criminal litigation Flashcards
(27 cards)
what is the section that provides the general right to bail?
S4 Bail Act 1976
what are the 2 exceptions of when the presumption to have bail doesnt apply?
- those appealing their conviction or sentence; or
- Ds being committed for sentence from magistrates court to CC
bail ‘need not’ be granted in what 3 circumstances?
- For D’s own protection
- court has insufficient info to deal with issue of bail and so is remanded in custody for short period for production of sufficient evidence
- D is already serving sentence in custody
what are the 3 common statutory grounds for opposing bail?
1) fail to surrender
2) commit further offences on bail
3) interfere with witnesses, or otherwise obstruct the course of justice
what are the 4 paragraph 9 factors (help court determine the 3 common grounds) for bail?
1) the nature and seriousness of the offence and the likely disposal (sentence)
2) character of the D, antecedents, associations and community ties
3) D’s bail record in the past
4) strength of the evidence
what are appropriate conditions for bail if the issue is fail to surrender?
residence at given address / report at police station / surety / security / passport / bail hostel
what are appropriate conditions for bail if the issue is commission to commit further offences?
curfew / restrictions on where D can go / restrictions on who D can contact / tagging
what are the 7 gateways that bad character for defendant can be admitted through? S101(1)(a-g)
A: agreement
b: blurts it out
c: context (important explanatory evidence)
d: done it before (propensity and important issues between P and D)
E: e’ did it = co-Ds
F: false impression
G: gets at the witness (attack on another’s character)
what are the 3 gateways for admitting non-D bad character?
- important explanatory evidence
- if it has substantial probative value in relation to matter in issue and context of case as a whole
- if all parties agree evidence is admitted
what are the 2 key ways that application to exclude confession can happen through S76?
s76(a) oppression
s76(b) anything said or done which is likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof
how can a confession be excluded under S78 PACE?
whether the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
[just because there is a breach in PACE or codes of practice doesnt render confession inadmissible per se]
for a submission of no case to answer - how will D’s solicitor show the Galbraith test (eg, what are the 2 things - only need to show one)?
A) prosection have failed to put forward evidence to prove an essential element of the offence; or
B) evidence put forward by prosecution has been discredited by x-examination, or is so mainfestly unreliable that no reasonable tribunal could safely convict on it
what is the result if defence prove a no case to answer (Galbraith)?
court dismiss the charge against D
what are the 3 ways that show prosecution have adduced insufficient evidence to convict? (Galbraith)
1) prosecution has failed to prove an element of the offence
2) evidence adduced is so insufficient or weak that no reasonable court could convict
3) prosecution cannot rely on adverse inferences alone
what is the purpose of special measures?
assist witness in giving evidence so they can testify in an environment that best enables them to give their evidence
what is the eligibility required for special measures?
- u18 at time of trial
- mental disorder
- fear or distress about giving evidence
- sexual offences
- modern slavery
- all witnesses in cases of relevant offences: murder or involving firearms or knives
what are different types of special measures?
- screens
- live link tv
- give evidence in private (clear courtroom)
- remove wigs and gowns
- video recording of evidence in chief
- pre-recording x-examination and re-examination
- question of witness through intermediary
- aids to communication
if a witness is getting special measures because they are in fear - what are the 2 special measures they CANNOT use?
testifying through an intermediary and aids to communication
what are the additional types of special measures? [there are 4]
- witness anonymity order
- anonymity in sex cases
- prohibition of x-examination by D in person in sex cases and of child witnesses in certain cases involving violent and sexual offences
- restrictions on reporting
what must the court be satisfied to allow special measures for vulnerable Ds [court must be satisfied that it is in the interests of justice and live link would impose quality of D’s evidence because either……]
[2 things]
- D is u18 and unable to participate effectively as a witness giving oral evidence is compromised by their ‘level of intellectual ability or social functioning’
- D is over18 and unable to participate effectively as a witness giving oral evidence because D has mental disorder or a ‘significant impairment of intelligence and social function’
what is a Newton hearing?
When D has entered guilty plea but on basis of different version of events from prosecution. court decides factual difference between 2 version of events would make a material difference to the sentence.
when is a Turnbull warning given?
whenever a case against D depends wholly or substantially on the correctness of an ID of D that D alleges it is not them. judge should warn jury of special need for caution before convicting D in reliance on correctness of ID.
what does ADVOKATE mean when assessing the quality of visual ID evidence?
- A: amount of time under observation: how long did witness have D in view
- D: distance: what was the distance between witness and D?
- V: visibility: what was the visibility like at the time?
- O: obstruction: were there any obstructions to the view of the witness?
- K: known or seen before: had the witness ever seen the accused before?
- A: any reason to remember: did the witness have any special reason for remembering the D?
- T: time lapse: how long has elapsed between witness seeing D and the ID procedures being held?
- E: error or material discrepancy: are there any errors or material discrepancies between 1st description and actual appearance of D?
when is the grave crime test used for youths?
use the grave crime test when you need to decide if the youth needs to go to the CC
