Criminal 1 Flashcards

Question

Duties of the participants of the case

Answer 1

Applies to anyone involved in any way to crim case Prep + conduct case according to overriding objective, comply w/ Rules/PDs/court directions + inform court of any significant failure to do so

Answer 2

3.2 court's duty- early indication of issues, evidence presented in short and clear way, discourage delay (trial will go ahead in D's absence), avoid unnecessary hearings, participants should co-operate in progression of case (don't ambush) Rule 3.5- court can issue direction/any party can seek direction (timescale/disclose/reporting/expert) Sanctions if directions/deadlines not complied with (costs/adjourn hearings/refuse evidence/adverse inferences from lateness)

Answer 3

after not guilty plea- 20 days for prosecution to introduce evidence, D has 10 BDs to oppose Defence statement w/ 10 business days of initial prosecution disclosure Defence must notify prosecution + court that witness is required to attend court for live evidence not more than 5 BDs after witness statement served Both have certificate of readiness + skeleton arguments of points of law 10 BDs before trial

Answer 4

Police officer must demonstrate 1. legal authority to exercise this power 2. That they have exercised the power lawfully

Answer 5

taken to police station as soon as practicable after arrest (6 hour+ detention anticipated must take to designated station)/ street bail (attend station later) see custody officer informed of rights non-intimate samples taken + see dr can speak to solicitor if requested interviewed (often w/ solicitor present) released under investigation on bail /charged + released on police bail to appear at MC at later date/ charged + remanded in custody to appear at MC following day

Answer 6

Responsible for handling + welfare of suspects in detention Must be police officer at rank of sargeant or higher Must be unrelated to process of investigation of the offence s37 PACE COP C2,3,4 authorises detention/orders release if unavailable, can be another officer not investigating that person's defence does risk assessment, makes special arrangements, arranges for interpreters, deals with detainee's property, contacts healthcare if needed (if flawed, evidence can be excluded)

Answer 7

Opened as soon as practicable for each detainee COP C requirement to inform person of reason for arrest circumstances of arrest why arrest necessary comments made by arrested person solicitor views this ASA practicable on arrival/any time whilst client detained COP C solicitor- current practising/ on Legal Aid Agency register

Answer 8

compulsory s40 PACE- 1st must occur within 6 hours of detention authorised by custody officer, then every 9 hours reminded at every review of right to free legal advice + given opportunity to make representations (unless unfit/asleep during review) Review officer (inspector or higher/not custody officer/not involved in investigation) must be satisfied that detention still needed (if s37 grounds for detention still exist)

Answer 9

s41 PACE, max time in custody is 24 hours from relevant time (when suspect arrives at police station - indicated on custody record) Before expiry must be charged/released Summary only (cannot be extended)

Answer 10

s42 PACE- before expiry of initial 24 + after 2nd review, grounds in custody record + explained to suspect, suspect + solicitor should be allowed to make representations Superintendent or higher must authorise to secure/preserve evidence/obtain by questioning Indictable offenses only Investigation must be dilligent/expeditious

Answer 11

ss43+44 PACE apply to MC for warrant for further detention (1st application +36, 2nd +36) MC believes reasonable to secure/preserve evidence/obtain by questioning Indictable offence Investigation diligent + expeditious

Answer 12

admissible in evidence in civil and criminal proceedings

Answer 13

Custody officer notifies them + records when used in custody record continuing (exercisable at any point of custody) - right to consult privately w/ solicitor/ availability of free independent legal advice - right to have someone informed of their arrest - right to consult COP (codes of practice)

Answer 14

s58 PACE- free and independent legal advice consulting w/ solicitor in person/on telephone/in writing Detainee must be told of this right immediate before an interview/an intimate sampling/ intimate drug search/identification parade/identification parade (lineup)/video identification if declined- note on custody record Legal advice must be provided as soon as practicable/shouldn't dissuade detainee Wait to begin interview for solicitor/ if declined then changed mind- wait to recommence for solicitor

Answer 15

Serious step- implicates evidence s58 COP C Annex B max delay time 36 hours, suspect must be informed and grounds noted if D interviewed w/o solicitor due to delay- restrictions on adverse inferences must be: indictable offence granted in writing by superintendent/higher due to reasonable grounds that right will interfere/ harm evidence connected to other indictable offence/harm others/alert suspects for indictable offence not yet arrested/ hinder recovery of property obtained in offence (POCA 2002) only if grounds to believe solicitor will pass on message - police can deny access to named solicitor but not delay legal advice generally (D can choose alternative)

Answer 16

s56 PACE 1 person known to them/likely to take interest in their welfare as soon as practicable is at public expense Exercisable every time suspect taken to diff station In order to delay right (max 36 hours): indictable/either way in writing by inspector/higher due to interference/harm to evidence of indictable offence/others/alerting suspects of indictable offence not yet arrested/hinder recovery of property obtained in offence

Answer 17

Child- parent/guardian/representative of care authority/social worker (at push any non-police adult) Mentally diff- parent/guardian/relative/someone with experience dealing with such persons (must be 18+ non police) Cannot be solicitor/legal rep, involved in offence as suspect/victim, involved in investigation, low IQ, estranged parent child object to, someone who has received admissions from detainee in case

Answer 18

Custody officer determines if necessary Can't be interviewed w/o unless Superintendent/higher satisfied that delaying interview may harm/interfere with evidence/physical harm to others/serious loss or damage to property

Answer 19

COP C 8 as practicable- 1 detainee to each cell cells must be adequately heated/cleaned/ventilated supply bedding/toilet/washing facilities if clothes removed, provide replacement clothing of reasonable standard 2 light meals + 1 main meal every 24 hours

Answer 20

Code C para 11.1A- questioning of a person regarding their involvement in a criminal offence/s must be done under caution (redone after break)- you do not have to say anything... purpose- gather evidence

Answer 21

Constable Sergeant Inspector Chief Inspector Superintendent Chief Superintendent Crim. Invest. Dept. CID- same system- Detective Investigating Officer (IO)- police officer of any rank, usually officer in charge of that part. offence (Officer in the Case OIC), suspect's legal rep speaks to them for pre-interview disclosure, will lead interview

Answer 22

exception- where delay is likely to lead to interference/harm to evidence/physical harm to others/serious loss or damage to property/alerting other suspects not yet arrested/hinder recovery of stolen property

Answer 23

No general right to disclosure except significant statement and custody record signif statement- one that is capable of being used in evidence (admission of guilt) But PACE COP C 11.1A- before interview solicitor must be given sufficient info to understand the nature of any offence + why client suspected of it IOfficer will hold back info for untainted account from D Solicitor wants as much information as possible to act in client's best interest

Answer 24

All interviews must be contemporaneously recorded Interviews under caution for indictable offence- audio recorded as well Exception- done in writing for minor offences/ person not arrested/ not at police station No person should be interviewed if unable to appreciate significance of questions/answers, intoxicated or illness/ailment/condition but Superintendent can authorise an interview in these circs

Answer 25

before- solicitors obtains pre-interview disclosure/ has private consultation w/ client to discuss case + advise them on options for interview Properly conducted interview - interview room in designated station recorded presence of lawyer if suspect used s54 PACE right gives client option to suspend interview + further consult solicitor

Answer 26

undisclosed info/evidence referred to clarification for client inappropriate behaviour further advice to client break inappropriate questioning (misrepresenting info/hypothetical qs/ repetitive qs/ disruptive listening (assuming knowledge/not listening)

Answer 27

Must be admissible s76(2) PACE- confession excluded due to oppression(torture/inhuman treatment causing confession) /unreliability (breach of PACE caused confession's unreliability) - doesn't automatically exclude, defence can apply for it s78 PACE- court has discretion to exclude evidence that would adversely affect fairness of proceedings (can be used on any evidence prosecution relies on not just confession, can be used to exclude where either limb of s76(2) breached)

Answer 28

Obtaining as much info as possible from police Advising client fully Advising on issues such as providing samples/extending detentions/searches/bail Attending + advising in interviews Comprehensive + Contemporaneous note taking -> give evidence in trial Make note of PACE/COP breaches Request that refusals are noted in custody record

Answer 29

Does not include intoxicated clients Mental health condition/disorder -> unable to understand/communicate, unclear about their position/agrees to everything/info from health + social care services Custody officer does risk assessment for this at beginning of their detention, then provides access to an appropriate adult (inform them of location/grounds for arrest/ ensure they arrive ASAP)

Answer 30

-Ensure D understands what's happening/why - Support/advise/assist D, - Ensure police are acting properly/fairly - Assist w/communication, - Ensure D understands their rights + rights are protected/respected Can request legal rep but D doesn't have to use them (can consult without AA too) Needed for interview/written statement unless superintendent satisfied that delay will lead to harm to evidence/others/loss/damage to property/alerting other suspects not yet arrests/hindering recovery of property obtained in crime

Answer 31

- Ensure appropriate adult appointed - Ensure custody officer has requested medical assessments if needed - Take time to ensure client understands your role, what's happening, the interview and 'no comment' option, what happens after - Request regular breaks in interview, intervene if language/tone of officers inappropriate

Answer 32

1. Answer questions 2. "No comment" 3. Written statement + "no comment" Anything said can be used in evidence. Silence may cause adverse inferences from court. Mixed 'no comment' and answers not allowed- transcript of interview read in court/no comment interview not read in court- adverse inference from avoiding questions, confusing, tactics may be used to push suspect to talk where they hadn't planned on it

Answer 33

Sets out defence at beginning of interview then 'no comment'. Where facts will be relied on at trial but lawyer doesn't think client should answer now. Difficult to ensure its sufficient- any fact not mentioned but relied on later -> adverse inference

Answer 34

Amount of disclosure (if police don't disclose enough (offence + why suspected) -> difficult to advise -> remain silent (court won't draw adverse inference here) Admissibility of evidence - are witnesses compellable/s 78 PACE applications/witnesses written statements Strength of evidence- silence good if little evidence (unlikely to go to trial), consider evidence yet to be obtained Client's account/instructions- if D has defence, put forward now as may lose credibility/adverse inferences if not at early stage State of your client (physical +mental) court won't draw inferences from silence where Argent factors (sick/confusion/intoxication/shock) gives lawyer cause for concern - medical examiner should certify them fit for interview Significant statements- any statement capable of being used in evidence against suspect- suspect will confirm or deny the earlier statements Possible adverse inferences- relied on in court, then mention now, failure to account for mark/object/substance or presence at scene

Answer 35

Private, confidential discussion Explain allegation then get their version of events in full (not testing strength yet), do they have legal defence/accept involvement? Assess fitness to be interviewed Provide advice on legal position Explain options for interview/ which is best + their consequences Advise on samples

Answer 36

Criminal Justice and Public Order Act 1994: s 34: If fact later relied on at trial was reasonable to mention at interview (only if D cautioned)(reasonable: police disclosure/what suspect knew/state of suspect/legal advice given to suspect) s 36: Failure to account for mark/object/substance. Suspect must have been given special warning s 37: Failure to account for presence at scene. Suspect must have been given special warning.

Answer 37

Must be proper Ranges from accepting defence as true but D chose not to reveal to inference that they are guilty Fabrication since interview Withheld as resisting police questioning (ambush defence) D had no reasonable explanation at time of interview which would refute prosecution

Answer 38

You do not have to say anything. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.

Answer 39

Not a requirement that there is failure to mention sth later relied upon. Ordinary language caution: what offence, what they need to account for, that they are a suspect, that a court may draw a proper inference if they fail/refuse, that the interview may be given in evidence at trial

Answer 40

If case never gets to trial/client pleads guilty, adverse inferences are irrelevant- balance the likelihood whilst advising.

Answer 41

Protects innocent suspects from incorrect identification Makes successful identification watertight

Answer 42

Eyewitness may be taken to particular neighbourhood/place to try and identify the person they previously saw Can be shown photographs (Code D, Annex E)

Answer 43

Duty to hold identification procedure (Code D, 3.12) where: 1. Eyewitness to offence has: - identified suspect /purported to have - is available + expresses ability to identify suspect - has reasonable chance of being able to identify the suspect 2. Or suspect disputes being the person eyewitness has seen If not practicable/serves no useful purpose in proving/disproving (suspect known to witness)- no need to hold ID procedure

Answer 44

Suspect known + IP available Video identification- eyewitness shown video of known suspect with similar videos of others resembling suspect Identification parade- lineup incl. suspect w/ others resembling them Group identification- Eyewitness sees suspect in informal group of people Arrangements + conduct led by inspector or above not involved in investigation (identification officer)

Answer 45

Unless not practicable or identification parade more suitable. If suspect refuses -> alternative Covert procedures- last resort (all other considered + refused)

Answer 46

- Make record of description of suspect first given by eyewitness (give copy to suspect/solicitor before procedure carried out) - Give notice to suspect + explain purpose of procedure, entitlement to free legal advice, process + right to have solicitor/friend present, that they don't have to consent/co-operate but if they don't, refusal may be given in court evidence + police may proceed covertly - Invite suspect to participate in video identification procedure first

Answer 47

1. Officers film all sides of suspect 2. Identification officer, suspect and legal representative select lookalikes from over 10,000 videos on VIPER system (at least 8 others) considering age/general appearance/position in life 3. Unusual features on suspect concealed/replicated on others 4. Suspect/their solicitor/friend/AA given reasonable opportunity to see full set first, can raise reasonable objections (must state reasons) 5. Tell eyewitness suspect may/may not be in clips immediately before showing them 6. Suspect's solicitor can be present whilst eyewitnesses watch (if identification officer approves) 7. Process recorded on video with sound showing all persons present within sight/hearing of eyewitness, dialogue between eyewitness and anyone present (this can be watched by suspect/solicitor at discretion of investigating officer) 8. Do not direct their attention 9. Eyewitnesses can't communicate with each other- 1 at a time

Answer 48

1. Suspect must have reasonable opportunity to have solicitor/friend there 2. In normal room/with screen 3. Once lined up, everything done in presence + hearing of suspect/interpreter/solicitor/friend/AA present 4. Video recording/colour photograph taken of parade and shown to suspect/solicitor within reasonable time on request 5. At least 8 people + suspect who resemble suspect (age, height, appearance, life position) 6. Unusual physical features concealed on all/replicated 7. Suspect may select own position in line 8. Witnesses brought in one at a time (cannot interact with/overhear each other/ see any of the IParade members before/after) 9. Witness told immediately before that the suspect may or may not be there 10. Witness can tell the members to speak/move

Answer 49

Can take place with the suspect's consent + co-operation or covertly Location- where other people are passing by/waiting around (escalator/shopping/station) Colour photograph/video taken of scene to give impression of number of people present Witnesses cannot communicate with each other

Answer 50

Before the confrontation, tell the eyewitness that the suspect may or may not be the person they confront, if not then they should say so. Should be in police station (normal room or screen)

Answer 51

Breach determined without voir dire (trial in trial) unless evidence of breach (voir dire) Breach of Code D -> D applies to exclude evidence obtained in breach of code under s78 PACE Trial judge must decide if significant prejudice -> will there be adverse effect on fairness if admitted excluded where safeguards flouted, D had right to have the correctness of IP tested Where admitted despite breach of Code D: Defence can comment on breach in closing speech Trial judge alerts jury to breach Jury assesses whether breach causes them to have doubts about safety of identification

Answer 52

- Generally Crown Prosecutor under power from Director of Public Prosecutor - Police (custody officer) retain discretion of whether to charge some summary offences (road traffic/public order s5/criminal damage under £5k/low value shoplifting)

Answer 53

Exercise DPP powers. DDP delegates powers to lawyers w/ rights of audience, subject to Crown Prosecutor's instructions. Uniformity sought by Code for Crown Prosecutors (by DPP) Associate Prosecutors- CPS non-lawyers- represent CPS on bail/pre-trial applications. Conduct trials for non-imprisonable summary offence.

Answer 54

1. Arrest and charge at end of police detention/after bail when re-attending station/ after bail whilst CPS decides on charge Most common 2. Written charge and requisition s29 CJA- no arrest needed, Serve written charge + simultaneously public prosecutor issues requisition requiring person to attend a Magistrates Court Only available to those who prosecute on behalf of State (CPS/Environment Agency etc.) 3. Laying an information Private prosecutions only Information alleging offence on Magistrates Court -> Court issues summons/arrest warrant

Answer 55

1. Where insufficient evidence to charge a suspect (released pending further investigation) 2. Sufficient evidence to charge but matter needs to be referred to CPS for charging decision. Police decide whether released with/without bail/any conditions on bail- consider views of victims. If not released on bail but police looking into matter -> 'released under investigation'

Answer 56

Statement of offence in ordinary language Statutory provision creating the offence Particulars of conduct complained of (so accused knows allegations)

Answer 57

- Notice setting out where + when the accused is required to attend court - Specific each offence relevant Summons - identify issuing court Requisition- identify person under whose authority it was issued

Answer 58

No statute of limitation beyond summary only offences (information laid/complaint made within 6 months of offence.)(Prosecution has burden of proving proceedings were brought in time) Indictable- no time limit.

Answer 59

ALL suspects entitled to free legal advice at police station regardless of means

Answer 60

Must pass both means and merit test

Answer 61

Automatic pass if under 18/on benefits

Answer 62

pass if below than £12,475, fail if above £22,325 weighted by adding to partner's (unless co-D/victim) Full means test form if in between - annual household disposable income below £3398 -> pass Can apply for eligibility review

Answer 63

assessed by income and capital - including equity in properties After combined allowance of £30k, applicants required to contribute If from income- pay throughout case, if capital, pay at end inelligible for funding- £37500 or more Eligible w/ no contribution- £3398 Eligible with contribution- between - 90% of disposable income for 6 months paid (max dependent on offence- refunded on acquittal) Can apply for eligibility/hardship review

Answer 64

Interests of justice to be legally represented Automatically passed if indictable only or an either way at crown court Even when pleading guilty if custodial sentence likely will pass 10 propositions- most important - I will lose my liberty Suspended sentence re-activated if convicted of new offence

Answer 65

1. I will lose my liberty 2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence. 3. It is likely I will lose my livelihood 4. It is likely I will suffer serious damage to my reputation 5. A substantial question of law may be involved 6. I may not be able to understand the court proceedings or present my own case 7. Witnesses may need to be traced or interviewed on my behalf 8. The proceedings may involve expert cross examination of a prosecution witness 9. It is in the interests of another person involved in proceedings that I am represented (young victim, difficult for victim to be cross-examined by defendant, NOT family that will suffer if guilty) 10. Any other reasons (not guilty-> trial, CC, child witnesses)

Answer 66

Solicitor prepares case and can claim for preparation, advocacy, routine letters and calls

Answer 67

Failing means - no right of appeal but submit another form if circs changed Failing magistrates merits- interests of justice appeal to legal aid agency May consult with duty solicitor if imprisonable offence (can only represent them on 1 occasion) Then instruct private/ self-represent

Answer 68

Within 14 days of being charged - prosecutor anticipates guilty plea (sentenced in MC) Within 28 days of being charged - anticipated not guilty plea (CC for trial or sentence( If D detained in police custody following charge, must be brought before next available court (ASAP)

Answer 69

Summary - Trial and Sentence in MC Indictable only- Trial and Sentence in CC Either way- 1. MC accepts jurisdiction + D consents to summary trial -> Trial in MC and Sentence in MC or CC 2. MC declines jurisdiction or D elects CC trial -> Trial and Sentence in CC

Answer 70

if on bail - court issues warrant for their arrest (Bail Act 1976) If just doesn't attend - try and proceed anyway unless allocation of either way or sending indictable to CC Summons for court (non-imprisonable offence- no penalty for not appearing, penalty for offence imposed in absentia

Answer 71

Prosecution is obliged to serve the initial details on the court officer/ D if requested as soon as practicable, no later than beginning of day of first hearing Online: Common Platform Failure to supply -> adjourn/award costs to defence for failure (Not dismiss/abuse of process)

Answer 72

Summary of circs of offence D's account in interview Written statements/exhibits material Victim impact statements D's criminal record Where D in police custody up until hearing: just summary of circs of offence and D's criminal record

Answer 73

Sufficient for court to take informed view on plea and trial venue If no guilty plea anticipated, sufficient to assist court in identifying real issues and giving directions - Preparation of Effective Trial (PET) form completed by both parties for summary trial

Answer 74

Summary + either way - deals with plea, bail, representation and legal aid (depending on offence, sentence) Indictable only Brief first appearance in MC- bail + legal aid Plea on CC sending form CC 3 or 4 weeks later depending on bail status

Answer 75

D charged with offence to be tried in Crown Court and there is a summary only offence connected to the indictable Sent to CC Must be sent to CC for trial - common assault - assaulting prison/centre officer - taking vehicle without authority - driving whilst disqualified criminal damage Included on CC indictment Must be sent to CC for plea only - other summary matter punishable by disqualification from driving or imprisonment Enter plea for summary after indictable, guilty plea -> CC deals as if MC, not guilty plea -> remitted to MC as CC has power

Answer 76

D receives initial details and decides - guilty - not guilty/ no indication (treated as not guilty) Warned before indicating guilty that they can be sentenced by court/sent to CC

Answer 77

Must be unequivocal (free of any suggestion otherwise) If equivocal plea then treated as not guilty (self-defence/other excuse) Unequivocal guilty plea indicated- formal plea of guilty -> sentence MC max sentence 6 months for summary/1 either way, 12 months for 2 or more either way If not enough -> CC If MC sufficient - sentence passed immediately or adjourned for pre-sentence report (PSR) (committal to CC still available)

Answer 78

MC orders Pre sentence report for use by CC if - realistic alternative to prison - dangerous offender - other appropriate

Answer 79

Allocation guideline - either way offences should be tried summarily unless - court's sentencing powers insufficient - unusual legal, procedural, factual complexity requires CC

Answer 80

Allocation guideline- in cases with no factual/legal complexity, court should consider committing for sentence after trial or retaining jurisdiction if unlikely to exceed sentencing powers -> likely to stay in MC unless so serious that CC consider submissions of the parties

Answer 81

Prosecution - opens with facts, outlines D's criminal record, makes submissions on where trial should be held in accordance with guidelines (nature + seriousness of offence + particular aggravating/mitigating factors) Defence - makes submissions as to venue (can just agree to prosecution's submission) - if disagree on sending to CC, make fuller, persuasive submissions

Answer 82

- Allocate to CC - s51 crime and disorder act -> D appears at CC next (no right to elect MC trial) Court completes Case sent to CC for trial questionnaire - Accept jurisdiction (s20 MCA) court explains to defendant that - summary trial more suitable - D can consent to be tried summarily or by jury in CC - if convicted after summary trial can still be sent to CC for sentence MC progresses as if summary only offence, sets trial date, does case management

Answer 83

D can ask for this if they were to plead guilty instead Court has discretion to provide Court can decline to give an indication If they do- confined to custodial or non-custodial D can then change plea to guilty (treated as if pleaded guilty from outset) Non- custodial sentence indication for guilty plea is binding on later MC (unless they keep not-guilty plea- no indication binding)

Answer 84

Where D doesn't ask for indication/ indication refused/ not-guilty plea kept Informed that could still be sentenced by CC Not guilty plea- no indication binding D's legal rep must advise on this decision (often advise CC)

Answer 85

Often legal advice given is to elect CC - acquittal rate higher in CC - separate tribunals of law and fact advantageous (voir dire- judge can hear arguments to exclude evidence in absence of jury) - CC won't always sentence more harshly than MC

Answer 86

- less formal - shorter waiting time before trial date - trial much quicker itself - no requirement for defence statement - less expensive - magistrates have to provide reasons, juries do not give reasons - magistrates have less sentencing powers than CC (but can send to CC after trial)

Answer 87

Low value shoplifting Criminal damage Complex fraud Child witnesses

Answer 88

Theft is either way but shoplifting valued at £200 or less summary only, max 6 month sentence D has right to elect CC trial

Answer 89

Only CC when over £5000 or caused by fire (arson) If under £5k - summary only, max penalty is 3 months prison/ level 4 fine

Answer 90

Sent to CC without allocation procedure/plea before venue Complex fraud - 2 of: over £500k significantly international requires specialised knowledge numerous victims, substantial + significant fraud on public body widespread public concern or misconduct endangered UK economy (undermining confidence in financial markets

Answer 91

- indictable only Either way - sentence after guilty plea - sentencing after MC trial - MC declined jurisdiction after not guilty plea - MC accepts jurisdiction after not -guilty plea but D elects CC - complex fraud/ child witness notice given Except low value shoplifting where D hasn't elected CC and simple criminal damage of £5k or lower

Answer 92

D presented to court and court cannot conclude the case in 1 hearing -> case adjourned.

Answer 93

D sent away and told to come back another day. D on remand obliged to return . Remand in custody or served in the community on bail.

Answer 94

Prosecution applies for it by presenting objections to bail (always presumption in favour of bail). Objections- finite, defined by law, vary by offence to prevent custody being longer than potential sentence.

Answer 95

After prosecution raises objection to bail, defence applies for bail. 1st decision about bail made in MC (murder: only CC Judge can grant bail). Defence and Prosecution can appeal these decisions. Conditional bail- subject to conditions (DA should consider what would help the court allow bail) Bail is an ongoing consideration.

Answer 96

Presumption that D has right to bail, can only be refused with proper objection. (rebut the right on legally specified objection) Still applies after conviction, where case adjourned for sentence, despite fear of absconding. Applies after breaching community order. Time limits for each case- right to bail absolute where case doesn't progress in time

Answer 97

- those appealing their conviction/sentence - Ds being committed for sentence from MC to CC

Answer 98

Only needs to succeed in showing one ground to deny bail/conditional bail a) Indictable b) Summary imprisonable (common assault) c) Summary non-imprisonable (road traffic)

Answer 99

Most cases- all theft, most violence, all drugs/sex Substantial grounds for believing that the D would either: a) fail to attend a subsequent hearing (surrender to custody) b) commit further offences on bail c) interfere with witnesses or obstruct the course of justice (destroy evidence) Final filter- bail shouldn't be removed on these grounds where there are no real prospects of D getting a custodial sentence

Answer 100

- not a high bar, judge has subjective view of risk of 1 Witnesses/hearsay evidence allowed Magistrates have inquisitorial role - can ask qs, insist on sureties giving evidence of relationship to D

Answer 101

Only allowed if D had already been given bail and breached a condition of it in these proceedings, or has a fail to surrender conviction before Trigger- D arrested for breach of bail

Answer 102

a) remand in custody for D's protection b) court has insufficient info to deal with bail, short remand to produce enough evidence c) D already serving a sentence in custody

Answer 103

1. D falls in special case 2. If serious case provisions are satisfied, court follows more stringent test (if no pre-convictions, general objections ) 3. If case of particular character, P can use those grounds or general grounds

Answer 104

Only CC judge can grant bail If D has pre- conviction for murder/attempted, rape, serious sexual D not granted bail unless exceptional circumstances. If not, D not be granted bail unless no significant risk of D causing physical/mental injury on bail

Answer 105

If D has a pre-conviction for murder (attempted), rape or serious sexual offence, not granted bail unless exceptional circumstances

Answer 106

if D was already on bail/ or fails to attend after bail, D may not be granted bail unless - no significant risk of further offences being committed or failure to attend

Answer 107

a) offence against partner/family D need not be granted bail for imprisonable offence if substantial grounds to believe D would cause physical/mental injury to associated person also for non-imprisonable offence if D arrested under s7 Bail Act for breach of bail b) abuse of drugs Test shows D has Class A drug in body and offence related to/caused by Class A drugs Court may not grant bail unless no significant risk of D committing an offence on bail

Answer 108

indictable - need not grant bail absconding on indictable - bail need not be granted again unless before conviction + no chance of custodial sentence summary imprisonable - need not grant bail if substantial grounds for believing D will commit further offences

Answer 109

a) nature and seriousness of the offence and likely disposal (sentence) - long, tempted to abscond b) character of D, D's antecedents (previous convictions), associations, community ties - criminal associations - addictions - fixed community ties (children, job -> less likely to abscond) c) bail record in past - absconded - committed offences on bail d) strength of evidence - chance of acquittal -> less likely to abscond

Answer 110

- Residence at given address (prevent absconding) - Curfew (pattern of offending at night) - Reporting to local police station at given times (prevent absconding) - Surety - recognisance (money) by someone with influence over D (given after absconding) - Security - money/valuable item by D or on D's behalf - given on release on bail, forfeiting on absconding. - restriction on where D can go on bail (reduce risk of interfering with witnesses/committing further sentences) - restriction on contact victims/witnesses (obstruct justice) or co-defendants (further offences) - electronic tagging fear of failure to surrender/ protect witnesses - bail hostels + comply with rules of bail hostel (breach -> leave -> breach of bail condition) if D doesn't have fixed address - surrender of passport

Answer 111

duty to surrender to custody by attending court at time/date specified (s3 Bail Act) other conditions - relevant, proportionate, enforceable ECHR art 5(3)- every arrestee/detainee brought promptly before a judge and entitled to trial in reasonable time/ release pending trial which can be conditioned by guarantees to appear at trial

Answer 112

Made by defence or prosecution on advance notice to other party Make application to court which granted bail or CC if sent for trial/committed for sentence If parties agree, court can vary without a hearing

Answer 113

Arrested under s7(3) Bail act risk of tightened bail conditions or remanded in custody (bail withdrawn) Breaching conditions not committing an offence s7 - Police have power of arrest those in breach or about to be in breach -> brought to MC to determine bail going forward Breach indicates new grounds of objection, likely to be remanded in custody until case concluded

Answer 114

Summarily punished by up to 3 months imprisonment and/or unlimited fine Indictment- up to 12 months imprisonment and or unlimited fine

Answer 115

Refused bail by police, D appears before next MC in custody DA checks with Prosecution if intending to object to bail - if none -> bail If Prosecution has objections to bail, after hearing both prosecution and defence submissions , court decides (fills out form) Where D has right to bail under s 4 Bail Act (presumption), court must give its reasons if it refuses bail

Answer 116

MC - two attempts at getting bail (then appeals to CC or finds fresh points (new surety) (2 in MC, 1 in CC) CC- D has trial in CC then 1 attempt at bail in first hearing at MC (unless murder) and further application as of right in CC

Answer 117

D attends court for first time, applies for bail If unsuccessful, case returned a week later, bail raised 2nd time (can be identical and denied then allowed just because of different bench) Then secure certificate of full argument from MC before appealing to CC . Appeals heard 1 business day after appeal notice served. Can only apply after if circumstances changed.

Answer 118

second attempt in MC quicker than a week -> D appeals to CC after only 1 application to MC (lose 2nd application in MC) Can only apply again on change of circumstance.

Answer 119

Rare for prosecution to appeal but can if 1. Prosecution opposed bail originally 2. Punishable by imprisonment 3. Prosecution says at hearing they will appeal (D kept in custody) 4. Appeal confirmed in writing, served on court and defence in 2 hours 5. Appeal heard within 48 hours excluding weekends 6. Appeal heard by CC judge Same for CC prosecution appealing granting of bail - except appeal heard by High Court Judge in High Court

Answer 120

Prosecution cannot hold D beyond this unless court has sanctioned extension Summary only/either way in Magistrates, when court begins hearing prosecution evidence- 56 days Indictable/Either way in Crown Court - starts when jury drawn, 182 days minus any days spent in custody before case sent to CC (usually 0) Trial must commence before expiry of custody time limit - D released if not unless prosecution applies to extend (acts with diligence + expedition and good and sufficient cause for further custody)

Answer 121

if remanded into custody at first hearing, trial must take place in MC, first remand must be no more than 8 clear days D can then make another bail application Courts clogged with pointless 2nd appearance (after 8 more days)- video link or consent to onward remands (after 2nd appearance D must be brought back at least every 28 days remanded onwards to trial - D can consent to for court to do in absentia w/ no video link)

Answer 122

Considered at first hearing, hearing after first hearing before the trial, on day of trial directly before trial starts Welsh - indicated on Preparation for Effective Trial (PET form) in MC or PTPH in CC

Answer 123

Magistrates - resolved at first hearing Crown - PTPH (plea and trial preparation hearing)- at least one, usually more for more complex cases

Answer 124

First hearing Case management - PET form (prep for effective trial) completed by both parties before hearing Court gives directions for: - service of docs - resolve matters of law/set out timetable for when they will be resolved (pre-trial hearing /morning of trial) Court says trial date Pre trial hearing deciding on admissibility of evidence- ruling binding on MC at trial (unless party applies for it to be discharged/varied : material change in circs/something not brought to the attention of court before justifying discharge/variation) Same MC judges hear case for excluding evidence + trial -> difficult to ignore after - rare to have differently constituted court decide

Answer 125

Main, often only, CC pre-trial hearing Scheduled within 28 days of case being sent from MC Both parties fill out PTPH form before - First stage : plea - Second stage: sentence or trial preparation

Answer 126

CC sets date for PTPH within 28 days MC completes 'sending sheet' - specifying offences and which CC, sent to D and CC (no prescribed form) Evidence served on defence within: - 50 days (if D in custody) - 70 days (if D on bail) of date D sent to trial at CC Evidence uploaded to Crown Court Digital Case System Draft Indictment served by prosecutor on CC officer within 20 days of serving prosecution evidence

Answer 127

Defence makes any application to dismiss charges before plea taken Indictment put to D -> D enters plea of guilty/not guilty to each count of indictment -> case moves to sentence Guilty plea to sole count of indictment/all of multicount -> sentence Not guilty to sole count of indictment/all of multicount -> trial preparation of the hearing At least 1 guilty plea and at least 1 not-guilty plea on multicount indictment -> prosecution decides how to proceed (sentencing or if trial, move to trial preparation stage)

Answer 128

Judge determines after medical evidence -> counts as no plea -> trial with jury (so trial prep stage)-> If jury finds guilty: - absolute discharge - supervision order - hospital order

Answer 129

Trial Preparation- 4 stage dates to comply w/ directions Trial date set- estimate length/witness availability Prosecution evidence - prosecution confirms they've served all the evidence/ what's left + when they'll serve Expert evidence- directions for service and seeking agreement between experts Witness requirements - defence informs prosecution- which prosecution witnesses required to give evidence + estimate of time needed to question, defence gives details of any defence witnesses Standardised directions: - special measures (live link/screen) - bad character applications (non- conviction evidence) - witness summons - agreed facts and issues (drafted as admissions for trial use) - disputed facts and issues - defence statement - advance disclosure - D's interview - edited interview record for trial use - Hearsay - Admissibility + legal issues If party fails to comply with directions, has to explain to court expectation of no future hearings before trial but may need to be listed again

Answer 130

Used materials - relied upon at trial Prosecution uses to prove case against D (case papers, prosecution witness statements, D's taped interview, documentary exhibits) Unused materials - not relied upon at trial Material prosecution has that doesn't prove their case- D can present in trial (statements from other witnesses, previous convictions of witnesses, disciplinary findings against police officers)

Answer 131

Material that weakens prosecution case/strengthens D's case should be served to D to ensure a fair case

Answer 132

1. Investigation stage - duty to record + retain material during investigation 2. Initial duty of disclosure on prosecution 3. Defence disclosure 4. Continuing duty on prosecution to keep disclosure under review

Answer 133

Disclosure COP- all relevant material recorded in durable/retrievable form Every investigation has - Officer in charge of investigation- ensures procedures in place for recording + retaining material - Investigator - fair + objective, follows all reasonable lines of inquiry - Disclosure officer - examines retained material from investigator (personal declaration that this is done) and reveals it to prosecutor + defence (at prosecutor's request). Where doubt of disclosable - ask prosecutor.

Answer 134

Crime reports, tape/telephone messages (999) with descriptions of offender, witness statements + differing drafts, exhibits, interview records, expert records + communications between police + experts, records of first descriptions of suspects , material casting doubt on witness reliability Information from the accused w/ explanation for the offence charged + material casting doubt on reliability of a confession Duty to retain lasts until decision taken whether to start proceedings , then until acquitted/convicted/prosecution drops case D convicted -> keep material until released from custody/hospital order, if neither, 6 months from date of conviction Where appeal in progress, keep material until appeal concluded If material comes to light after proceedings concluded, prosecutor should consider disclosure

Answer 135

Crown Court- disclosure office prepares MG6C schedule- individually lists items of unused material Magistrates Court- Not guilty plea anticipated -> unused material listed on streamlined disclosure certificate. Sensitive material (serious prejudice to important public interest) - listed on separate schedule or revealed to prosecutor separately (can be Public Interest Immunity Application later)

Answer 136

Objective test- where prosecution material might help the defence, it should be disclosed Consider: - use of material in cross-examination - capacity to support submission leading to excluding evidence/stay of proceedings as abuse of process- material needed for proper application to be made/ court or tribunal finding public authority breaching with accused's ECHR rights - capacity to explain accused's actions - capacity to have bearing on scientific/medical evidence in case - ability to support other evidence Prosecution supporting evidence not relied upon/neutral evidence- doesn't need to be disclosed Time limit- no later than beginning of first hearing day CrimPR Part8

Answer 137

Disclosure Management Document Prosecution engages promptly with defence - assist with court's overriding objective Law requires result not method- prosecution has disclosure strategy (appropriate search given volume) Judge has robust case management of disclosure process- orders + directions Flexibility - not box ticking

Answer 138

No later than the beginning of the day of the first hearing (CrimPR Part 8) Sufficient information to allow D + Court at first hearing to have an informed view on - plea - venue for trial (either way) - case management - sentencing (committal for sentence for either way)

Answer 139

Statutory duty where: MC- if D pleads not guilty and case adjourned for summary trial CC- D sent for trial or where Voluntary Bill of Indictment preferred against D No statutory duty, common law duty of disclosure- where prosecutor recognises its in the interest of justice + fairness (as soon as is reasonably practicable)

Answer 140

Court gives date for service of further prosecution evidence /initial disclosure from prosecution Done in time to ensure trial date effective

Answer 141

P gives sufficient evidence prior to PTPH for case management (no further hearing unless murder/children involved) Dates given for initial disclosure/further prosecution evidence at PTPH Prosecution has continuing duty to review disclosure thoughout proceedings After initial disclosure from P, defence has duty to provide defence statement (compulsory in CC, optional in MC) - allows P to review disclosure given nature of defence

Answer 142

Written statement of nature of defence (not proof of evidence to defence lawyers- privileged doc) No duty on defence to serve material which might be helpful to the prosecution IncludesL

Answer 143

Clear + detailed exposition of issues of fact + law Nature of defence, particular defences relied on Disputed matters of fact - reasons why disputed Particulars of fact D will rely on Point of law + authority If alibi - name, address, DOB of witness giving support of alibi, info that can help find witnesses to the alibi

Answer 144

CC- defence statement compulsory , served on prosecution + court within 28 days of compliance with initial disclosure, can be extended if court satisfied that 28 days not reasonable MC- defence statement not compulsory, but if so, must be within 10 business days of prosecution's initial disclosure, if no defence statement - defence unable to make application for specific disclosure

Answer 145

D must give court + prosecution notice of witnesses in MC and CC - name, address, DOB of witness Alibi witnesses not mentioned here (in defence statement instead) Notice must be given within 10 business days (MC) and 28 days (CC) of prosecution initial disclosure Notice can be amended to add/remove witnesses

Answer 146

Failure to serve/ do so in time/ deficient defence statement- not adequately describing defence or missing alibi witness called at trial/ relying on different defence to statement at trial Adverse inferences drawn - judge warns of this at pre-trial hearing Prosecution/co D can comment on failure without leave of court (except where point of law)- challenge inadequacy, court can require adequate statement Court can't prevent calling witness not mentioned - only sanction is comment/adverse inference No adverse inference in MC as no duty to provide defence statement, but if done, then adverse inferences can be drawn for same reasons as CC Application for specific disclosure can't be made without defence statement No statement - prosecution can't review disclosure in light of defence

Answer 147

Especially in response to defence statement

Answer 148

Reasonable cause to believe that there is prosecution material which should have been disclosed Must have served defence statement + prosecution must have provided further disclosure in light of it Must only request unused material referable to issues set out in defence statement - or rejected Can request hearing too Prosecution has 10 business days to reply to application (in writing) Application is last resort - parties should co-operate outside court

Answer 149

- Defence brings application to stay indictment - continuing case an abuse of process of court - Conviction can be quashed on appeal for being unsafe - Results in delay + imposition of wasted costs for unnecessary hearings/refusal to extend custody time limits - Exclusion of evidence due to unfairness Before formal application, defence should write to prosecution specifying material they seek + make formal application for specific disclosure - legal reps should co-operate

Answer 150

Investigators + prosecutors must pursue all reasonable lines of enquiry If material held by 3rd parties (LA, health/education/financial authorities) might be capable of undermining the prosecution case / assisting defence, prosecutors should take steps to obtain it if reason to believe its relevant If 3rd parties refuse, prosecution can seek summons for material

Answer 151

Prosecution must make this application if it doesn't wish to disclose material if it would cause real risk of serious prejudice to important public interest Court may withhold disclosure where necessary to public interest but ensuring fair trial for D Sensitive Material schedule- investigators state this info- - why sensitive + how sensitive - consequences of disclosing to defence (involvement of 3rd parties) - relevance of material to issues in case - implications for continuing prosecution if material disclosed - if its possible to make disclosure without compromising sensitivity

Answer 152

Elements each party needs to prove to prove their case - establishing guilt/defence Support/undermine witness credibility Prosecution - ingredients of the offence Court then narrows the issues- which elements does the defence agree to, if any- still require proof but not necessarily live evidence

Answer 153

- agreeing a witness statement is true by consent of the parties no challenge to it, if challenged then witness called and challenged orally - agreeing any fact between the parties Written fact signed by both parties in agreement of it - judge/jury takes judicial note of the fact Where facts generally + widely known - no proof required Doctrine of notice - judge takes judicial notice of fact on enquiry - judge looks up answer (jury cannot do) Jurors cannot take notice on personally matters they happen to know but aren't generally known - specific to the case

Answer 154

- Oral evidence given by witness in court - Written evidence a) agreed statements b) admitted facts - Real evidence: objects/things brought to court for inspection (docs) - Direct evidence - witness has direct experience of matter in issue - Circumstantial evidence - facts inferred (train ticket) - a 'view' - juries can visit scene of crime/ leave court to view an object that can't be brought in - their observations become evidence

Answer 155

Relevance- is evidence prove/disprove a fact in issue Irrelevant - inadmissible Relevant - admissible Excluded by exclusionary rule (protect fairness of trial) Weight- tell jury how important the evidence is - if poor quality evidence but important, likely to impact admissibility

Answer 156

MC - bench of magistrates/district judge CC - jury

Answer 157

MC- bench magistrates/ district judge CC - judge

Answer 158

Defendants may prefer trial in CC as jurors don't hear inadmissible evidence (aren't biased)

Answer 159

- Applications for dismissal - Submission of no case to answer - Applications to exclude evidence under s78 PACE - Applications to exclude confessions under s 76 PACE - Applications to exclude evidence under preserved common law - s82.3 PACR - Abuse of process applications

Answer 160

Pre trial application to have charges dismissed Made : - after D send by MC to CC - after D served with evidence of offence - before D arraigned (offence put to D, D pleads guilty/not guilty) Made to CC Judge- can also make oral application- D must give written notice of intention to do so Test: dismissed if evidence insufficient to properly convict D Must take into account all evidence, inferences

Answer 161

During a trial, after prosecution has presented all of its evidence (half time submission) defence can submit that there is no case to answer on one/all charges CC + MC In CC, takes place in absence of jury (if application unsuccessful, they never find out it was made, if successful, foreman enters verdict of not guilty) Prosecution had right to reply to application Galbraith test: no evidence crime committed by D or prosecution evidence at its strongest, is such that a properly directed jury could not properly convict on it If weak evidence- up to tribunal of fact (jury/magistrates) to weigh up verdict not no case to answer No requirement to give reasons for rejection of application

Answer 162

only applies to evidence which the prosecution intends to rely on - not the defendant's evidence

Answer 163

1. accused can't receive a fair hearing 2. unfair to try the accused- continuing offend's court's sense of justice and propriety + undermines public confidence in the criminal justice system stay of proceedings - last resort - permanent remedy (consider if lesser remedy just + proportionate) CC for 1 + 2, MC for 1 (not integrity -> JR application to divisional court Defence has to prove abuse of process on balance of probabilities -> prosecution can't proceed, no conviction, no record for D (not same as not guilty though)

Answer 164

- D coerced/tricked into committing offence - D prosecuted despite unequivocal promise from Prosecutor that D will not be - Police have undermined public confidence - deliberately destroying evidence - Prosecution has manipulated/misused process of the court to deprive a D of protection afforded by law - Prosecution deliberately delayed proceedings for tactical advantage- inordinate/unconscionable delay due to prosecution inefficiency + prejudice caused to defence

Answer 165

Where prejudicial effect outweighs its probative value, court retains discretion to exclude where necessary for a fair trial- only applies to prosecution evidence (never defence evidence) If significant unfairness for D from Co- Defendant's evidence, D can apply to be tried separately Rarely used - s78, 76 wide reaching

Answer 166

Test: whether the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it - including circs it was obtained in (unlawful/unfair/improper- breach of ECHR/PACE/COP) but only exclude if leads to unfairness (bad faith of police in breach) - just because irregularly obtained not fatal - where COP breached (issued under s66 PACE) - codes are admissible in evidence, D can rely on content of code of procedures which should have been followed

Answer 167

A: Stop and search B: Entry, search, seizure C: Detention, treatment + questioning of non-terrorist suspects D: Identification E: Audio recordings of interviews F: Visual recording of interviews with sound G: Arrest H: Detention, Treatment, Questioning of terrorism suspects

Answer 168

right to solicitor/inform s.o. of arrest, consult COP caution before interviewed/on arrest - do not mention sth that you later rely on in court Interview: questioning regarding involvement, at police station Interview delayed only when danger/interference to evidence/others/property, alerting other suspects, hinder recovery of property Appropriate adult for juveniles/vulnerable people

Answer 169

Trial judge has discretion - conduct of police lead to unfairness/injustice - effect of the breach - Court of Appeal won't interfere with judge's s78 exclusion provided a reasonable judge could reach same conclude Can be breach of code but no prejudice to D - fundamental right to legal advice improperly denied - waiver of right to legal advice wasn't voluntary, informed or unequivocal - failure to caution suspect before question - appropriate adult not provided - identification procedures not followed

Answer 170

- Before trial - at commencement of trial - just before prosecution admits evidence which defence wants to exclude If granted -> prosecution fatally weakened (no/insufficient evidence left), so judge wants applications at pre-trial hearing/start of trial (CC- before jury sworn). If argument not heard then, prosecution shouldn't reference disputed evidence in opening speech If matter of less significance- any point during trial Must be done before disputed evidence is taken When point of law is clear from case papers/initial disclosure -> defence should include the point of law in Defence Statement with authorities (skeleton arguments from each for/against) Directions given by CC judge at PTPH on when s78 application heard - case management in MC

Answer 171

Defence addresses court, then prosecution advocate responds CC - dispute on facts, judge can't determine s78 until facts resolved - hear evidence on breach of code etc. before applying law witnesses take special oath - will true answer make... beyond reasonable doubt burden of proof absence of jury in MC- magistrates both fact and law- ruling on admissibility made early for fairness to consider approach/submission of no case to answer (e.g. where confession excluded) significant + substantial breach of code leading to unfairness -> evidence likely to be excluded

Answer 172

Any statement wholly or partly adverse to the person who made it, whether made to a person in authority and whether made in words or otherwise (wide definition) - unequivocal confessions of guilt - mixed statements - partly inculpatory/exculpatory- confessions as partly adverse - nod/sign/gesture dependent on context It was nothing to do with me - wholly exculpatory, not confession

Answer 173

s76(2)(a)- oppression s76(2)(b)- anything said or done which was likely, in the circumstances at the time, to render any confession unreliable in consequence of Not automatic- defence must represent it to the court - but if no defence, court can require prosecution to prove that s76 2a/b doesn't apply (s76.3) Either or both can be used

Answer 174

Confession obtained by oppression + prosecution can't prove it wasn't obtained so beyond reasonable doubt Oppression widely defined- torture, inhuman/degrading treatment, use or threat of violence (ECHR article 3) Oppression given its ordinary dictionary meaning : harsh/wrongful -> implies impropriety from interrogator Consider accused's character + attributes If prosecution proves it wasn't obtained by oppression -> defence can still discredit evidence in cross-examination, reference oppression + unreliability in closing speech

Answer 175

1. Identify thing said/done (causing confession) - trial judge takes into account police actions/words 2. Was what was said/done likely in all circumstances to render a confession unreliable? - objective test 3. Has prosecution proved beyond reasonable doubt that confession wasn't obtained in consequence of thing said/done - common sense question of fact

Answer 176

Positive act- promise/inducement/trick - promise to release someone early from custody if they 'tell all' - promise of bail from station conditional on full confession - threat to arrest suspect's family/partner if they don't cooperate Negative act- omission/failure- no appropriate adult Must come externally from suspect (not their own belief that confessing will get them anything- can't rely on s76(2b) Often breach of PACE CODE C

Answer 177

Hypothetical question - likelihood that any confession would be unreliable in circs prevailing at the time? Not whether untruthful/inaccurate- can be truthful and unreliable Unreliable : cannot be relied on as the truth - deprivation of sleep - failure to caution - no access to legal advice Objective test- all circs No appropriate adult where needed - regardless of deliberate/unknown breach - did the absence of the AA render the confession unreliable?

Answer 178

Question of fact for judge - common sense Defence Counsel acting on D's instructions/evidence - once they represent s76 -> prosecution must prove

Answer 179

Even when confession excluded, this doesn't prevent a) facts discovered as a result of it being relied upon in evidence b) prosecution using part of the confession if necessary to show the speech/writing/expressions of the accused e.g. discovery of body, but prosecution can't suggest that body was found as a result of D's confession- circumvents exclusion

Answer 180

Broader sweep than s76- Article 6 ECHR (right to fair trial)- overall fairness can apply to exclude under both s76 and s78 Codes of Practice important for suspects + police - confession should be timed and signed by maker to confirm accuracy Just because irregularly obtained, not per se inadmissible - only if it has an such an adverse effect on fairness that court ought not to admit - police acting in bad faith

Answer 181

To prove the elements of the offence necessary to establish guilt

Answer 182

Requirement to prove an element of the case to the prescribed standard Prosecution - convince the jury so that they are sure (beyond reasonable doubt) Defence - balance of probabilities

Answer 183

Burden to raise some evidence to satisfy judge (tribunal of law) that matter should be argued before the jury (tribunal of fact) Judge intervenes if burden not discharged with evidence - defence can use 'no case to answer' as matter of law, won't reach jury Not on defence unless active defence - rare - automatism, insanity, diminished responsibility - show medical evidence

Answer 184

Legal burden to prove fact in issue and evidential burden of passing the judge with the same evidence Detach rarely - self defence - some evidence to put issue before jury but no specific standard of proof -> prosecution on notice that the force used was lawful + must disprove self defence in order to show force was unlawful Therefore defence must raise matter with some evidence

Answer 185

Prosecution don't have to predict but if sufficient evidence raised that it is relevant -> burden on prosecution to disprove it beyond reasonable doubt

Answer 186

Judge directs jury that although the defence raised the alibi defence, it is for the prosecution to disprove the alibi

Answer 187

1. Is it relevant (to a fact in issue)? logical 2. Is there an exclusionary rule? (unfair- discretion)- s78 PACE + common law 3. Is there an inclusionary rule? - some evidence inadmissible by its nature

Answer 188

Bad character evidence (previous convictions) generally inadmissible if it doesn't relate to offences now charged (exceptions in bad character gateways s101 CJA) Still consider exclusionary discretion of unfairness

Answer 189

Filer for unfairness 1. s78 PACE- prosecution evidence wrongly obtained obtained through significant and substantial PACE breach (evidence must be of poor quality) Admission would have such an adverse effect on fairness that court ought not to admit it. - searches without authority/ interviews without caution/ denying legal access/ oppression or tricks in interview/ ID procedure not followed 2. Common law- probative value of the evidence outweighed by its prejudicial effect (more harm than good in assisting tribunal of fact) - eavesdropping

Answer 190

1. Instruct Jury as to the reason for the need for such a warning - mistaken witnesses can be convincing 2. Direct Jury to examine circs in which the witness identification was made 3. Remind jury of any specific weaknesses in identification evidence D picked out in ID but maintains that witness mistaken or alleged recognition No Turnbull- presence at scene but D disputes roll in incident

Answer 191

- scientific evidence (footwear, telephone) - multiple IDs by different witnesses (so long as sufficient quality to leave to jury) - D's bad character/ prev. convictions if admissible - D's silence in interview - if proper for adverse inference to be drawn - D's admissions at the scene/ interview/ witness box

Answer 192

1. Quality of ID evidence? ADVOKATE A - amount of time witness observed them D- distance between witness and D V- visibility O- obstructions K- known or seen before A - any reason witness remembered them T - time lapsed from first observation and ID procedure E - error or material discrepancy between first witness description and D's appearance -> if good quality, left for the jury to assess (w/ warning for special need for caution) -> if bad quality 2. Other evidence supporting ID evidence? --> none - judge withdraws case from jury + directs them to acquit --> some - judge lets jury assess weak ID evidence alongside supporting evidence, but each must be strong enough to be safely left to jury - gives Turnbull warning directing how they should assess weight of ID evidence

Answer 193

V rare - D already in dock is prejudicial, no alternative for witness Trial judge retains discretion to order - but must consider if unjust (may not be unjust in alleged recognition)

Answer 194

1. D disputes the identification evidence and 2. the identification evidence is wholly/substantially the only evidence implicating D Could be at scene but D denies participation

Answer 195

If disputed facts remain unresolved, conviction likely to be quashed as not proven beyond reasonable doubt

Answer 196

Advance notification : defence skeleton argument at least 10 business days before trial, prosecution response 5 business days after Timing : s76 is preliminary issue Voir dire: Application under s76 + 78 and disputed evidence -> magistrates hear evidence + decide applications as preliminary issue Application only under s78 -> magistrates have discretion to hear evidence in usual way and decide on admissibility later

Answer 197

Advance notification - Defence statement compulsory, raises issue, at PTPH, judge orders defence to serve skeleton argument of s76/78 arguments, prosecution to respond, and when arguments will be heard Timing : pre-trial hearing specifically for this purpose or just prior to opening case to jury (in their absence but with D) Voir dire: required where application made under s76 (or s76 and s78) and the evidence founding application is disputed

Answer 198

No need for voir dire if agreed factual basis - make submissions instead -> ruling in open court

Answer 199

Prosecution cannot refer to it at trial If only real evidence -> no evidence against D -> not guilty

Answer 200

Judge deems it safe. Prosecution can refer to it Defence can still mention conditions it was made under (oppression, unreliability, unfairness) -> jury then decides if this is fact they can rely upon

Answer 201

Only needed where D pleads not guilty + guilt determinable by hearing evidence D can elect to be tried in Crown Court D can be sent from MC as CC's sentencing stronger Indictable only: murder, attempted murder, manslaughter, causing GBH with intent, robbery

Answer 202

Not same as authorised court officer in MC - not legally qualified - select jury and takes verdict - arraigns D

Answer 203

Circuit Judges - Your Honour - Violet, black, red Recorders - Your Honour - barristers/solicitor part-time judges - black robes High Court Judges - My Lord/My Lady - occasional for most serious CC cases - red robes = red judges

Answer 204

- arbiter of law - makes rulings on admissibility (in absence of jury) - directs jury on matters of law (who proves what) - can direct jury to find D not guilty (successful no case to answer) but cannot direct to find guilty

Answer 205

- sole arbiter of fact - decides on D's guilt - must accept + apply judge's directions on law - must reach its decision only based on evidence heard in court : -> determines whether + to what extent evidence should be believed -> decides whether to draw inferences from evidence/ D's silence

Answer 206

1. Legal arguments 2. Jury selection + swearing in 3. Judge's preliminary instructions to jury 4. Prosecution opening speech 5. Defence identifies matters in issue 6. Prosecution evidence 7. Conclusion of Prosecution case 8. Submission of no case to answer 9. Right to give evidence + adverse inferences 10. Defence opening speech 11. Defence evidence 12. Legal discussions 13. Closing speeches 14. Judge's summing up 15. Jury bailiffs sworn + Jury retires 16. Verdict

Answer 207

CC cases actively managed prior to trial so it runs smoothly Sometimes pre-trial hearings w/ trial judge specifically for dealing with legal arguments Before/after the jury is sworn Voir dire always w/o jury - factual disputes 'matter or law arisen' -> jury retires Prior to trial often: - bad character applications - hearsay applications - applications to exclude evidence (s76/78) - abuse of process applications

Answer 208

Jury panel of 16 -> 12 chosen at random -> enter jury box Before jury oath/affirmation, D is told they have right to object to any juror -> Each member sworn in

Answer 209

Judge tells jury : - evidence they decide the trial on is only presented in court (don't discuss with anyone else who doesn't have evidence) - Matters of law decided by judge alone so they will be asked to retire

Answer 210

Focused on facts + issues of case- backgrounds, disputed areas, prosecution's basis for guilt + offences charged What counts the D faces (jury given counts) avoid emotive language

Answer 211

Judge can invite the defence to confirm/clarify any issues

Answer 212

Prosecution evidence served on defence at outset Defence witnesses included in PTPH form - Defence will only question prosecution witness if some disagreement with their witness statement (if both agree, P can read out P's statements- no live evidence- judge explains to jury that this is agreed evidence) Prosecution starts by calling all prosecution witnesses that the defence asked to be called -> prosecutor takes witness through evidence in chief -> witness cross-examined by defence D's record of taped interview (ROTI) edited + given to jury + read aloud by P (if no comment interview, no ROTI but P presents agreed written admissions of the questions in interview so jury can decide whether to draw inference from D's silence ) After this Prosecution case ends

Answer 213

Prosecution case concluded after prosecution evidence heard

Answer 214

After prosecution evidence , D's application or judge themselves may direct jury to acquit on the ground that prosecution evidence is insufficient for any reasonable court to properly convict (must wait until prosecutor has has opportunity to make representations) Half-time submission In accordance with Galbraith test (properly directed jury cannot properly convict)

Answer 215

After prosecution's case closed, judge asks defence if D is going to give evidence : Yes -> case proceeds No -> judge asks if D has been advised that if D chooses not to do so/ having been sworn, without good cause refuses to answer, the jury may draw inferences from their failure s35 CJPOA (yes, advised -> case proceeds (written record that D has received advice and freely chosen not to testify, no -> adjourned for advice)

Answer 216

After P evidence/ rejected submission of no case Right to defence opening speech rarely used (1 or more defence witnesses, other than D irl, called for factual, not character evidence)

Answer 217

if D represented + chooses to give evidence -> Defence Advocate calls D + takes them through evidence in chief Other Ds + Prosecution then cross examine them Any other defence witnesses examined in chief -> cross-examined -> re-examined in same order

Answer 218

After defence closes common for jury to be sent out to allow judge + prosecution + defence to consider matters of law which should be raised in judge's summing up Submissions made on all legal matters arisen -> forms part of judge's directions on law to jury Ensures appeal less likely if convicted

Answer 219

Prosecution can make closing speech if - D legally represented or - has called at least 1 defence witness for factual evidence - where court permits Prosecution closing speech first, then defence always entitled to take closing speech

Answer 220

2 parts : law + facts Tailored to each case Prosecution + defence alert to any errors in summing up + draw them to judge's attention Judge directs jury that judge is arbiter of law- jury must accept any directions on law + jury is arbiter of fact, must reach own conclusion on evidence - burden + standard of proof - ingredients of offence + defences - written route to verdict - other relevant legal directions - electing a foreman (deliver verdict) - unanimity - judge can only accept this, if majority then further direction needed - separate considerations of counts + defendants if needed - reminder of issues + nature & evidence of each one (not in detail) - balanced account of points raised by parties - outstanding directions

Answer 221

Court ushers become jury bailiffs on oath/affirmation Jury bailiffs swear to keep jury in private + convenient place + not allow anyone to speak to them (including themselves) without leave of court other than to ask if they've reached verdict Jury -> retirement room to deliberate on verdict , entitled to ask judge questions by passing note to jury bailiff (judge can give further directions)

Answer 222

Jury can give majority verdict after they have deliberated for at least 2 hours (in practice minimum 2 hours, 10 minutes - accounting for time spent not deliberating) Majority verdict shouldn't be accepted if deliberation time unreasonable for nature + complexity of case Multiple Ds - jury can be out for says before thinking of majority direction

Answer 223

Once jury reached verdict, inform jury bailiff Court reassembles, foreman asked to stand if no majority direction, court clerk asks foreman if jury have reached a verdict on which they are all agreed: yes - what is your verdict? guilty/not guilty Jury can convict of lesser offence alternative to count on indictment - s20 v s18(intent) Judge thanks jury Guilty D -> sentenced immediately or if presentence report/psychiatric report, case adjourned Not guilty D- acquitted so discharged, free to leave if no other matters

Criminal 1 Flashcards

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