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SQE2 > Criminal Litigation > Flashcards

Criminal Litigation Flashcards

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1
Q

How long does the prosecution have to complete disclosure?

A

50 days (70 if the defendant is on bail)

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2
Q

What are the prosecution’s disclosure obligations?

A

The prosecution must disclose a) any evidence it intends to rely on, and b) any evidence that might reasonably be considered capable of undermining their case or assisting the defendant’s case.

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3
Q

Is the power to grant bail if there is no exception discretionary or mandatory?

A

Mandatory.

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4
Q

When can the police/prosecution remand a defendant in custody?

A

A) An exception to the general right to bail applies; and
B) There is a real prospect of a custodial sentence.

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5
Q

What are the major exceptions to the right to bail?

A

A) There are substantial grounds to believe the defendant might fail to surrender, commit other offences while on bail or interfere with witnesses;
B) They are charged with an offence triable at the Crown Court and were on bail at the time of the offence; and
C) There are reasonable grounds to believe that the defendant would harm an associated person while on bail.

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6
Q

What must any conditions that are applied to bail be?

A

Relevant, proportionate and enforceable.

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7
Q

When can a defendant who has been charged with murder be granted bail?

A

When there is no significant risk that they would commit an offence likely to harm another person.

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8
Q

What Act governs suspects’ rights in police custody & grants the court powers?

A

The Police and Criminal Evidence Act 1984.

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9
Q

When can a suspect’s right to legal advice be delayed?

A

a) When charged with an either way or indictable only offence;
b) When written permission has been given by a superintendent or above; and
c) The officer has reasonable grounds to believe the suspect will interfere with evidence or will alert others.

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10
Q

How long can the right to access legal advice be delayed to a suspect in custody?

A

36 hours.

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11
Q

When can a suspect be delayed the right to inform someone of their arrest?

A

a) When charged with an either way or indictable only offence;
b) When written permission has been given by an inspector or above; and
c) The officer has reasonable grounds to believe the suspect will interfere with evidence or will alert others.

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12
Q

What conditions need to be fulfilled to keep a suspect in custody for the first 12 hours over the initial 24 hour period?

A

a) The suspect is charged with an either way or indictable only offence;
b) A superintend or above authorises it;
c) They have reasonable grounds to believe that it is necessary to secure, preserve or obtain evidence; and
d) The investigation is being conducted diligently and expeditiously.

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13
Q

What are the extensions available past 24 hours to keep a suspect in custody?

A

1) 12 hours (superintendent)
2) 36 hours (Magistrates)
3) 24 hours (Magistrates)

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14
Q

How long after first appearance will a summary only offence trial be set for?

A

6 - 8 weeks.

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15
Q

What are the two tests required to pass to obtain a representation order?

A

a) The interests of justice test; and
b) The means test.

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16
Q

What will the court take into account when considering if a defendant passes the interests of justice test to obtain a representation order?

A

a) Is the defendant likely to lose their liberty, reputation or livelihood?;
b) Does the case require a substantial understanding of the law?;
c) Is expert evidence or cross-examination required?;
d) Can the defendant understand the proceedings?; and
e) Is it in the interest of anyone other than the defendant that they be represented?

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17
Q

What must the court consider at a plea before venue when at the allocation stage?

A

a) The defendant’s previous convictions;
b) The adequacy of its sentencing powers; and
c) Representations made by both parties.

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18
Q

What are the two standard directions given for a summary only offence before trial?

A

a) The prosecution must serve its evidence within 28 days; and
b) The defence statement will serve its defence (if doing so) 14 days after.

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19
Q

When does a plea and trial preparation hearing take place in Crown Court?

A

28 days after being sent from the Magistrates’ Court.

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20
Q

What is a Goodyear indication?

A

An optional indication by the judge of the sentence that would be imposed if the defendant were to plead guilty at the Crown Court. If the defendant pleads guilty, the judge must follow this indication.

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21
Q

When will the Turnbull guidelines be followed?

A

When the case wholly or substantially depends on identification evidence.

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22
Q

What does the ADVOKATE mnemonic stand for?

A

A - amount of time
D - distance
V - visibility
O - obstruction
K - known to the witness
A - any reason to remember
T - time passed between events
E - errors in initial description

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23
Q

What does a Turnbull warning include?

A

a) A reminder that witnesses can be convincing but mistaken;
b) A description of the circumstances of the identification; and
c) A referral to particular weaknesses of the evidence using the ADVOKATE factors.

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24
Q

When can an adverse inference be drawn?

A

a) Upon charge, when failing to refer to something they might reasonably have been expected to mention when they rely on it later;
b) At trial, when the defendant fails to give evidence despite physically and mentally being able to;
c) When the defendant fails to account for a mark or an object being found upon them; or
d) When the defendant fails to account for their presence at the scene.

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25
What is hearsay evidence?
Hearsay is either a written document or when someone testifies in court to something told to them outside of court by someone else.
26
When is hearsay admissible under statute?
a) When a witness is unavailable because they are dead, out the country or too scared to attend court; b) A business document if prepared by someone in the course of business with knowledge of the matter and sent to someone in the course of trade; c) Statements were prepared by someone who could not be expected to remember; d) Previous consistent or inconsistent statements; e) Expert evidence; or f) Confessions.
27
When is hearsay admissible under rule of law?
When a statement is made contemporaneously to the offence which were preserved by res gestae.
28
When is multiple hearsay admissible?
a) Business document; b) Consistent or inconsistent statements; c) All parties agree; or d) In the interest of justice.
29
What is a confession?
A statement wholly or partially adverse to the person who made it.
30
When are confessions admissible?
When they are relevant to a matter in issue between the prosecution and the defence.
31
Under what two grounds can the defence challenge the admissibility of a confession?
a) Mistake (listener misheard); or b) Unreliability.
32
What are the two grounds of 'untruth' when challenging the admissibility of a confession?
a) Oppression; or b) Things said or done likely to render the confession unreliable (inducements, misrepresenting strength of evidence etc.).
33
Who has the burden of proof when the admissibility of a confession has been challenged?
The prosecution must prove beyond reasonable doubt that the confession is not unreliable.
34
If the prosecution cannot prove that a confession is not unreliable, is the power of the judge to deem it inadmissible discretionary or mandatory?
Mandatory.
35
When does the judge's discretionary power under s 78 PACE to exclude evidence arise?
When admitting the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
36
What is bad character evidence?
Evidence of a disposition towards committing offences and misconduct.
37
What are the seven statutory gateways to admitting bad character evidence?
a) By agreement of all the parties; b) The defendant adduces the evidence; c) The defendant attacks another's character; d) To correct a false impression given by the defendant; e) It is important explanatory evidence; f) Relevant to a matter in issue (most popular one); and g) Matter in issue between co-defendants.
38
What are the two grounds for admitting bad character evidence under which the power to exclude the evidence is mandatory?
An important issue between the defence and the prosecution and defendant attacked another's character.
39
When considering sentencing, what are the four aggravating factors that MUST be taken into account?
a) Previous convictions (if reasonable to do so); b) Offence committed whilst on bail; c) Religious or racial aggravation; and d) Hostility based on sexual orientation, sexual identity or disability.
40
What is the totality principle in sentencing?
The sentence must not be disproportionate to the overall seriousness of the offence.
41
When are concurrent sentences used?
When offences rise from the same matter and are connected.
42
When are consecutive sentences used?
If offences rise out of multiple circumstances.
43
What is the custodial threshold?
That no other kind of sentence (e.g. community order or fine) would suffice.
44
What are the alternatives to a custodial sentence?
A suspended sentence, a community order, a fine or a discharge.
45
When is a Newton hearing held?
When the defendant agrees to a guilty plea on a specific basis but disagrees with the prosecution's facts, a Newton hearing will be held to determine the facts.
46
What happens if the defendant fails to prove their version of events at a Newton hearing?
They lose all credit for their guilty plea.
47
What two requirements need to be met for an omission to be considered a crime?
a) There must be a duty on behalf of the defendant to act; and b) The defendant must have breached that duty by failing to act sufficiently.
48
In what 5 scenarios does a duty to act arise?
a) Under statute; b) Where there is a special relationship (e.g. doctor/patient); c) Where the defendant voluntarily assumed a duty of care; d) Where a duty is imposed by contract; and e) Where the defendant has created a dangerous situation and is aware of having done so.
49
What kind of crimes require causation to be met?
Result crimes.
50
What is factual causation?
The 'but for' test.
51
What 4 scenarios break the chain of legal causation?
a) Act of the defendant; b) A natural event; c) An act of the victim; and d) An act of a third party.
52
What is the requirement for an act of the defendant to break the chain of causation?
The intervention must be a new act.
53
What is the requirement for a natural event to break the chain of causation?
If the defendant and a reasonable person would not have foreseen the natural event.
54
What is the requirement for a victim to break the chain of causation?
If a defendant and a reasonable person would not have foreseen the victim's act and the victim's act is voluntary. The act must have been so daft as to be unforeseeable.
55
What is the requirement for an act of a third party to break the chain of causation?
If it is free, deliberate and informed.
56
What is the requirement for an action to be the legal cause of a crime?
It must be the substantial and operating cause.
57
What does substantial mean in the context of the legal causation test?
More than minimal.
58
What does operative mean in the context of legal causation?
Nothing has broken the chain of causation.
59
What is direct intent?
The defendant's aim or purpose.
60
What are the two requirements for indirect intention to arise?
The result of the defendant's action must be: a) A virtually certain consequence of their conduct; and b) The defendant must have realised it was virtually certain.
61
To what crimes can indirect intention arise?
Only specific intent crimes.
62
What are the two requirements for recklessness?
a) The defendant foresees the risk and continues to act; and b) In all the circumstances known to the defendant, the risk must be an unreasonable risk to take.
63
At what age does capacity begin for criminal liability?
10.
64
What happens if a defendant is unfit to plead?
The court will decide on the actus reus alone.
65
When can the court find the defendant has the requisite mens rea if they are involuntarily intoxicated?
When the intent was formed not from their intoxicated state, but from their own desires and predilections.
66
What two things will the court consider when deciding on mens rea if the defendant is voluntarily intoxicated?
a) Was the drug dangerous or non-dangerous?; and b) Was the crime basis intent or specific intent?
67
Can a 'dangerous' substance (e.g. alcohol) negate mens rea?
No.
68
Can a 'non-dangerous' substance (e.g. prescription drugs) negate mens rea?
Yes.
69
What will the court decide if a crime is of basic intent and the defendant was voluntarily intoxicated from a dangerous substance?
That the defendant was reckless by becoming intoxicated and therefore has the requisite mens rea.
70
What will the court decide if a crime is of specific intent and the defendant was voluntarily intoxicated from a dangerous substance?
The court will decide if the defendant's intent arose from the intoxication or if it was from their own desire. If the latter, they will be guilty.
71
Is intoxication a defence to strict liability offences?
No.
72
What three requirements must be met for a successful self-control defence?
a) The defendant must have been acting to defend themselves or property or prevent a crime; b) The defendant must have had a belief that force was immediately required; and c) The amount of force must have been reasonable based on the facts known to the defendant.
73
What does reasonable mean in the context of a self-control defence?
Proportionate.
74
What level of force is acceptable in a householder case?
The householder may use any force that is not grossly disproportionate.
75
What are the three requirements for a successful necessity defence?
a) The act was required to avoid some irreparable and inevitable evil; b) The defendant only did what was reasonably necessary; and c) The evil inflicted was not disproportionate to the evil avoided.
76
What 3 kinds of crimes must be sent to the Crown Court, regardless of if the defendant is between 10 and 17?
a) Homicide offences; b) Some firearm offences; and c) Specified violent offences.
77
What is a 'grave crime' in youth proceedings?
A crime that is punishable in the adult court with a sentence of 14 years or more.
78
What two conditions need to be considered when sending a youth to the Crown Court for a grave crime trial?
a) If it feels the maximum sentence is insufficient; and b) A sentence of long term detention would be more appropriate.
79
What happens if a youth is charged jointly with an adult who is sent to the Crown Court/Magistrates' Court?
The youth will be sent too.
80
What is the primary purpose of sentencing in the Youth Court?
To prevent offending.
81
What does a referral order entail?
The youth meets a panel who will agree a contract with the youth and their family.
82
What is the time range for a referral order?
3 - 12 months.
83
What happens if a youth breaches their referral order?
The court can revoke the order and resentence.
84
What are 3 examples of conditions of a Youth Rehabilitation Order?
a) Supervision; b) Unpaid work; and c) Curfew.
85
How long can a Youth Rehabilitation Order last?
Up to 3 years.
86
What is the custodial sentence available to the Youth Court?
A Detention and Training Order.
87
Between what ages are Detention and Training Orders not available?
10 and 11.
88
What condition must be met to impose a Detention and Training Order on a defendant aged between 12 and 14?
They must be a persistent offender.
89
What is a persistent offender in a Youth Court?
A defendant who has been sentenced on three occasions or more for an offence punishable by imprisonment.
90
What is the maximum time a Youth Detention and Training Order can be made?
2 years.
91
How is the time split in a Youth and Detention Training Order?
Half in custody, half under supervision of Youth Offending Team.
92
When must a referral order be made?
When the defendant pleads guilty to an imprisonable offence and has not been convicted of one before.
93
When may a referral order be made?
The defendant pleads guilty to some but not all offences.
94
When can a referral order not be made?
When the defendant pleads not guilty to all offences charged but is convicted at trial.
95
What is the actus reus required for an attempt?
To do something "more than merely preparatory" towards the commission of the underlying offence.
96
What is the mens rea required for an attempt?
The intention to complete the full offence.
97
What is required to be found guilty of conspiracy?
Agreement to do a criminal act.
98
Who are the three parties who cannot conspire?
a) The victim; b) Someone without capacity; and c) Spouses.
99
What is the mens rea for conspiracy?
Intent to form the agreement.

SQE2 (8 decks)

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