Flashcards in Procedures Deck (36):
1
Bail
1. Nature and seriousness of offence and probable sentence
2. D's character / antecedents / associations and community ties
3. D's record of fulfilling bail conditions in the past
4. 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
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MC considering Jurisdiction
Take into account:
1. Nature of the case
2. Whether the circumstances make the offence one of a serious character
3. Potential sentence and whether sentencing powers are sufficient
Likely to decline where factually/legally complicated; likely to be lengthy; serious or significant.
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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)
4
Criminal Damage Mode of Trial
If damage <£5,000 (aggregate value) Must be treated as summary
5
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
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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
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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
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Solving misjoinder
Delete counts until valid indictment OR
Stay misjoined and serve new, properly joined indictments
9
Preparatory hearings
Held for cases of sufficient seriousness, complexity or length
Starts court timeline
Substance open to appeal (unlike PCMH)
10
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
11
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)
12
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
13
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
14
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
15
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
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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
17
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
18
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
19
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
20
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
21
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
22
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
23
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
24
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
25
Breach of Community Order
Breach consequences:
• If Probation Officer considers that D failed to comply without 'reasonable excuse' then officer MUST give a warning OR if 'sufficiently serious' send straight back to court
• Second failure to comply within 12 months of warning MUST send back to court
Proceedings:
• Breach must be proven BRD
• MC order breaches in MC, CC orders in CC unless CC stipulates/MC commits
Punishments:
o Amend order to impose more onerous conditions
o Revoke the order and pass no new sentence
o Revoke and re-sentence in any way could have for original offence
o Impose imprisonment of 6 months where:
• D over 18 AND
• Initial offence not punishable w. imprisonment AND
• D has 'wilfully and persistently failed to comply'
Factors:
• Primary objective to ensure original requirements completed
• Court must take into account extent of compliance
• Custody last resort
• Court should consider D’s ability to comply before imposing more onerous
• May be necessary to resentence to community order with different requirements
26
Suspended sentence breach
Sentence reactivated if:
• Fails to comply with any requirements of Suspended Sentence Order OR
• Commits further offences during operational period
Breach handling:
• As for community sentence breach (warning / 12 months unless serious)
Court options:
o Activate sentence in full
o Activate sentence in part
o Amend the order requirements or length
(Presumption that suspended sentence will be activated unless unjust)
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Mandatory and Minimum sentences
Murder
• Over 21
• Mandatory life
• No judicial discretion
• Usual principles used to set tariff
• When released on license for life
Class A Trafficking
• Third strike
• 7 year minimum
• Judicial discretion to go lower if unjust
Burglary
• Third strike since 1999
• 3 year minimum
• Judicial discretion to go lower if unjust
Specified Firearms
• 1st strike!
• If 18+: 5 year minimum
• If 16-17: 3 year minimum
• Judicial discretion to go lower in exceptional circumstances
28
Issuing appeal from MC>AC
Appellant sends notice of appeal within 21 days of decision being appealed (as of right)
Notice sets out:
o Decision being appealed
o Summary of issues in case
o W wanted to call
o Trial length and anticipated appeal length
o Whether asked Mag to reconsider
o List of those who needs to be served on
29
Appeal by Case Stated
• Procedure:
• Either side may appeal
• Present facts and arguments along w. question of law on which Mags have erred
• Heard by Divisional Court (2+ HCJ)
• Oral argument, no live evidence
• High Court will answer q
• HC will not reconsider facts
• Powers:
• Replace conviction with acquittal
• Remit case back to Mags w. direction to convict/sentence
• Convict D itself
• Remit case back to Mags w. direction to continue (where related to submission of no case to answer)
30
Appeal from CC to CA
D appeal to CA requires leave to appeal:
- Either HHJ issues certificate that case is fit for appeal OR
- Application for leave must be filed w. CC
Procedure for requesting certificate that fit for appeal:
• Request from HHJ by oral application immediately following conviction or sentence being appealed AND followed up by…
• …applying in writing within 14 days in same manner as appeal notice outlined above
Procedure for applying for leave:
• Application lodged at Crown Court office within 28 days of conviction, sentence, or order being appealed
• Application must specify:
-- What being appealed
-- Each grounds w. summary of supporting arguments
-- Facts of the case
-- Relevant authorities
-- (For conviction) Transcripts which court will need to determine the appeal (e.g. summing up)
-- (For sentence) Court’s sentencing powers
• Counsel must only put forward reasonably arguable grounds
• Registrar passes application to CoA
• Application need not be served on P
• CoA single LJ decides on papers
Renewing application:
• Where denied by single judge can renew application by notifying court of intention within 14 days (extendable)
Where D plead guilty cannot appeal against conviction UNLESS:
-- Guilty plea was equivocal/mistaken
-- As a result of an incorrect ruling on the law where facts were admitted, D had no choice but to plead G
(Appeal can be brought after D’s death)
31
Extended Sentence
Extended license periods:
from 1 yr up to:
- 5 years for violent offences
- 8 years for sexual offences
on top of existing license period
Total not exceeding maximum for offence
Automatic release point disapplied where sentence over 10years or 15B offence
- Instead referral to parole board by Secretary of State
32
Mags Legal Advisor functions
Advises on:
• Issues in case (before hearing)
• Questions of law
• Mixed Qs of fact and law
• Practice and Procedure
• Penalties available
• Relevant guidelines and authorities
• Reminding Mags of evidence
• Assisting with formulation of reasons for decisions
Assists unrepresented D in communicating case to court
Records:
- written record of court decisions and reasons
- notes oral evidence
Must not play any part in the finding of facts
33
CC Abuse of Process application
Procedure:
• Written notice of any application
• Burden of proof on D
• Standard is BoP
Cannot challenge order that all or part of indictment be stayed by JR, must be appealed to CoA
34
Challenging Jury Member
Standby (available only to P)
• Say ‘standby’ as oath starts
• w/o reason
• Juror deemed unsuitable in circs OR
• Manifestly unsuitable for type of trial
• Must not be used to balance a jury
Challenge for cause (available to D and P)
• Say ‘challenge’ before oath is taken
• Used where suspicion of bias
• Reason stated if simple
• If complex then other jurors asked to leave so that Qs can be asked of juror
• No Q may be asked unless challenging party has established a prima facie case of bias
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Summing Up Elements
• Function of judge and jury (law and fact, judge may express views on facts but jury can ignore)
• Burden and Standard of Proof (so they are sure)
• Law and Evidence (in even handed manner)
• Main features of the evidence (and how fit into legal framework)
• Character and Previous Convictions
o Bad Character does not equate to proof of guilt
o Jury to decide if evidence of bad character goes to propensity/credibility
• Reaching a verdict:
o only unanimous is acceptable
o no deliberation unless all members of jury present
o each juror has to a duty to alert judge if any problems with other jurors
• Directions as required:
o Turnbull - if ID evidence in issue
o Expert evidence not binding on fact
o Lucas – if lies told by D
o Adverse inferences – where D:
- failed to testify in court OR
- failed to answer police questions OR
- breached CPIA 1996 (e.g. by running a defence not listed in D statement)
o Alibi evidence:
- Even if believe alibi false does not mean D guilty
- Burden remains on P
- Alibis sometimes invented to bolster a genuine defence
• Multiple counts / Ds explanation
o Each count and D considered separately
o Evidence disregarded where not admissible against particular D
o Decision should be reached based on all the evidence
o D may run cut-throat out of self-interest (optional)
o Evidence of Co-D treated in same manner as any other W
• Should not comment on fact D not called a particular W
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