Criminal Flashcards

Question

Define "Oblique Intention"

Answer 1

When the consequence of D's actions was not the intention of D but a side effect that D knew was an inevitable result of their actions. The test is: As a result of D's actions, was the death or serious bodily harm: 1. A virtual certainty?; and 2. D knew it was a virtual certainty?

Answer 2

1. Was D aware of the risk? 2. in the circumstances known to D at the time, was it unreasonable for him to take that risk?

Answer 3

The MR, or malice, is deemed to be transferred to the other victim or result provided that D has that MR in the first place and commits the AR. E.g., John hits Peter but actually wanted to hit Steve = transferred malice

Answer 4

If D accidentally commits an actus reus and then forms the mens rea at a later time, the AR is seen as a continuing act and therefore coincides with the MR when it is actually formed.

Answer 5

If D tries to commit a crime and at that time has the intention to do so, but fails to commit it, and then subsequently commits the crime without the MR by mistake/without realising - this is seen as one continuous transaction, meaning that the AR/MR coincided, even if they are not together at exactly the same time.

Answer 6

The main perpetrator of the offence (committed the AR).

Answer 7

Someone not directly responsible (did not commit the AR) but still had a part to play. If found liable, they will be guilty of the same crime as the principal.

Answer 8

If a person helps or encourages a principal either before or at the time of the offence is commited, they could be liable.

Answer 9

AR: D must do one of the below: 1. Aid - Help/assist at the time or before the offence 2. Abet - Encourage at the time of the offence, D must be present at the time the offence is being committed. Merely being presented is enough. Failure to stop a principal from committing an offence also counts. 3. Counsel - Giving advice prior to the commission of a crime. No need to be present. 4. Procure - Making sure something happens and taking steps to ensure it does.

Answer 10

D must have both of the below: 1. Intention to aid, abet, counsel, or procure P to commit one of a range of offences within D's contemplation 2. Knowledge/contemplation of a range of possible crimes (which are within D's contemplation), one of which P actually commits within that range

Answer 11

Must be at a sufficiently early stage They must communicate the withdrawal unequivocally to the parties involved Taking reasonable steps to avert the commission of the crime makes withdrawal more likely to be successful

Answer 12

When D has not actually committed the full crime but has made steps towards committing it.

Answer 13

AR - Act which is more than merely preparatory MR - Intention of full offence S.1(1) Criminal Attempts Act 1981

Answer 14

More than merely preparatory - D has actually tried to commit the full offence, rather than just taken the steps to get himself ready to do so

Answer 15

D must intend to bring the consequences required for the full offence - oblique intent can count. Conditional Intent (intention to commit the offence subject to certain conditions) counts. Recklessness does not count.

Answer 16

D can be guilty of attempting to commit an offence even though it is factually impossible. Two types of impossibility: 1. Impossibility through Inadequacy - The crime is feasible but D's method would not work 2. Impossibility in Fact - D thinks they are trying to commit a crime, but in fact they are not because of reality

Answer 17

Can be used by the defence as evidence that they did not form the MR Because of their intoxication, D could not have formed intention or foresaw the risk of harm.

Answer 18

Voluntarily Intoxicated - Presumption that D foresaw the risk Involuntarily Intoxicated - Check whether D did in fact foresee the risk when drunk

Answer 19

If D is involuntarily intoxicated (e.g., spiked): self-defence can be used if D thought that the use of force was reasonable in all the circumstances as he believed them to be, and this is the case even if D is mistaken Voluntary Intoxication: D cannot rely on a mistaken belief to use force

Answer 20

1. D genuinely believes it was necessary to act in defence - facing imminent attack 2. D's response was reasonable and proportionate force used

Answer 21

Was the level of force reasonable? 1. Non-Householder Cases: Was the use of force objectively reasonable (proportionate) given the facts the defendant subjectively believed them to be? (Reasonable Man) 2. Householder Cases - Use of force cannot be grossly disproportionate

Answer 22

Summary Only - The least serious offence. Only dealt with in the Magistrates' Court. Covers most road traffic offences (e.g., speeding) Either Way - Either a summary or an indictable offence depending on the seriousness of the crime. Can be dealt with in either MC or Crown Court (CC). E.g., theft, fraud, assault, or criminal damage Indictable Only - Most serious offences. Can only be dealt with in CC. E.g., grevious bodily harm (GBH), homicide offences, aggravated burglary, robbery, arson, aggravated criminal damage

Answer 23

In the Magistrates' Court. All cases start in the MC. The MC will then send the case straight to the Crown Court.

Answer 24

1. Investigation, Arrest, Detention and Interview - Police pass the results of their investigation onto the CPS who determine whether to charge D. The custody officer will decide whether to grant bail. 2. Charge and Police Bail 3. First Appearance at MC - If D pleads guilty, MC will determine if they have the power to sentence 4. Allocation - MC review sentencing powers to see if they can try D. If not, they go to CC. MC also deals with bail. Even if MC does have the power to try, D can still choose to go to CC. 5. Trial at MC or (if allocated to CC) PTPH at CC. If D pleads not guilty, trial by jury - bail can be granted by the CC before full trial.

Answer 25

To deal with cases justly. Solicitors have a duty at all times to abide by and carry out the overriding objective - they are an officer of the court, and their duties owed to it override the duties owed to their client.

Answer 26

- Do not misuse or abuse evidence - Comply with court orders and advise clients to do so - Refuse to act for a client if they lie or mislead the court unless the client tells the court - Solicitor must not mislead the court or work with someone (including the client) to mislead the court - Do not place themselves in contempt of court - Do not bribe witnesses - Ensure the facts are presented fairly - Draw the court's attention to relevant authorities even if they are adverse to his/her case - Conduct cases in a way that does not waste the court's time and allows cases to be conducted as efficiently and economically as possible - Remember that the duty of confidentiality to the client lasts even after instructions have been terminated

Answer 27

A solicitor can act where there is no conflict of interest or a significant risk of a conflict of interest (and the substantially common interest exception does not apply). Para 6.2 Code - You cannot act where there is a conflict of interest or a significant risk of such conflict. This is unless there is a 'substantially common interest' between the parties - this will apply when you have co-defendants pursuing the same defence, but will fail if the interests diverge. Solicitor would need to assess whether the co-defendants will give evidence against each other. If you have worked for both but choose to continue acting for only one, you have confidential information on them, you have a conflict between paras 6.3 (keeping client information confidential) and 6.4 (disclosing all relevant information to the client). Unless you get consent from the previous defendant you acted for to disclose, you must cease working for both to avoid this conflict.

Answer 28

The solicitor should speak with the client directly. They should ask the client if they wish for the solicitor to act for them, should say that the client does not have to hire them. They should get written authorisation from the client to act.

Answer 29

The solicitor can still act for the client, provided that the client does not mislead the court. The client should say nothing and put the prosecution to proof. If the client does mislead the court, the solicitor should cease to act. They cannot tell the court why because of their duty of confidentiality. The solicitor should advise the client of the risk of committing perjury if the client gives misleading information to the client and that they will get a more lenient sentence if they plead guilty.

Answer 30

The solicitor should advise that the client pleads guilty to get a more lenient sentence. However, the solicitor should never TELL the client to plead guilty.

Answer 31

Para 6.4 of the Code - A solicitor must disclose all relevant information about the matter to the client, but there are exceptions. The situation will likely arise when the solicitor is at the police station and they have received disclosure from the police on the client's charge. They have to tell the client everything they received from the police unless there are legal restrictions imposed for national security reasons or the prevention of crime, or they believe it will cause serious harm to the client or another.

Answer 32

The solicitor cannot disclose this to the court because of client confidentiality; they should note it in their internal client file.

Answer 33

No. Under Rule 2.7 of the Code, you need to inform the court of any relevant case law or statutory information, or procedural irregularities, that arise in a case, even if that is adverse to your case. But this duty of disclosure does not relate to evidence - if the prosecution has missed a key bit of evidence, that does not need to be disclosed.

Answer 34

The custody officer needs to decide whether to release the suspect, release on bail, or detain to gather evidence to charge. The first question for the custody officer - is there sufficient evidence to proceed to charge? If so, the person will be released on bail or kept in detention until the CPS has reviewed the evidence to decide to charge. If not, the suspect must be: - Released - Released on pre-charge bail by the custody officer (ordered to appear before the MC: gives CPS time to review and decide to charge) - Detained if the custody officer has reasonable grounds for believing that the detention is necessary to secure evidence or obtain evidence by further questioning. This is to get sufficient evidence for the CPS to decide whether to charge or not.

Answer 35

1. Authorise the detention of the suspect 2. Open a custody record which will contain a written record of the time of arrest, arrival at the police station, time of detention, the suspect's charge and the suspect's personal details 3. Inform the detainee of the reason for their arrest 4. Inform the detainee of the reason for their detention 5. Advise the detainee of their rights 6. Arrange for the detainee to be searched (and seize items which could be used to injure others/damage property or that are evidence)

Answer 36

All the grounds for delay must apply and the declay cannot be for more than 36 hours from the "relevant time" (= time of arrival at the police station if arrested and then brought to station or time of arrest if attendance was voluntary and then they were arrested at the police station). Grounds for Delay: - Indictable Offence: The suspect must be in detention for an offence that can be tried at CC; - Rank of Inspector: Authority to grant the delay can only be given by someone of at least the rank of inspector; and - Reasonable Grounds: The inspector must have reasonable grounds that the exercise of the right will lead to any of: - Interference with/harm to evidence connect with an indictable offence; - Interference/harm to other people; - Alerting of other people suspected of committing an indictable offence but not yet arrested for it; - Hinder the recovery of property; or - The suspect has benefited from their criminal conduct and informing someone of the arrest will hinder the recovery of such property.

Answer 37

All the grounds for delay must apply and the delay cannot be for more than 36 hours from the relevant time. Grounds for Delay: - Indictable Offence - Superintendent at least (higher than inspector) only can authorise delay. - Reasonable Grounds - The superintendent has reasonable grounds to believe the exercise of the right will lead to any of: - Interference with/harm to evidence connected with an indictable offence - Interference/harm to other people - Alerting of other people suspected of committing an indictable offence but not yet arrested for it - Hinder the recovery of property; or - The suspect has benefitted from their criminal conduct and informing the solicitor will hinder the recovery of such property.

Answer 38

The client's detention must be reviewed by the "review officer" (an officer of at least the rank of inspector not involved in the case) to ensure that the grounds for detention still exist. The review must take place no more than 6 hours after the custody officer first authorised the detention, then periodically every 9 hours after that first review. At every review, the client must be reminded of the rights to: - Free legal advice; and - Make representations to the police (unless the client is unfit/asleep at the time of the review). The review can be conducted by telephone if the review officer cannot be there.

Answer 39

The police may want to detain the suspect for a longer period of time in order to get sufficient evidence to charge. To do so, they must comply with the time limits and procedures under PACE Code C. The detention clock is the time limits that the police can keep a suspect detained without charge - up to 24 hours, beyond 24 hours etc. Failure to comply with the rules under Code C makes the detention unlawful.

Answer 40

The police do not need to do anything. They can keep a suspect in detention without charge for up to 24 hours from the time of arrival at the police station (if arrested and then brought). If they want to go beyond 24 hours then they would need to take further steps.

Answer 41

Beyond 24 hours, the police can only extend for another 12 hours (up to a total of 36 hours from time of arrival at the police station - if arrested then brought). To do this: - It must be exercised before the expiry of the first 24 hours - Indictable Offence (this includes either way offence) - A superintendent must authorise - Grounds for Detention must still exist (preserve evidence OR obtain further evidence by questioning) - The continuing investigation must be conducted by the police diligently and expeditiously

Answer 42

The police can make an application to the Magistrates' Court to extend detention for another 36 hours on top of the 36 hours the subject has already been there (a max of 72 hours from arrival at the police station if arrested then brought). The MC will issue a warrant authorising further detention. The following conditions must apply: - It must be exercised before the expiry of the first 36 hours - Indictable Offence (includes either way offences) - A superintendent must authorise the warrant application - Grounds for Detention must still exist (preserve evidence OR obtain further evidence by questioning) - The continuing investigation must be conducted by the police diligently and expeditiously

Answer 43

The police must make another application to the Magistrates' Court. If the client has been detained for 72 hours, the police can apply for another 24 hours (up to a maximum of 96 hours from time of arrival). A suspect can only be detained at a police station without charge for a maximum of 96 hours. If the police can make a second application to the MC, they can apply to detain the client for a further 36 hours, but the client can only be detained for a max of 96 hours, so if the client has been detained for 72 hours, the police can only apply for 24 hours. The same process as for making the first application applies.

Answer 44

Video Evidence - Showing the witness video footage of the suspect and other individuals similar to the suspect to see if they can pick them out ID Parade - At least eight people are paraded in front of the eye-witness to see if they can pick out the suspect Group Identification - The witness picks the suspect out of an informal group Confrontation - The witness is brought face to face with the suspect at a police station ID from Photographs - The eyewitness is shown 12 photos containing pictures of similar people, one of which will be suspect the eyewtiness previously identified Eyewitness ID Procedure must be used if: - A witness has identified or purports to identify a suspect - A witness thinks they can identify/there is a reasonable chance they can identify the suspect - The suspect disputes being the person the witness claims to have seen - It is practicable and would serve a useful purpose in proving or disproving whether the suspect committed an offence - Can also be held if the investigating officer considers it would be useful

Answer 45

- The purpose of the procedure - Their entitlement to free legal advice - The procedure that is being followed and details of the procedure - If the suspect refuses to take part, it may be used as evidence against them and the police may covertly identify the suspect - If the suspect has altered their appearance, this may be given as evidence in trial - Photos and videos may be taken of the ID procedure - Details of the suspect given to the police by the witness will be provided to the suspect and their solicitor

Answer 46

They must organise and arrange the ID procedures and ensure they comply with PACE Code D. They can delegate and instruct officers to hold the procedures - but the ID offier has ultimate responsibility for them. When delegating, the ID officer must still supervise and be on hand for advice. The ID officer can consult the investigation officer about the most appropriate ID procedure to use. Any ID procedure must be done as soon as practicable. The ID officer will also give the suspect the notice before the eyewitness ID procedure.

Answer 47

Video Identification should be used, unless it is not practicable or another method is more practicable. The ID officer may also determine that a group ID procedure is more practicable than a video identification. The ID officer and the investigation officer must consult each other about which method is the most appropriate to use. A suspect can refuse to take part in a procedure - they must give reasons. If so, the ID officer can invite them to use another one.

Answer 48

- Responsibility of the ID officer to conduct - The images must include at least 8 other suspects physically similar to the suspect - The suspect or solicitor must be given a reasonable opportunity to see the images before they are used. The suspect can object - The suspect's solicitor can be present at the ID if permitted on request by the ID officer - One eyewitness views the imagery at a time. They are told that they can view it as many times as they like and freeze the pictures. Must view at least twice. After the eyewitness has confirmed they have viewed enough, they will be asked to identify the suspect - A full record should be made of those who participated and what was said by the eyewitness

Answer 49

The suspect must be given a reasonable opportunity to have their solicitor or a friend present. Immediately before the ID parade, the suspect must be cautioned. ID parade must consist of at least 8 people (including the suspect) of similar physical characteristics to the suspect. Before the parade, the suspect is given the opportunity to confirm they are happy to do it and make objections. Members of the parade file in one at a time. The witness is told the suspect may or may not be present that they should not make a decision until they have looked at each parade member at least twice. The witness can ask a member to speak, move, or adopt a specific posture (but the witness should be reminded the parade is based on appearance only). The witness can also ask a member to remove a physical obstruction. If the witness makes an identification after the ID parade has ended, the suspect and solicitor shall be informed. The suspect is invited to make comments on the parade. A video recording must normally be taken of the ID parade. A record of the parade and its conduct must be made.

Answer 50

Controlled - When an individual who is not an eyewitness is selected by the investigating officer and shown media to see if they recognise anyone Uncontrolled - When the police publish media to see if the public can recognise the suspect (e.g., posting on social media)

Answer 51

Any searches or photographs must be done by an officer of the same sex. Reasonable force can be used if no consent has been given for a search or photograph. If no consent has been given to search, authority must be given by an officer of at least the rank of inspector. When a person is searched, examined or photographed, they must be informed of the: - Purpose of the search, examination, or photograph; - Grounds on which the relevant authority, if applicable, has been given; AND - Purposes for which the photograph may be used, disclosed, or retained This information must be given before the search or examination commences or the photograph is taken, except if the photograph is to be taken covertly.

Answer 52

- The identity of the officer carrying out the search, examination or taking the photograph - The purpose of the search, examination or photograph and the outcome - The detainee's consent to the search, examination, or photograph, or the reason the person was searched, examined, or photographed without consent - The giving of any authority to act without consent, the grounds for giving it and the authorising officer - If force is used when searching, examining, or taking a photograph a record shall be made of the circumstances and those present

Answer 53

The samples can be taken with or without the suspect's consent, and reasonable force can be used if the suspect has not consented. - Samples can only be taken without consent if the suspect has been arrested for a recordable offence - Before the fingerprints or impressions are taken, the suspect, if given without consent, must be informed of the reason, the power under which they are taken, that their fingerprints/impressions may be searched against others, and that they may be retained for a time. - If given consent, they only need to be informed that their data is searchable and may be retained. - A full record must be written up stating that the suspect was informed as necessary and whether force was used.

Answer 54

Blood, urine, semen, any other tissue fluid and pubic hair Dental Impression Swab taken from a person's genitals or orifice

Answer 55

- The suspect must consent to the intimate sample being taken - no exceptions. - An officer of at least the rank of inspector must authorise the sample being taken. - The inspector must have reasonable grounds for suspecting the suspect's involvement in the offence AND for believing that the sample will confirm or disprove his involvement. - Authority and consent must be given in writing. - The suspect must be warned that a failure to consent may be given as evidence. - The suspect must be informed of the reason, the suspected offence, the authorisation given, and that the smaple may be examined and subject to a speculative search. - Full record made.

Answer 56

Sample of hair other than pubic hair Sample of a nail or under a nail A swab from any part of a human body other than an intimate area Saliva Skin Impression

Answer 57

The non-intimate sample can be taken with or without consent. It can only be taken without consent if the suspect has been arrested for a recordable offence.

Answer 58

- The interview must be under caution. - The suspect must be given an opportunity to explain any significant earlier statement or silence made at the time of arrest or before the interview in the presence of a police officer. - The suspect/solicitor will be given sufficient information so that they can understand the nature of the offence and why they are a suspect. - It must be done at the police station. - Prior to the interview, the suspect must be reminded of their right to legal advice and that the interview can be delayed for them to get legal advice. - An accurate record must be made of each interview. - If the suspect has exercised their right to have a suspect present, then the solicitor will also be present at the interview. - The officer conducting the interview must not "oppress" the suspect during the interview or induce the suspect to admit their guilt. - During a continuous period of 24 hours during which time the suspect is detained at the police station, if the police conduct multiple or long interviews the suspect should be given at least 8 hours of uninterrupted rest (usually at night). The custody officer should make sure that the suspect is in a fit state to be interviewed. Breaks should also be given during the interview, including meal times, at two hour intervals.

Answer 59

No - the police can force a suspect to be interviewd by questioning them anywhere in the police station (as long as they suspect is cautioned). Police can conduct the interview in the cell.

Answer 60

The solicitor is there to protect the legal rights of their client. The solicitor must not be passive but must be active - fighting their client's corner and protecting them against difficult or searching police questioning. They must also before the interview explain to the client what the interview is, that it will be recorded, that the client can ask for the interview to be stopped to get further advice from the solicitor and that the solicitor will be present to protect the client's interests.

Answer 61

They can only be interviewed with an appropriate adult present. Who can be an AA? For a juvenile: - Parent or Guardian - Representative of a Local Authority if the child is in care - Social Worker - Any other responsible adult 18 or over who is not associated with the police in any way (not an officer, employed, or contracted by the police). For a vulnerable client: - Relative or Guardian - A person responsible for their care - Someone experienced in dealing with vulnerable persons or a responsible adult over 18 who is not associated with the police in any way.

Answer 62

AA must take an active role in making sure the police and juvenile/vulnerable client understand each other, making sure the police act appropriately and assisting where necessary. They must also ensure the juvenile or vulnerable client understands what is happening to them and why and to safeguard their welfare and interests.

Answer 63

They are not just an observer and they are there to: - Advise the juvenile/vulnerable person being interviewed; - Observe whether the interview is being conducted properly and fairly; and - Help the police to communicate with the interviewee. AA also has several rights, including: - Being told why the client is being held. - Speak in private with the person being interviewed. - See the custody record. - Intervene in an interview if they feel it necessary.

Answer 64

A negative impression the court or jury can draw in relation to D's case if D fails to speak or account for something when questioned and then brings it up at trial as a defence. Two Limitations: 1. Cannot be drawn if D did not have access to legal advice at the time of being questioned. 2. Cannot be used solely to convict a defendant.

Answer 65

If the defendant: - Is under caution (meaning is being interviewed) before being charged; - The questions which were not answered were posed in an attempt to discover whether or by whom the offence had been committed and relate to criminal proceedings only; - Fails to mention any facts which he then relies on in his defence in court; and - In the circumstances at the time of the interview he could reasonably have been expected to mention those facts. This means it must have been unreasonable to have been silent during the interview.

Answer 66

Think DEAD: D - Disclosure: If the police have not given sufficent disclosure to D's solicitor = reasonable to be silent E - Evidence: If there is little to no evidence of D committing the crime at the time of the evidence = reasonable to be silent (to avoid self-incrimination) A - Argent (from case R v Argent): Assess the condition of D. How old are they? Mental capacity? Drunk? Ill? Tired? Have they received insufficient information? Have they acted reasonably on legal advice they have received? D - Defence: If D has facts that hw knows about at the time of the interview which refute the case against him, he should mention them at the interview. If he does not and relies on them at trial, this can cause an adverse inference UNLESS they are new facts.

Answer 67

If after arrest the suspect: 1. Is found to have an object (in his possession), substance or mark on him or his clothes or footwear. 2. The officer reasonably believes the object, substance or mark (or mark on the object) connects him to the offence. 3. The officer asks him to explain the object, substance, or mark during the interview (under caution and in plain ordinary language). 4. D fails to do so. An adverse inference can be drawn if the "special warning" is given to D at the time of the officer's questioning.

Answer 68

If after arrest the suspect: 1. Was found at a place where the offence is alleged to have been committed and at about the same time. 2. The officer reasonably believes their presence at the place and the timing are due to them taking part in the offence. 3. The officer informs the suspect this is what he believes and asks the suspect to account for why they were there at that time during the interview. 4. The suspect fails to do so. An adverse inference can be drawn if the "special warning" is given to D at the time of the officer's questioning.

Answer 69

To tell the suspect: - What offence is being investigated - What fact they are being asked to account for (meaning what object, substance, mark etc) - That the fact may be due to them taking part in the offence - That the court can draw an adverse inference if they do not say anything - That a record is being made of the questioning which can be used as evidence in a trial

Answer 70

Bail is an order to appear before the court. It means D is released subject to their duty to surrender to the court at an appointed time and place. Granted where there is a gap in court proceedings - after the MC first hearing, after the allocation hearing, after the PTPH, if there is a break between conviction and trial etc. Custody officers can also grant bail after arrest or charge, with an order to appear before the MC for first hearing.

Answer 71

There is always (subject to exceptions) a presumption of bail pre-conviction. If D is convicted, there is no right/presumption of bail (unless there is an adjournment for a pre-sentence report or community order breach). Bail may still be granted, but it is not as of right and is less likely. The general right of bail can be died, meaning that the presumption can be rebutted on the basis that an exception applies. It is up to the prosecution to prove and persuade the court that these exceptions apply so that D is not granted bail. There are also circumstances when pre-conviction there is no right of bail: if D has been charged with or convicted of a "serious offence" and has a previous conviction of such an offence (and if that conviction was manslaughter was imprisoned) or D has been charged with murder.

Answer 72

1. Substantial Grounds Exceptions: - Fail to surrender to custody; - Commit an offence while on bail; - Interfere with witnesses; or - Otherwise obstruct the course of justice. 2. D committed an Indictable or Either Way offence whilst on bail. 3. D breached conditions of bail or failed to surrender to custody whilst on bail.

Answer 73

Domestic Abuse Risk and "Other Grounds". Domestic Abuse Risk = Substantial grounds for believing that D on bail would commit domestic abuse against a spouse, partner, or family member. When considering the likelihood of this, the court must consider the same factors (strength of evidence, associations, etc.) Other Grounds: - D should be kept in custody for his own protection - D is a serving prisoner - It is not practicable to obtain sufficient information to determine bail - Where a case is adjourned for inquiries or a report, it is impracticable to complete inquiries or make a report without keeping D in custody

Answer 74

1. D has been charged with or convicted of a serious offence + has a previous convictions of a serious offence + if that offence was manslaughter, was imprisoned. 2. D has been charged with murder. Serious Offence = - Murder or attempted murder - Rape or attempted rape - Manslaughter - Serious sexual offences

Answer 75

Only a Crown Court judge can grant bail. D is only granted bail if the court believes there is no significant risk of D committing while on bail an offence which would or would be likely to cause physical or mental injury to any person.

Answer 76

There is still a general right to bail for a con-convicted defendant, but the exceptions the CPS must prove are slightly different. Only if there is a real prospect of a custodial sentence: - D has failed to surrender to custody having been granted bail and there is a fear they will do that again; - D committed an offence on bail and there are substantial grounds for believing they would do it again; and - D has been arrested for failure to surrender to custody or breach of bail conditions and there are substantial grounds for believing they would fail to surrender to custody, commit an offence on bail, interfere with witnesses or otherwise obstruct the course of justice. Substantial grounds for believing D would commit domestic abuse on bail. Other factors: D's own protection; insufficient information or D is a serving prisoner.

Answer 77

Any bail condition must be justified and necessary. They must deal with a concern that the prosecution/court has (the risk if D was granted unconditional bail). All conditions must therefore be relevant, proportionate, and enforceable. More than one condition can attach to the bail.

Answer 78

A guarantee given by a parent or guardian that the defendant will surrender to custody at the appointed time. This person, therefore, promises to pay up if they do not. The person must have a form of control over the individual - parent or guardian.

Answer 79

Money paid to the court by D or anyone else - like a deposit. If D does answer bail, the money is returned.

Answer 80

Residence - D must stay in a certain location which will be checked by the police and can be tagged. Exclusion - D cannot go into certain areas. Curfews - D is not allowed out after a certain time. Bail Hostels - D may have to stay at a special hostel if they do not have an address or they cannot go home as they have committed domestic violence. Surrender of Passport. Reporting to the Police Station on a regular basis. Restrictions on Communication with a Witness - Can cover more than just not seeing them, can also cover messaging them.

Answer 81

- The defence's solicitor checks if the prosecution opposes bail. If not, the defence solicitor informs the court. - If the CPS does, it applies for D to be remanded in custody and will give the court reasons why (including previous convictions). - The defence solicitor makes the application for bail. D can call witnesses and suggest conditions. - The court will then decide. If bail is refused, a Full Argument Certificate is granted and reasons given.

Answer 82

Two Choices: 1. Make another application for bail to the MC on the same facts (if the case continues in the MC). 2. Apply straight to the Crown Court. If the MC refuses again after the first application and the case continues in the MC, D cannot make another full application to the MC unless new facts arise. He can, however, apply to the CC. If the case goes to the CC, D would just appeal bail at the CC. To make the application to the CC, D's solicitor must apply in writing (using a form), send the form to the MC and CC and serve it on the CPS at least two business days before the hearing. The Full Argument Certificate, the notice of application and details of any previous convictions need to be sent to CC. If the CC refuses, D will not get bail.

Answer 83

Yes. - The defendant has the right of appeal to the Crown Court. - The CC has the powers to remove or vary these conditions. - The defendant can also (if the case continues in the MC) appeal again to the MC.

Answer 84

Yes, if D has been charged with an imprisonable offence. - CPS can appeal to the Crown Court. - Oral notice of the appeal must be given before D is released from custody and served on the court and D within 2 hours of the conclusion of the MC's first hearing. - The CC hearing must be heard within 2 business days of the appeal notice.

Answer 85

D can be arrested but it is not a criminal offence. The individual is brought before the MC within 24 hours of arrest and is dealt with by the court. The magistrates can remand the person in custody or impose stricter bail conditions if they think the individual will abscond on bail or has broken or will break the condition(s) of bail imposed on them. The right to bail still exists but it is subject to the exceptions of "substantial grounds" and breach of bail conditions while on bail.

Answer 86

D has committed an offence unless they had reasonable cause and surrended when reasonably practicable to do so. - The burden is on D to prove there was a reasonable cause if they do abscond. - If D does abscond, he will be arrested by the police for trial of that offence. It is unlikely he will be granted bail again and will be remanded in custody until the case is concluded. - D is liable for imprisonment.

Answer 87

If D pleads guilty, the prosecution will inform MC of the facts of the case and D's solicitor will enter a plea in mitigation. MC will either sentence there and then or adjourn to sentence later. Bail will be determined before sentencing. If not guilty, a trial date will be set. Case management directions are issued by MC. Bail will be determined before trial.

Answer 88

- Obtain a representation order if the client is of limited means. - Take a statement from the client. - Obtain details of the prosecution's case (disclosure). - Advise client on plea. - If either way offence, inform the client that the case may be held in the MC or CC (and that the client has a choice if they make a not-guilty plea). - Make a bail application.

Answer 89

1. The charge is read to D - Court will check D's solicitor has received adequate disclosure from the CPS. 2. D is informed that they can plead guilty or not guilty. 3. D is informed that if they plead guilty, the court will convict and move onto sentencing, or they may pass it onto the CC if the MC's sentencing powers are inadequate. The MC will also inform D they will receive credit for an early guilty plea. 4. D then pleads: - Guilty: CPS outline facts to magistrates and states any previous convictions; D enters plea in mitigation. MC go onto sentencing: they will determine if they sentence or send D to CC for sentencing; or - Not Guilty: MC proceeds to allocation.

Answer 90

For low-value shoplifting (meaning theft of goods from a shop with a maximum value of £200, or if D is accused of two or more shoplifting offences, the aggregate value of the goods stolen is of a max £200 value): Tried summarily (i.e., in the MC straightaway) UNLESS: - D is 18 or over; and - Elects to be tried in the Crown Court. In which case, D is sent to the Crown Court for trial.

Answer 91

1. The prosecution informs MC of the facts and if D has any previous convictions. 2. MC considers representations from the prosecution and defence. 3. MC considers if they have adequate sentencing powers: they consult the Allocation Guideline and the Sentencing Guidelines. They consider the maximum sentence the offence could have as put forward by the prosecution. Note - The presumption is trial in the MC. 4. If the CC is more appropriate, the case is sent to the CC. 5. If MC, D is given a choice to go to CC or stay in MC. D can request an indication of sentence if tried in MC. If after indication D pleads guilty, court is bound.

Answer 92

Advantages: + Less expensive (legal costs will be less and D does not have to pay prosecution costs) + Less time-consuming (trial will be quicker) + Less severe sentence (MC can only impose a 12 month jail sentence (for a single offence) but can give an unlimited fine). Note - MC can commit D for sentencing at CC Disadvantages: - Evidence: MCs hear all evidence even if D has successfully excluded it - Higher conviction rate in MC - Unlimited fining powers

Answer 93

Advantages: + Higher acquittal rates - A jury may be more sympathetic + Voir Dire process - means the judge can decide to exclude evidence from the jury which may be disadvantageous to D (this is more likely to happen in CC) + More time to prepare for trial Disadvantages: - More severe sentences - More expensive: legal costs are higher and D may have to pay prosecution costs - Slower: trial lasts longer

Answer 94

- Indictable Only offence - The MC can try the case, but D chooses to be tried in the Crown Court - S.22(A) MCA 1980 applies. - An adult is charged with an either way offence which is related to an indictable offence or a notice offence (under S.51(B) and S.51(C)) (which is going to the Crown Court for trial), they will be sent to the CC for trial in respect of that either way offence. - An adult is charged jointly with a co-defendant for an either way offence and that co-defendant has been sent to the Crown Court for trial. - An adult is charged jointly with a related either way offence with a youth defendant who is sent to the Crown Court for trial. - Notice given under S.51(B) and S.51(C).

Answer 95

S.51(B) - Serious or complex fraud cases where notice has been given by the Director of Public Prosecutions under S.51(B) that the case should be tried in the Crown Court because of the complexity of the case. S.51(C) - Evidence is sufficient to put a person on trial for an offence and a child will be a witness. Notice is served on the court under S.51(C) that for the sake of the welfare of the child, the case should be heard in the Crown Court. Used for offences such as assault, threat of injury to a person, child cruelty, sexual offences, false imprisonment, kidnapping, and child abduction.

Answer 96

Standard Case Management Directions - MC will fix a date for trial - The directions give both sides 8 weeks (or 14 if expert evidence is required) to prepare for trial. The defendant's solicitors will need to conduct their case analysis (to create their defence) and obtain any additional evidence in that time.

Answer 97

Any material (evidence) the CPS is not using (known as "unused material"), but which might reasonably be considered to undermine the prosecution's case. The CPS has a duty to disclose such unused material. Unused material is disclosed after the defendant makes a not guilty plea or after the sending hearing if the case is going to the Crown Court. The CPS will send the defendant's solicitor a list setting out the unused material that will or will not be disclosed to the defence, along with the documents. The solicitor can challenge the contents of the list.

Answer 98

"Sensitive" items of evidence that: - Relate to matters of security or intelligence; and/or - Relate to the identity of undercover police officers or informants; and/or - Relate to surveillance techniques used by the police; and/or - Relate to a child witness. And which satisfy the "public interest immunity test". It is up to the court to determine if the public interest immunity test is satisfied. The CPS applies to court for permission not to disclose such evidence.

Answer 99

Used in the Crown Court. Sets out the CPS's strategy and approach to disclosure. - Produced by the CPS, they will also get input from the investigating officer. - Served at the same time as the unused material.

Answer 100

All evidence the prosecution intend to rely on and use at trial. This is so that the defendant has sufficient information to make their plea (and their solicitor can advise them on the most appropriate plea to make).

Answer 101

Contains the nature of the defence and the particular defences on which the defendant will rely, the facts the defendant disputes, the facts and legal authorities the defendant is seeking to rely on (and the legal authorities the CPS is using that it disputes) and the details of any alibi witness. - Rare in the MC - It is optional to give one. Mandatory in the CC. In CC, it must served within 28 days after disclosure of unused material by the CPS. - The defendant should sign a copy of the statement before it is served. - D will also need to serve a witness notice with the defence statement on the CPS and the court giving the details of any witnesses they will be calling (name, address, and date of birth) or any inofrmation that can help identify such witness. This notice is mandatory in the CC and MC; in the MC, if there is no defence statement, it is served separately within 14 days of the CPS' initial disclosure.

Answer 102

Review their initial disclosure of unused material. The CPS should see if any material now needs to be disclosed because, based on the defence statement, it harms the prosecution's case. If the CPS fail to do this, D can apply for a court order forcing them to do so. NOTE - The duty of disclosure on the CPS is ongoing - if any new relevant evidence comes to light, they should disclose it to the defence.

Answer 103

Used for Indictable Offences. The MC sends D to the CC. The magistrates will set a date for the Plea and Trial Preparation Hearing at the Crown Court, or the date for a preliminary hearing at the Crown Court where necessary. The magistrates will remand D in custody or grant bail. They will also issue standard case management directions unless a preliminary hearing is to take place.

Answer 104

- There are specific case management issues that need resolving (it is a serious or complex case); - D is under 18; - The trial is likely to last over 4 weeks or it is desirable to set an early trial date; or - There is likely to be a guilty plea, in which case D will be sentenced at the preliminary hearing.

Answer 105

A hearing held at the Crown Court where D enters their plea ("arraignment") and the CC can issue extra directions for trial. Must take place within 28 days of the sending hearing where there is no preliminary hearing. The indictment is read to D and they enter their plea. D can ask for an indication of sentence at the PTPH (if facts are agreed). If the judge gives an indication and D agrees, this is binding on the judge. If D pleads guilty, he can be sentenced then and there or the court can adjourn for sentencing at a later date. If D pleads not guilty, the CC will determine if extra case management directions need issuing. A trial date is set, D is remanded in custody or bailed.

Answer 106

The burden of proof is on the prosecution to prove their case. Beyond a reasonable doubt.

Answer 107

The burden to provide sufficient evidence for the judge to put a case or defence to the jury. Applies to both the defence (if the defence raises a defence that requires evidence) and the prosecution (if the defence make a submission of no case to answer). NOTE - If the defence raises a defence on the agreed facts, it is up to CPS to disprove it beyond reasonable doubt.

Answer 108

All evidence which is sufficiently relevant to the facts in issue is admissible. This is subject to the exclusionary rules (e.g., on hearsay). If an exclusionary rule applies, it will not be used no matter the relevancy. Evidence is relevant to the facts if it is able to prove or disprove a fact or makes a fact more or less probable.

Answer 109

Hearsay is a representation of fact or opinion made by a person other than in oral evidence in the proceedings in question when tendered as evidence of any matter stated by that representation. Includes reading out witness statements when the witness is not there and a business document.

Answer 110

3 stage test: 1. What is the relevant fact that the party calling the evidence is seeking to prove? 2. Is there a statement of that matter or fact in the communication (is the evidence of someone saying something, or reporting someone saying something about the relevant facts?)? If yes, 3. Did the person making the communication intend the recipient should believe that matter and act upon it as true? If yes, it is hearsay.

Answer 111

1. It is allowed uner the Criminal Justice Act 2003 (the gateways); 2. By agreement of all the parties to the proceedings; or 3. Where the court is satisfied it is in the interests of justice. The third ground gives the court wide discretion to admit hearsay evidence - must have regard to several factors; including the value of the statement, what other evidence has been given, the circumstances in which the statement was made and the reliability of the statement and the giver of the statement.

Answer 112

- Unavailable Witness - Business Documents - Statements prepared for use in criminal proceedings where the witness is unavailable or the statement was given so long ago they cannot remember - Previous Inconsistent Statements - Previous Consistent Witness Statements - Res Gestae (statements made in the act) - Confession (of a co-accused to co-D, or to another police officer which the police officer reports at trial) - Common Enterprise (words said during the committing of a crime) - Public Information (e.g., maps or dates of birth) - Expert Opinion

Answer 113

Think DIALS Dead Incapacitated - Mentally or physically Away - Abroad and unfeasible to bring back Lost - Unable to locate despite reasonable efforts Scared - The statement can then only be used if it is in the interests of justice. The person seeking to use the evidence must prove one of these reasons.

Answer 114

If: - Relevant to a matter in the proceedings; - The document was created or received by a person making the statement during their job or course of trade, business, or profession; - That person has personal knowledge of the matters being spoken about; and - The information was received during the course of trade or job.

Answer 115

It can be admitted provided that the person who made the statement is unavailable (dead, missing, lost, etc.) or the person cannot be expected to remember any of the matters dealt with in the statement because it was such a long time ago.

Answer 116

- Those made when someone is really emotionally overpowered by the crime itself to the extent that the statement is unlikely to be made up. - Statements accompanying an act which can only be properly understood if the statement is admitted. - Statements relating to a physical or mental state (of the person making the statement).

Answer 117

Evidence that would have been used against the witness regarding their credibility if they were available at court, and any evidence that could have been used under cross-examination, can be admitted to challenge the hearsay given by that witness.

Answer 118

Depends on the kind of hearsay being admitted. If you are admitting hearsay under the interests of justice test, because a witness is unavailable, the evidence is multiple hearsay, or it is a document prepared for criminal proceedings - then notice must be given to the other party and to the court of the intention to use such hearsay evidence. For any other hearsay evidence other than the above (e.g., res gestae) no notice is required, and the evidence can just be used at trial.

Answer 119

Send notice to the other side and the court. If D opposes the use of hearsay, they must send notice to the CPS and the court within 10 working days of the CPS' service of notice, service of the hearsay evidence or D's not guilty plea, whichever is later. If the CPS oppose the use of the hearsay, they must send notice to the defence and the court within 10 working days of the defence's service of notice, service of the hearsay evidence or D's not guilty plea, whichever is later.

Answer 120

Both previous convictions and evidence of any misconduct. Very broad and includes any reprehensible or bad behaviour, even if it did not result in a criminal conviction. NOTE - The misconduct must be separate, past convictions.

Answer 121

a. All parties to the proceedings agree to the evidence being admissible. b. The evidence is used/introduced by D himself or given in answer to a question when being cross-examined and he intended to say it. c. It is important explanatory evidence (only CPS can use this). d. It is relevant to an important matter in issue between D and the prosecution. (Only the prosecution can rely on this) e. It has subtantial probative value (meaning it can prove or disprove something) in relation to an important matter in issue between a defendant and co-defendant. (only D can use this) f. It is evidence to correct a false impression given by D. (only CPS can use this) g. D has made an attack on another person's character (CPS only).

Answer 122

CPS must give notice to the defendant and the court: - 20 working days in the MC; or - 10 working days in the CC, after D pleads not guilty. A prescribed form is used, with a list of the previous convictions. D can apply to the court for such evidence to be excluded, must do so within 10 working days of receipt of notice from the CPS. The application must also be sent to the CPS.

Answer 123

Must satisfy one of three gateways: 1. It must be important explanatory evidence; or 2. It has substantive probative value in relation to a matter which: - Is a matter in issue in the proceedings, and - Is of substantial importance in the context of the case as a whole; or 3. All parties to the proceedings agree to the evidence being admissible.

Answer 124

Notice must be served on the other side and court. For D, the deadline is 10 working days after disclosure of unused material by the CPS. A prescribed form is used. The other party can make an application to exclude such evidence and must serve the application on the other party; the deadline for both is 10 working days of receiving the application.

Answer 125

1. Oppression = The use of torture, inhumane or degrading treatment caused the confession. Must be a causal link - but for the oppression, the confession would not have been made. 2. Unreliability = The confession was obtained as a consequence of things said or done which renders the confession unreliable. There must be a causal link between the confession and the thing said or done. Usually means that something was said or done by the police which led to D giving the confession, rather than D genuinely admitting guilt, e.g., blackmail or bribing.

Answer 126

A breach of PACE by the police could cause a confession and render it unreliable. The court can exclude the confession if as a result of the breach it will have an adverse effect on the fairness of the proceedings. There must be a causal link between the breach and the confession AND the breach must be significant and substantial.

Answer 127

Using the "voir dire" procedure - a trial within a trial. CC - the jury is not present during a voir dire. The burden is on the CPS to prove the confession is admissible. CPS will call witnesses (such as the interviewing officer). No requirement for D to call witnesses. Judge or Magistrates will make the final decision. NOTE - Voir Dire is usually used if the confession is trying to be excluded under S.76 PACE

Answer 128

When there is visual ID evidence given by a witness and: a. The prosecution's evidence depeonds wholly or substantially on that ID evidence; and b. The defence disputes the identification by the ID evidence. The judge in the CC will need to assess the strength of the ID evidence.

Answer 129

if the judge thinks the ID evidence is usuable (meaning either good or poor but supported by other evidence), they must give a Turnbull warning of the need for caution to the jury before they convict the accused in reliance on the correctness of the identification.

Answer 130

1. The judge must tell the jury the reason for the warning: the witness may be mistaken even if they are convincing. 2. The judge must instruct the jury to consider the circumstances in which the identification was made (factors such as time of day, whether it was foggy or rainy, how long the witness saw D etc). 3. The judge must remind the jury of any specific weaknesses in the ID evidence. 4. If the ID evidence is poor but supported by other evidence, the judge must point out to the jury what that other evidence is.

Answer 131

Evidence can be excluded by the court if it appears to the court that, having regard to all the circumstances, to admit the evidence would cause an adverse effect on the fairness of the proceedings.

Answer 132

1. Case is read out by the court. D is identified, allegation is read to them, asked to confirm their not-guilty plea. Admissibility of evidence can also be dealt with. 2. CPS opening speech. 3. CPS case. CPS calls witnesses and examination-in-chief. Defence cross-examines. CPS can then re-examine. 4. Voir Dire - for confession evidence? 5. No case to answer raised by D? - R v Galbraith 6. D's case. D gives evidences, then D examination in chief of their witnesses. CPS cross-examines, D can then re-examine. 7. Closing Speeches. 8. Verdict.

Answer 133

1. Judge deals with preliminary legal arguments (evidence). 2. Jury selected and sworn in. 3. Indictment - Allegations read out to D; D confirms not-guilty plea. 4. CPS Opening Speech - Judge may also ask D to summarise case 5. CPS case. - Examination in Chief - Cross Examination - Re-examine CPS closes case. 6. Voir dire may be used to see if confession evidence is admissible - no jury 7. D can submit no case to answer - R v Galbraith 8. D's case - D makes opening speech, D gives evidence and calls witness, CPS cross examines, D re-examines. 9. Closing Speeches. 10. Verdict.

Answer 134

Competence = Whether a witness is allowed to give evidence for D or P Compellability = If a witness is allowed to give evidence, can they be forced to do so? Consider: 1. The status of the witness 2. The offence D is charged with

Answer 135

An ordinary witness is competent and compellable for both the defence and prosecution.

Answer 136

Competent for the Defence but not compellable. Neither competent nor compellable for the prosecution. An adverse inference can be drawn by the court if D fails to give evidence (S.35 CJPO 1994) if the judge gives the jury the required directions and warning.

Answer 137

Competent and compellable for the defence. Competent but NOT compellable for the prosecution UNLESS the offence is one of: - Assault - Injury or threat to the spouse or child under 16 - Sexual Offence against a child under 16 - (Including attempts of all the above)

Answer 138

Competent but not compellable by the defence UNLESS they become an ordinary witness by ceasing to be co-D, e.g., the case against him is discontinued or he pleads guilty. Competent and Compellable by the CPS if they become an ordinary witness by pleading guilty.

Answer 139

Certain witnesses are eligible for special measures and they will be granted by the judge/magistrates if they will maximise the quality of the witness' evidence. - Witness under 18 - Presumed that video examination-in-chief and live link cross-examination will be used, but witness can choose otherwise. The judge can also grant a pre-recorded cross-examination (rare). - Witness has a physical or mental disability and as a result quality of evidence will likely be diminished. - Intimidated Witness - Witness is a victim of a sexual offence (in which case pre-recorded video evidence will automatically apply), slavery, domestic abuse or a violent offence. - Witness suffers from fear and distress and so quality of evidence will be diminished.

Answer 140

CPS applies via a prescribed form no more than 20 (MC) or 10 (CC) working days after D pleads not guilty. If D opposes, they must notify the court and the CPS 10 working days from the application.

Answer 141

Screens - To shield the witness from D Live Link - Live video link to the court Removal of Wigs and Gowns by judges and barristers Visually Recorded Interview Pre-trial Visually Recorded Cross-Examination (can only be used if the visually recorded interview has been allowed by the court) Examination of the Witness through an Intermediary - To assist the witness in court. Can explain questions or answers to the witness Aids to Communication - e.g., sign language

Answer 142

A question that directs a witness toward a particular conclusion, by way of being overly suggestive. Leading questions are not allowed to be used for examination-in-chief, unless the questions are on well-established facts, or the judge believes the questions are in the interests of justice. They can however be used when conducting a cross-examination.

Answer 143

- Suggestive Insinuation - Planting a time and place in a witness' mind by being too specific and direct. - Too many Variables - asking D a question that is packed with too much information to dissect. - Glossing over Important Details - This is when the prosecution asks a series of questions without allowing the witness to insert important details. - Asserting Facts - Where the prosecution makes an assertion, then presents it to the witness only to confirm it is true.

Answer 144

Magistrates - Sir/Madam or Your Worship Circuit Judge - Your Honour

Answer 145

A hearing without a jury after D has pleaded guilty, during which the judge or magistrates will determine a dispute on the facts between D and CPS. - If D has plead guilty on a basis of plea (the facts) that are different to those of the CPS. - The magistrates or judge must accept D's version of events or hold a Newton Hearing. This will be without the jury in the CC. - During the hearing, witnesses can be examined in chief and re-examined. - The court will make a judgment on the correct factual version and proceed to sentencing.

Answer 146

There is no maximum. The Crown Court's sentencing powers are governed by the offence. The CC has no restriction on its sentencing powers apart from the maximum for the relevant offence, e.g., a life sentence for murder.

Answer 147

12 months custody for an either way offence; or an unlimited fine.

Answer 148

The purposes of sentencing and the Sentencing Guidelines. - The punishment of offenders. - The reduction of crime (including by deterrence). - Reform and rehabilitation of offenders. - Protection of the Public. - Making reparations of offenders to persons affected by their offences. Sentencing Act 2020 and the Sentencing Code - The courts must follow the Sentencing Guidelines unless it is contrary to the interests of justice to do so. The Sentencing Guidelines set out a general approach to sentencing and a specific approach for each offence.

Answer 149

Must be obtained when considering a custodial sentence or community order unless unnecessary. A PSR is always necessary when it would help assess the offender's dangerousness and risk of harm, the nature and the causes of the offender's behaviour, the offender's personal circumstances and any factors that may be helpful to the court in considering the offender's suitability for different sentences or requirements. It is likely necessary if the offender belongs to one of the following cohorts: a young adult (18-25); female; from an ethnic minority background, faith minority background, or minority cultural background; pregnant or 12 months post-natal; sole or primary carer for dependant relatives; transgender; addiction issues; chronic physical or mental illness; learning disabilities or brain damage; or the offender is a victim of domestic abuse, slavery or trafficking.

Answer 150

1. Determine offence category and starting point and category range based on culpability and harm. 2. Hear representations from the CPS and defence. The CPS will summarise the case, set out any relevant previous convictions, statutory aggravating and mitigating factors + any other relevant info. 3. Apply the statutory aggravating and mitigating factors to increase or reduce the starting point and come up with a provisional sentence. Adjust lower if D assisted the CPS. 4. Make a reduction for guilty plea - Max 1/3 5. Credit for time spent on remand in custody. 6. Hand down sentence. Give reasons. Court may also get a pre-sentence report.

Answer 151

- The offender's culpability in committing the offence and any harm caused. - Offending whilst already on bail. - Racial or religious aggravation. - Assaults on emergency workers. - Hostility to a person's disability or sexual orientation. - Previous convictions PROVIDED THAT they are relevant and not too long ago. - If the offence was pre-meditated. - A weapon (for certain offences such as assault). - Whether the attack was a group attack. - Whether the victim was vulnerable. - Terrorist connection. - Whether drugs were involved, in particular, whether they were being supplied to children.

Answer 152

The Offence - May be minor, any injuries may be minor, and the sums of money involved were small. D's personal circumstances - Community standard, work, family (i.e., whether they have dependants), health, education, and drug treatment. D has assisted the prosecution. Early Guilty Plea - The earlier the plea is made in the sentence the more lenient the court will be - the later it is said, the less so. Time spent on Remand - Any time D has already been in custody (i.e., not on bail but in detention awaiting trial) must be deducted from any custodial sentence. Equality and Diversity Factors - The personal circumstances and background of D (difficult/deprived background and discrimination). Has D got a job or training lined up? If D is pregnant has a child 2 or under. Custody likely not appropriate in such circumstances.

Answer 153

Delivered by the Defendant's advocate after conviction (during the sentencing hearing). This is to persuade the court to give D the most lenient sentence possible for the offence. A plea is usually structured in 4 parts: 1. Likely Sentence given by the court - the standard sentence. 2. The offence - D's solicitor will then move on to the offence itself - the crime D committed. They try and persuade the court the offence is not that serious - they minimise aggravating factors and emphasise mitigating factors. 3. The offender - D's solicitor will emphasise any personal circumstances of the defendant that can reduce the sentence (e.g., family ties or dependants). 4. Suggested Sentence - D's solicitor gives a suggested sentence that will be lower than the sentence in 1.

Answer 154

The court should impose prison sentences for each offence. The prison sentences run either "concurrently" or "consecutively". Concurrently means the sentence run at the same time (so the length of time in prison is not lengthened by the separate offences). This is used where the ofneces arise out of the same transaction, e.g., multiple deaths from the single act of driving on the pavement. Consecutively means each prison sentence follows one after the other. Used when D has: - Used violence to resist arrest for another offence. - Used violence to make good his escape. - Committed an offence on bail granted for another offence. When sentencing for more than one offence, the court must have in mind the totality principle, in accordance with the Totality Guideline: The overall sentence should reflect the overall harm and culpability and must be just and proportionate.

Answer 155

Where the offence is so serious that neither a fine nor a community sentence is enough. Only if the threshold is passed will D go to jail. CUSTODY IS A LAST RESORT: - Court must still consider if a community order would be more appropriate. - Court also takes into account any dependants of D. - If D is a carer and has dependants and is on the cusp of the custody threshold, custody should NOT be imposed. - Court should consider if suspended sentence should be given. If a custodial sentence is given, it should be the shortest time possible commensurate to the offence.

Answer 156

If the offender is given a custodial sentence in CC of between 14 days and 2 years (for 18-20 year olds, 21 days - 2 years) (or 14 days - 12 months in the MC) then the judge/magistrates may choose to suspend the sentence for between 6 months and up to two years. The period of suspension is known as the 'operational period'. The offender does not go to prison but during the operational period, they must comply with requirements given by the court, such as community work or curfews.

Answer 157

NOT USED when the custodial sentence is more than 2 years. NOT USED where D is a danger to the public, custody is the only appropriate punishment, or D has a poor history of compliance with court orders.

Answer 158

For breach of terms of the order, they get a warning. If they breach it again within 12 months, they will be re-sentenced and the court can impose the original custodial sentence, issue a fine, or impose further community requirements. If they commit an offence, they get a sentence for that offence plus the original custodial term.

Answer 159

A sentence that punishes as awell as imposing requirements that will rehabilitate and and make up for harm caused. The offence must be serious enough not to be punished by only a fine.

Answer 160

- Unpaid Work: for a 12 month period; max 300 hours. - Participation in Certain Activities up to a max of 60 days. - Programme Requirement: e.g., a programme for paedophiles or sex offenders. - Ban on Certain Activities, such as driving or alcohol. - Curfew: max 20 hours in any single day and 112 hours in any week. Cannot be imposed for more than 2 years. - Exclusions from Certain Areas, such as football grounds, pubs, and schools. Max 2 years. - Residence Requirement: the offender must live in a certain area/house for a certain amount of time. - Psychiatric Treatment: but must get the offender's consent to this. - Rehab. - Tagging. - Ban on Foreign Travel: max 12 months. - Drug and Alcohol Treatment/Rehab: must get the offender's consent. May include a drug testing and/or alcohol abstinence and monitoring requirement.

Answer 161

The offender is given an initial warning: if this fails and there is a second breach within 12 months, the offender returns to court is and resentenced. The court considers the extent of the breach - if D wilfully and persistently breached the order, a custodial sentence is imposed. If it is lower than this, the order can be extended or made more stringent.

Answer 162

D can make an application straight to the MC under s.142 MCA 1980. Where MC has made an obvious mistake, instead of lodging an appeal, the court can correct the mistake itself. It can vary or rescind a sentence or direct that the case be re-heard (not possible when D has pleaded guilty).

Answer 163

D must lodge a notice of appeal within 15 working days from the date of sentence to the clerk of the MC. No need to give any grounds. Only D can appeal the sentence and/or conviction (conviction can only be appealed against if not guilty plea entered). The judge and two justices hear the appeal at CC. It is treated "de novo", meaning the case is heard all over again at the CC, and new evidence can be called. CC can reverse MC's judgment, affirm or vary it. Their sentencing powers are limited to those of the MC but they can increase a sentence if possible (to a max of 12 months).

Answer 164

D/CPS must lodge a notice of appeal within 21 days from the date of sentence or conviction to the clerk of the MC. The grounds must be stated. - Appeal by way of case stated only. This means that there has been an error of law, or the sentence given was beyond the MC's powers. - Two or more judges hear the legal argument. This is a legal argument ONLY - no new evidence is introduced and the facts are not debated. Note - You can also appeal from CC to the High Court if the CC was sitting in an appellate capacity.

Answer 165

Whether appealing from the MC to the High Court or the CC to the High Court, you can then go on to appeal at the UKSC. To appeal to the Supreme Court: - The High Court must certify that a point of law of general public importance is involved in the decision and the point is one which ought to be considered by the Supreme Court; and - Permission (known as leave) to appeal to the SC must be obtained from the HC or, if refused, from the SC.

Answer 166

Application must be made within 28 days of conviction or sentence. Permission is required from CoA unless granted by CC (Certificate for Fitness of Appeal). A single judge considers whether leave of appeal should be granted (no hearing). If they judge not, D can lodge another application within 10 working days. The appeal hearing will then take place in open court with two or three judges.

Answer 167

D can appeal against conviction only if the conviction is "unsafe", which means D's right to a fair trial has been breached. - Unsafe convictions are usually because of an error made by the trial judge - failure to direct the jury appropriately, no Turnbull Warning given, admitting evidence incorrectly etc. - It can also be if fresh evidence has come to light which casts doubt on D's guilt. D can appeal against a sentence on the grounds that it is not commensurate to the offence - in other words, it is too excessive, wrong in principle, or wrong in law.

Answer 168

- Quash Conviction - Dismiss the Appeal and Confirm CC's Decision - Find D guilty of an Alternate Offence - Allow part of the Appeal - Order a Retrial - Oppose any sentence within the powers of CC

Answer 169

If a sentence given by CC is deemed to be too lenient by the prosecution, the Attorney-General can refer the sentence to the CoA if granted leave by the CoA. This is rare. Evidential rulings by the trial judge which terminated the trial or seriously weakened the prosecution's case. This is to quash the acquittal and have a retrial or for the trial to continue.

Answer 170

Appeals can be made on points of law only if: - Either court (CoA/UKSC) has consented to it; AND - CoA has certified that there is a point of law of general public importance.

Answer 171

A specialist court for children aged 10 to 17. NOTE - A child below 10 cannot commit a crime. YC is less formal than adult courts - wigs and gowns are not worn, no jury or public are present, D are called by their first name, and only three magistrates (one of whom must be male and one female) or one district judge preside over the proceedings. All participants are on the same level, rather than there being a raised bench for the justices. Legal language is not used - witness promises to give truthful evidence rather than swears to. 'Finding of Guilt' rather than conviction.

Answer 172

Children under 16 must attend with a parent or guardian, unless the court is satisfied that it would be unreasonable to require such attendance. Aged 16 to 17, the court has a discretion to choose whether to make an order requiring the presence of a parent or guardian. The parent or guardian must play an active role in the proceedings.

Answer 173

When the first appearance must be in the MC. This will be when: - The young D is jointly charged with an adult. - The young D is charged with aiding and abetting an adult to commit a crime or vice versa. - The young D is charged with an offence which arises out of or is connected with a charge faced by an adult. - The custody officer who arrested the child refuses bail, and there is no youth court available. The child will first go to the magistrates, who will decide on bail, and then to the youth court for trial once available.

Answer 174

The young D is either: - Charged with murder or manslaughter; or - Charged with a firearms or weapon-related offence with a mandatory minimum sentence. No PBV at Youth Court - The court sends young D straight to the CC for arraignment.

Answer 175

If a young D is charged with a grave crime (sexual/firearm offence) and the YC considers that there is a real prospect they will get a detention order in excess of 2 years, they will be sent to the CC for trial or committed for sentence at CC. - There is a strong presumption of a YC trial or sentence. - It will be very rare for a child under 15 to be sent to the CC for trial. Particularly the case for offenders under 12 and first-time offenders aged 12 to 14. - The YC can commit D for sentence after trial. This strengthens the presumption of a YC trial. - The YC can hear representations from the defence and CPS on the appropriate court. - If D pleads guilty, the YC can commit him for sentence at the CC if the sentence will exceed their powers.

Answer 176

D will be sent to CC for trial or sentence if: - Young D is charged with a specific offence + - There is a significant risk to the public of serious harm caused by D comitting further offences - + A custodial term of at least 4 years would be imposed. Again, strong presumption of YC at trial. General Approach is a YC trial with committal for sentence at CC. When assessing whether D is a "significant risk", a pre-sentence report must be obtained.

Answer 177

If it is necessary in the interests of justice. Again, strong presumption of YC trial, especially because YC can commit for sentence at CC. If the MC do not send young defendant for trial at CC, they will take a plea. If the young D pleads not guilty, they are very likely sent to the YC for trial. If guilty, the MC check if their sentencing powers are adequare; again, very likely they will be remitted to the YC for sentence.

Answer 178

Check whether the adult pleads guilty or not guilty then check young D's plea. Joint Charge - YD and AD are jointly charged, and the AD pleads guilty: - If YD pleads not guilty, MC or YC can try them, but likely YC. - If YD pleads guilty, MC will remit to YC for sentence if MC's sentencing powers are inadequate. Joint Charge - YD and AD are jointly charged and AD pleads not guilty: - If YD pleads not guilty, MC MUST try them. - If YD pleads guilty, MC will remit to YC for sentence if MC's sentencing powers are inadequate. Aiding and Abetting/Connected Offences - YD charged with aiding and abetting AD or AD charged with aiding and abetting YD or both charged with connected offences: - If both YD and AD plead not guilty, MC can try the YD or remit to YC for trial. - If AD pleads guilty, MC will remit the YD for trial in YC. - If YD pleads guilty or is convicted, MC will remit to YC for sentence if MC's sentencing powers are inadequate.

Answer 179

YC must consider the main element of the youth justice system: to stop children from re-offending. YC must follow the Sentencing Children and Young People - Definitive Guidelines.

Answer 180

Made if D pleads guilty. Must be made where D pleads guilty to an offence that has a possible custodial sentence and has never committed an offence to date, but can be made even if D is a repeat offender. Referral Order = A community order under which the child is 'referred' to a community panel that will agree with the child on a contract of work that must be undertaken, which will last between 3 and 12 months. The work is regularly reviewed by the panel.

Answer 181

Only used where the offence is so serious a fine or community sentence is insufficient. The court should also consider first whether a YRO is sufficient. Also, the court must have received a pre-sentence report that states that custody is a possible sentencing option. - The child spends the first half of the order in custody and the second half during community service. - A lot of time is spent in training and rehab to prevent re-offending. - It can only be set for a minimum of 4 months and a maximum of 24 months. - Can only be imposed on a child between 12 to 14 years old if they are serial offenders, and it cannot be imposed on a child under 12. - During the period of the order, D spends half in detention, and the other half in their local area under strict supervision.

Answer 182

A community sentence within which certain requirements and targets are set for the child to complete. - A fine can be imposed for breaching the order. - The sentence must set a time within which the requirements are to be completed - max time for this is 3 years. E.g., unpaid work requirement, activity/skill requirement, programme/attendance centre requirement, curfew requirement, tagging.

Criminal Flashcards

(208 cards)