Criminal Law and Practice

Question 1

What does time in custody refer to?

Answer 1

Time in custody refers to the period a person spends detained in a police station or prison, either before a trial or as part of a sentence after a conviction.
- Information can be found in the conviction record

Question 2

What is a custodial sentence?

Answer 2

It is a judicial punishment involving mandatory confinement, typically in prison

Question 3

What are the Sentencing Guidelines?

Answer 3

The Sentencing Council creates Sentencing Guidelines and there are Sentencing Guidelines for most offences. The court must follow the relevant guidelines, unless it would be contrary to the interests of justice to do so. The guidelines determine what the appropriate sentence is for a criminal offence.

1. First the court considers the category of the offence
2. Then the category range to reach the sentence

Question 4

What does it mean if a sentence is ‘at large’ at appeal?

Answer 4

This means the sentence could stay the same, be reduced, or be increased. This will depend on the court’s assessment of the appropriate sentence

• If the sentence is being appealed from magistrates’ court to Crown Court, the sentence imposed by the Crown Court cannot exceed the powers of the magistrates’ court

Question 5

What does a competent witness mean?

Answer 5

It means that you can be lawfully called to testify
- A competent witness is generally compellable

Question 6

What is privilege against self-incrimination?

Answer 6

Courts uphold a witness’ right (other than the defendant) to refuse to answer questions/disclose documents if it would make them liable to incriminate themselves

• Does not apply to cases in civil court

Question 7

What are special measures?

Answer 7

Arrangements put in place to assist a witness in giving evidence before court

Question 8

Leading vs non-leading question

Answer 8

Leading q - yes/no answer and answer is implied in the question itself (cross-examination)

Non-leading q - open-ended. Examination in chief should be non-leading

Question 9

Suspended sentence of imprisonment

Answer 9

This is where the offence crosses the custody threshold (so serious…) but the defendant does not go to prison immediately and if they fulfil certain criteria, they can avoid prison entirely.

The sentence is essentially served in the community, instead of prison

1. Custodial term = how long a custodial term defendant would have received if they had not been suspended
2. Operational period: how long the custodial term is suspended for (between six months - 2 years)
   - If the defendant commits any offence during this period, some or all of the suspended sentence can be activated
   - the court must activate the custodial sentence, unless it would be unjust to do so

Question 10

What is a Newton hearing?

Answer 10

A hearing held where a defendant pleads guilty on a basis that is different to the prosecution’s version and which would have a material difference on the sentence. The hearing is held to decide the factual basis upon which to pass the sentence

The court decides whether the prosecution has provided its version of the facts beyond reasonable doubt
- Yes = sentenced on P’s facts and lose some of reduction for guilty plea
- No = sentenced on D version of facts

Question 11

When does sentencing take place?

Answer 11

Immediately after a guilty plea or guilty verdict

• Sentencing hearing
• Can be adjourned if the court needs more time

Question 12

What is a community order?

Answer 12

• Offender must be over 18 and offence must be punishable with imprisonment
• Max length 3 years
• Must have at least one requirement (programme, curfew…)

If breach community order:
- Defendant is brought back to court

Question 13

Burden of proof of self-defence

Answer 13

Once the defendant has successfully raised the question of self-defence (evidential burden)
- The prosecution must prove beyond reasonable doubt that the defendant was not acting in lawful self-defence

Question 14

What is the test for dishonesty?

Answer 14

i) what was the defendant’s knowledge and belief as to the facts (subjective);
ii) given that knowledge and those beliefs, was the defendant dishonest by the standards of the ordinary, decent person (objective)

Question 15

Explanation of how a defence works

Answer 15

For a defendant to be found criminally liable, they must have the actus reus, the mens rea and no valid defence

• If a valid and complete defence exists, the defendant is not criminally liable

Question 16

What is s78 PACE 1984 application to exclude prosecution evidence?

Answer 16

The court may refuse to allow evidence if it is satisfied that the admission of evidence will have such an adverse effect on the fairness of proceedings that the court ought not to admit it

• Applies to prosecution evidence only
• Not a strict burden of proof as the court has discretion
• It is for the accused to persuade the court that the prosecution evidence ought to be excluded under s78 on ‘the balance of probabilities’

Question 17

How should the jury be directed in relation to bad character evidence?

Answer 17

• Male clear that weight placed on bad character evidence is a matter for the jury
• Warned not to place too much reliance on it
• Should be directed that:
  a) should not conclude D was guilty or untruthful merely because of previous convictions; and
  b) propensity is not enough to show D committed the offence alleged in this case
• Significance of evidence assessed in light of all evidence
• Bad character evidence should not be used to bolster an otherwise weak case