Criminal law in practice

Question 1

What governs police powers in this area?

Answer 1

PACE and the accompanying Codes of Practice

PACE refers to the Police and Criminal Evidence Act.

Question 2

What do the Codes of Practice help police determine?

Answer 2

How to exercise their discretions reasonably

The Codes are used by courts to assess the reasonableness of police actions.

Question 3

What happens if a police officer acts outside their PACE powers?

Answer 3

They will have acted unlawfully

This includes failing to comply with the principles of the Codes.

Question 4

What tests regulate the range of discretions given to police?

Answer 4

Reasonable suspicion or reasonable grounds tests

These tests are crucial for the lawful exercise of police powers.

Question 5

Under what circumstances can a suspect be arrested?

Answer 5

If there are reasonable grounds to suspect that an offence:
* is about to be committed
* is being committed
* has been committed

There must also be reasonable grounds for believing that the arrest is necessary.

Question 6

What must happen as soon as practicable after a person is arrested?

Answer 6

They must be told why they have been arrested, cautioned, and taken to a police station

This ensures the suspect is informed of the reason for their detention.

Question 7

What does PACE Code C outline?

Answer 7

The circumstances under which a person should be detained

It provides guidelines for the detention process.

Question 8

Who is responsible for authorizing a suspect’s detention at the police station?

Answer 8

The Custody Officer

The Custody Officer must be a police officer of at least Sergeant rank.

Question 9

What are some responsibilities of the Custody Officer?

Answer 9

They are responsible for:
* Authorizing a suspect’s detention
* Supervising the detainee’s welfare
* Performing a risk assessment
* Informing the detainee of their rights
* Keeping an accurate record of their detention
* Searching the suspect or authorizing a search
* Making decisions about charging or bail

These responsibilities ensure proper oversight of the detention process.

Question 10

What must the conditions of detention provide?

Answer 10

Food and drink, rests, lighting and heating, and separation of juveniles and adults

Non-compliance with these conditions may not necessarily invalidate detention.

Question 11

What is the purpose of the custody record?

Answer 11

To monitor the oversight of the detention and compliance with PACE Code C

It may be used as admissible evidence in trials.

Question 12

What rights must the Custody Officer inform the suspect of?

Answer 12

The rights include:
* Being informed about the offence(s) and reason for detention
* Consulting the Codes of Practice
* Having someone informed of their arrest
* Consulting a solicitor in private
* Accessing interpretation and translation services

These rights ensure the detainee’s access to legal support and information.

Question 13

Fill in the blank: The police must act __________ when exercising their discretions under PACE.

Answer 13

reasonably

Question 14

What must a detainee be given upon arrest?

Answer 14

A written notice setting out their rights including a copy of the custody record and the right to silence.

The written notice is a crucial part of informing the detainee of their rights during the detention process.

Question 15

What is the right to have someone informed?

Answer 15

The right to have a single person informed of the arrest and detention at public expense as soon as reasonably practicable.

This right is expected to be exercised through a phone call, but it is not guaranteed to be confidential.

Question 16

What are the rights regarding legal advice for detainees?

Answer 16

Detainees have the right to consult and communicate privately with a solicitor and gain free independent legal advice.

They must be reminded of this right before interviews and during reviews of detention.

Question 17

True or False: Detainees can be interviewed without legal representation if they have requested one.

Answer 17

False.

The police should not interview a suspect without the presence of a legal representative if the detainee has requested one.

Question 18

Under what conditions can the right to legal advice and to have someone informed be delayed?

Answer 18

If the detainee is arrested for an indictable offence, the delay is authorized by a certain rank officer, and there are reasonable grounds for suspicion that exercising the right will lead to evidence interference or harm.

This delay cannot exceed 36 hours.

Question 19

Who must authorize the delay of legal advice for a detainee?

Answer 19

An officer of at least the rank of superintendent.

This applies specifically to delaying access to legal advice.

Question 20

What must the Custody Officer record upon a suspect’s arrest?

Answer 20

The basis for the suspect’s arrest and any account of the arrest given by the arresting officer.

This ensures transparency and accountability in the detention process.

Question 21

What options does the Custody Officer have if there is insufficient evidence to charge?

Answer 21

• Release on bail
• Release under investigation
• Detain without charge

Detention without charge must meet specific grounds under PACE.

Question 22

What is required for ongoing detention reviews?

Answer 22

The first review must occur within 6 hours, and subsequent reviews must take place within 9 hours of the last review.

This ensures that continued detention is justified and monitored.

Question 23

Who conducts the first review of a detainee’s detention?

Answer 23

A Review Officer, who must be at least the rank of inspector and independent of the investigation.

This is to ensure impartiality in the review process.

Question 24

What is the maximum period for detention without charge before a review must occur?

Answer 24

36 hours.

After this period, a warrant must be sought for further detention from a magistrates’ court.

Question 25

What are the two tests required under the Full Code Test for charging a suspect?

Answer 25

* Evidential sufficiency test * Public interest test ## Footnote Both tests must be satisfied to proceed with prosecution.

Question 26

What does 'charging' a suspect mean?

Answer 26

Formally accusing the suspect of a crime and commencing a prosecution. ## Footnote This is a critical step in the legal process following an arrest.

Question 27

What must a suspect's solicitor be allowed to do regarding continued detention?

Answer 27

Make oral or written representations about continued detention. ## Footnote This right ensures that the detainee's legal counsel can advocate on their behalf.

Question 28

How long can a court authorize detention for after a magistrates’ court application?

Answer 28

Up to 36 hours. ## Footnote The court cannot authorize detention beyond 96 hours from arrival at the police station.

Question 29

What is the role of the Custody Officer in the detention process?

Answer 29

Overseeing detention and maintaining a custody record. ## Footnote This role is essential for ensuring lawful and fair treatment of detainees.

Question 30

What is defined as an interview in the context of criminal offences?

Answer 30

The questioning of a person regarding their involvement or suspected involvement in a criminal offence ## Footnote PACE Code C para 11.1A

Question 31

When must a caution be issued during police questioning?

Answer 31

When the questioning amounts to an interview ## Footnote Not all questioning requires a caution

Question 32

Where can interviews be conducted according to PACE?

Answer 32

At a police station, unless exceptions apply ## Footnote Exceptions include interference with evidence, harm to others, or serious property damage

Question 33

What must be determined before conducting an interview?

Answer 33

That the suspect is fit to be interviewed ## Footnote This may require a medical professional’s opinion

Question 34

What conditions should be met for an interview room at a police station?

Answer 34

Properly heated, lit, and ventilated ## Footnote Ensures a conducive environment for the interview

Question 35

When should an interview end?

Answer 35

When there is sufficient evidence to charge the suspect or all relevant questions have been asked

Question 36

What does the conduct of interviews fall under?

Answer 36

Code C and regulated by PACE ss 76 and 78

Question 37

What does Section 78 of PACE allow a judge to do?

Answer 37

Exclude evidence that would be unfair to admit against a defendant

Question 38

What does Section 76 of PACE specifically relate to?

Answer 38

The way in which a confession was obtained

Question 39

What can render a confession inadmissible?

Answer 39

Confessions obtained through oppression or unreliability ## Footnote Oppressive interviews may include bullying or continued questioning after denials

Question 40

How should interviews be recorded?

Answer 40

Contemporaneously with an authorised recording device ## Footnote This can include audio or video recording

Question 41

What role does a legal advisor play at the police station?

Answer 41

To represent their client’s legal interests and advance their rights

Question 42

What can a legal advisor do during an interview?

Answer 42

Challenge inappropriate questions, seek clarification, and advise their client

Question 43

What is the right to silence?

Answer 43

The fundamental right of suspects to choose not to answer questions

Question 44

What is the caution issued to suspects?

Answer 44

A formal warning about their right to silence and potential consequences of silence

Question 45

What are the three options available to an interviewee during questioning?

Answer 45

* Provide a pre-prepared statement * Answer questions and provide a full account * Not answer questions

Question 46

What might happen if a suspect does not mention a fact they later rely on in court?

Answer 46

An adverse inference may be drawn against them ## Footnote This is based on CJPOA s 34

Question 47

What are the categories of vulnerable detainees under PACE?

Answer 47

* Juveniles (under 18) * People who do not speak or understand English * People suffering from mental health issues * People who are illiterate * People with vision impairment

Question 48

What is the role of an appropriate adult?

Answer 48

* Support, advise, and assist the detainee * Observe police conduct * Assist with communication * Help detainee understand their rights

Question 49

What happens if a vulnerable person is interviewed without an appropriate adult?

Answer 49

Evidence obtained may be ruled inadmissible

Question 50

What must be given before drawing inferences under CJPOA ss 36 and 37?

Answer 50

A special warning must be given

Question 51

What is an example of an inference drawn under CJPOA s 34?

Answer 51

A defendant who claims an alibi at trial but did not mention it during the interview

Question 52

What must the appropriate adult do during relevant processes?

Answer 52

Be present during interviews, reviews of detention, and identification procedures

Question 53

Summary Principles of interview and advice

Answer 53

9.2.5 Summary of key principles * Interviews are questions under caution. * Cautioning should take place if the police want to interview someone and there are reasonable grounds for suspecting a person of an offence and upon arrest. * Interviews should take place in the police station. * Interviews should be recorded and, ideally, audio recorded or video recorded, if those services are available. * A suspect should have access to legal advice before, and a legal advisor during, an interview unless there are specific grounds for delaying access or for interviewing without such assistance. * Adverse inferences can be drawn if a person remains silent during the interview and then raises a fact in their defence at trial. * Adverse inferences can be drawn from a suspect’s failure to account for their incriminating presence near the scene of the crime or for incriminating objects, substances or marks on their person. * Mentally vulnerable and juvenile detainees are entitled to have an appropriate adult present during investigative processes at the police station.

Question 54

What is the police's obligation regarding bail when releasing a suspect under investigation?

Answer 54

The police must release a suspect on bail if it is necessary and proportionate to do so ## Footnote This is encouraged as pre-charge bail; there is no presumption against bail.

Question 55

What are the key considerations for police when deciding to grant bail?

Answer 55

* Ensure the person surrenders to custody * Prevent offending by the person * Safeguard victims of crime and witnesses * Safeguard the person * Manage risks to the public

Question 56

What is the initial bail period set by police, and how many extensions can it have?

Answer 56

The initial bail period is 3 months and can be extended twice to a total of 9 months.

Question 57

What happens if a suspect is released under investigation?

Answer 57

There is no fixed date to return to the police station and no conditions imposed.

Question 58

Under what circumstances must a person charged with an offence be released on bail?

Answer 58

Unless there are grounds for withholding bail, they must be released to attend a magistrates' court on the next available date.

Question 59

What factors does a Custody Officer consider when deciding to grant bail?

Answer 59

* Reasonable grounds to believe the person will fail to attend court * Reasonable grounds to believe detention is necessary to prevent interference with justice * Reasonable grounds to believe detention is necessary to prevent particular harm * The person has been charged with murder

Question 60

What is the primary duty of a defendant under the Bail Act?

Answer 60

To surrender at the appointed date and time at the specified location.

Question 61

What constitutes the offence of 'absconding' under the Bail Act?

Answer 61

Failure to surrender to custody.

Question 62

What are some common conditions that may be imposed on bail?

Answer 62

* Surety * Security * Residence * Reporting * Exclusion * Non-contact * Curfew * Electronic monitoring * Surrender of passport

Question 63

What must the court consider before imposing bail conditions?

Answer 63

The conditions must be necessary to ensure the defendant: * surrenders to custody * does not commit offences * does not interfere with witnesses * is available for inquiries or reports * attends interviews with legal representatives.

Question 64

What are the exceptions to the presumption in favor of bail?

Answer 64

* Convicted and awaiting sentence * Appealing conviction or sentence * Serious offences under CJPOA s 25 with previous convictions for serious crimes

Question 65

What must the court consider when deciding whether to grant bail for an indictable, imprisonable offence?

Answer 65

The Bail Act Schedule 1 Part 1 governs the decision, including exceptions to the presumption in favor of bail.

Question 66

What happens if a person charged with an indictable offence was already on bail when committing the new offence?

Answer 66

They may not be granted bail.

Question 67

What factors are considered when determining substantial grounds for refusing bail?

Answer 67

* Nature and seriousness of the offence * Defendant’s character and community ties * Previous convictions and bail record * Strength of prosecution evidence * Any other relevant factors.

Question 68

What is the procedure for applying for bail in court?

Answer 68

There is no distinct bail hearing; the decision can be made at any adjournment by the court.

Question 69

What is the significance of a 'certificate of full argument'?

Answer 69

It allows a defendant to appeal against a refusal of bail to the Crown Court.

Question 70

Fill in the blank: A defendant can only make one further application for bail based on _______.

Answer 70

the same arguments on facts or law.

Question 71

What is a 'certificate of full argument'?

Answer 71

A document given by the court clerk to a defendant to appeal a bail refusal to the Crown Court. ## Footnote This certificate is necessary for the defendant to initiate an appeal application.

Question 72

Who can appeal a refusal of bail?

Answer 72

Usually, appeals are brought by the defence, but the prosecution can appeal a grant of bail. ## Footnote This applies to any imprisonable offence or taking a vehicle without consent.

Question 73

How quickly must bail appeals be heard?

Answer 73

Within 48 hours of the initial refusal. ## Footnote Appeals are treated as a complete rehearing of the bail issues.

Question 74

What does it mean to 'abscond'?

Answer 74

To fail to attend court as required. ## Footnote Absconding is an offence that attracts its own penalty.

Question 75

What are the two ways absconding can be committed?

Answer 75

* Failing to surrender without a reasonable excuse * Having a reasonable excuse but failing to surrender as soon as practicable ## Footnote The burden of proof rests on the defendant to demonstrate a reasonable excuse.

Question 76

What actions can a court take if a defendant fails to surrender?

Answer 76

* Issue a bench warrant for the defendant's arrest * Adjourn and extend bail * Proceed in the defendant's absence if lawful ## Footnote A magistrates’ court clerk can grant a bench warrant if there are no objections.

Question 77

Does a breach of bail conditions create a distinct offence?

Answer 77

No, but a defendant may be arrested if there are reasonable grounds to believe they will not surrender or have breached bail conditions. ## Footnote An officer can arrest without a warrant under these circumstances.

Question 78

What must happen if a defendant is arrested for breaching bail conditions?

Answer 78

They must be produced before a magistrate within 24 hours of the arrest. ## Footnote This excludes Sundays and must be done sooner if reasonably practicable.

Question 79

What happens if the court determines a defendant is likely to fail to surrender?

Answer 79

The defendant may be remanded in custody or released on bail with different conditions. ## Footnote The presumption in favour of bail is lost in such cases.

Question 80

summary of key principles of first appearance and bail

Answer 80

Bail is one of two “remand” options (the other is custody). * Bail can be granted by the police or by courts. * There is a presumption in favour of bail for a person charged but not convicted and appearing before a court. * There is no presumption in favour of police bail, but the police can refuse bail only on certain narrow reasonable grounds. * These grounds vary according to the nature and seriousness of the offence (such as whether the offence is summary or not and whether it is imprisonable or not). * Bail can be subject to conditions if they will deal with specific concerns relevant to the granting of bail (and so bail conditions may counteract any reasons for not granting bail). * Bail imposes a duty to attend a particular place at a particular time on a particular date and a failure to do so is an offence (absconding). * Breach of bail conditions is not an offence but can lead to arrest and revocation of bail.

Question 81

What are the two classifications of cases based on where they will be heard?

Answer 81

• Summary only • Indictable

Question 82

What are the two types of indictable offences?

Answer 82

• Indictable only • Either-way offences

Question 83

What is the requirement for an indictable only offence?

Answer 83

Must be tried in the Crown Court

Question 84

What does either-way offence mean?

Answer 84

May be tried in either the Crown Court or the magistrates’ court

Question 85

List three examples of indictable only offences.

Answer 85

• Murder • Manslaughter • Rape

Question 86

What is a summary only offence?

Answer 86

Must be tried in the magistrates’ court

Question 87

List three examples of summary only offences.

Answer 87

• Common assault • Minor driving offences • Criminal damage (value under £5,000)

Question 88

What is the role of the defence solicitor at the first hearing?

Answer 88

• Obtain disclosure from the prosecution • Take the client’s instructions on the prosecution initial disclosure • Advise their client • Apply for a representation order • Represent the client at the hearing • Make an application for bail

Question 89

What is the first hearing for all cases?

Answer 89

Takes place in the Magistrates’ Court

Question 90

True or False: The first hearing for an indictable-only offence takes place in the Crown Court.

Answer 90

False

Question 91

What does the Welsh language provision in magistrates’ court trials entail?

Answer 91

Any party or witness may use the Welsh language and at least one member of the court must be Welsh-speaking if practicable

Question 92

What must happen if a participant wishes to use the Welsh language in a Crown Court trial in Wales?

Answer 92

They must serve notice on the court officer at or before the plea and trial preparation hearing

Question 93

What is the timing for a defendant denied bail by the police?

Answer 93

Must appear in a remand court as soon as practicable, usually the next day

Question 94

What is initial prosecution disclosure?

Answer 94

The prosecution case document that should be served on the defence as soon as possible after charge

Question 95

What are the objectives of the initial prosecution disclosure?

Answer 95

• Take a plea • Determine the appropriate trial venue • Identify the actual case issues • Conclude the case or give directions

Question 96

What happens during a guilty anticipated plea hearing?

Answer 96

Scheduled within 14 days of charge to resolve the case at one hearing

Question 97

What is the time frame for a not-guilty anticipated plea hearing?

Answer 97

Scheduled for hearing 28 days after charge

Question 98

What occurs if the defendant enters a not-guilty plea for a summary-only offence?

Answer 98

The case should proceed immediately to trial

Question 99

What is the purpose of the plea before venue?

Answer 99

To determine whether the case will be tried in the Crown Court or magistrates’ court

Question 100

What are the two stages of an allocation hearing?

Answer 100

• Plea-before-venue stage • Allocation stage

Question 101

What is the merits test in the context of representation orders?

Answer 101

Determines if the case is serious enough to warrant full legal representation

Question 102

List two criteria that satisfy the merits test.

Answer 102

• Likely loss of liberty • Likely loss of livelihood

Question 103

What is the means test in the magistrates’ court?

Answer 103

Determines the financial eligibility for a representation order

Question 104

Who automatically passes the means test?

Answer 104

Defendants under 18 and those receiving certain welfare benefits

Question 105

What happens if a defendant does not have a representation order when the case moves to the Crown Court?

Answer 105

They will automatically pass the merits test but must still pass the means test

Question 106

What is required for a representation order application?

Answer 106

An application form and a financial statement

Question 107

What is the role of the court clerk during the plea before venue?

Answer 107

Reads out the charge and explains the plea process to the defendant

Question 108

What happens if the defendant indicates a guilty plea during the plea before venue?

Answer 108

The court will proceed to sentence immediately, adjourn for sentencing reports, or commit to Crown Court for sentence

Question 109

What must be done if a defendant indicates a not-guilty plea during the plea before venue?

Answer 109

Proceed to an allocation hearing

Question 110

What are the three possible actions the court can take during sentencing?

Answer 110

Proceed to sentence immediately, adjourn for sentencing reports, commit the defendant to the Crown Court for sentence ## Footnote This applies if the magistrates’ sentencing powers are insufficient.

Question 111

What happens if the defendant indicates a not-guilty plea?

Answer 111

The court will proceed to an allocation hearing.

Question 112

Who should be present at the plea before venue?

Answer 112

The defendant should be present to indicate their plea in person.

Question 113

Under what conditions can the court proceed in the defendant’s absence?

Answer 113

If the defendant is legally represented or if it is not practicable to proceed with the defendant present due to disorderly conduct.

Question 114

What should a defendant facing an allocation hearing be advised about?

Answer 114

The likely sentence if the case is kept in the magistrates’ court versus if it is sent to the Crown Court.

Question 115

What impact does an early guilty plea have on sentencing?

Answer 115

It will always lead to a reduced sentence.

Question 116

What is the maximum sentence that magistrates can impose for a single offence?

Answer 116

6 months.

Question 117

What is the maximum sentence that magistrates can impose for two or more either-way offences?

Answer 117

12 months.

Question 118

What is the general view regarding the likelihood of acquittal in the Crown Court versus the magistrates’ court?

Answer 118

A defendant has a better chance of acquittal in the Crown Court.

Question 119

What are the disclosure requirements for the defence in the Crown Court?

Answer 119

Less onerous; they are not required to serve a defence statement.

Question 120

In what court is it better to argue for the exclusion of evidence?

Answer 120

Crown Court.

Question 121

What are the appeal considerations from the magistrates’ court?

Answer 121

More options to appeal, including an appeal that does not require leave and involves a complete rehearing at the Crown Court.

Question 122

Who resolves matters of legal interpretation in the Crown Court?

Answer 122

An experienced professional judge.

Question 123

What is an advantage of the magistrates’ court regarding trial dates?

Answer 123

A much swifter trial date is likely.

Question 124

How does the time to completion of a trial differ between the magistrates’ court and the Crown Court?

Answer 124

It usually takes longer in the Crown Court.

Question 125

What is a cost-related advantage of the magistrates’ court?

Answer 125

Lower costs of conducting a trial.

Question 126

What occurs immediately after the plea before venue?

Answer 126

The allocation hearing.

Question 127

What do magistrates decide during the allocation hearing?

Answer 127

If they feel able to deal with the case and accept jurisdiction.

Question 128

What happens if the magistrates decline jurisdiction?

Answer 128

The case is sent to the Crown Court.

Question 129

What factors do magistrates consider under the Magistrates’ Courts Act 1980 s 19?

Answer 129

* Sentencing powers sufficiency * Representations of the parties * Allocation guidance issued * Relevant previous convictions

Question 130

What should magistrates bear in mind if uncertain about their sentencing powers?

Answer 130

They could always commit the defendant to the Crown Court for sentencing if more appropriate.

Question 131

Under what circumstances do magistrates decline jurisdiction?

Answer 131

If the likely sentence exceeds their powers or if the case involves complex issues.

Question 132

What happens if magistrates decline jurisdiction?

Answer 132

The case will go to the Crown Court.

Question 133

Does the defendant have a choice of venue if magistrates decline jurisdiction?

Answer 133

No, the defendant has no say in the matter.

Question 134

Can the court or prosecution override the defendant's choice for a Crown Court trial?

Answer 134

No, neither can override that decision.

Question 135

What should the defendant be informed about if the magistrates accept jurisdiction?

Answer 135

They should be warned that magistrates can commit them to the Crown Court for sentence if their powers are inadequate.

Question 136

What can the defendant ask the magistrates regarding sentencing?

Answer 136

Whether they would impose a custodial or non-custodial sentence if convicted.

Question 137

What happens if magistrates indicate a non-custodial sentence?

Answer 137

The defendant may decide to plead guilty to finalize the matter.

Question 138

Are magistrates bound by their indication if the defendant pleads guilty immediately?

Answer 138

Yes, they are bound by it.

Question 139

What occurs if the defendant pleads guilty at a later stage?

Answer 139

The magistrates’ indication is not binding.

Question 140

What happens when there are jointly charged defendants and one is declined jurisdiction?

Answer 140

All joint defendants must go to the Crown Court.

Question 141

What is criminal damage considered if the value is under £5,000?

Answer 141

A summary-only offence.

Question 142

Can a defendant elect a Crown Court trial for low-value shoplifting?

Answer 142

Yes, they can still elect trial in the Crown Court.

Question 143

What does 'forthwith' mean in the context of sending a case to the Crown Court?

Answer 143

The magistrates have nothing more to do with it, except possibly bail.

Question 144

What happens to a defendant's bail status when sent to the Crown Court?

Answer 144

It does not automatically change.

Question 145

What must be sent to the Crown Court if any offence is sent there?

Answer 145

Any related either-way or summary-only offences.

Question 146

What defines a related either-way offence?

Answer 146

It is founded on the same facts or part of a series of similar offences.

Question 147

Which summary-only offences can be included on an indictment?

Answer 147

* Common assault * Taking a vehicle without consent * Driving while disqualified * Criminal damage of £5,000 or less

Question 148

Under what conditions can a summary-only offence be sent to the Crown Court?

Answer 148

If it is punishable by imprisonment or driving disqualification and arises from the same circumstances as the indictable offence.

Question 149

What must happen if a defendant pleads not guilty to a related summary-only offence at the Crown Court?

Answer 149

The matter must be remitted back to the magistrates’ court for trial.

Question 150

What is the significance of the Criminal Justice Act 1988 s 40 for summary offences?

Answer 150

It specifies which summary offences can be included on the indictment.

Question 151

What is an example of an either-way offence being included on an indictment?

Answer 151

Dangerous driving with possession of cannabis found during a search.

Question 152

What happens to a summary offence charged alongside an indictable offence if the defendant pleads not guilty?

Answer 152

It must be remitted back to the magistrates’ court for trial.

Question 153

Key summary principles of early trial procedure

Answer 153

* Offences are classified as “summary only”, “either way” or “indictable only”. Either-way offences are indictable but can also be tried summarily. * The first hearing should be used to secure a representation order to fund legal representation. * Summary-only offences will stay in the magistrates’ court and there is an emphasis on resolving them as quickly as reasonably possible, preferably at the first hearing either by plea and sentence or by trial. * Indictable-only offences will be sent to the Crown Court at the first hearing. * Either-way offences should be either resolved by plea or allocated to either the Crown Court or magistrates’ court at the first hearing. * The magistrates may decline jurisdiction and send the case to the Crown Court or, if they accept jurisdiction, the defendant may choose to go to the Crown Court rather than remain in the magistrates’ court. * Magistrates will base their decision on whether to send an either-way offence to the Crown Court primarily on their likely sentencing powers. * An either-way case can always be sent to the Crown Court for sentencing even if not sent there for trial. * Offences (and offenders) charged together with an indictable offence may also be sent to the Crown Court. * In Wales, the Welsh language may be spoken by any party and there should be no restriction on this ability.

Question 154

What are the two main classifications of offences?

Answer 154

Summary only and indictable.

Question 155

What is an indictable-only offence?

Answer 155

An offence that must be tried in the Crown Court.

Question 156

What are either-way offences?

Answer 156

Offences that may be tried in either the Crown Court or the magistrates’ court.

Question 157

List three key offences categorized as indictable only.

Answer 157

* Murder * Manslaughter * Rape

Question 158

What is the first court where all cases are heard?

Answer 158

Magistrates’ Court.

Question 159

What must a defendant provide at the first hearing?

Answer 159

Their name and date of birth.

Question 160

In Wales, what language can parties use in magistrates’ court trials?

Answer 160

Welsh.

Question 161

When must a defendant who has been denied bail appear in court?

Answer 161

As soon as practicable, usually the next day.

Question 162

What is initial prosecution disclosure?

Answer 162

The disclosure of the prosecution case document served on the defence after charge.

Question 163

What is the timing for a guilty anticipated plea hearing?

Answer 163

Within 14 days of charge.

Question 164

What happens if a defendant enters a not-guilty plea at the first appearance for a summary-only offence?

Answer 164

The case should proceed immediately to trial.

Question 165

What is the role of the defence solicitor at the first hearing?

Answer 165

* Obtain disclosure from the prosecution * Take client’s instructions * Advise their client * Apply for a representation order * Represent the client * Make an application for bail

Question 166

What is a representation order?

Answer 166

A level of financial assistance for funding defence representation in the criminal courts.

Question 167

What are the two tests to be granted a representation order in the magistrates’ court?

Answer 167

* The merits test * The means test

Question 168

What does the merits test assess?

Answer 168

Whether the case is serious enough to warrant full legal representation.

Question 169

What is one criterion that satisfies the merits test?

Answer 169

It is likely that the defendant will lose their liberty.

Question 170

Who automatically passes the means test in the magistrates’ court?

Answer 170

Defendants under the age of 18 and those receiving certain welfare benefits.

Question 171

What is the purpose of the plea before venue hearing?

Answer 171

To determine where the defendant will be tried for an either-way offence.

Question 172

What are the two stages of the allocation hearing?

Answer 172

* Plea-before-venue stage * Allocation stage

Question 173

What happens if a defendant indicates a guilty plea during the plea before venue?

Answer 173

The court will proceed to sentence immediately or adjourn for sentencing reports.

Question 174

What occurs during the allocation stage of the hearing?

Answer 174

The magistrates and the defendant determine whether the case will be heard in the Crown Court or magistrates’ court.

Question 175

What happens if the defendant indicates a guilty plea?

Answer 175

The court will proceed to sentence immediately, adjourn for sentencing reports, or commit the defendant to the Crown Court for sentence if the magistrates’ sentencing powers are insufficient.

Question 176

What occurs if the defendant indicates a not-guilty plea or does not give an indication?

Answer 176

The court will proceed to an allocation hearing.

Question 177

Why is it important for the defendant to be present at the plea before venue?

Answer 177

So that they can indicate their plea in person.

Question 178

In what circumstances can the court proceed in the defendant’s absence?

Answer 178

If they are legally represented or if it is not practicable to proceed with the defendant present due to disorderly conduct.

Question 179

What advice should a defendant facing an allocation hearing receive?

Answer 179

Advice on the likely sentence if the case is kept in the magistrates’ court and if it is sent to the Crown Court, considering the impact of an early guilty plea.

Question 180

What is one power of the magistrates’ court regarding sentencing?

Answer 180

To commit a sentence to the Crown Court for a higher sentence.

Question 181

What is a significant difference in sentencing power between the magistrates’ court and Crown Court?

Answer 181

Magistrates are limited to 6 months for a single offence and 12 months for two or more either-way offences.

Question 182

What is the relative likelihood of acquittal in the Crown Court compared to the magistrates’ court?

Answer 182

The general view is that a defendant has a better chance of acquittal in the Crown Court.

Question 183

What are the advantages of the magistrates’ court regarding trial speed?

Answer 183

A much swifter trial date is likely due to severe delays in the Crown Court.

Question 184

What is a disadvantage of the Crown Court regarding trial duration?

Answer 184

It usually takes longer for a case to be completed in the Crown Court.

Question 185

What are the cost implications of conducting a trial in the magistrates’ court versus the Crown Court?

Answer 185

Costs are much lower in the magistrates’ court, leading to a lower contribution towards costs if convicted.

Question 186

What is the first stage of the allocation hearing?

Answer 186

The magistrates decide if they feel able to deal with the case.

Question 187

What happens if the magistrates accept jurisdiction during the allocation hearing?

Answer 187

The defendant is given the opportunity to elect Crown Court trial or magistrates’ trial.

Question 188

What occurs if the magistrates decline jurisdiction?

Answer 188

The case is sent to the Crown Court, and the defendant has no choice in the matter.

Question 189

What factors do magistrates consider under the Magistrates’ Courts Act 1980 s 19?

Answer 189

* Whether their sentencing powers are sufficient * Representations of the parties * Any allocation guidance issued * Relevant previous convictions

Question 190

Under what circumstances do magistrates tend to decline jurisdiction?

Answer 190

If the likely sentence far exceeds their powers or if the case involves particularly complex issues.

Question 191

What can magistrates do if they are uncertain about their sentencing powers?

Answer 191

They can commit the defendant to the Crown Court to deal with sentencing if that is more appropriate.

Question 192

What choice does a defendant have regarding venue if the magistrates decline jurisdiction?

Answer 192

The defendant has no say in the matter.

Question 193

What happens if a defendant chooses a Crown Court trial?

Answer 193

Neither the court nor the prosecution can override that decision.

Question 194

What must the defendant be informed of regarding the acceptance of jurisdiction?

Answer 194

The defendant should be informed that the magistrates retain the power to commit them to the Crown Court for sentence if their sentencing powers are inadequate.

Question 195

What can a defendant ask the magistrates to indicate to help with their trial decision?

Answer 195

Whether the magistrates would impose a custodial or non-custodial sentence if convicted.

Question 196

Is the magistrates' indication of sentencing binding?

Answer 196

Yes, if the defendant immediately indicates their guilty plea.

Question 197

What happens if the defendant pleads guilty at a later stage?

Answer 197

The magistrates' indication is not binding.

Question 198

What is the outcome if the magistrates decline jurisdiction for one jointly charged defendant?

Answer 198

All of the joint defendants must go to the Crown Court.

Question 199

What defines criminal damage as a summary-only offence?

Answer 199

When the value of items destroyed or the extent of damage is under £5,000.

Question 200

What is the threshold for low-value shoplifting to be treated as summary only?

Answer 200

The theft of goods valued under £200.

Question 201

What happens once the magistrates decline jurisdiction or the defendant elects for a Crown Court trial?

Answer 201

The case is sent 'forthwith' to the Crown Court.

Question 202

What does 'forthwith' mean in the context of sending a case to the Crown Court?

Answer 202

The magistrates have nothing more to do with it.

Question 203

What is set during a Plea and Trial Preparation Hearing in the Crown Court?

Answer 203

Standard directions for steps to be completed in the Crown Court.

Question 204

Does sending a matter to the Crown Court automatically change the defendant's bail status?

Answer 204

No, it does not automatically change the defendant's bail status.

Question 205

What must the magistrates' court do if any offence is sent to the Crown Court?

Answer 205

Send any related either-way or summary-only offences.

Question 206

What makes an either-way offence related?

Answer 206

If it is founded on the same facts or part of a series of offences of the same or similar character.

Question 207

Which summary-only offences can be included on an indictment?

Answer 207

* Common assault * Taking a vehicle without consent * Driving while disqualified * Criminal damage of £5,000 or less

Question 208

When can a summary-only offence be sent to the Crown Court?

Answer 208

If it is punishable with imprisonment or driving disqualification and arises from the same circumstances as the indictable offence.

Question 209

What happens if a defendant pleads not guilty to a related summary-only offence at the Crown Court?

Answer 209

The matter must be remitted back to the magistrates' court for trial.

Question 210

Give an example of an either-way offence that can be included on an indictment.

Answer 210

A person charged with dangerous driving who also has a charge of possession of cannabis founded on the same facts.

Question 211

Can a summary-only offence like driving without insurance be added to the indictment?

Answer 211

No, it must be remitted back to the magistrates' court for trial if the defendant pleads not guilty.

Question 212

Summary of key principles early trail procedures

Answer 212

Offences are classified as “summary only”, “either way” or “indictable only”. Either-way offences are indictable but can also be tried summarily. * The first hearing should be used to secure a representation order to fund legal representation. * Summary-only offences will stay in the magistrates’ court and there is an emphasis on resolving them as quickly as reasonably possible, preferably at the first hearing either by plea and sentence or by trial. * Indictable-only offences will be sent to the Crown Court at the first hearing. * Either-way offences should be either resolved by plea or allocated to either the Crown Court or magistrates’ court at the first hearing. * The magistrates may decline jurisdiction and send the case to the Crown Court or, if they accept jurisdiction, the defendant may choose to go to the Crown Court rather than remain in the magistrates’ court. * Magistrates will base their decision on whether to send an either-way offence to the Crown Court primarily on their likely sentencing powers. * An either-way case can always be sent to the Crown Court for sentencing even if not sent there for trial. * Offences (and offenders) charged together with an indictable offence may also be sent to the Crown Court. * In Wales, the Welsh language may be spoken by any party and there should be no restriction on this ability.

Question 213

What are the three types of evidence used to prove disputed facts in trials?

Answer 213

* Testimony * Documentary evidence * Real evidence ## Footnote Testimony includes spoken evidence from witnesses, documentary evidence refers to written or recorded information, and real evidence involves physical objects pertinent to the case.

Question 214

What is testimony in the context of a trial?

Answer 214

Spoken evidence of witnesses, including police officers and expert witnesses. ## Footnote Testimony can be pre-recorded or given via live link under special measures directions.

Question 215

What does documentary evidence include?

Answer 215

Any evidence contained in writing, on a computer, or in an audio or visual recording. ## Footnote This evidence is not given under oath as part of a trial.

Question 216

What is real evidence?

Answer 216

Objects, items, or things that 'speak for themselves', including exhibits like a murder weapon. ## Footnote It also includes the tribunal of fact's limited entitlement to observe scenes relevant to the case.

Question 217

What does a formal admission of facts under the Criminal Justice Act 1967 s 10 entail?

Answer 217

Facts can be formally admitted either before the trial in writing or orally at trial by a legal representative. ## Footnote This saves time and is treated as conclusive, meaning no further proof is required.

Question 218

What is the role of the tribunal of law during a trial?

Answer 218

Makes decisions on legal matters, including the meaning of the law and admissibility of evidence. ## Footnote In the Crown Court, the judge serves as the tribunal of law.

Question 219

What is the role of the tribunal of fact during a trial?

Answer 219

Makes decisions on factual issues in the case. ## Footnote In the Crown Court, the jury serves as the tribunal of fact.

Question 220

Who bears the burden of proof in a criminal trial?

Answer 220

The prosecution. ## Footnote The prosecution must call its evidence first.

Question 221

What are the basic stages of a criminal trial in the Magistrates' Court?

Answer 221

* Prosecution opening speech * Prosecution calls evidence * Defence makes a submission of no case to answer * Defence calls evidence (if they wish) * Speeches * Magistrates deliberate * Verdict with reasons ## Footnote The stages differ slightly in the Crown Court.

Question 222

How should a jury address a Crown Court judge?

Answer 222

Your Honour. ## Footnote Different modes of address exist for various court officials.

Question 223

What is required for a jury to reach a verdict?

Answer 223

A unanimous verdict on each count on the indictment. ## Footnote If they cannot agree, a majority verdict may be accepted after further deliberation.

Question 224

What happens if the jury cannot reach a unanimous verdict?

Answer 224

The judge may call them back and accept a majority verdict or discharge them. ## Footnote Discharge is not an acquittal, allowing for a potential retrial.

Question 225

What is a 'submission of no case to answer'?

Answer 225

A defence claim that the evidence does not disclose a case to answer. ## Footnote This submission is known as a Galbraith submission.

Question 226

What must the prosecution establish in a criminal trial?

Answer 226

Their case beyond reasonable doubt. ## Footnote The prosecution's opening speech outlines the case and identifies witnesses.

Question 227

What can the judge do during the summing up to the jury?

Answer 227

* Remind the jury of the cases advanced by each party * Explain the law * Direct on key points of evidence * Ensure factual matters are for the jury to decide ## Footnote The judge must clarify who bears the burden of proof.

Question 228

What is the general rule regarding reopening a case after it has closed?

Answer 228

Neither party can reopen their case and call more witnesses. ## Footnote This rule helps maintain the trial's integrity.

Question 229

What must magistrates do if they cannot decide on a verdict?

Answer 229

Enter a verdict of not guilty. ## Footnote They must reach a majority decision, and an evenly numbered bench results in a rehearing if no majority is achieved.

Question 230

What is the significance of the Criminal Justice and Public Order Act 1994 s 35?

Answer 230

Allows for adverse inferences to be drawn from a defendant's failure to testify. ## Footnote A defendant cannot be convicted solely based on this inference.

Question 231

What is required for the jury to accept a majority verdict?

Answer 231

10 jurors must agree on a verdict of guilty or not guilty. ## Footnote If there are fewer than 12 jurors, verdicts of 10:1 or 9:1 are acceptable.

Question 232

What happens if there is no majority decision among magistrates?

Answer 232

The case will be adjourned for a rehearing.

Question 233

What should the bench provide if the defendant is convicted?

Answer 233

Sufficient reasons to explain its decision.

Question 234

Can the magistrates’ court enter an alternative verdict?

Answer 234

No, it has no power to enter an alternative verdict.

Question 235

What is the role of justices’ legal advisors?

Answer 235

To provide legal advice on substantive law, evidence, procedure, or sentencing.

Question 236

How should advice by the legal advisor be given?

Answer 236

Publicly, allowing parties to respond to the advice.

Question 237

Should legal advisors retire with magistrates when considering their verdict?

Answer 237

No, they should not retire with the magistrates.

Question 238

Are magistrates obliged to follow the legal advisor's advice?

Answer 238

No, they are not obliged to follow it.

Question 239

What is a solicitor’s duty to the court based on?

Answer 239

Professional responsibilities and compliance with the code of conduct.

Question 240

What do the SRA Principles require from defence solicitors?

Answer 240

To act in the best interests of their client while upholding justice and public confidence.

Question 241

What is a duty of solicitors under the SRA Code of Conduct?

Answer 241

Not to mislead the court.

Question 242

Provide an example of a failure related to misleading the court.

Answer 242

Calling a witness whose evidence you know to be untrue.

Question 243

What must solicitors do regarding relevant law?

Answer 243

Draw the court's attention to relevant and material law.

Question 244

What should a solicitor do if they know a client has misled the court?

Answer 244

Invite the client to correct it or cease to act.

Question 245

Can a solicitor represent a client who admits guilt but wants to plead not guilty?

Answer 245

Yes, but they cannot advance a positive case contradicting the client’s admission.

Question 246

What does the overriding objective of the Criminal Procedure Rules 2020 entail?

Answer 246

To deal with cases justly.

Question 247

List some duties of parties and their legal representatives under the Criminal Procedure Rules 2020.

Answer 247

["Acquitting the innocent and convicting the guilty", "Respecting the interests of witnesses", "Dealing with the case efficiently and expeditiously", "Ensuring appropriate information is available to the court"]

Question 248

What must legal representatives assist with in active case management?

Answer 248

["Early identification of real issues and needs of witnesses", "Clarifying tasks and setting an early timetable", "Avoiding delay", "Co-operating with other parties"]

Question 249

What can happen if legal representatives fail to comply with their obligations?

Answer 249

It can lead to wasted costs orders.

Question 250

key principles of trials and trial principles

Answer 250

* Trials in the magistrates’ court and Crown Court have essentially the same structure. * The prosecution must establish their case first. * If they do not establish it strongly enough, the defence may apply for the case to be dismissed. * If that application fails, the defence can call their evidence. * Crown Court trials are determined by the jury and the judge provides guidance on the law. The decision about guilt is to be made by the jury. * Magistrates’ court trials are determined by the magistrates, who make decisions on fact and law, but they are advised by the justices’ legal advisor.

Question 251

What are the two types of burden in legal terms?

Answer 251

Legal burden and evidential burden ## Footnote The legal burden is imposed on a party to prove a fact, while the evidential burden is to adduce sufficient evidence for an issue to be considered by the tribunal.

Question 252

Who generally bears the legal burden of proof in criminal cases?

Answer 252

The prosecution ## Footnote The prosecution must prove their case and discharge the legal burden.

Question 253

What happens if a party fails to meet the legal burden?

Answer 253

The issue is not proven ## Footnote The tribunal decides if the legal burden has been discharged after hearing all evidence.

Question 254

What is an example of a statutory exception where the burden of proof shifts to the defendant?

Answer 254

Possession of a bladed instrument in a public place ## Footnote The defendant must prove a reasonable excuse for possession.

Question 255

What is the evidential burden?

Answer 255

A burden to adduce sufficient evidence on a fact or facts in issue ## Footnote This burden is to satisfy the judge that the issue should be left to the jury.

Question 256

In a criminal case, who typically bears both the legal and evidential burden?

Answer 256

The prosecution ## Footnote The prosecution must prove the facts in issue and provide sufficient evidence.

Question 257

What type of defences have the evidential burden on the defendant?

Answer 257

Common law and statutory defences ## Footnote The defendant must raise sufficient evidence to leave the issue to the jury.

Question 258

What is the standard of proof when the legal burden is on the prosecution?

Answer 258

Beyond reasonable doubt ## Footnote This is the highest standard of proof in criminal cases.

Question 259

What is the standard of proof when the legal burden is on the defendant?

Answer 259

Proof on a balance of probabilities ## Footnote The defendant must show it is more probable than not that their claim is true.

Question 260

What does relevance mean in the context of evidence?

Answer 260

Evidence must be relevant to one or more facts in issue ## Footnote It should make a fact more or less likely.

Question 261

What are the two types of evidence relevant to facts in issue?

Answer 261

Direct evidence and circumstantial evidence ## Footnote Direct evidence shows the fact on its own, while circumstantial evidence requires additional context.

Question 262

What is the primary rule of admissibility of evidence?

Answer 262

Only relevant evidence can be admitted ## Footnote Evidence must meet both relevance and admissibility criteria.

Question 263

What is the role of the tribunal of law regarding evidence?

Answer 263

To determine relevance and admissibility ## Footnote The tribunal decides if evidence will be admitted to the tribunal of fact.

Question 264

What is the significance of the case R v Turnbull?

Answer 264

Guidelines for eyewitness identification evidence ## Footnote It establishes the need for caution when relying on identification evidence.

Question 265

What must eyewitnesses provide to support their identification of a defendant?

Answer 265

In-court testimony and evidence of identification procedures ## Footnote Identification must be conducted according to specific guidelines.

Question 266

What are 'Turnbull guidelines'?

Answer 266

Warnings to juries regarding identification evidence ## Footnote They caution juries about the risks associated with relying on eyewitness testimony.

Question 267

What should be considered when evaluating eyewitness identification?

Answer 267

* Time of observation * Distance from suspect * Lighting conditions * Obstructions during observation * Prior familiarity with the defendant * Delay in identification * Discrepancies in description ## Footnote Each of these factors can affect the reliability of identification evidence.

Question 268

What happens if identification evidence is weak without supporting evidence?

Answer 268

The judge must withdraw the case from the jury ## Footnote An acquittal should be directed in such cases.

Question 269

What are the procedures for identification during police investigations?

Answer 269

* Video identification * Identification parade * Group identification * Confrontation ## Footnote These procedures should be followed based on the circumstances of the case.

Question 270

What is required before conducting an identification procedure?

Answer 270

A description of the suspect must be recorded ## Footnote This is known as the 'first description' and is crucial for the identification process.

Question 271

When is an identification procedure not required?

Answer 271

* Not practicable * No useful purpose in proving or disproving involvement ## Footnote The necessity of the procedure is determined by the context of the case.

Question 272

What is required for a group identification?

Answer 272

A group identification must be held unless it is not practicable to conduct one.

Question 273

What is the purpose of informing a suspect before identification procedures?

Answer 273

To inform them about the purpose, process, and any description given before the procedure.

Question 274

What should a suspect be told regarding their legal representation during identification?

Answer 274

They can have a legal advisor present.

Question 275

What is a video identification?

Answer 275

It involves the witness viewing images of the suspect and at least eight other people resembling the suspect.

Question 276

What conditions should be met for a video identification?

Answer 276

Images should be moving, preferably in the same positions or actions, if possible.

Question 277

Who must be present when the set of images for a video identification is put together?

Answer 277

The suspect's legal representative.

Question 278

What must the police consider regarding the images used in video identification?

Answer 278

Reasonable objections to the images used.

Question 279

How many witnesses should view images at a time during video identification?

Answer 279

Only one witness should view images at a time.

Question 280

What should witnesses be told at the start of an identification parade?

Answer 280

That the person they saw may not be in the line.

Question 281

What is an identification parade?

Answer 281

It involves the suspect standing alongside at least eight other people who resemble the suspect.

Question 282

What should happen if a confrontation is conducted?

Answer 282

The suspect is shown to the witness, who is asked if it is the person they claim to have seen.

Question 283

When is a confrontation usually conducted?

Answer 283

As a last resort.

Question 284

What can happen if the police incorrectly follow the PACE Code D process?

Answer 284

Any evidence of a positive identification may be inadmissible under PACE s 78.

Question 285

What is the implication of not following Code D procedures?

Answer 285

The prosecution may still seek to have the witness identify the defendant in court.

Question 286

What does s 78 of PACE state regarding exclusions?

Answer 286

Exclusions are discretionary, based on the grounds of fairness.

Question 287

What must the jury be informed if identification is admitted despite breaches of Code D?

Answer 287

They should be informed of the failings and that identification procedures are intended to test the prosecution’s evidence.

Question 288

Fill in the blank: A group identification should take place where people are _______.

Answer 288

[passing by or waiting around informally]

Question 289

key principles of evidence and proof

Answer 289

Evidence must be relevant to one or more facts in issue to be admitted at court. * Relevant evidence must not be inadmissible under any rule of evidence. Relevant and admissible evidence might be excluded under additional rules of evidence, for example, PACE s 78. * Once admitted, the weight to be attached to evidence is a matter for the jury. * Each fact in issue must be proven by a particular party who bears the burden of proving that issue to a specified standard. * The prosecution proves facts beyond reasonable doubt and the defence proves facts on the balance of probabilities. * An evidential burden must be discharged before a fact in issue has to be decided at the end of the trial. If the evidential burden is not discharged, the issue cannot be proven. * The defence sometimes bears an evidential burden that the prosecution must then discharge. * Identification procedures leading to a successful identification of the defendant should be followed by the police before an eyewitness can give in-court evidence that it was the defendant who committed the offence. * Eyewitness identification evidence can be withdrawn if it is weak and unsupported. * Clear directions about the need for particular caution must be issued in relation to all eyewitness identification. * Failure to follow rules on identification procedures can lead to the exclusion of any identification evidence.

Question 290

What is the process called when a witness is asked questions by the party who called them?

Answer 290

Examination-in-chief ## Footnote This is the initial questioning of a witness in court.

Question 291

What is the term for questioning a witness by the opposing party?

Answer 291

Cross-examination ## Footnote This phase allows the opposing party to challenge the witness's testimony.

Question 292

What type of questions should be asked during examination-in-chief?

Answer 292

Non-leading questions ## Footnote These questions do not suggest an answer and allow the witness to provide their own account.

Question 293

What are leading questions?

Answer 293

Questions that suggest the answer within the question ## Footnote Examples include statements followed by a request for confirmation.

Question 294

What is an example of a leading question?

Answer 294

Did the defendant hit the victim? ## Footnote This question suggests the answer within it.

Question 295

What is a non-leading question?

Answer 295

Questions that do not assume an answer and leave it open to the witness ## Footnote Examples include 'What was he holding?' or 'Where were you when you saw the person?'

Question 296

When can leading questions be asked in examination-in-chief?

Answer 296

When relating to formal introductory matters, already established matters, or if the witness is treated as hostile ## Footnote These exceptions allow for leading questions under specific circumstances.

Question 297

What does it mean for a witness to be treated as hostile?

Answer 297

The witness shows no desire to tell the truth on behalf of the party calling them ## Footnote This can be determined by their silence, evasion, or inconsistencies.

Question 298

What is the purpose of cross-examination?

Answer 298

To challenge the evidence of a witness or extract concessions favorable to one’s own case ## Footnote This process aims to undermine the credibility of the witness or their account.

Question 299

What are collateral matters in cross-examination?

Answer 299

Issues related solely to the credibility of the witness ## Footnote These do not directly impact the case's main issues but can affect the witness's reliability.

Question 300

What is hearsay evidence?

Answer 300

Evidence given in court about something the witness was told by someone else out of court ## Footnote Hearsay is considered less reliable than first-hand accounts.

Question 301

What distinguishes hearsay from an out-of-court statement?

Answer 301

The purpose for which the out-of-court statement is adduced ## Footnote If the purpose is to prove the truth of the statement, it is likely hearsay.

Question 302

According to the Criminal Justice Act 2003, how is hearsay evidence defined?

Answer 302

A statement not made in oral evidence in the proceedings as evidence of any matter stated ## Footnote This definition establishes the legal framework for hearsay.

Question 303

What is an example of a statement that is not considered hearsay?

Answer 303

A statement admitted to show that it was made, not to prove its truth ## Footnote This type of evidence is referred to as original evidence.

Question 304

What is required to identify a hearsay statement?

Answer 304

* The evidence must be a statement * It must be an out-of-court statement * The maker's purpose must be to cause belief in the statement * The purpose of admitting the statement must be to prove it true ## Footnote All four criteria must be satisfied for a statement to be classified as hearsay.

Question 305

What happens if a statement is admitted as original evidence?

Answer 305

It does not need to meet exceptions to the hearsay rule ## Footnote Original evidence is used to show that words were spoken, not to prove their truth.

Question 306

What is the definition of hearsay?

Answer 306

A statement made outside of court that is offered to prove the truth of the matter asserted.

Question 307

Is a statement made to show the state of mind of the hearer considered hearsay?

Answer 307

No, it is considered original evidence.

Question 308

What is the purpose of admitting a statement that shows the state of mind of the maker?

Answer 308

To demonstrate the maker's mental state at the time of the statement.

Question 309

True or False: The purpose of the defense in admitting a statement is to prove the statement is true.

Answer 309

False.

Question 310

What are the four categories of admissible hearsay evidence?

Answer 310

* Admissible under statute * Admissible by rule of law * Admissible by agreement of all parties * Admissible in the interests of justice.

Question 311

Under what condition is hearsay admissible according to the Criminal Justice Act 2003?

Answer 311

If the original maker of the statement is unavailable.

Question 312

What does 'unavailable' mean under the Criminal Justice Act 2003?

Answer 312

* The maker is dead * Unable to attend due to a physical or mental condition * Outside the UK and not reasonably practicable to secure attendance * Cannot be found despite reasonable steps * Kept away from court through fear.

Question 313

What is a business document in the context of hearsay?

Answer 313

A document created or received in the course of a trade, business, or profession, which can include multiple hearsay.

Question 314

What is a res gestae statement?

Answer 314

A statement made at or about the time of an event that may be admissible to prove the truth of the things said within it.

Question 315

True or False: A confession can be used to prove the truth of the matter stated.

Answer 315

True.

Question 316

What is a mixed statement in the context of confessions?

Answer 316

A statement that is partly inculpatory and partly exculpatory.

Question 317

What is the 'interests of justice' provision?

Answer 317

A discretionary provision allowing the admission of evidence that would otherwise be inadmissible.

Question 318

What factors must a court consider when deciding to admit hearsay under the interests of justice?

Answer 318

* Probative value * Other available evidence * Importance of the matter * Circumstances of the statement * Reliability of the maker * Reliability of evidence * Availability of oral evidence * Difficulty in challenging the statement.

Question 319

What is multiple hearsay?

Answer 319

Hearsay that involves one or more layers of hearsay, making it less reliable.

Question 320

Fill in the blank: Hearsay is admissible only if it falls under one of the four categories of admissible _______.

Answer 320

[hearsay evidence]

Question 321

What does the term 'contemporaneous mental or physical state' refer to?

Answer 321

A statement made by a person about their current mental or physical state which is admissible to prove that state.

Question 322

What is the significance of the term 'reasonably practicable' in relation to the availability of the maker?

Answer 322

It implies that a party must maintain contact with a witness to establish their availability.

Question 323

What type of statement is not considered a confession?

Answer 323

A wholly exculpatory statement.

Question 324

What is required for a statement made by a witness to be admissible as a previous inconsistent statement?

Answer 324

It must be admissible under the grounds set out in the Criminal Justice Act 2003.

Question 325

What is a mixed statement in legal terms?

Answer 325

A statement that is partly adverse and admissible to prove all facts stated ## Footnote Mixed statements can include both incriminating and exculpatory elements.

Question 326

Can a confession be used as evidence against someone other than the maker?

Answer 326

No, a confession is evidence against the maker but not against any other person.

Question 327

What are the grounds under which a defendant can challenge the admissibility of a confession?

Answer 327

A defendant can challenge on the grounds that: * the confession was obtained by oppression * things said or done to obtain the confession would make it unreliable * admitting the confession would adversely affect fairness of proceedings.

Question 328

What does PACE stand for?

Answer 328

Police and Criminal Evidence Act

Question 329

What is the standard of proof required for the prosecution if oppression or unreliability is alleged?

Answer 329

The prosecution must prove beyond reasonable doubt that the confession was not obtained through oppression or unreliability.

Question 330

True or False: A confession's truth prevents it from being excluded.

Answer 330

True

Question 331

What constitutes oppression in the context of confession admissibility?

Answer 331

Oppression includes torture, inhuman and degrading treatment, and the use or threat of violence.

Question 332

What factors must be considered to determine oppression?

Answer 332

The context of the confession, including the characteristics and vulnerability of the suspect.

Question 333

How does the prosecution demonstrate that a confession was not obtained through oppression?

Answer 333

The prosecution must prove beyond reasonable doubt that the confession was not obtained due to oppression.

Question 334

What is required for a confession to be deemed potentially unreliable?

Answer 334

Anything said or done that could render a confession unreliable, regardless of whether it was improper.

Question 335

Fill in the blank: A confession will not be admissible if it was obtained 'in consequence of anything said or done which was likely to render _______.

Answer 335

unreliable

Question 336

What could lead to a confession being deemed unreliable under PACE s 76(2)(b)?

Answer 336

Failure to comply with PACE Codes of Practice, offers of inducements to confess, or innocent mistakes leading to unreliable confessions.

Question 337

What must the defense demonstrate regarding the confession and the actions taken?

Answer 337

A causal link between the things said or done (or oppression) and the confession made by the defendant.

Question 338

What happens if a confession is excluded regarding further evidence obtained?

Answer 338

Further evidence may still be admissible, but its probative value may be undermined.

Question 339

Who decides the admissibility of a confession?

Answer 339

The judge decides as a matter of law.

Question 340

What is a voir dire?

Answer 340

A trial within a trial where the judge hears evidence in the absence of the jury to determine the admissibility of a confession.

Question 341

Under what circumstances can a confession be excluded for fairness under PACE s 78?

Answer 341

If the admission of the evidence would have an adverse effect on the fairness of the proceedings.

Question 342

What are some reasons a confession might be excluded under PACE s 78?

Answer 342

Reasons include: * Improper denial of access to legal advice * Breach of PACE Codes of Practice * Confessions obtained by lies or tricks * Failure to record an interview properly.

Question 343

True or False: There is a burden of proof for the prosecution under PACE s 78.

Answer 343

False

Question 344

What is the primary focus of PACE s 78?

Answer 344

Balancing arguments on both sides to determine overall fairness.

Question 345

Summary of key principles hearsay and opinion evidence

Answer 345

Witnesses should give testimony of their personal experience. * Examination-in-chief should allow the witness to give evidence in their own words and so should not involve use of leading questions. * Cross-examination should involve challenge to a witness’s evidence and, therefore, generally involves use of leading questions. * If a witness repeats things said by others outside of court, this will be hearsay evidence if it is used to try to convince the court of the truth of what was said. * Such out-of-court statements will not be hearsay if used to prove some other relevant fact. * Hearsay evidence can be admissible if the original maker of the statement is unavailable. * Documentary hearsay evidence can also be admissible if created in the course of a trade, business or profession. * Other grounds for admitting hearsay exist. * Confessions are admissible hearsay evidence. * Confessions obtained by oppression will not be admissible. * A confession that results from things that might lead to an unreliable confession will also not be admissible. * The court can exclude confessions in the interests of ensuring the trial is fair.

Question 346

What is good character evidence in a trial?

Answer 346

A defendant with good character is entitled to have this considered at trial regarding guilt and credibility. ## Footnote Good character can influence the jury's perception of the defendant's truthfulness and likelihood of committing the alleged offense.

Question 347

What are the two types of good character a defendant may have?

Answer 347

* Absolute good character: no previous convictions or reprehensible behaviors. * Effective good character: previous convictions or cautions that are not relevant, old, or minor. ## Footnote Effective good character is subject to the court's discretion based on trial evidence.

Question 348

What is a good character direction?

Answer 348

A full good character direction includes a credibility direction and a propensity direction as established in R v Vye [1993] 1 WLR 471. ## Footnote This direction guides the jury on how to consider a defendant's good character.

Question 349

What is the purpose of a credibility direction?

Answer 349

The jury should consider the defendant's good character when deciding the truth of their statements. ## Footnote This direction is necessary if the defendant has testified or made pre-trial statements.

Question 350

What is the purpose of a propensity direction?

Answer 350

The jury should consider good character when determining if the defendant is likely to have committed the offense. ## Footnote This direction applies regardless of whether the defendant testifies.

Question 351

What is the Criminal Justice Act 2003 (CJA 2003) concerning bad character evidence?

Answer 351

The CJA 2003 allows bad character evidence to be proven in limited situations by the prosecution or co-defendant. ## Footnote There are seven 'gateways' for the admissibility of bad character evidence.

Question 352

What constitutes evidence of bad character?

Answer 352

Evidence of misconduct or a disposition towards misconduct not related to the charged offense. ## Footnote Misconduct is defined as a criminal offense.

Question 353

What are the two types of bad character evidence that are automatically admissible?

Answer 353

* Evidence related to the alleged facts of the charged offense. * Evidence of misconduct during the investigation or prosecution of the offense. ## Footnote These do not require court approval for admissibility.

Question 354

What is important explanatory evidence?

Answer 354

Evidence necessary for the court or jury to properly understand other evidence in the case. ## Footnote It must have substantial value for understanding the case.

Question 355

What is the significance of proving propensity to commit offenses?

Answer 355

It establishes that a defendant is more likely to have committed the offense charged. ## Footnote Propensity can be established through previous convictions of the same description or category.

Question 356

What is required for evidence of propensity to be admitted?

Answer 356

It must show a relevant connection to the offense charged and be sufficiently probative of guilt. ## Footnote The tribunal of law determines the admissibility based on the evidence presented.

Question 357

What does the term 'propensity to untruthfulness' mean?

Answer 357

It refers to the likelihood that a defendant is untruthful, proven through previous convictions. ## Footnote This can only be considered if truthfulness is in issue.

Question 358

What is the 'cut-throat defense'?

Answer 358

A defense strategy where co-defendants blame each other for the offense. ## Footnote This often allows for the introduction of bad character evidence against a co-defendant.

Question 359

What is the gateway for correcting a false impression?

Answer 359

Prosecution can rebut a false impression created by the defendant's testimony with evidence of bad character. ## Footnote This does not apply if the defendant merely denies the offense.

Question 360

What is not considered a false or misleading impression in court?

Answer 360

Mere denial of the offence ## Footnote The court should avoid treating equivocal answers in cross-examination as false impressions.

Question 361

What can a defendant do to avoid triggering the gateway of false impression?

Answer 361

Withdraw or disassociate from an impression ## Footnote Admitting during cross-examination that something is not true is insufficient.

Question 362

What type of evidence is admissible to correct a false impression created by a defendant?

Answer 362

Evidence of the defendant's links to gangs, previous convictions, and photographs ## Footnote This evidence is admissible to counter a selectively inaccurate account.

Question 363

When can an impression be given in court?

Answer 363

During testimony, evidence for the defence, or questioning under caution ## Footnote It can also result from deliberate questioning in cross-examination.

Question 364

What constitutes an attack on another person's character in court?

Answer 364

Evidence called or statements made suggesting that another person has committed an offence ## Footnote This includes allegations of bias or conspiracy to pervert justice.

Question 365

What must a court consider before admitting evidence through certain gateways?

Answer 365

The fairness of the proceedings ## Footnote The length of time between the offence charged and previous convictions is a consideration.

Question 366

What does bad character evidence refer to for witnesses?

Answer 366

Evidence of the witness's bad character defined similarly to defendants ## Footnote Admission is much more restricted for witnesses.

Question 367

What are the three conditions under which bad character evidence of witnesses can be admitted?

Answer 367

* Important explanatory evidence with substantial value for understanding the case * Substantial probative value related to a matter of importance in the case * Agreement of all parties

Question 368

What is required for admitting bad character evidence of non-defendants?

Answer 368

Court must grant leave unless all parties agree ## Footnote The value of the bad character must be substantial for understanding the case.

Question 369

What is the procedure for admitting character evidence in court?

Answer 369

Written application with notice in a pro forma ## Footnote The application should detail facts of misconduct and reasons for admissibility.

Question 370

What is the purpose of PACE s 78?

Answer 370

To exclude prosecution evidence if it adversely affects fairness of proceedings ## Footnote It applies broadly to any evidence the prosecution seeks to admit.

Question 371

What must a court consider under PACE s 78 when excluding evidence?

Answer 371

Circumstances surrounding the evidence and its impact on fairness ## Footnote Both the rights of the accused and the public good are considered.

Question 372

What is a common situation that can lead to a PACE s 78 application?

Answer 372

Unlawful use of police powers, such as stop and search ## Footnote Bypassing lawful safeguards, like cautions, can favor exclusion.

Question 373

What does entrapment refer to in legal terms?

Answer 373

Encouraging a person to commit a crime and then prosecuting them ## Footnote This raises questions of fairness in trials.

Question 374

What does PACE s 78(2) preserve?

Answer 374

The common law discretion to exclude evidence that is more prejudicial than probative ## Footnote This is a balancing act for judges to consider.

Question 375

What are the two situations where a court can stay proceedings as an abuse of process?

Answer 375

* Impossible to give a defendant a fair trial * No fair outcome due to circumstances offending the court's sense of justice

Question 376

Summary of key principles of character evidence and fairness

Answer 376

A defendant can use evidence of good character to invite the Bench or jury to decide that the defendant is more worthy of belief or is less likely to commit offences. * A qualified good character direction can be given even if the defendant has some previous convictions. * Bad character is only admissible against a defendant through specific “gateways”. * Bad character evidence can be used to prove the defendant had a propensity to commit the type of offence charged. * Prosecution evidence can be excluded on the grounds of fairness, but some gateways of admissibility have more protection than others. * There are more stringent restrictions on character evidence being admitted by co- defendants, but such evidence cannot be excluded. * There are even more stringent restrictions on character evidence being admitted against non-defendant witnesses. * Determining the admissibility of evidence of bad character is very fact specific. * There is a general discretion to exclude prosecution evidence if admitting it would have an adverse effect on the fairness of the trial as a whole. * This is a very fact-specific discretion that involves weighing different factors in the balance. * There are not hard and fast rules about when exclusion will happen

Question 377

What must the prosecution provide to the defence before the first court appearance?

Answer 377

Initial details of the prosecution case, including a summary of the circumstances of the offence and the defendant’s criminal record.

Question 378

What should the initial disclosure include if the defendant is not in police custody?

Answer 378

Information relevant to plea, allocation, or sentence, including any witness statements available.

Question 379

When does the prosecution typically make available the evidence for trial?

Answer 379

Once a case is listed for trial.

Question 380

What is the purpose of a preparation for trial hearing?

Answer 380

To ensure the defendant understands plea options and the implications of their plea.

Question 381

What must be completed ideally before the preparation for trial hearing?

Answer 381

A Preparation for Effective Trial form.

Question 382

What matters should be determined at the case management hearing?

Answer 382

* Real issues * Points of law * Agreed evidence * Formal admissions * Number of witnesses * Record of police interview * Applications for special measures.

Question 383

What is the Criminal Justice Act 1967 s 9 about?

Answer 383

It relates to the agreement and reading out of evidence.

Question 384

What can the court rule on before trial during a pre-trial ruling?

Answer 384

Admissibility of evidence or questions of law.

Question 385

What is the time frame for the prosecution to provide a trial bundle in the Crown Court?

Answer 385

Within 70 days (50 days if the defendant is in custody).

Question 386

What should the trial bundle include?

Answer 386

* Draft indictment * Witness statements * List of exhibits * List of unused evidence.

Question 387

What is a Plea and Trial Preparation Hearing (PTPH)?

Answer 387

A hearing listed within 28 days of the case being transferred to the Crown Court to prepare for trial.

Question 388

What options does a defendant have at a PTPH?

Answer 388

* Plead guilty * Ask for Goodyear indication * Plead not guilty.

Question 389

What is a preparatory hearing?

Answer 389

A hearing held for long and complex cases to identify issues and assist case management.

Question 390

What is the prosecution's obligation regarding unused material?

Answer 390

To provide the defence with information that may assist their case.

Question 391

What is a Streamlined Disclosure Certificate?

Answer 391

A document prepared by police in magistrates’ court cases outlining potential unused material.

Question 392

What must the defence do to satisfy their obligations?

Answer 392

Serve a defence statement identifying the basis of their case and points of dispute.

Question 393

What can happen if the defence fails to produce a defence statement?

Answer 393

Adverse inferences may be drawn against the defendant.

Question 394

What is the general rule regarding witness competence?

Answer 394

All competent witnesses are compellable.

Question 395

What is required for a witness to give sworn testimony?

Answer 395

* Aged 14 or over * Sufficient appreciation of the responsibility to tell the truth.

Question 396

When does a defendant become competent to testify?

Answer 396

Once they cease to face the risk of conviction.

Question 397

Can a defendant be compelled to testify?

Answer 397

No, a defendant is not compellable for any party in the case.

Question 398

Under what circumstances can a spouse or civil partner be compelled to testify?

Answer 398

* If the defendant is charged with assault against them * If the defendant is charged with assault on a person under 16 * If charged with a sexual offence against a person under 16.

Question 399

What can compel a witness to attend court?

Answer 399

A witness summons issued by a judge, magistrate, or authorized court officer.

Question 400

What are special measures directions?

Answer 400

They change how a witness gives testimony to improve evidence quality or address attendance issues.

Question 401

Who is eligible for special measures directions?

Answer 401

* Witness under 18 * Witness with a physical or mental disorder * Witness likely to be affected by fear or distress.

Question 402

What special measure allows a witness to give evidence behind a screen?

Answer 402

Giving evidence behind a screen, screened from the defendant.

Question 403

What measure allows a witness to give evidence through a live link?

Answer 403

Giving evidence through live link from a different location.

Question 404

What is the purpose of video recording evidence-in-chief?

Answer 404

To allow evidence to be presented without the witness being present in court.

Question 405

What must happen for video recording of cross-examination and re-examination to occur?

Answer 405

The evidence-in-chief must be pre-recorded.

Question 406

What is the primary rule regarding witnesses under the age of 18?

Answer 406

All witnesses under the age of 18 will receive particular special measures directions unless it would not maximize the quality of evidence. ## Footnote Default directions include video recording of evidence-in-chief and live link for cross-examination and re-examination.

Question 407

What measures are available for children and witnesses with disabilities?

Answer 407

Examination through an intermediary and provision of aids to communication. ## Footnote These are available only to child witnesses or those eligible due to physical or mental vulnerability.

Question 408

When is video recording of evidence-in-chief permitted?

Answer 408

It is permitted unless it is not in the interests of justice. ## Footnote This applies to both evidence-in-chief and cross-examination if conditions are met.

Question 409

What must happen during the video recording of cross-examination if evidence-in-chief is pre-recorded?

Answer 409

It must occur in the presence of the judge or magistrates but not in the presence of the defendant. ## Footnote This ensures the integrity of the judicial process.

Question 410

What is presumed about adult complainants in sexual offence cases regarding special measures?

Answer 410

They are presumed to be in fear and eligible for particular special measures unless they decline them. ## Footnote This includes admissibility of recorded video interviews in Crown Court trials.

Question 411

What happens to cross-examination in sexual offence cases if pre-trial videoed cross-examination is not available?

Answer 411

Cross-examination will take place behind a screen. ## Footnote This is intended to protect the complainant's comfort during proceedings.

Question 412

What should the judge consider when special measures are granted in the Crown Court?

Answer 412

The judge should consider explaining special measures to the jury. ## Footnote This is to ensure the defendant is not prejudiced by the measures.

Question 413

What conditions allow a vulnerable adult defendant to give evidence over a live link?

Answer 413

It must be in the interests of justice and show that the defendant suffers from a mental disorder or significant impairment. ## Footnote This facilitates effective participation in proceedings.

Question 414

What is the criteria for defendants under the age of 18 to use a live link?

Answer 414

Their level of intellectual ability or social functioning must be compromised. ## Footnote This allows for more effective participation in court.

Question 415

Fill in the blank: An intermediary can be an _______.

Answer 415

[interpreter] ## Footnote An intermediary helps explain questions to the witness and understand their answers.

Question 416

What is the provision for aids to communication?

Answer 416

Available only to child witnesses or those eligible due to physical or mental vulnerability. ## Footnote This ensures that all witnesses can effectively communicate during proceedings.

Question 417

Summary of key principles of character evidence and fairness

Answer 417

9.9.8 Summary of key principles * Pre-trial procedures in the magistrates’ court and Crown Court are intended to clarify issues and lead to efficient trials. * In the magistrates’ courts, case preparation will, ideally, be completed at the first hearing. * Case preparation is usually conducted at a PTPH in the Crown Court. * In both cases, the court can, unusually, hold further hearings, particularly, to take a guilty plea or resolve key matters, such as evidential issues pre-trial. * Pre-trial rulings bind the trial court. * The prosecution has a duty to provide information about the evidence it will rely on before trial. * The prosecution also has a duty to provide information that it does not propose to rely on but which may assist the defence case. * The defence has an obligation in the Crown Court to produce a defence statement, setting out their defence and a failure to do so properly can lead to adverse inferences. This is optional in the magistrates’ court. * It is necessary to determine the competence of witnesses to give evidence. This depends on their ability to understand and answer questions. * Competent witnesses are usually compellable. * The spouse or civil partner of a defendant is not compellable for the prosecution or co- defendant except in relation to particular offences. * Witnesses may have special measures direction issued for them to put in place additional provisions to assist them to give reliable evidence. * Child witnesses and complainants in sexual offences are presumed to need particular special measures directions.

Question 418

What must the prosecution provide to the defence before the first court appearance?

Answer 418

Initial details of the prosecution case, including a summary of the circumstances of the offence and the defendant’s criminal record.

Question 419

What should the initial disclosure include if the defendant is not in police custody?

Answer 419

Information relevant to plea, allocation, or sentence, including any witness statements available.

Question 420

When does the prosecution typically make available the evidence for trial?

Answer 420

Once a case is listed for trial.

Question 421

What is the purpose of a preparation for trial hearing?

Answer 421

To ensure the defendant understands plea options and the implications of their plea.

Question 422

What must be completed ideally before the preparation for trial hearing?

Answer 422

A Preparation for Effective Trial form.

Question 423

What matters should be determined at the case management hearing?

Answer 423

* Real issues * Points of law * Agreed evidence * Formal admissions * Number of witnesses * Record of police interview * Applications for special measures.

Question 424

What is the Criminal Justice Act 1967 s 9 about?

Answer 424

It relates to the agreement and reading out of evidence.

Question 425

What can the court rule on before trial during a pre-trial ruling?

Answer 425

Admissibility of evidence or questions of law.

Question 426

What is the time frame for the prosecution to provide a trial bundle in the Crown Court?

Answer 426

Within 70 days (50 days if the defendant is in custody).

Question 427

What should the trial bundle include?

Answer 427

* Draft indictment * Witness statements * List of exhibits * List of unused evidence.

Question 428

What is a Plea and Trial Preparation Hearing (PTPH)?

Answer 428

A hearing listed within 28 days of the case being transferred to the Crown Court to prepare for trial.

Question 429

What options does a defendant have at a PTPH?

Answer 429

* Plead guilty * Ask for Goodyear indication * Plead not guilty.

Question 430

What is a preparatory hearing?

Answer 430

A hearing held for long and complex cases to identify issues and assist case management.

Question 431

What is the prosecution's obligation regarding unused material?

Answer 431

To provide the defence with information that may assist their case.

Question 432

What is a Streamlined Disclosure Certificate?

Answer 432

A document prepared by police in magistrates’ court cases outlining potential unused material.

Question 433

What must the defence do to satisfy their obligations?

Answer 433

Serve a defence statement identifying the basis of their case and points of dispute.

Question 434

What can happen if the defence fails to produce a defence statement?

Answer 434

Adverse inferences may be drawn against the defendant.

Question 435

What is the general rule regarding witness competence?

Answer 435

All competent witnesses are compellable.

Question 436

What is required for a witness to give sworn testimony?

Answer 436

* Aged 14 or over * Sufficient appreciation of the responsibility to tell the truth.

Question 437

When does a defendant become competent to testify?

Answer 437

Once they cease to face the risk of conviction.

Question 438

Can a defendant be compelled to testify?

Answer 438

No, a defendant is not compellable for any party in the case.

Question 439

Under what circumstances can a spouse or civil partner be compelled to testify?

Answer 439

* If the defendant is charged with assault against them * If the defendant is charged with assault on a person under 16 * If charged with a sexual offence against a person under 16.

Question 440

What can compel a witness to attend court?

Answer 440

A witness summons issued by a judge, magistrate, or authorized court officer.

Question 441

What are special measures directions?

Answer 441

They change how a witness gives testimony to improve evidence quality or address attendance issues.

Question 442

Who is eligible for special measures directions?

Answer 442

* Witness under 18 * Witness with a physical or mental disorder * Witness likely to be affected by fear or distress.

Question 443

What special measure allows a witness to give evidence behind a screen?

Answer 443

Giving evidence behind a screen, screened from the defendant.

Question 444

What measure allows a witness to give evidence through a live link?

Answer 444

Giving evidence through live link from a different location.

Question 445

What is the purpose of video recording evidence-in-chief?

Answer 445

To allow evidence to be presented without the witness being present in court.

Question 446

What must happen for video recording of cross-examination and re-examination to occur?

Answer 446

The evidence-in-chief must be pre-recorded.

Question 447

What is the primary rule regarding witnesses under the age of 18?

Answer 447

All witnesses under the age of 18 will receive particular special measures directions unless it would not maximize the quality of evidence. ## Footnote Default directions include video recording of evidence-in-chief and live link for cross-examination and re-examination.

Question 448

What measures are available for children and witnesses with disabilities?

Answer 448

Examination through an intermediary and provision of aids to communication. ## Footnote These are available only to child witnesses or those eligible due to physical or mental vulnerability.

Question 449

When is video recording of evidence-in-chief permitted?

Answer 449

It is permitted unless it is not in the interests of justice. ## Footnote This applies to both evidence-in-chief and cross-examination if conditions are met.

Question 450

What must happen during the video recording of cross-examination if evidence-in-chief is pre-recorded?

Answer 450

It must occur in the presence of the judge or magistrates but not in the presence of the defendant. ## Footnote This ensures the integrity of the judicial process.

Question 451

What is presumed about adult complainants in sexual offence cases regarding special measures?

Answer 451

They are presumed to be in fear and eligible for particular special measures unless they decline them. ## Footnote This includes admissibility of recorded video interviews in Crown Court trials.

Question 452

What happens to cross-examination in sexual offence cases if pre-trial videoed cross-examination is not available?

Answer 452

Cross-examination will take place behind a screen. ## Footnote This is intended to protect the complainant's comfort during proceedings.

Question 453

What should the judge consider when special measures are granted in the Crown Court?

Answer 453

The judge should consider explaining special measures to the jury. ## Footnote This is to ensure the defendant is not prejudiced by the measures.

Question 454

What conditions allow a vulnerable adult defendant to give evidence over a live link?

Answer 454

It must be in the interests of justice and show that the defendant suffers from a mental disorder or significant impairment. ## Footnote This facilitates effective participation in proceedings.

Question 455

What is the criteria for defendants under the age of 18 to use a live link?

Answer 455

Their level of intellectual ability or social functioning must be compromised. ## Footnote This allows for more effective participation in court.

Question 456

Fill in the blank: An intermediary can be an _______.

Answer 456

[interpreter] ## Footnote An intermediary helps explain questions to the witness and understand their answers.

Question 457

What is the provision for aids to communication?

Answer 457

Available only to child witnesses or those eligible due to physical or mental vulnerability. ## Footnote This ensures that all witnesses can effectively communicate during proceedings.

Question 458

Summary of key principles of preparing for trial

Answer 458

* Pre-trial procedures in the magistrates’ court and Crown Court are intended to clarify issues and lead to efficient trials. * In the magistrates’ courts, case preparation will, ideally, be completed at the first hearing. * Case preparation is usually conducted at a PTPH in the Crown Court. * In both cases, the court can, unusually, hold further hearings, particularly, to take a guilty plea or resolve key matters, such as evidential issues pre-trial. * Pre-trial rulings bind the trial court. * The prosecution has a duty to provide information about the evidence it will rely on before trial. * The prosecution also has a duty to provide information that it does not propose to rely on but which may assist the defence case. * The defence has an obligation in the Crown Court to produce a defence statement, setting out their defence and a failure to do so properly can lead to adverse inferences. This is optional in the magistrates’ court. * It is necessary to determine the competence of witnesses to give evidence. This depends on their ability to understand and answer questions. * Competent witnesses are usually compellable. * The spouse or civil partner of a defendant is not compellable for the prosecution or co- defendant except in relation to particular offences. * Witnesses may have special measures direction issued for them to put in place additional provisions to assist them to give reliable evidence. * Child witnesses and complainants in sexual offences are presumed to need particular special measures directions

Question 459

What is the main legislation governing sentencing?

Answer 459

Sentencing Code set out in the Sentencing Act 2020

Question 460

List the purposes the court must consider when sentencing.

Answer 460

* Punishment of offenders * Reduction of crime (including deterrence) * Reform and rehabilitation of offenders * Protection of the public * Offenders making reparation to persons affected by crime

Question 461

What is the core consideration in many parts of the Sentencing Code?

Answer 461

Offence seriousness

Question 462

What must courts do regarding sentencing guidelines?

Answer 462

Follow them unless it is against the interests of justice

Question 463

What types of courts have distinct sentencing guidelines?

Answer 463

Magistrates’ court and Crown Court

Question 464

What is the role of culpability and harm in sentencing decisions?

Answer 464

They determine the offence category and starting point for the sentence

Question 465

How is a guilty plea treated in sentencing?

Answer 465

It entitles the defendant to a discount on the sentence

Question 466

What are the potential reductions for a guilty plea based on timing?

Answer 466

* One-third for a plea at the first hearing * One-quarter for a plea after the first stage * One-tenth for late pleas

Question 467

What factors can aggravate a sentence?

Answer 467

* Previous convictions * Premeditation * Targeting vulnerable victims * Use of a weapon * Racial or religious aggravation

Question 468

What are some mitigating factors that may be considered?

Answer 468

* Lack of previous convictions * Good character * Remorse * Age and lack of maturity

Question 469

What is the totality principle in sentencing?

Answer 469

The overall sentence must not be disproportionate to the overall seriousness of the offending

Question 470

How should sentences for multiple offences be handled?

Answer 470

Determine each sentence separately and specify if they are served consecutively or concurrently

Question 471

What is a concurrent sentence?

Answer 471

A sentence where multiple offences are served at the same time

Question 472

What is a consecutive sentence?

Answer 472

A sentence where multiple offences are served one after the other

Question 473

What is the difference between concurrent and consecutive sentences?

Answer 473

Concurrent sentences are served simultaneously, while consecutive sentences are served in sequence

Question 474

What types of sentences can be imposed?

Answer 474

* Custodial sentences * Community sentences * Fines * Discharges

Question 475

What is a custodial sentence?

Answer 475

A sentence involving imprisonment, which can be immediate or suspended

Question 476

What is the custody threshold?

Answer 476

A standard that must be met for a custodial sentence to be imposed

Question 477

What is the community sentence threshold?

Answer 477

A standard that must be met for a community sentence to be imposed

Question 478

What happens to a custodial sentence length?

Answer 478

Half the custodial period is served in custody, the other half on licence

Question 479

What is a suspended sentence?

Answer 479

A custodial sentence that can be postponed under certain conditions

Question 480

When can a suspended sentence be imposed?

Answer 480

When the custody threshold has been passed and there is a realistic prospect of rehabilitation

Question 481

What is the maximum length for a custodial sentence imposed by magistrates' court?

Answer 481

6 months for one offence or 12 months for more than one either-way offence

Question 482

What is the minimum length for a sentence imposed by magistrates' court?

Answer 482

5 days

Question 483

What should the court do regarding personal mitigation?

Answer 483

Address personal factors such as work, domestic life, and health

Question 484

What is the difference between fines and compensation orders?

Answer 484

Fines go to the state; compensation goes to the victim

Question 485

What is a suspended sentence?

Answer 485

A suspended sentence is appropriate where there is a realistic prospect of rehabilitation, strong personal mitigation, or immediate custody would result in significant harm to others.

Question 486

What requirements are applicable for a suspended sentence?

Answer 486

Requirements are subject to the same controls as those imposed as part of a community order.

Question 487

Can a suspended sentence be combined with a community order?

Answer 487

No, a suspended sentence cannot be combined with a community order but can be combined with a fine.

Question 488

What happens if a defendant breaches the requirements of a suspended sentence?

Answer 488

The court should reimpose the full original sentence or a shorter custodial sentence unless it is unjust to do so.

Question 489

What is a life sentence?

Answer 489

A life sentence can be the maximum sentence for some crimes and is the mandatory sentence for murder.

Question 490

What must the court specify when imposing a life sentence?

Answer 490

The court must specify a minimum term to be served unless a whole life sentence is passed.

Question 491

What are mandatory minimum sentences?

Answer 491

Minimum custodial sentences imposed for repeated commission of certain offences, known as the 'three-strike provisions'.

Question 492

What is the minimum term for domestic burglary under the three-strike provisions?

Answer 492

3 years for the second domestic burglary offence.

Question 493

What is the maximum duration for a community order?

Answer 493

The total duration for a community order can be no longer than 3 years.

Question 494

What is required for a community order to be imposed?

Answer 494

A community order can only be imposed for imprisonable offences.

Question 495

What is the purpose of a pre-sentence report?

Answer 495

To assist the court with sentencing and is not binding.

Question 496

What is the limit for unpaid work under a community order?

Answer 496

40–300 hours over a 12-month period.

Question 497

What does the curfew requirement under a community order entail?

Answer 497

Remaining at a specified place at particular times between 2–16 hours per day.

Question 498

How are fines imposed in the Crown Court?

Answer 498

There is an unlimited power to impose fines.

Question 499

What is the maximum fine for a level 5 offence?

Answer 499

Unlimited.

Question 500

What is a compensation order?

Answer 500

An order that the defendant pay compensation for personal injury, loss, or damage resulting from the offences.

Question 501

What can happen if a defendant breaches a fine or compensation order?

Answer 501

The magistrates’ court can impose a custodial sentence for breach.

Question 502

What is an absolute discharge?

Answer 502

A release without any further requirements placed upon the defendant.

Question 503

What is a conditional discharge?

Answer 503

A discharge with a specified period during which the defendant must not commit further offences.

Question 504

What is a victim surcharge?

Answer 504

A compulsory additional charge imposed when a defendant is sentenced.

Question 505

What happens during a sentencing hearing?

Answer 505

The court must determine relevant facts, hear prosecution information, and allow the defendant to make representations.

Question 506

What is a Newton hearing?

Answer 506

A trial to determine the relevant factual issues when there is a dispute about the factual basis of the offence.

Question 507

key summary of principles of sentencing

Answer 507

* Sentencing is based on offence seriousness, which determines the most appropriate sentence type and the overall length of most sentences. * Seriousness consists of harm and culpability. * This involves an assessment of aggravating and mitigating factors. * There are sentencing guidelines for particular types of offences. * A custodial sentence is the most serious sentence and the offence(s) must pass a custody threshold for it to be imposed. * A suspended sentence is a custodial sentence of no more than 2 years that can be suspended for up to 2 years, but it must be serious enough to pass the custody threshold to qualify. * Some offences have minimum custodial terms that have to be imposed for repeat offenders. * A community sentence consists of various requirements (obligations) that the court imposes on the defendant to be served in the community. * Fines are imposed according to seriousness and means. * Payment of a compensation order will take precedence over a fine. * Defendants can be discharged absolutely or on the condition they do not offend again within 3 years. If they do, they can be re-sentenced. * Sentences can be imposed concurrently or consecutively but, whichever approach is adopted, the court has to review whether the overall sentence is just and proportionate under the totality principle. * The court will normally sentence on the basis of the facts presented at trial or as alleged by the defence but, if the court needs to inquire into the facts more fully, it can hold a sort of trial called a “Newton hearing” to determine how (not whether) the defendant committed the offence.

Question 508

What are the three ways to challenge a decision of the magistrates’ court?

Answer 508

* Appeal to the Crown Court for a retrial * Take the matter to the High Court by way of 'case stated' * Use judicial review procedures

Question 509

What may make it unnecessary to appeal a magistrates’ court decision?

Answer 509

If the magistrates’ court can be persuaded to set a conviction aside or vary or rescind a sentence in the interests of justice

Question 510

Who is allowed to appeal to the Crown Court from the magistrates’ court?

Answer 510

Only a defendant

Question 511

What can a defendant appeal to the Crown Court?

Answer 511

* Conviction * Sentence * Both

Question 512

What is the time frame for sending a written notice of appeal to the Crown Court?

Answer 512

Within 15 business days of conviction or sentence

Question 513

What type of hearing occurs during an appeal at the Crown Court?

Answer 513

A complete rehearing of the case

Question 514

What are the possible outcomes of an appeal at the Crown Court?

Answer 514

* Confirm, vary or reverse the magistrates’ decision * Remit the matter back to the magistrates’ court * Re-sentence the appellant

Question 515

What should the judge provide when determining an appeal?

Answer 515

Reasons for the decision outlining key issues

Question 516

Who can use the appeal by case stated process?

Answer 516

Both the prosecution and the defence

Question 517

What is the time frame to make an application for an appeal by case stated?

Answer 517

Within 21 days of sentence or disposal of the case

Question 518

What is the role of the Divisional Court in an appeal by case stated?

Answer 518

To hear the matter based on the facts as stated in the statement of case

Question 519

What grounds can a defendant appeal a conviction or sentence from the Crown Court?

Answer 519

* Unsafe conviction * Wrong in law * Manifestly excessive * Wrong in principle

Question 520

What must a defendant do to appeal from the Crown Court to the Court of Appeal?

Answer 520

Gain leave to appeal

Question 521

What is the primary basis for an appeal against conviction in the Court of Appeal?

Answer 521

That the conviction is 'unsafe'

Question 522

What can the Court of Appeal do if it allows an appeal against conviction?

Answer 522

* Quash the conviction and acquit the defendant * Convict the defendant for a lesser offence * Order a retrial

Question 523

What is a 'loss of time' direction?

Answer 523

Time served in custody during an appeal may not count as part of a custodial sentence if the appeal is rejected

Question 524

What can the prosecution appeal regarding a Crown Court sentence?

Answer 524

An unduly lenient sentence

Question 525

What is required for the prosecution to appeal a sentence that is unduly lenient?

Answer 525

Leave must be obtained to appeal

Question 526

What does the prosecution need to provide when appealing a ruling of 'no case to answer'?

Answer 526

An undertaking that they will not offer evidence against the defendant if the appeal fails

Question 527

Fill in the blank: An appeal by way of case stated is a process open to _______.

Answer 527

[all parties]

Question 528

True or False: The prosecution can appeal a matter tried in the Crown Court.

Answer 528

False

Question 529

What must be included in the application for an appeal by case stated?

Answer 529

The question of law that will be taken to the Divisional Court

Question 530

What happens if a defendant's appeal is based on new evidence?

Answer 530

It may be accepted if it is in the overall interests of justice

Question 531

What does the judge's reasoning for an appeal decision help the defendant to do?

Answer 531

* See the nature of the criminality found to exist * Consider grounds for further appeal to the Divisional Court

Question 532

key summary principles of sentencing

Answer 532

The types of appeals available from the magistrates’ court and Crown Court differ. * A defendant can seek a retrial of a magistrates’ court conviction in the Crown Court. * Errors of law in the magistrates’ court can be challenged in the High Court under the case stated procedure. * A right to appeal to the Crown Court is lost if the case stated procedure is used (but the opposite is not true). * A defendant can appeal a Crown Court conviction to the Court of Appeal on the ground that it is unsafe. * A defendant can appeal a Crown Court sentence to the Court of Appeal on the grounds that it is excessive, unlawful or wrong in principle, and the Court of Appeal cannot sentence more severely. * The prosecution can appeal an unduly lenient Crown Court sentence (and the defendant can be sentenced more severely). * The prosecution can appeal points of law following a Crown Court trial, but this has no effect on an acquittal. * The prosecution can appeal some decisions made during the trial but, if it does so, it must promise to cease the case against the defendant if its appeal fails.

Question 533

What is the definition of a youth or juvenile in this context?

Answer 533

Someone who is not yet 18.

Question 534

At what age cannot a person hold criminal responsibility?

Answer 534

Under the age of 10.

Question 535

What is the primary role of a youth offending team?

Answer 535

To work with youth offenders on diversion, punishment, and rehabilitation.

Question 536

In which court do nearly all proceedings against defendants under 18 take place?

Answer 536

Youth court.

Question 537

How does the trial process in a youth court differ from an adult court?

Answer 537

It is less formal with key differences such as: * Layout is less forbidding * Witnesses give evidence sitting down * Defendant is addressed by first name * Language is less formal * Terms like 'case proven' instead of 'conviction'.

Question 538

Who are allowed to be present in youth court?

Answer 538

Court officers, parties, solicitors, witnesses, victim, parents/guardians, news reporters.

Question 539

What is the maximum detention and training order a youth court can impose?

Answer 539

24 months.

Question 540

What types of offences are typically tried in the youth court?

Answer 540

Most offences charged against youths under 18, except serious crimes.

Question 541

What are grave crimes in the context of youth court jurisdiction?

Answer 541

Offences carrying a maximum sentence of 14 years or more.

Question 542

What happens if a youth is charged with murder or manslaughter?

Answer 542

The case must be sent to the Crown Court.

Question 543

What is the standard procedure if a youth is charged alongside an adult?

Answer 543

The case starts in magistrates’ court, which determines where the youth will be tried.

Question 544

What are the principal aims of youth sentencing according to the Sentencing Council?

Answer 544

* Prevention of offending by young people * Ensuring their welfare.

Question 545

What is a referral order?

Answer 545

An order for first-time offenders involving a Youth Offender Panel to agree on rehabilitation.

Question 546

What is the maximum duration for a youth rehabilitation order (YRO)?

Answer 546

Up to 3 years.

Question 547

What conditions must be met for a referral order to be mandatory?

Answer 547

* Convicted of an imprisonable offence * No previous convictions (except conditional discharges) * Pleaded guilty * Discharge or custody not appropriate.

Question 548

What is a Detention and Training Order (DTO)?

Answer 548

A sentence for youth offenders that includes detention and supervised release.

Question 549

What is the age limit for imposing a DTO?

Answer 549

Cannot be imposed on a child under 12.

Question 550

What requirements can be imposed under a Youth Rehabilitation Order?

Answer 550

* Activity requirements * Supervision requirement * Programme requirement * Attendance centre requirement * Prohibited activity requirement * Curfew requirement * Exclusion requirement * Electronic monitoring requirement * Local authority residence requirement * Mental health treatment requirement * Drug treatment requirement.

Question 551

What does a YRO with intensive supervision and surveillance require?

Answer 551

A package of requirements, including extended activity requirements and supervision.

Question 552

True or False: A youth defendant has the right to elect a Crown Court trial.

Answer 552

False.

Question 553

What is the role of the youth court magistrates?

Answer 553

They are specially trained to handle youth cases.

Question 554

What is the significance of being classified as a persistent offender?

Answer 554

It determines eligibility for certain sentences.

Question 555

What happens if a youth is convicted in the Crown Court?

Answer 555

The Crown Court must consider sending the youth back to the youth court for sentencing.

Question 556

What is the maximum length of a DTO?

Answer 556

24 months.

Question 557

Fill in the blank: The youth court must determine if a custodial sentence substantially exceeding ______ is a realistic possibility.

Answer 557

2 years.

Question 558

What is the purpose of the Sentencing Children and Young People Guideline?

Answer 558

To provide guidance on youth sentencing and its principles.

Question 559

What is the maximum period for a curfew requirement under a YRO?

Answer 559

12 months.

Question 560

What is the duration of a DTO?

Answer 560

8, 10, 12, 18 or 24 months ## Footnote DTO stands for Detention and Training Order.

Question 561

What is the structure of a DTO sentence?

Answer 561

First half in detention, second half under supervised release.

Question 562

What must be passed before imposing a DTO?

Answer 562

Custody threshold.

Question 563

What remains options for youth offenders that differ from adult sentencing?

Answer 563

Other sentences.

Question 564

What do discharges signify for youth offenders?

Answer 564

Same meaning and effect as for adult defendants.

Question 565

What is a reparation order?

Answer 565

Obligation to carry out up to 24 hours of supervised reparation to a person or community over a 3-month period.

Question 566

Who must pay a fine imposed on a child under 16?

Answer 566

The parent or guardian.

Question 567

Can a fine be imposed on a child aged 16 or over?

Answer 567

Yes, the court may order payment.

Question 568

key summary principles of trails of minors

Answer 568

* Defendants under the age of 18 are treated differently from those over 18, to have regard to their greater developmental and welfare needs. * They are usually tried in the youth court, which has adapted procedures to reflect these needs and to reduce the formality of the trial process. * Those under 18 can be tried in adult courts if they are accused of offences alongside adults, although the circumstances in which this is possible are limited. * Youth offenders are subject to different sentences and there is a strong emphasis on keeping youth offenders in the youth court for these sentences to be imposed. * In addition to seriousness, youth sentencing options depend significantly on the welfare needs and age of the offender.

Question 570

What must a solicitor ensure regarding the client's case costs?

Answer 570

The client is given the best possible information about the likely cost of their case, both at the outset and as it progresses.

Question 571

How should a solicitor communicate information to a client?

Answer 571

In a way that the client can understand, enabling informed decisions about how the matter will be handled.

Question 572

What written details must a solicitor provide to a client?

Answer 572

Details on how to make a complaint within the firm and to the Legal Ombudsman.

Question 573

Under what circumstances can a solicitor withhold information from a client?

Answer 573

If disclosure is restricted by national security, the client gives written informed consent, disclosure would cause serious injury, or the information is from a mistakenly disclosed privileged document.

Question 574

What is one duty a solicitor has to the court?

Answer 574

A solicitor must not mislead or attempt to mislead the client, the court, or others.

Question 575

True or False: A solicitor can tamper with evidence.

Answer 575

False

Question 576

What is prohibited regarding evidence according to the solicitor's duties?

Answer 576

Tampering with, misusing evidence, or attempting to influence someone’s evidence.

Question 577

What must a solicitor avoid doing in relation to the court?

Answer 577

Wasting the court’s time.

Question 578

Fill in the blank: A solicitor has a duty to ensure the client is given the best possible information about the likely _______.

Answer 578

cost of their case

Question 579

What should a solicitor do if they have material information about a client's case?

Answer 579

Pass on all information unless specific restrictions apply.

Question 580

What should a solicitor include when providing complaint details?

Answer 580

How to make a complaint within the firm and to the Legal Ombudsman.

Question 581

What is the first step in the problem-solving process?

Answer 581

Identify the issue that the problem raises, such as a conflict of interest or confidentiality.

Question 582

What does Step 2 in the problem-solving process entail?

Answer 582

Identify the rules that are relevant to the issue and make sure you understand what the rules state.

Question 583

In Step 3, what should you identify regarding ethical considerations?

Answer 583

Identify what you should do ethically, for example, cease to act for the client.

Question 584

What is the final step in the problem-solving process?

Answer 584

Choose the option that best fits your course of action.

Question 585

In the decision-making step, what action might you take regarding the defendant?

Answer 585

You would have to cease acting for the defendant.

Question 586

True or False: You should explain to the court your reason for ceasing to act for the defendant.

Answer 586

False

Question 587

Fill in the blank: The acronym for the problem-solving process is _______.

Answer 587

IRED