Criminal Practice Flashcards

Question

Bail applications: substantial grounds factors

Answer 1

1. Nature and seriousness of offence 2. Probable method of dealing with offence 3. Previous convictions on bail or absconded before 4. Associations and community ties 5. Record on complying with bail obligations 6. Strength of evidence

Answer 2

1. Relevant 2. Proportionate 3. Enforceable

Answer 3

1. Residency 2. Report to police station regularly 3. Prohibited from particular area (key to prevent witness intimidation) 4. Prohibited from contacting certain individuals 5. Curfew or electronic tag 6. Security - money paid into court in cash 7. Surety - money promised to be paid by third parties if defendant doesn't answer bail or appear at court

Answer 4

Presumption against bail when defendant charged with murder

Answer 5

Summary only: defendant pleads guilty or not guilty Either way offence: plea before venue process Indictable only offence: matter sent to Crown Court

Answer 6

1. Obtain disclosure from prosecution (case summary, statement, interview transcript, other evidence e.g. cctv) 2. Take instructions from client 3. Advise client: guilty or not guilty, strength of case, sentence, credit for guilty plea, best venue for either way offence 4. Court process 5. Bail 6. Apply for funding - representation order

Answer 7

1. Interests of justice test - How serious offence is - Likelihood of custodial sentence - Would defendant lose their job - Would defendant understanding proceedings on their own 2. Means test - Is defendant wealthy enough that they can pay their own fees or are they entitled to state funded representation - If defendant is on benefits = satisfied - Income below £3,398/ year after outgoings = satisfied - Income above £3,398 but below £37,500 after outgoings defendant entitled to limited legal aid - If over £37,000 after outgoings = not satisfied

Answer 8

Defendant doesn't have to enter plea but if they indicate guilty plea then court can proceed to sentence If defendant indicates not guilty then court proceeds to allocation of court venue Allocation - Magistrates court decides whether to accept jurisdiction - it consider: a. Previous convictions b. Sentencing powers c. Representations made be prosecution and defence on mode of trial and adequacy of sentencing powers - If magistrates court accepts jurisdiction it is then for defendant to choose between magistrates or crown

Answer 9

- Cheaper - Quicker - Lower sentencing powers - Less burden on defence to disclose anything before trial

Answer 10

- Greater benefits for defendant wanting to plead not guilty - More likely to be acquitted if sent to crown court as trial is decided by jury - Challenging admissibility of evidence is more effective in crown court as takes place in absence of jury

Answer 11

- Theft is an either way offence BUT if value below £200 is: - Treated as summary only by the Court and the Magistrates cannot decline jurisdiction - Is treated as either way by the defendant who can elect magistrates court or crown court

Answer 12

- Witnesses who will be called to give evidence - Witnesses whose statements are agreed and can be read - Estimated length off trial - Likely applications to the court - Special arrangements e.g. interpretor - Confirmation defendant has been advised on credit for early guilty plea and that they will proceed in their absence if they fail to attend

Answer 13

- Prosecution evidence served within 28 days - Defence case statement served within 14 day - Defence's notice of intention to adduce hearsay evidence or bad character evidence served within 14 days - Point of law raised at least 21 days before trial - Certificate of readiness served a least 7 days before trial

Answer 14

Defendant asks for indication of sentence If defendant pleads guilty judge bound by indication

Answer 15

- 50 days (or 70 if defendant on bail) to provide disclosure - Must disclose all evidence it intends to rely on at trial - Must disclose unused material which might reasonably be considered capable of undermining the case or assisting the defence

Answer 16

- Must serve within 14 days of prosecution's disclosure - Sets out nature of defence, disputed facts, points of law, alibi witnesses - If defence fail to serve adequate defence case statement on time that reflects defence put forward at trial, jury can make an adverse inference

Answer 17

Amount of time witness had to observe perpetrator Distance between the witness and the perpetrator Visibility at the time witness saw the perpetrator Obstruction Known to witness Any reason to remember perpetrator e.g. tattoo, limp etc. Time between incident and identification Errors between first description and actual appearance Judge will consider all of these factors in deciding the quality of the identification evidence a. If weak: withdraw case from jury and direct acquittal b. If strong enough conviction would be supported or if there is corroborating evidence to support a weak identification - judge will leave case for jury to decide

Answer 18

- Warn of special need for caution - Ask jury to consider circumstances in which witness identified defendant - Refer to particular weaknesses in ID evidence

Answer 19

Statement not made in oral evidence that is relied on as evidence of the matter in it

Answer 20

1. Under statute: 2. By rule of law 3. By agreement of all parties 4. In the interest of justice

Answer 21

- Witness unavailable e.g. dead - Unfit e.g. physical or mental condition - Outside UK and not reasonably practical to secure their attendance - Unable to be found despite reasonable practical steps - Witness fears giving evidence and court gives leave for statement to be read - Business documents IF created or received in the course of trade, business, profession or other occupation and the person who supplied the information may reasonably be supposed to have had personal knowledge of the matter and if the information was received by other persons it was done so in the course of trade, business, profession or other occupation e.g. statements of company accounts - Statements prepared for use on criminal proceedings e.g police officer statement - Previous consistent or inconsistent statements - Expert evidence - Confessions

Answer 22

- Confessions or mixed statements - Statements made at time of offence - Statements preserved by res gestae (victim was so emotionally overpowered at the time of making the statement that concoction or distortion can be disregarded)

Answer 23

Allows court flexibility to admit hearsay evidence which doesn't fit into any of the other grounds Factors: - Probative value of statement - What other evidence could be given - Importance - Circumstances - Reliability - Whether oral evidence can be given - Difficulty in challenging statement - Likely prejudice caused

Answer 24

1. Business documents 2. Inconsistent or consistent statement 3. All parties agree 4. In interest of justice

Answer 25

Statement wholly or partly adverse to the persons Mixed statements which are partly exonerating and partly incriminating are also confessions

Answer 26

- Oppression (torture, inhuman or degrading treatment and use or threats of violence, whether or not amounting to torture) - Things said or done likely to render confession unreliable (e.g. defendant still drunk) Need to show a causal link between confession and things said or done Burden of proof on prosecution to prove that neither oppression or things said or done apply If burden not discharged then thing must be excluded

Answer 27

Hearing in absence of jury

Answer 28

Evidence of or a disposition towards misconduct, commission of offences or other bad behaviour

Answer 29

- All parties agree - Introduced by defendant e.g. during cross-examination - Important explanatory evidence e.g. needed to properly understand other evidence in the case

Answer 30

1. All parties agree 2. Introduced by defendant e.g. during cross-examination 3. Important explanatory evidence e.g. needed to properly understand other evidence in the case 4. Relevant to important matter in issue e.g. propensity to commit offences like the current charge or propensity to be untruthful 5. Substantial probative value to matter in issue between co-defendants 6. Correct false impression given by defendant 7. Defendant attacked another's character If any of the seven gateways are made out the evidence is admissible BUT Exception: if the bad character evidence is introduced under gateway 4 or 7 the court must NOT admit it if the defence apply for it to be excluded and it appears to the court that admitting the evidence would have such an adverse effect on the fairness of proceedings that court must not admit it - court must have regard to factors such as the amount of time that has passed since the bad character evidence in question

Answer 31

- Within 28 days of not guilty plea in magistrates' court - Within 14 days of not guilty plea in crown court Defendant can make an notice to oppose

Answer 32

1. Propensity direction: a person of good character is less likely to have committed this offence 2. Credibility direction: a person of good character is more likely to be credible when they assert that innocence either before or during the trial

Answer 33

Submission that the prosecution has not presented enough evidence to amount to prima facie case Prosecution has failed to adduce evidence of one or more of the elements of the offence or if evidence given is so unreliable that no reasonable bench, judge or jury can convicts

Answer 34

- Witness questioned by own side - Non-leading questions e.g. who, what where, when, why

Answer 35

- Witness questioned by opposing side - Leading questions allowed

Answer 36

- Witness able to give evidence in court - Most people competent unless they are unable to: a. Understand questions b. Give understandable answers

Answer 37

- Witness can be forced to give evidence - Competent witnesses generally are compellable EXCEPTIONS 1. Defendant - Neither competent not compellable for prosecution - Competent but not compellable for defence 2. Defendant's spouse/civil partner - Competent but not compellable - Competent and compellable for defence 2. Co-defendants - Neither competent not compellable for prosecution - Competent but not compellable for defence

Answer 38

Crown: your honour or his/her honour Magistrates: Single magistrate = sir/madam Bench of lay magistrates = your worships

Answer 39

1. Previous convictions 2. Offence committed don bail 3. Offence against emergency worker 4. Timing of offence 5. Location of offence 6. Presence of children 7. Degradation of victim 8. Committed on licence 9. Abuse of power 10. Committed under the influence of drugs or alcohol

Answer 40

1. No previous convictions 2. Remorse 3. Isolated innocent 4. Addressing addiction

Answer 41

Sentences served simultaneously

Answer 42

Sentences served one after the other

Answer 43

Defence gives reasons why lowest possible sentence should be imposed Factors: 1. Credit for guilty plea 2. Mitigating factors relating to offence according to sentencing guidelines 3. Minimise aggravating factors relating to offence 4. Mitigating factors relating to defendant: - Age (particularly young or old) - Health (long term or mental health) - Good character - Remorse and voluntary compensation - Family situation

Answer 44

Defendant who pleads guilty before trial entitled to sentence reduction Guilty plea at first opportunity = 1/3 reduction in sentence

Answer 45

1. Custody: imposed when offence is. so serious that no other form of punishment will suffice 2. Suspended sentence - Maximum suspension = 2 years - Crown court can suspend 2 year sentence - Magistrates' can suspend 6 month sentence 3. Community order 4. Discharge (absolute and conditional)

Answer 46

6 months for single offence 12 months for two or more either way offences

Answer 47

Procedure to settle disputed facts before sentencing defendant who pleaded guilty A form of trial If prosecution wins defendant loses any credit fro a guilty plea If defendant wins defendant retains credit for guilty plea

Answer 48

Open to prosecution and defence Appeal by way of case stated: decision is wrong in law or in excess of jurisdiction Application must be made in writing to the convicting outlining points of law subject to appeal or sentencing magistrates' court within 21 days of decision to appeal Only legal arguments made, no rehearing of evidence Heard by 3 judges

Answer 49

Defendant needs leave to appeal from wither crown court or court of appeal 28 days to lodge notice 1 judge decides if leave to appeal should be granted If leave to appeal is refused the defendant can apply again to the full court Only one ground of appeal against conviction = unsafe Court of appeal can: - Quash conviction and order acquittal - Quash conviction and order retrial - Find defendant guilty of some offences but not others - Find defendant guilt of alternative offences - Dismiss appeal Grounds of appeal against sentence: 1. Wrong in law 2. Wrong in principle 3. Manifestly excessive

Answer 50

- Court of appeal or supreme court grant leave to appeal - Point of law of general public importance is involved

Answer 51

- Part of magistrate's court - Defendants aged 10-17

Answer 52

1. Charged with: - Murder - Attempted murder - Manslaughter - Other serious crimes e.g. violent sexual offences or terrorism 2. Grave crimes (punishable in adult court by 14 years of more in custody) and youth court declines jurisdiction 3. Jointly charged with adult who is sent to magistrates or crown court

Answer 53

1. Referral order - Must be made if defendant pleads guilty to a first imprisonable offence and an absolute discharge or prison sentence are not an option - May be ordered if defendant pleads guilty to some but not all offences or have previously had a referral order - Cannot be made if defendant pleads guilty to all offences and is found guilty 2. Youth rehabilitation order: - Can last up to 3 years - Conditions include: - Supervision by probation - Unpaid work - Specific programmes e.g. anger management - Curfew - Exclusion from specified area - Residence requirements 3. Detention and training order - Custody - Defendants 12 and over - Defendants 12-14 it is only available for persistent young offenders - From 4 to 24 months - First half spent in custody - Second half under supervision of youth offending team who decides conditions of supervision period

Criminal Practice Flashcards

(96 cards)