Procedures Flashcards
(36 cards)
Bail
- Nature and seriousness of offence and probable sentence
- D’s character / antecedents / associations and community ties
- D’s record of fulfilling bail conditions in the past
- Strength of case against D
D has right to reasons for refusal of bail
Strict rules of evidence do not apply, D can give evidence and be XX’d
MC considering Jurisdiction
Take into account:
- Nature of the case
- Whether the circumstances make the offence one of a serious character
- Potential sentence and whether sentencing powers are sufficient
Likely to decline where factually/legally complicated; likely to be lengthy; serious or significant.
PBV and Mode of Trial
D ‘indicates’ a plea
If G then taken as if convicted
If NG then parties each make submissions on appropriate venue
If D wishes to elect CC trail then will be sent, otherwise MC considering jurisdiction
Mags can change mind at any time before close of P case
D can only change mind with Mag’s consent if didn’t understand nature and significance of choice)
Criminal Damage Mode of Trial
If damage <£5,000 (aggregate value) Must be treated as summary
Application to compel prosecution disclosure
After P receives D’s Defence Statement P must either - disclose more material OR - give written statement saying have none
If D has RGTB that P still has relevant material, can apply to force disclosure.
Outline in writing:
- material sought
- Why D thinks P has it
- Why necessary to disclose
- Why a hearing is needed, if relevant
Defence Statement Contents
- Nature of defence (including any particular defence relied upon)
- Points of law taken
- Each issue disagreement with P
- W names, addresses and DoB
- Alibi name, address and DoB
- Names of any experts instructed
Failure to serve or departure may create allow an adverse inference to be drawn and other party comment on it
Format of indictment count
1) Statement of Offence - describing the offence and listing any statute
2) Particulars of offence - containing facts of the charge and detailing essential elements
Signed and dated
Solving misjoinder
Delete counts until valid indictment OR
Stay misjoined and serve new, properly joined indictments
Preparatory hearings
Held for cases of sufficient seriousness, complexity or length
Starts court timeline
Substance open to appeal (unlike PCMH)
XX on sexual history
- Apply in writing
- not more than 28 days after P complied (or purported to comply with) disclosure obligations
- Give name/dob of any W who’s behaviour D wants to introduce
- identifying issue to which complainant’s behaviour is relevant
- Detail which exception applies
- particularising any evidence D wants to introduce / Qs ask
Special Measures Application
Must be in writing and submitted within 14 days of NG indication (in Mags) or within 28 days of service (in CC)
To adduce hearsay
Serve notice on court and every party for any:
- interests of justice
- unavailable W
- multiple-H
Not more than 14 days after plea for P, as soon as practicable for D (extendable)
Notice identifies:
- hearsay
- facts relied on
- how facts provde
- why admissible
- any unserved docs
Else:
- not admissible w/o permission
- adverse inferences may be drawn
- potential cost penalties
To exclude hearsay
Serve application on court and all other parties Within 14 days of hearsay notice Application must explain: - facts in notice disputed - why inadmissible - any other objection
To admit Bad Character
Apply for non-D Give notice for D Served on all parties within 14 days of plea (for P) or 14 days of P service (for D against Co-D) details of: - facts of misconduct - how will be proved if disputed - why evidence is admissible
Court must not determine w/o all parties other than applicant present OR giving 14 days to object
Order in court w/o jury
To exclude Bad Character
Evidence that can go in under gateways can be kept out under s.78; CL; s.101(3) for (d) and (g) gateways (where such an adverse effect on fairness of proceedings that ought not be admitted), CrimPR for procedural failure
Objection within 14 days of notice:
- misconduct disputed
- misconduct admitted
- why evidence not admissible
- why unfair to admit
- any other objections
To exclude confession
- Representation to judge before evidence adduced to jury
- voir dire held
- parties make representations
- court not interested in truth of confession, just circs
1) identify thing said or done
2) assess whether in circs that thing was likely to have rendered confession unreliable
3) consider whether P/Co-D has discharged burden
If after then:
- direct jury to ignore
- draw attention to matters which could affect weight,
- discharge the jury
Application to exclude under s.78 PACE
Made before evidence adduced, to the judge in the absence of the jury - CC voir dire - MC followed by discussion of whether substantive hearing should be by different bench
App to exclude ID evidence
- Procedure to challenge w/o jury, voir dire may be necessary
- Submission of no case to answer also possible if evidence is poor and unsupported
Introducing expert evidence
- Serve it on court and ever other party
- As soon as practicable AND before any application relying on it
- Once served must give copies or reasonable opportunity to inspect
- records of any examination, measurement, test or experiment upon which opinion is based (or that were carried out in the course of reaching those opinions)
- anything on which the examination, measurement, test or experiment was carried out
Sentencing
Sentence follow immediately on conviction/guilty plea where fine/custodial and no need for PSR (else adjourn for PSR - MUST where custodial sentence or community penalty)
Order of play: P opens with facts (if separate sentence hearing) P gives antecedents P costs application D mitigation (and costs representations) Any retirement (lay bench) Magistrates pass sentence
Newton hearing
D puts forward a written basis of plea
If P rejects then Newton hearing unless D’s version is implausible or D’s contention does not contradict
P bears burden BRP
Alternative to Newton: empanel jury / add additional charge
Indication as to sentence
- Goodyear indication of max sentence where requested
- Must not offer (may flag poss)
- Binds all benches but can still be unduly lenient
- Must not be deployed in a coercive way
Sentence Determination
- Find category based on seriousness and statutory aggravating factors only
- Move up or down from starting point based on other aggravating and mitigating factors (and D’s personal mitigation)
- Reduction for assisting P (where relevant)
- TICs
- Totality (overall criminality)
- Reduction for G plea
- Dangerousness
- Compensation considered
Enforcing a fine
- Payment of fine is due immediately, although can grant time to pay or permission to pay in instalments
- Enforcement by D’s local magistrates court
- D can issue a summons or a warrant for D’s arrest
- At a subsequent hearing it will investigate D’s means
- The court may remit the fine in whole or part at any time if there has been a change of D’s circumstances and it would be fair to do so, or it may enforce the fine.
Methods of enforcement:
- Deduction from benefits
- Attachment of earnings order
- Disress warrant (seizure and sale of goods)
- Fine increased
- Attendance centre order (if D<25 years)
- Unpaid work / curfew requirement
- Imprisonment if:
- Offence punishable by imprisonment AND D has means to pay immediately OR
- Other enforcement likely to be impossible because D is transient