINATIVE sentence (ie fixed period) for **over 2 years**
- same as above (ie automatic/licence)
- unless 'offender of particular concern'
e.g. terrorism and child sexual abuse
^ need to apply for parole. could then be released anytime after halfway point.
if granted, will then be on licence / similar supervision.
203
Offender of 'particular concern' who has a determinative sentence (even if over 2 years), will they be entitled to early release?
Explain.
Not entitled to AUTOMATIC early release after serving half their sentence
Can apply for parole
- if granted, could be released from half-way point onwards
Will be released on licence and subject similar supervision (to if they were automatically entitled to release)
204
When will a suspended sentence be imposed and how long will it be for?
Diff between operational and supervision period?
What is a suspended sentence?
Custodial sentence but served in community instead of prison
1. Custodial sentence for at least **14 days but no more than 2 year**s; and
2. Satisfied **passed custody threshold** but considers particular circumstances justify suspension
(eg during plea mitigation)
May suspend for ***at least 6 months but not more than 2 years***
^ Period it is suspended for = 'operational period'
Period during which D must comply with requirements = **supervision period**
205
**Which court** (ie mags or CC) will deal with breach of a suspended sentence?
(ie activating)
When will there be a breach?
If imposed by mags - may be dealt with by mags or CC
If impose day CC - dealt with by CC
If breached conditions of sentence **or committed a new offence during operational period**
206
What MUST court do if defendant has breached terms of suspended sentence?
*important*
(activated if court impose a custodial sentence - steps 1 - 2.)
Must order one of the following:
1. **Impose original** custodial sentence
2. **Impose altered** version of original custodial sentence
(e.g. shorter to reflect time spent)
3. **E x t e n d** suspended sentence
- by extending either operational or supervision period
4. Impose more **ONEROUS** requirements to suspended sentence
**Must do 1 or 2 unless unjust**
e.g. coming to end of supervision period / minor breach
MAY also impose fine of up to **£2,500** if decides not to impose custodial sentence
207
supervision vs operational period?
(criminal)
Suspended sentence
- supervision period = period during which the offender must comply with requirements
(e.g. must attend rehab for 6 months)
- entire length of suspension/period suspended for = “the operational period”
(e.g. should have been in prison for 6 months, suspend this for 12 months)
Supervision period must end no later than end of operational period
208
If a court imposes a custodial sentence cos committed new offence during suspended sentence,
will the sentence for the original offence and new offence be consecutive or concurrent?
Consecutive
(usually)
----I------
209
Conditions for court to impose a community order?
Satisfied offence (or combination associated offences) **SERIOUS enough** to warrant
210
What menu of options are available for court to consider in making a community order?
😀
(context of Fleabag)
1. Use of mental health services
(when he gives therapy voucher)
2. Supervision meetings with probation service
(Phil meets fleabag)
3. Programme requirements eg anger management
(hugh Dennis)
4. Activities which make reparations to victim/overcome issues
(sorry Patricia)
(eg scrubbing grafiti)
5. Foreign travel prohibitions
(Finland)
6. Reside in specified place
(priest plz)
7. Curfew
(really enjoying going to bed at 10.30)
8. Prohibited activity requirements
(refrain from - and what have you found?)
9. alcohol/drug treatment
- agree to reduce or eliminate
10. exclusion from entering certain places for max 2 years
(never want u in my chrch agan)
11. unpaid work in community
(e.g. fayre with Jake)
12. attendance centre requirements (if over 25)
(q meeting)
211
If community order requires unpaid work, what are the requirements?
Must complete within 12 month period
Unpaid work between 40 to 300 hours
212
What happens when a defendant breaches a community sentence without lawful excuse?
1. First time - warning Probation Service
2. If in following **12 months** does it again:
- Goes to court which imposed original order
- If court finds had no reasonable excuse, must:
a) **AMEND** order to make more **onerous**; or
b) **REVOKE** order and **RE-SENTENCE** for the offence
BUT **without** considering the **custody threshold**; or
c) if **PERSISTENT** and **WILFUL** failure, may revoke and **IMPOSE** custodial sentence
*even if offence not imprisonable*
213
What happens if a defendant convicted of further offences whilst a community order is in force?
Which court considers?
(nb - previous queue card is breaches, this is a new offence)
***MAGS***
Considers **interests of justice** and may:
1. **allow** community order to continue
2. **revoke** order if they will be in **prison for new offence** (and therefore won't be able to complete - but may not apply if realy short); or
3. **revoke** and **re-sentence** for **original offence**
- if do that, must consider extent to which D **complied** with original order
214
What is a Newton hearing?
Where D admits guilt but disputed CPS **facts** relied on, and those facts will impact **sentence**
Court must either accept D's version or call Newton Hearing
^ i.e. a trial on the FACTS to determine those upon which D will be sentenced
215
What should CPS and D do to avoid a Newton Hearing?
Agree a version of events upon which D will be sentenecd - i.e. **basis of plea**
- document setting out D's factual version of events
- defence would use to try and remove aggravating factors
If CPS **and** sentencing judge agree, will proceed on D's version of events.
(judge must agree, not just CPS)
If CPS disagree and judge thinks CPS version of events sufficiently more serious, will be a Newton hearing.
If judge considers plea itself to be absurd, can reject it and take place on CPS version w/o hearing.
216
What (ie sentence/conviction/both) can D in mags or youth court appeal to Crown Court if:
1. pleaded guilty
2. pleaded not guilty
1. if pleaded guilty - appeal sentence only
2. if pleaded not guilty - conviction and/or sentence
217
Do CPS have right to appeal?
No rights of appeal to Crown Court re:
- sentence imposed by Mags
- the acquittal of a D in CC
**But can appeal to High Court on a point of law (as can defence)**
218
What must D to if appealing mags decision to Crown Court?
What must magistrates do?
(i.e. what must D do first, by when, and what should happen after that)
time limit is key.
**1. File notice of appeal **
- with mags AND CPS
- no more than 15 working days from date of sentence
**2. Mags clerk**
- sends to relevant County Court
- CC will arrange date
- even if outside 15 working day timeframe, may exercise discretion to allow
*known matt since 15*
219
Can D apply for bail whilst awaiting appeal?
**Presumption in favour of bail does not apply**
Mags may grant but rare
(would effectively be arguing their decision for custodial sentence was wrong)
If mags refuse, can apply to CC pending appeal
- if short sentence, often don't grant bail but expedite appeal instead
220
Will D be able to rely on original representation order if appealing conviction or sentence from mags to CC?
No
Need separate representation order
BUT any advice given in preparing **notice of appeal** will be covered by original
221
If D appeals conviction/sentence in mags, do they risk an increased sentence due to higher sentencing powers?
No
CC can only impose sentence which mags or County Court had power to impose
(but also it's like if you get your exams remarked there is still a risk that will get higher sentence - but will not be higher than what mags could impose)
222
When can CPS or defence appeal decision to High Court?
Which division?
(nb will be Kings Bench Division)
(CL is king/queen energy)
***MAGS*** decision:
1. wrong in law; or
2. mags acted outside of their jurisdiction
(e.g. may have made errors on admissibility)
223
Procedural requirements for party (either CPS or defence) seeking to appeal mags decision to High Court?
(inc timeframe)
Appeal within 21 days mags decision
Usually write to mags clerk, stating point of law
(always mags clerk seems to be the messenger don't they)
*also knew mat when 21 !*
224
What must mags clerk do on receipt of the defence or CPS application for appeal to High Court?
(inc what this will contain ......, what do afterwards etc)
draft statement of case for High Court
(with help of mags or district judge who heard)
Must contain:
1. Decision in issue
2. Specify Q will be asked
3. Summarise proceedings so far, findings of fact and contentions of party's
4. If argument is that was not sufficient evidence:
- specify the court's finding and evidence relied on
Once prepared, send to both parties
They suggest amendments
Once final version agreed, the party wanting the appeal must send to High Court then give notice to the other party
225
Procedure at the hearing for an appeal from Mags to High Court
(nb this will be because mags acted outside of jurisdiction or erred on point of law)
inc which section of court
- Will usually be Divisional Court of King's Bench Division
- No witnesses
- Will be confined to legal argument based on agreed facts
(no one is disputing facts here!)
226
What powers does Divisional Court (of Queens Bench of High Court) have if has been an appeal to them of a mags decision?
(ribble valley area RVA)
Reverse
Vary
Affirm
Re-send to mags either:
- same mags but direction to acquit or convict
- remit to new bench of mags if think need to rehear completely
227
What can be appealed to Supreme Court from **High Court?**
Who by?
(criminal)
CPS or Defence
- can appeal an **appeal decision** or order made in **High Court**
(ie appeal by way of case stated)
(that is not a misspelling you acc have to be appealing an appeal which HC already heard)
- point of **law** only
- certified **public importance** by High Court
- High Court or Supreme Court must **grant leave** to appeal
228
Would it be better for defence to advise client to appeal to Crown Court or High Court?
Crown Court
Super lengthy to do the statement of case which is required to appeal to High Court
If go to High Court often just ends up going back to mags for retrial anyway
Nb: CPS have no choice and can only appeal to HC
229
Can either party apply for judicial review and in what circumstances?
(criminal)
Yes, if MAGS have:
1. Acted ultra vires (made order beyond their powers); or
2. Breached rules of natural justice (ie fair hearing or bias)
NB: this is not strictly an appeal and would not be usual route to take
230
Procedure to apply for judicial review of decision in mags?
Apply to **divisional** court to either:
1. QUASH mags decision
2. COMPEL mags to act in a certain way
231
What rights does a defendant have to appeal to CoA / when do they arise?
If convicted in Crown Court; and
Either the CoA grants leave to appeal; or
Relevant judge (who did the trial or sentenced) grants certificate that case is fit for appeal.
Can appeal against conviction or sentence
232
Required ground to appeal against CONVICTION in Court of Appeal?
(ie when they would agree to overturn)
*imp*
Conviction **UNSAFE**
(this is the ONLY ground)
^ dm if error/mistake in trial, as long as think verdict would have correctly been guilty
Rare but may quash even if believe guilty
- usually if abuse of process by police/CPS
233
D's conviction will only be quashed by Court of Appeal if it is "unsafe".
When may it be "unsafe"?
1. **Misdirection** by trial judge to jury
e.g.:
- power to convict of lesser offence if evidence supports
- need for unanimity
- law itself
- their role (decide on fat)
- BoP and standard proof
2. Failure to administer correct **warnings**
e.g. Turnbull, can adverse inf be drawn, former convictions
3. Wrongfully admitted or excluded **evidence**
- eg hearsay, confession, bad char
4. Failure when **summing up**
eg
- special measures shouldn't prejudice / assume behave improperly
- deal w essential points defence case
- inconsistencies CPS case
- summarise evi
5. Fresh evidence
- if verdict might have been diff with that
e.g. alibi
6. Inappropriate interventions by judge
e.g. interrupted defence counsel during cross-examination
234
Procedure for making an appeal against CONVICTION from Crown Court to CoA?
(inc time period)
1. 28 days from conviction (not sentence) - serve appeal notice with draft grounds of appeal (setting out why unsafe) to registrar at CA
2. Registrar obtains transcript from original trial
- Single judge assesses application (filtering stage)
- If without merit, may make a lost time order (later queue card)
- If grant appeal, will also grant public funding
3. 3 judge panel at CA
- hear oral evidence and sometimes fresh evi (sep queue card)
235
When will CoA hear fresh evidence if appealing conviction from CC?
- appears credible;
- would have been admissible at original trial; and
- reasonable explanation for not adducing
236
Explain when a 'loss of time direction' will be made against D in context of appeals and what means?
Appealing CC conviction or sentence to CA
At stage where single judge is assessing application
If they consider without merit, they will order that time D has spent in custody whilst awaiting outcome of appeal does not count towards their overall sentence
237
What powers of Court of Appeal do have at an appeal against conviction?
(nb is where D is appealing CC decision)
1. Quash and **acquit**
(e.g. new evi)
2. Quash and **re-trial**
(e.g. not summed up correctly)
3. **Allow part** of the appeal
e.g. appealing conviction for multiple offences
- likely re-sentence (themselves) for remaining sentences
4. Convict of a **new offence**
- likely **re-sentence** (themselves)
5. **Dismiss**
238
If CoA considers conviction 'unsafe', what decision must Court make and what will they consider in making ecision?
whether **re-trial** is needed
^ consider based on **interests of justice**
if happy that would have been acquitted at trial, no retrial
(eg fresh evi avail)
otherwise, normally order retrial unless unfair to D or inappropriate
239
Procedure for appealing against sentence from CC to CoA?
(baso same as for conviction except 28 days from sentence, appeal grounds state why wrong or excessive, two/three judges, legal args only)
1. Require either permission of CA or CC certificate fit for appeal
(rare CC grant so usually go for CA)
2. Notice for application to appeal and draft grounds of appeal to registrar within 28 days of SENTENCE
3. Appeal grounds state why sentence wrong or excessive
4. Single judge must grant
5. Consider by two- or three-judge panel
6. Usually confined to legal submissions on appropriate sentencing
(not evi like for conviction)
240
When will an appeal against SENTENCE in CoA (against CC decision) be successful?
*IMPORTANT*
ONLY when decision was:
1. Wrong in **law**
- e.g. went beyond sentencing powers
(eg mags 2 years)
2. Wrong in **principle**
e.g. custody theshold ie not 'serious' enough
3. Wrong **approach** to sentencing
e.g. not consider guilty plea
not consider mitigation
no newton
inc sentence for not guilty plea
4. **Co-D** sentenced unequally when equally culpable
5. **Manifestly excessive** (most common)
- ONLY if beyond upper limit in appropriate range of sentences
241
Can defendant receive higher sentence on basis of submitting not guilty plea?
No
Sentenced on assumption enter not guilty plea
242
Powers of Court of Appeal in appeal re SENTENCING sent from CC?
Max sentencing?
- confirm CC sentence
- quash sentence and replace sentence
(note that quash and replace is diff wording to replace)
- **cannot INCREASE sentence imposed by CC !!!!!!! IMP!!!!!!**
- can make lost time direction if w/o merit
^ wow ! checked that - bit of a win win except lost time
243
Does CPS have right to appeal D being acquitted following a CC trial?
Generally no, unless:
1. Unless AG considers sentence to be unduly lenient;
2. Evidential or termination rulings (by judge/not jury)
And some cases where CPS can request re-trial (but not same as appeal once acquitted)
244
Explain when Attorney-General will be roped in for appeals and what will happen?
Who can give permission?
Sentencing powers?
AG can apply appeal on behalf of CPS if AG considers CC sentence 'unduly lenient'
AG can only apply if:
- offence triable on **indictment** or **specified** **either-way** offence; and
- **CA** grant **permission**
CoA can quash and pass sentence considers appropriate
CoA can only pass sentence which **CC would have *power* to pass**
(think on cps website specified either-way is too long to revise and not worth it tbh)
245
For what specified offences can CPS appeal from CC to CA for a retrial following acquittal?
1. Murder and attempted murder
2. Manslaughter
3. Certain sexual offences inc rape
4. Certain class A drug offences e.g. importing
5. Kidnapping
6. Arson with intention to endanger life 🔥
246
What 2 tests must CPS pass if seeking retrial to CoA regarding limited number of offences?
(explain both parts)
**So if it's a retrial, instead of usuall evi and PI - it is (new) evi and IoJ**
1. **Evidential** test
- must be **new and compelling** evi
- compelling = reliable and probative
2. **Interests of justice** test
- consider these factors, inter alia:
(a) can there be a fair trial in the circumstances?
(b) **time** that has elapsed
(c) **would** the new evi **have** been at original trial if CPS/police acted with **diligence**
(d) have CPS/police acted with diligence **since** earlier proceedings
(actually relatively interesting R v Dunlop D admitted to killing wife, had been acquitted of murder, brought case after reforms came in, argued made confessions before case, court said don't care as new and compelling evi)
247
Are offences that occur whilst in prison usually consecutive or concurrent?
(e.g smack officer whilst on remand)
Consecutive
Otherwise would effectively receive no punishment
248
If D commits offence on bail, will offence usually be charged consecutively or concurrently?
Consecutively if new offences whilst on bail
(and if done multiple offences on bail - they will only run concurrently if they are related/same circumstances)
249
time limit to appeal to crown court?
when is good practice to submit appeal?
15 working days from date sentenced
if want to appeal after 15 working days, must ask CC for permission
can appeal immediately - good practice
(remember need to lodge notice of appeal with mags and CPS)
250
Ground to appeal conviction mags to CC?
What will happen at hearing itself - new Ws?
Can witnesses be called?
- **Error fact and/or law** by mags
- **full rehearing** so need to **call all** witnesses
- **new Ws** may be called and new / diff points of **law** may be relied on
251
D appealing sentence mags to Crown Court
What ground?
What will hearing be like?
How will court decide sentence?
What powers CC have?
- ground = **excessive**
- **full hearing** of the issues
- take **independent view**on what sentence should be instead of review of the sentence passed
- but will be limited to sentencing powers of mags
RVC (Rach v cool)
**Reverse
Vary
Confirm**
252
Time limit for appealing from Crown Court to CA - and who send appeal to?
Can this be extended - who by?
Serve application for permission to appeal on the Registrar of Criminal Appeals at CoA within 28 days
Yes can request CoA to extend
253
what should u be careful not to include in trial bundle? (civil)
WP correspondence
eg part 36 offers (to settle)
254
A man has been found guilty of three theft offences. He is sentenced in the Crown Court. He receives four months of imprisonment for each of the three unrelated offences of theft, which are ordered to run consecutively. He has no previous history of offending.
How long will the man have to serve in prison before he is released on licence?
Total of 6 months
they run consecutively so add up to 12 months
generally released after serving half sentence
255
principal aim of youth justice system?
and other aim?
Prevent youth offending
And youth welfare
256
What will the Youth Offending Team assist the court with?
1. Attend each sitting in youth court
2. Investigate and confirm personal circumstances and previous convictions
3. Provide **support** to juveniles on **bail**
4. Prepare pre-sentence reports
5. **Administer any non-custodial sentences** imposed by youth court
(usually a trained member of Probation Service)
257
Juveniles under what age are required to be supported by parent or guardian during each stage of proceedings?
Any exception?
What about over this age?
Under 16
(fairs at college !)
Unless court satisfied would be **unreasonable** to require such attendance
16-18 y/o: court **discretion** re whether to make order requiring their attendance
258
Parents or guardians attending youth court must play ____ role in proceedings.
Active
eg court wants to hear their views on sentencing / may ask them Qs
259
Who are allowed to attend a hearing in the youth court?
1. district judge or youth justices
2. juvenile
3. their parent or guardian
(inc someone part-time respond eg social worker)
4. representative from youth offending team
5. court staff
6. member of CPS
7. defence lawyer
8. members of press
260
press restrictions on reporting in youth court?
any exceptions?
can't report name/address/school or anything which would likely allow identify juvenile D or other child involved
but court can lift to avoid **INJUSTICE**
OR **following** conviction, if in **public interest**
- only if **real community benefit**
e.g. prolific offender
- **not as extra** **punishment**
261
how long does protection from reporting restrictions last in youth court?
(eg does it stop when they reach 18?)
for juvenile D - automatically end when reach 18
witnesses and victims - lifelong protection from reporting
262
the youth court is in which court's jurisdiction?
which judge's will hear in youth court?
mags
district judge or bench of youth justices
263
youth court deals with cases involving Ds between what ages?
10 and 17
264
explain meaning of children and young people for youth court purposes?
explain meaning of juveniles in context of youth court vs police station?
children = 11 - 13
young people = 14-17
(agan would agree w this feel liek 14 diff point)
juveniles in youth court = IS under 18
juveniles in police station = is or APPEARS TO BE u 18
265
what are PYOs?
explain when will be classified as this and impact.
persistent young offenders
sentenced on 3 separate occasions for one or more recordable offences (i.e. which juvenile **could** receive **custodial** sentence for)
will have their case **expedited** so youth court may deal with them quickly
(kda typci nghti kdz get sfm from f advv whult gd onez hv to waight)
266
difference in youth court procedure compared to normal court?
(inc for D's, witnesses, court layout0
- all sit at same level
- D usually sits on chair **in front of** CPS representative and own solicitor, in full view of the mags
- **straightforward language** enc
- solicitors remain **seated** when addressing court
- witnesses (even if adults) **PROMISE** rather than swear to tell the truth
- witnesses **under 14** give **unsworn** evidence (same if they are in mags)
- emphasis on communication with mags/juvenile/guardian
- mags special training in youth justice
- same standard directions as if adult mags (unless PYO - revised directions so expedited)
267
differences in terminology used in youth court compared to mags?
- juveniles/child witnesses referred to by first name
- enc use straightforward language
- 'finding of guilt' rather than a conviction
- 'order upon finding of guilt' rather than sentence
268
will trial in youth court follow same procedure as mags?
clue: is one key diff
same procedure
mags issue same standard pre-trial directions in both
only difference is if juvenile is PYO, mags issue revised directions to ensure expedited trial
269
what happens if child commits offence before turn 18, but turns 18 PRIOR to start of trial?
(eg which court and how dealt with)
only the adult mags has jurisdiction to deal with it
if convicted, subject to full range of sentencing powers
(so only a young offender if under 18 on date of first appearance before court)
270
what happens if turns 18 DURING trial in youth court?
(eg what court and powers)
youth court has jurisdiction
YC may remit case to adult mags or retain it
**if retains it, will have sentencing powers that adult mags dealing w case would**
271
which court should trials of juveniles begin in as a starting point?
when can this be varied (in summary/ for what types of offences)?
youth court
but either must or may be sent to adult court (mags or CC) if:
1. homicide
(murder or manslaughter)
2. firearms
3. grave crimes
4. specified offences
5. jointly charged with adults
have fun, give some joy
272
if homicide offence committed by a juvenile, which court should deal with it?
must or may deal with it?
Crown Court
must
(murder or manslaughter)
273
if firearm offence committed by juvenile, which court should deal with it?
must or may?
Crown Court
must if 16 at time of alleged offence
274
what are grave crimes and which court should they be dealt with if committed by a juvenile?
if offender **21** years or older, may receive custodial sentence of **14 years** or more
e.g. robbery, rape, assault by penetration, GBH, sexual assault
youth court **MAY** accept jurisdiction or send to CC if prison sentence likely to be **substantially** **longer than 2 years **
YC **only** send if considers sentencing powers **insufficient**
275
specified offences - what are they and which court should it be in if committed by juvenile?
charged with a **violence** or **sexual** offence
**MAY** send to CC
**but only if regarded as 'dangerous offender'**
- i.e. could impose automatic or discretionary life imprisonment, or an extended sentence
(that is all u need to know about a dangerous offender - that a court MUST impose automatic/discretionary life sentence or extended sentence)
276
If juvenile jointly charged with an adult, which court will there case be dealt with in?
if adult tried in **CC** - MAY also send to CC, but only if **INTERESTS OF JUSTICE**
If adult tried in mags, MUST be jointly tried in adult mags
But mags usually send to youth court for sentencing, unless intend to just fine or discharge (then will just sentence themselves)
277
For which cases MAY juvenile be sent to CC?
- Grave crimes
- Specified offences
- jointly charged with adult D whose case being dealt with in CC
278
If juveniles case MAY be dealt with in CC, what will happen if at plea before allocation hearing they indicate:
A) guilty
B) not guilty
?
****(plea before allocation hearing will take place at youth court)
A) Guilty
- YC will sentence the juvenile; or
- send to CC if consider powers inadequate
B) not guilty
- YC only decline jurisdiction if think own powers would be inadequate
**- youth has no right to elect trial to be in CC**
^ that is the diff between adult mags
279
Youth Court has power to remand a juvenile via what 3 ways?
(remand usually means bail or custody/put somewhere)
1. on bail;
2. into local authority accommodation; or
3. if 17 or over, into custody
280
if bail refused, where may juvenile be remanded?
if certain age, must be remanded into which?
presumption that will be remanded into which?
a) local authority accommodation
(non-secure)
b) youth detention accommodation
(secure)
-**under 12 = cannot remand into youth detention**
(may remand if reach 12 during course of remand/sep card)
- presumption remand into local authority
281
what information will youth court use in considering whether to grant bail for juvenile?
report from the YOT providing their records from previous bails
home situ and school/work attendance
282
what conditions must be met for juvenile to be remanded into youth detention accommodation?
(long but imp) (checked all thsi get off textbook!)
(rare they end up here)
1. 12 - 17 y/o
2. legally represented (usually)
3. either
A) offence:
- **violent or sexual**; or
- adult could be imprisoned for **14 years** or more; and
- v likely child receive **custodial** sentence
OR
B) recent and significant history of **absconding** whilst in LAA or youth detention accommodation
OR
C) recent and signif history committing **IMPRISONABLE** offences on bail/remanded LAA/YDA
4. For all:
- necessary protect public from **death or serious** physical or psychological **injury**; or
- prevent committing **further** **imprisonable** **offences**; and
- can't manage in **community**
283
what must court balance when sentencing a juvenile
seriousness of offence / previous record
principal aim preventing further offending
welfare child
284
sentencing procedure in youth court
(similar to mags)
*assuming pleaded guilty*
CPS give facts
D plea in mitigation
Likely hear from juvenile's guardians
285
role of pre-sentence report in Youth Court?
(who prepares, is it always required, what will it consider, is it important to court, when will it be prepared?)
prepared by YOT.
youth court **must** usually always obtain before sentencing
court is likely to indicate the type of sentence it has in mind when it orders a report
report will address juvenile **suitability for that type sentence**.
will place great emphasis on report
may adjourn the sentencing hearing to enable the YOT to prepare report, or ask YOT to prepare a ‘stand down’ report so can sentence w/o adjourning case itself
286
when sentencing young people, what general approach must court take according to sentencing guidelines?
- starting point = seriousness of offence, BUT:
INDIVIDUALISTIC rather than offence focused / rehabilitation
- custodial sentence last resort / so serious that nothing else apt
- enc to take responsibility and re-integrate into society rather than punish
(restorative justice instead of 'criminalising')
- consider underlying factors and anything diminish culpability
eg fact young, not fully matured / understand decisions and risks / peer pressure
- don't just consider their actual age but also their emotional and developmental age
- where poss give opportunity to learn from mistake / avoid stigma court sanction
287
key elements to consider when determining sentence for a juvenile?
(sentencing guidelines)
- principal aim of YJS (prevent re-offending by children)
- welfare of juvenile
- age (actual, developmental and emotional)
- seriousness of offence
- likelihood future offences
- harm caused by future offences
288
starting point when sentencing young people?
what will help in assessing this (clue: there are 2 things)?
seriousness of offence
assess by considering
CULPABILITY and
physical/psychological HARM caused/intended/foreseeable (inc to property)
289
in assessing culpability of a juvenile, what should court consider?
(sentencing guidelines)
- planned offence?
- their role (if committed as part of group)
- level of force
- awareness of actions / consequences
- mental health probs/learning difficulties
- emotional and developmental age
- external factors
290
if court is sentencing juvenile, when should mitigating and aggravating factors not be considered (in assessing seriousness of offence)
if the aggravating or mitigating factors are already included in the definition of the offence
(so consider aggravating or hit factors that may inc or reduce overall seriousness - but do not take into account if the relevant factors already inc in definition of the relevant offence)
291
when/on who will referral order be imposed?
juvenile
- plead **GUILTY**
- offence carries possible custodial **sentence**; and
- **never** been convicted or bound over by a court
MUST be made ^ UNLESS court proposes **custodial** sentence or full **discharge**
If mixed plea, court has power to make referral order but not obliged.
(checked htis trust meh)!
292
can court ever make a second referral order?
'exceptional circumstances'
293
what happens if court makes referral order for a juvenile?
refer juvenile to **youth offender panel**
at meetings, panel of YOT and others speak to juvenile and their family with a view to:
- stop further offending
- make right their wrong to victim; and
- help w any probs they have
panel and juvenile agree a 'youth offender **contract**', lasting **3 - 12 months** / designed to prevent re-offending
294
What is a youth rehabilitation order?
how long last and most severe?
]equivalent of a generic adult community order
court imposes requirements to punish/protect public/ reduce re-offending
period **up to 3 years**
most serious requirement is **intensive supervision surveillance requiement**
attach similar requirements to adult community order
e.g. educational requirements
295
What is name for only custodial sentence youth court can impose?
Detention and trading order
296
When should youth court impose a detention and training order?
(just a few v imp words)
Conditions?
*important*
so SERIOUS fine or com sentence not JUSTIFIED
Considers YRO even with intense supervision inappropriate
Pre-sentence report considered custody as possible option
If 12 - 14, persistent young offender (ie 3 imprisonable offences)
No limtis if 15+
Can't impose if 10/11
297
Age restrictions on imposing detention and training order?
(juvenile custodial sentence)
not if 10 or 11
12 - 14 (inclusive): only if 'persistent young offender'
(sentenced 3 separate occasions for recordable (ie custodial) offences)
15 or over, no restrictions
298
how long can detention and training orders run for?
minimum and maximum / what should court consider in determining length
at least 4 months
max 24 months
shortest time considering seriousness of offence
299
What is a detention and training order?
(ie how does it operate once been given?)
juvenile held in detention in **youth offenders institute** for one half of the period of the order
then released into community under supervision for second half
likely electronic tagging and intensive supervision
(so same adults except YOI)
300
What rights of appeal does juvenile convicted or sentenced at youth court have?
exact same as adult at mags
(since youth court is a type of mags)
(remember the earlier queue cards say that also x)
301
what will properly constituted youth court look like?
(eg what type of judges and how many)
3 mags
(2 sufficient - but online/gov web says 3) ; or
a district judge
(youth mags need training in youth justice)
302
sentencing guidelines - how much court tend to give youths off compared to adults for an offence?
MAY give between **half to two thirds** of adult sentence if **15 - 17**
or allow greater reduction for those aged under 15.
ROUGH GUIDE
reduction should be applied before any reduction for a plea of guilty.
303
is youth bail opposed on same grounds as adults?
yes
diff comes when in remand
(whole LAA vs YDA stuff where can only get certain situs)
304
Referral order - does it show on police checks?
Once completed, it becomes spent, so will not show on most police checks
- can have a clean slate
305
What is a reparation order?
Youth court
Allows court to make D do up to 24 hours of reparation
Often if cause injury to specific group/person (eg graffiti)
(not technically community sentence)
(not in textbook - in video)
306
Youths - what is intensive supervision surveillance requirement?
- what type of order is it a requirement to?
Youth Rehabilitation Order
Most intense attachment to referral order
Seen as direct alternative to detention
307
what section should you use to challenge identification procedure evi where improper
section 78 Police and Criminal Evidence Act 1984
Significant and signif breach of Code D of Codes of Practice of the 1984 Act mean unfair allow CPS to rely
308
Concurrent vs consecutive sentences when applied
totality p = reflect overall seriousness.
just prop.
1. consider sentence for each individual offence
2. concurrent or consecutive
3. test overall against totality
4. reasons
concurrent
- same facts
- against same person
- similar kind of offences
e.g.
- diff drgs same trans
- small thefts employer
Consecutive:
- aggravating even tho same incident.
- e.g.
- theft V on one and assault another
- pervert course justice
- threas to kill separate to an assault
- domestic abuse same individual
